HB 10-1188 — Clarify River Outfitter Navigation Right passes out of committee

A picture named taylorriver.jpg

From the Associated Press (Steven K. Paulson) via The Denver Post:

At a rally at the state Capitol, Duke Bradford, owner of Arkansas Valley Adventures, said his company guides about 23,000 tourists a year down five Colorado rivers. He is worried that a threat by Lewis Shaw II, president of Jackson-Shaw developers of Dallas, to file a civil suit would shut down a $142 million industry. Bradford said Colorado law reserves the use of Colorado rivers for the people, not for landowners. The state attorney general has ruled commercial rafters cannot be prosecuted for trespassing, but that didn’t settle the civil dispute. “He says we’re compromising his property rights. He’s coming to Colorado from another state and disputing our historical use of the river, threatening to shut us down,” Bradford said…

The bill would give commercial rafters the right to navigate rivers in Colorado and limited rights to use the river banks to avoid obstacles. The House Judiciary Committee approved it on a 7-3 vote after seven hours of testimony Monday and sent it to the full House for debate…

Rep. Kathleen Curry, an unaffiliated lawmaker from Gunnison, said North Dakota and Colorado are the only two states west of the Mississippi River that don’t have strict protection for commercial rafters. She said Utah clarified its rules four years ago, making it clear rafters have access. Curry acknowledged that rafters can interfere with fishermen and she said both sides need to respect each other’s rights. She said this issue has rippled throughout the West for decades, but states and the federal government have learned how to deal with it. “I’d say rafting and fishing can coexist. That’s been out there for years, even though they might not be the best of friends,” she said.

More coverage from the Aspen Daily News (Brent Gardner-Smith):

The six Democrats sitting on the judiciary committee last night voted for the bill, while three of the four Republicans voted against the bill. The committee members heard testimony for over five hours Monday night from advocates for private property rights, including complex examinations of ancient English law and what constitutes a “navigable” river.

And they heard from commercial rafting outfitters who said their livelihoods would be threatened without their right to float being clearly defined as it is in most other Western states, including Wyoming and Utah. Others testified that the bill did not go far enough because it did not give private boaters the same clear rights it was attempting to give to commercial outfitters.

For more than 30 years, both private and commercial rafters kayakers have generally understood that Colorado law gives boaters the right to float down any river or stream past private property as long as they don’t get out and touch the river bank…

But a bevy of experts testified that giving commercial rafters specific rights relating to private lands would constitute a taking that would require “just compensation.” “The right to exclude others is one of the most important sticks in the bundle that we know of as property rights,” said John Hill, an attorney with Bratton and Hill who represents Lewis Shaw and the Jackson-Shaw/Taylor River Ranch, LLC. “This bill is a taking of the right to exclude others.” Other groups that testified against the bill included the Colorado Cattleman’s Association, Club 20, and the Colorado Water Congress.

Update: More coverage from The Durango Herald (Joe Hanel). From the article:

Right now, Colorado law allows people to pass through private property on a river as long as they don’t touch the bottom or the banks. “Anybody who boats in this state knows that you can’t boat anywhere without touching something,” said the sponsor of HB 1188, Rep. Kathleen Curry, I-Gunnison.

Curry’s bill draws on the right of navigation in English common law, a body of law that lawyers imported to America during colonial times…

On the Animas River – one of the state’s four busiest for rafting – property owners usually don’t try to get in the way of rafting, said Bob Hamel, chairman of the Colorado River Outfitters Association. But outfitters on the less-traveled San Juan and Piedra rivers potentially could have trouble, Hamel said…

Opponents argued that the bill would take away their property rights. “It’s a piece of legislation that strikes at the very core of property ownership,” said Terry Fankhauser of the Colorado Cattlemen’s Association.

The bill would add rights only for licensed commercial outfitters. It says nothing about private boaters, tubers and kayakers. They still could be found guilty of trespassing even if the bill passes. The bill also applies only to stretches of river that commercial outfitters have used in the last two years.

More coverage from the Summit Daily News (Julie Sutor):

About two dozen Colorado rafters, many from Summit County, grabbed their boats, paddles and PFD’s Monday morning and gathered in the State Capitol in support of the measure, House Bill 1188. “We’ve already lost one river in Gunnison County,” said Mark Schumacher, owner of Three Rivers Outfitting. “We don’t want to lose another.”[…]

“I realized we had a statewide problem,” bill co-sponsor, state Rep. Kathleen Curry of Gunnison said Monday morning in front of the crowd of rafters. “We do need to tackle this issue in this building.” The bill is co-sponsored by state Rep. Christine Scanlan, who represents Summit County.

More 2010 Colorado legislation coverage here.

One thought on “HB 10-1188 — Clarify River Outfitter Navigation Right passes out of committee

Leave a Reply