The rafting bill is scheduled for the second reading tomorrow (March 19) according to a legislative aide I spoke to this morning. Meanwhile, heres an update from Julie Sutor writing for the Summit Daily News. From the article:

The state Senate Judiciary Committee gave its approval on Monday to a bill that would guarantee rafters’ right to continue using Colorado rivers after supporters and opponents packed a hearing at the state Capitol. Proponents had worried about the bill’s fate in the committee, but it passed on a vote of 4-3. The bill was amended to include all rafters, not just commercial outfitters. Lawmakers also removed a provision that would allow portages on private land. The bill now goes to the full Senate for debate…

Greg Felt, a whitewater guide and fishing guide, told the committee both sports can coexist.

“We’re not here to undermine agriculture, we’re not here to undermine private property rights, and we’re not here to upset what has been, by and large, a pretty positive working relationship between agriculture and recreation. What we’re here to do is to try and preserve the status quo in face of attacks from various quarters throughout the state,” he told lawmakers.

Christian “Campy” Campton, owner of Frisco-based Kodi Rafting, said relations between the agriculture and rafting communities have historically been very positive for the most part. “We’ve always been able to work it out and be responsive to each other’s needs, Campton said. “It’s when they sell the ranches to developers that it becomes a problem.”[…]

The dispute escalated in December, when Shaw’s company sent commercial rafters a letter saying “there is no credible interpretation of legal statute, case or authorization permitting rafting, floating or any transit through or over private property.” Shaw threatened legal action if rafters or their customers touched the riverbanks or river bottom while on their property. The property has been developed as a fishing resort on the banks of the Taylor River near Gunnison, and the company contends rafters interfere with fishing. Shaw said he gave rafters permission to use his property last year based on guarantees they would not interfere with fishermen. He said he was disappointed when hundreds of them took advantage of his offer, disrupting the fishermen, and he notified them he would not renew his offer this year…

Club 20 opposes the expansion of the bill to include private boaters in addition to commercial rafters. “It’s effectively impossible to regulate individual behavior,” Brown said. “If you own a piece of property, and a commercial rafting party goes through, and they stop on the bank, throw out a bunch of trash, defecate on your property and take off, you know who they are. Their vessel is marked. That scenario never happens, because commercial rafters have something at stake — their license. “By contrast, if you allow every individual to float, you have no clue who that is. You have no recourse,” Brown added.

More coverage from The Pueblo Chieftain (Patrick Malone).

More 2010 Colorado legislation coverage here.

From The Durango Herald (Joe Hanel):

Only a last-second decision by Sen. Evie Hudak, D-Westminster, kept the bill alive. “I was undecided until the very last second. I’m not kidding you,” Hudak told reporters moments after the vote on House Bill 1188. The bill has pitted rafting companies against private property owners in a legal entanglement that is more than three decades old. The Senate Judiciary Committee voted 4-3 for HB 1188. It now goes to the full Senate…

Hudak said she remains very concerned that the bill could hurt private property rights. She voted yes only because she thinks the public believes people have a right to float. “This bill is a bad bill, but to kill it is probably bad as well,” Hudak said.

Testimony stretched for more than seven hours, much of it from ranchers and other landowners who argued the bill took away their property rights. Opposition also came from lawyers for a Gunnison developer who is blocking rafting companies from floating a river through his property. Mike Feeley, who represented the developer, said there is no such thing as a “right to float.”[…]

Colorado’s boating law is clear as mud. The constitution specifies that the waters of the state belong to the people. A state Supreme Court case in 1979 found a man guilty of trespassing for treading on the riverbed. In the same decision, the court encouraged the Legislature to clarify the law – something it has not done. The House already has passed HB 1188 in a much different form. Originally, it extended rights only to commercial rafting companies.

Major changes to the bill Monday night were:

– Removing references to English Common Law on the right to navigate rivers.

– Removing the right to portage around obstacles.

– Expanding the scope of the bill to any river that has been floated by a commercial company at any time since 2000.

– Including private boaters among the people with a right to float.

A University of Colorado law professor and several of his students spoke for the rights of private boaters. But the professor, Mark Squillace, wasn’t satisfied with Monday’s changes because the bill does not fully recognize a constitutional right to use the rivers. Colorado has one of the country’s most restrictive floating laws, Squillace said. “Private property rights are alive and well in many other states that recognize broad rights of access – Utah, Wyoming, Montana, New Mexico,” he said.

More coverage from The Grand Junction Daily Sentinel (Charles Ashby):

The measure cleared the Colorado House last month almost entirely on a 40-25 party-line vote, with Democrats arguing that rafters have a right to float, while Republicans said it violated the property rights of local landowners. On a similar party-line vote, the Senate Judiciary Committee sided 4-3 with the floaters’ argument, saying the bill struck a good balance between the two. As a result, some long-establish rafting companies along the Taylor River in Gunnison County said the bill could help keep them from being forced out of business…

Lori Potter, an attorney for the Colorado River Outfitters’ Association, said 42 other states have right-to-float laws, all broader than this bill. “Many (other states) allow fishing, many allow stream access for fishing, some allow hunting,” Potter said. “(HB) 1188 is much more limited … and still ensures that these two rights, the rights of the boater and the rights of the landowner, could still exist.”

More coverage from The Pulse- of Colorado Farm Bureau (Garin Vorthmann):

Amendment language was added to the bill that broadened the bill to include all boaters, not just commercial outfitters. The amendment also expanded the bill to affect more waterways – those that have been commercially ran at least once between the years 2000-2009. Controversial language regarding portaging was removed from the bill but boaters will now be able to get away with incidental touch in order to continue to have forward progress on the river. The right-to-float was also codified in the bill with the new amendment language. The bill was passed 4-3 with Senators Renfroe, King and Lundberg voting in opposition. Colorado Farm Bureau continues to OPPOSE HB 1188 as amended…

Testimony that was given by CFB members was extremely helpful in highlighting the problems with the proposal. Without your help, the bill would have likely passed by a much greater margin.

More coverage from The Denver Post (Jessica Fender):

Kayakers, anglers and all variety of private and commercial boaters could gain the right to float through private land after a state Senate committee on Monday overhauled a bill that has pitted property owners against outdoor enthusiasts. The last-minute amendment addressed a concern of Front Range Democrats, whose constituents’ biggest complaints have been that the original version of House Bill 1188 unfairly applied to commercial outfitters only. But the sweeping changes may have lost the legislation some Republican support in the House. In the Senate Judiciary Committee on Monday, the revised proposal passed on a 4-3 party-line vote after more than seven hours of debate.

Landowners argued it will be too easy for a stretch of river to be open to public traffic and predicted a deluge of new boaters damaging their property, their river improvements and the businesses they run along Colorado’s waterways. Rafters and other users said that without the legislation, property owners could close off a stretch of river by buying both banks. That could jeopardize the industry and enjoyment of boaters elsewhere, said Jack Bombardier, a landowner and river guide. “This says you can’t be sued and eliminated,” Bombardier said. “That’s all that we’re hoping. The bill will stop the lawsuits, stop the controversy.”

Under the amended HB 1188, river users would not be able to touch the bottom or banks, except to free themselves from snags or to bypass bridges and other obstacles spanning the water. And as amended, any stretch of river that was commercially rafted at least once between 2000 and 2009 would be affected. Bill backers were unclear on whether a state agency or courts through civil lawsuits would ultimately decide which sections qualify…

At one point, Democratic Sen. Linda Newell of Littleton seemed to agree that the complex legal matter deserved a more in-depth look. “What’s working now is fine. It’s my understanding we’re here because of one landowner,” she said during committee. “Why are we creating a law (because of) one landowner?”

More HB 10-1188 coverage here. More 2010 Colorado legislation coverage here.

From The Durango Herald (Joe Hanel):

“It’s in trouble,” said Sen. Mary Hodge, D-Brighton, the sponsor of House Bill 1188. The bill coasted through the House on a 40-25 vote, but it faces a tough first hearing in the Senate on Monday. A confluence of three very different opponents does not like the bill.

The first and most powerful force is an alliance of farmers, ranchers and developers who want to protect their property rights.

Second, water experts are worried about the bill’s reliance on English Common Law to grant the right to raft on Colorado streams.

Finally, private boaters think the bill is too narrow, because it extends the rights of only professional rafting companies and leaves everyone else high and dry…

“It’s kind of unfortunate, because it [HB 10-1188] has driven a wedge between what we enjoy now, which are informal agreements between rafters and landowners,” said Sen. Bruce Whitehead, D-Hesperus. Whitehead said he has been bombarded by e-mails from both sides, including some from Southwest Colorado landowners who are rethinking their decisions to allow rafting through their land. Whitehead said he can see both sides of the argument, but he does not support the bill in its current form. He’s especially worried about the bill’s use of English Common Law to confer a “right of navigation” on commercial rafting companies.

The Colorado Water Congress opposes HB 1188 for the same reason, said Doug Kemper, executive director of the lobbying group. By introducing the Common Law concept of “navigable” rivers, Colorado could open itself to many consequences unrelated to rafting, such as impacts on federal water-quality standards, Kemper said. “That term ‘navigable’ is really an Eastern term,” Kemper said…

“We’re not trying to upset the balance here. We’re trying to maintain the balance,” said Greg Felt of the Colorado River Outfitters Association.

The bill is limited to registered commercial rafting companies, and that upsets people like Mark Squillace, a University of Colorado law professor who is arguing for the rights of private boaters, anglers and tubers. “What this bill would do is give a preference for individuals who are willing and able to pay a rafting company to go out on the river,” Squillace said…

The test for HB 1188 will come next week in the Senate Judiciary Committee. Hodge thinks that if she can get the bill through the committee, she will have enough support to get it through the full Senate…

…Squillace is hoping legislators will take the question straight to the state Supreme Court. It’s a seldom-used maneuver, but the law allows the Legislature to ask the court legal questions on a pending bill.

More 2010 Colorado legislation coverage here.

From The Denver Post (Jessica Fender):

Opponents of the bill have upped their lobbying firepower, started a full-court press on committee members scheduled to hear the legislation later this month and made the vote much tougher for some lawmakers who once favored the legislation. The turning tide has bill-backers threatening to put the question directly to voters with a 2010 ballot initiative if they fail in the legislature.

Sen. Evie Hudak, D-Westminster, said the bill has so stirred tensions among river users and property owners that she doubts a long-standing and sometimes uneasy truce — where local companies and residents work out private agreements — will ever return. “This reopens a wound that we had a couple of Band-Aids on. Now we’re scratching the heck out of it,” she said. “People are angry on both sides. There’s the threat of lawsuits and ballot initiatives.” Viewed by some as the swing vote on the Senate Judiciary Committee, slated to hear the bill March 17, Hudak has faced more pressure than many of her colleagues, including a robo-call to her constituents from bill supporters…

Meanwhile, scores of private rafters, kayakers and anglers have clamored to be covered by the bill. That outcry should give lawmakers pause, said Jim Idema, head of the Creekside Coalition formed in 1994 to fight off a ballot initiative to open private land to river users. “To bestow a navigation right on a single class of citizens is not going to sit well with the rest. They will be coming up behind and saying what about us?” Idema said. “Time has allowed the senators to say, ‘Now wait a minute. The implications here are very, very broad.’ ” Idema’s group opposes the bill, but he’s not counting on its slowed progress as a sign of sure defeat.

The legislation’s first blow in the Senate came with its committee appointment, said sponsor Sen. Mary Hodge, D-Brighton. HB 1188 landed in the judiciary committee, which focuses on the legal aspects of bills, instead of the business affairs committee, which may have been more sympathetic to arguments that the bill would save business owners and protect tourism…

The sudden turbulence surprised Bob Hamel, who heads a rafting industry group and saw a sportsman governor and a Democrat-controlled legislature as his industry’s chance to settle a long-standing dispute in their favor. He’s nonetheless confident of public support, though opponents argue Coloradans are just as eager to prevent the government from taking private property. “We didn’t think it would be an easy fight, and if we lose, there are huge potential risks,” Hamel said. “But if this goes to the open public, these people have no idea what’s coming their way.”

From The Pulse – Of Colorado Farm Bureau (Garin Vorthmann):

The controversial right-to-float bill has been scheduled to be heard in the Senate Judiciary Committee for March 17. Watch for more information. Keep up the good work and contact your Senators asking for a NO vote.

More 2010 Colorado legislation coverage here.

From the Summit Daily News (Julie Sutor):

“I’m hearing many rumors coming from the Senate that they’re not going to get that bill out of committee,” said state Rep. Christine Scanlan, bill co-sponsor. “I know they have upwards of 19 lobbyists working against the bill, which is kind of unbelievable.”[…]

The bill’s author, Rep. Kathleen Curry of Gunnison, believes the controversy is unwarranted. She intends to simply clarify existing law, but the bill has sparked a debate over private property rights. She wants people — senators and anyone interested — to simply read the wording. The bill would explicitly allow commercial boats to make incidental contact on river banks and bottoms, even when a river is flanked by private property. Commercial boaters would also be allowed to conduct emergency portages when they encounter bridges, unnavigable rapids or other hazards…

Curry said she believes the bill’s foes are making a strategic mistake if they kill the bill. They know what they are getting with her bill, she said. Commercial outfitters will likely force a ballot initiative if the bill fails, and no one can be certain whether it would be as narrow as what Curry is seeking. Curry’s bill only applies to commercial outfitters, not to the average recreational boater with his or her own raft. And it only addresses stretches of rivers that have a history of commercial rafting — not to those that haven’t yet seen much commercial activity.

According to [Summit County resident Duke Bradford, owner of Arkansas Valley Adventures], river outfitters have already taken the steps necessary to go to the ballot, should the bill fail. “We’re going for the right to float on all rivers. If the legislators say they don’t believe the law gives us the right to do this, it’s time for us to change the law,” Bradford said.

More 2010 Colorado legislation coverage here.

From The Aspen Times (Scott Condon):

“I think the opponents are gaining ground in the Senate,” said Curry, a Gunnison lawmaker who left the Democratic party this winter and is now unaffiliated. There are 17 lobbyists working to defeat the bill, according to Curry’s count earlier this week. “That’s one for almost every ‘no’ voted needed,” she said. Eighteen votes would kill the bill in the 35-member state Senate. The measure passed the House 40-25 in February. The bill was assigned to the Senate Judiciary Committee on Wednesday. Debate is expected to start in mid-March. Curry said there is really nothing she can do but let the debate play out. She has lobbied for it as best she can. “At this point I’m like a worried mother hen or something,” she said.

Curry believes the controversy is unnecessary. She intended to simply clarify existing law, but the bill has sparked a debate over private property rights. She wants people — senators and anyone interested — to simply read the wording. She feels they won’t feel threatened…

Curry said she believes foes are making a strategic mistake if they kill the bill. They know what they are getting with her bill, she said. Commercial outfitters will likely force a ballot initiative if the bill fails, she said, and foes cannot be certain if it will expand the power of floaters beyond what Curry is seeking. In other words, the foes might give up more if the issue goes to a statewide vote. “They may win the battle on this one but they’re going to lose the war,” Curry said. She believes Colorado voters would approve a ballot question in support of commercial rafting.

More 2010 Colorado legislation coverage here.

Bump and update: From The Durango Herald (Joe Hanel):

In a 40-25 vote, the House approved a bill that allows licensed river outfitters to briefly touch the riverbanks and portage around obstacles when streams flow through private land. Republicans Ellen Roberts of Durango and Scott Tipton of Cortez voted no because of concerns the bill could violate private property rights…

Two Durango-based rafting companies applauded the decision Tuesday. “I have had problems with landowners and various things they do like stringing fences across the river,” said Stephen Saltsman, who with Robin Fritch owns Flexible Flyers Rafting Co. Saltsman, who is also a landowner along the Animas River, said he understands the property-rights arguments, but he doesn’t have a problem if someone needs to portage around an obstacle in the river…

Rep. Jerry Sonnenberg, R-Sterling, spoke for many bill opponents. “We can’t have it both ways. Either we understand the value of property rights, or we don’t,” Sonnenberg said.

Agricultural groups oppose HB 1188, and some predicted grave harm to Colorado ranchers. But all other Western states have greater rights for public use of rivers than Curry’s bill would establish, and agriculture is alive and well in those states, Curry said. “In fact, in Montana you can get out of the boat and wade-fish on private land,” Curry said.

From the Aspen Daily News (Brent Gardner-Smith):

“Today’s vote shows that 1188 is a bipartisan solution,” said Ben Davis, spokesman for the Colorado River Outfitters Association, who noted that the House Minority Leader, Republican Mike May, voted for the bill. “Everyone wants to see Colorado’s rivers stay open for business.”

But certainly not everyone thinks HB 10-1188 is a good idea. The bill has attracted the attention and opposition of private-property advocates, including the Colorado Farm Bureau and the Colorado Cattleman’s Association because it gives commercial rafting companies the right to portage across private land to avoid hazards in the river, such as a low bridge or a tree across the river. “It’s not about floating the river, it is about trespassing outside of the river,” Rep. Jerry Sonnenberg, a Republican and a rancher, said on the House floor while urging a “no” vote on the bill.

The bill also gives commercial rafting companies the right to continue to run stretches of river that have been run the last two years on a commercial basis, and it prevents private landowners from blocking their passage down the river, as a landowner along the Taylor River near Gunnison has threatened to do this summer to two rafting companies. The bill requires that commercial rafting companies clearly number their boats so that property owners can identify individual boats if they feel there has been a problem. And it limits liability to landowners from boaters portaging over their land.

The bill is silent on the rights, or lack thereof, of private boaters passing private land…

But Rep. Christine Scanlan, a Democrat representing Eagle, Lake and Summit counties, said on the House floor Tuesday that “you do actually have a right to float in Colorado,” citing language in the state Constitution that “the water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public …”

But Rep. Gardner said it was important to read the entire constitutional clause that Rep. Scanlan referred to, which is in a section on mining and irrigation rights. He said the Constitution deals with water rights and did not provide a right to float…

[State Representative Kathleen Curry] remarked on the House floor that she has heard from a lot of landowners “who’ve had bad experiences with commercial outfitters” and that she hoped “we can all be honorable and respectful of others.” She also said that there are broader rights to float, and wade, in other Western states such as Montana, Wyoming and Utah and that the agricultural industry in those states has not suffered because it gives boaters those rights. And Curry pointed out that the Supreme Court in People v. Emmert stated that “if the increasing demand for recreational space on the waters of this state is to be accommodated, the legislative process is the proper method to achieve this end.”

More coverage from The Crested Butte News (Seth Manning):

The bill, H.B.10-1188, passed through the subcommittee after three readings on a 7-3 vote and made it out of the House with 40 votes in favor and 25 votes against. Now it is up to the Senate, which hasn’t yet assigned the bill to a subcommittee, to turn Gunnison Rep. Kathleen Curry’s so called “Commercial Rafting Viability Act” into law…

The only stretches of river locally that have been used by outfitters historically and would be affected by the bill would be the Lake Fork from Lake City to Curecanti, the Taylor River from Lotus Creek to Almont and the Gunnison River from Gunnison to Blue Mesa Reservoir.

From The Pueblo Chieftain (Patrick Malone):

Sponsored by state Rep. Kathleen Curry, unaffiliated-Gunnison, HB1188 sparked debate over commercial rafters’ rights to travel public waterways and the rights of property owners. In the end, rafters won out, as the bill passed 40-25…

Opponents of the bill said it strips property owners to their right of exclusion. State Rep. Jerry Sonnenberg, R-Sterling, said allowing rafters portage is akin to setting aside circumstances that allow trespassing through one’s house, yard or car. “Once you allow government to start saying who can and cannot come on your property, that’s a very dangerous door,” Sonnenberg said…

The bill makes no provision for private rafters or others to float down the state’s rivers, and they are still subject to prosecution for trespassing.

More 2010 Colorado legislation coverage here.

Bump and update: From The Durango Herald (Joe Hanel):

In a 40-25 vote, the House approved a bill that allows licensed river outfitters to briefly touch the riverbanks and portage around obstacles when streams flow through private land. Republicans Ellen Roberts of Durango and Scott Tipton of Cortez voted no because of concerns the bill could violate private property rights…

Two Durango-based rafting companies applauded the decision Tuesday. “I have had problems with landowners and various things they do like stringing fences across the river,” said Stephen Saltsman, who with Robin Fritch owns Flexible Flyers Rafting Co. Saltsman, who is also a landowner along the Animas River, said he understands the property-rights arguments, but he doesn’t have a problem if someone needs to portage around an obstacle in the river…

Rep. Jerry Sonnenberg, R-Sterling, spoke for many bill opponents. “We can’t have it both ways. Either we understand the value of property rights, or we don’t,” Sonnenberg said.

Agricultural groups oppose HB 1188, and some predicted grave harm to Colorado ranchers. But all other Western states have greater rights for public use of rivers than Curry’s bill would establish, and agriculture is alive and well in those states, Curry said. “In fact, in Montana you can get out of the boat and wade-fish on private land,” Curry said.

From The Pueblo Chieftain (Patrick Malone):

Sponsored by state Rep. Kathleen Curry, unaffiliated-Gunnison, HB1188 sparked debate over commercial rafters’ rights to travel public waterways and the rights of property owners. In the end, rafters won out, as the bill passed 40-25…

Opponents of the bill said it strips property owners to their right of exclusion. State Rep. Jerry Sonnenberg, R-Sterling, said allowing rafters portage is akin to setting aside circumstances that allow trespassing through one’s house, yard or car. “Once you allow government to start saying who can and cannot come on your property, that’s a very dangerous door,” Sonnenberg said…

The bill makes no provision for private rafters or others to float down the state’s rivers, and they are still subject to prosecution for trespassing.

More 2010 Colorado legislation coverage here.

From the Aspen Daily News (Brent Gardner-Smith):

The Colorado House approved House Bill 10-1188 on a voice vote Friday to clarify that commercial rafting companies have the right to float down a historically run stretch of river, even if they have incidental contact with rocks and the river banks, and that they have the right to portage across private property to avoid hazardous obstacles in the river. Third and final reading of the bill is expected to take place on Monday…

The House chamber was lively during the debate Friday on HB 10-1188, and several members made jokes, including a quip about people who portage frequently needing a “porta-potty” and a proposed amendment with a reference to the controversial abortion decision in the case of Roe v. Wade. The joke was relevant to the debate, however, as it begs the question of whether wading fishermen would have the same rights to a river as rowing boaters. The amendment, which was withdrawn when the laughter died down, said “if you have the opportunity to row, you have the opportunity to wade.”

More 2010 Colorado legislation coverage here.

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.

Here’s the background story that led to Representative Curry’s bill, from Jessica Fender writing for The Denver Post. From the article:

A band of lawmakers has waded into the long-standing debate on whether rafters have the right to float through private property in an attempt to change ambiguous laws to favor rafters. Without legislative action, any one of the state’s 160 rafting companies could be the next sued out of business as stretches of river they once traveled are blocked off, said Mark Schumacher, who has run the Three Rivers Resort rafting operation on the Taylor since 1983. “Our fear is if they filed a civil trespass charge against us and win, it will set the precedent and any landowner on any river who doesn’t want people to float through (will follow),” Schumacher said. “The well- to-do, elite landowners are like Goliath. We’re like David.”[…]

[HB 10-1188] It’s scheduled for its first hearing Feb. 15, according to its sponsor, unaffiliated Rep. Kathleen Curry of Gunnison…

Lawyer John Hill represents Jackson-Shaw and said if the state legislates in favor of the rafters, they’ll have to pay landowners’ compensation for lost land value and business. “The public has no right to float through private property without the consent of the landowner,” Hill said. “That’s the law. You can’t change that without paying just compensation.”

The courts and the legislature decades ago decided and re-decided the right-to-float issue on the criminal side, and it’s not a crime to pass through private property on a river. But in the past three decades, there has been no such definitive answer for whether floaters can be sued for civil trespass if they float through private land…

Steve Roberts’ voice quivers with frustration as he talks about the land his family has operated — Harmel’s Ranch Resort — for more than a half century. It’s home to a fishing resort where he’s dropped more than $100,000 on river improvements to build up his stock on the three-quarters of a mile of the Taylor next to the Jackson-Shaw development. Roberts worked out a compromise with Schumacher, but the other nearby rafting crew floats big groups through his land twice a day, sometimes disrupting fish and upsetting Roberts’ clients, he said. “They’re splashing the water, going ‘whee!’ over the dams I created when I improved the fishing. They’ve hit the bridge with paddles,” Roberts said “So here I am, getting overrun with trespassers because trespassing is popular.”

More 2010 Colorado legislation coverage here.

From the Aspen Daily News (Andrew Travers):

“Most of us are not currently threatened by this,” [Bob Harris — founder of Blazing Adventures] said. “But we could see conflicts maybe coming down the road. We know that if we don’t support those guys now, then it could be us one day.”[…]

[Colorado River Outfitters Association (CROA)] campaign for the so-called “River Outfitters Viability Act” pits Colorado’s homegrown river rats against well heeled developers from elsewhere: “The ability to provide commercial river running is under serious threat because out-of-state landowners using their wealth want to prohibit licensed outfitters from providing trips on historically rafted rivers,” their campaign fact sheet states.

Gunnison-based water attorney John Hill scoffed at CROA’s emphasis on out-of-state landowners. “What does it matter if they’re from out of state or not? They still have the same constitutional rights,” Hill said Monday, arguing that the proposed act represents a violation of the Fifth Amendment, which protects private landowners from having their property taken for public use.

Hill further argues that the right to navigate across rivers running through private property — commonly called the “right to float” — is a fallacy. He cites a 31-year-old criminal case decided by the Colorado Supreme Court in which a man was convicted of trespassing for tubing through private land on the Colorado River. The highest court in the state ruled “the public has no right to the use of waters overlying private lands for recreational purposes without the consent of the owner.” “There isn’t any right to float in Colorado,” Hill said. “That’s folklore.”

More 2010 Colorado legislation coverage here.

From the Colorado Independent (David O. Williams):

State Rep. Kathleen Curry of Gunnison wants to remove the ambiguity this coming legislative session with a bill that would allow licensed outfitters to not only raft, kayak or fish on rivers and streams crossing private property, but also make contact with the riverbank without trespassing. “The bill defines incidental contact and portaging and limits [thos activities] to just when necessary for safety reasons,” Curry said. “[The definition] doesn’t include stops to eat or go to the bathroom or anything like that– that would still be trespassing– but what would not be trespassing is if there’s a low bridge and it’s too dangerous to go under it and you have to portage [carry a raft on shore] around it.”

Curry said there’s also something in the bill for landowners. It would for the first time clarify that landowners are not liable if a boater or angler is injured portaging or during incidental contact on their property.

What prompted the bill, which is backed by the Colorado River Outfitters Association (CROA), was a case last summer in Curry’s district in which an out-of-state landowner bought a parcel for development and informed two permitted rafting companies they could no longer navigate that section of the Taylor River.

More whitewater coverage here.

From the Grand Junction Daily Sentinel (Charles Ashby):

Though settled in other Western states, the question of whether rafters, kayakers and fishing enthusiasts have a right to use Colorado’s waterways when they go through private land remains a sticking point between those users and private landowners. While there is court precedent on the subject, exactly what it allows is still in dispute, the Gunnison lawmaker said. Curry, who shocked the state this week with her announcement she is leaving the Democratic Party to become an independent, plans to introduce a measure to allow commercial rafters to traverse private land even without a landowner’s consent.

The issue was sparked anew this summer when a Texas developer, Lewis Shaw, purchased thousands of acres of land on the Taylor River in Gunnison County with the intent of reselling it as exclusive 35-acre ranches. As a result, the developer notified two long-established rafting companies that they no longer could cross the land, Curry said…

Danny Tomlinson, a Denver lobbyist who represents a landowners’ group that routinely opposes such measures, said he only recently heard about the proposal and wouldn’t comment on it, either. He did, however, say his group doesn’t want to see anything that alters People v. Emmert, a 1979 Colorado Supreme Court case that ruled rafters who touch the bank or riverbed are trespassing, although some lawyers say that case affects even those who merely float through. “We’ve had concerns about various different floating, fishing, trespassing kinds of legislation,” Tomlinson said of Creekside Coalition, a group of private landowners that is expected to oppose this measure, too. “We haven’t seen a copy of the bill, so it’s hard to quantify what our concerns would be, but we would have serious concerns if it made significant changes to the Emmert case.”

Bob Hamel, president of the Colorado River Outfitters Association, said the issue is one of jobs and fairness. Hamel said the courts have long held that the water flowing down the state’s streams are publicly owned and that the right to float on it shouldn’t be an issue. “We’re not trying to take away the landowner’s rights, but rafting is a $142 million business in Colorado, and it employs hundreds of people. We’re just trying to protect jobs and people’s livelihoods,” Hamel said.

More whitewater coverage here.