Boaters float for their rights

LAKE CITY, Colo. - One patriot rips off strips of duct tape. He slaps them onto a flagpole and the side of his raft in an attempt to hoist the American flag. A golden retriever trots around the boats, eager to get on the water. A slogan adapted from one of the first laws passed by Congress in the late 1700s is scrawled on his doggie life jacket: "Rivers shall be forever free." Hissing air pumps inflate raft tubes while the unexpectedly large turnout - more than 130 paddlers - cranks up the buzz of excitement along the Lake Fork of Colorado's Gunnison River.

"Our purpose here today," says Cannibal Outdoors owner Jack Nichols, "is to demonstrate our rights as citizens of Colorado. One of those rights is to float our rivers."

Two weeks earlier, on June 1, property owner Yosi Lutwak had filed a civil suit to stop Nichols from bringing guests down the river on a stretch that passes through his Gateview Ranch, north of Lake City. The suit launches boaters against private property rights activists in a case that could set a statewide precedent.

"This is much bigger than the Lake Fork," says Nichols, his mirrored sunglasses reflecting the boaters and police gathered around him. "If they can close the Lake Fork, what's next? The Taylor? The Eagle? The Colorado?"

Though Nichols and other organizers have planned a peaceful protest, they don't know what to expect. During the last few months, a landowner along the Taylor River - also in Gunnison County - threatened boaters with a rifle. Furious property owners stood on the banks of the South Platte River, hurling threats and insults at boaters. Along another popular section of the South Platte, kayakers scrambled for safety when they floated into barbed wire draped across the river by landowners. Nichols leads his rubber and plastic armada down the Lake Fork, the Stars and Stripes fluttering off the stern of one raft. At the helm of his boat, he stands like a sunburned Washington crossing the Delaware.

Meanwhile, Lutwak sits on his bridge, videotaping the procession. "I don't think there should not be kayaking and rafting," he says in a later interview. "But I don't think every place with a drop of water should be rafted on. I don't have anything against skiing, but I don't think every mountain should be skied on."

An absolute right

The Gateview Ranch case will be the first time Colorado courts are asked to rule on a civil trespassing case regarding the right to float. Colorado, where commercial rafting operations brought in $122 million last year, is the only Western state that has yet to resolve the issue of floating on waters bordered by private property. Every other state has ruled in favor of the boaters; some states allow boaters to get out and pull their crafts along shallow sections, while others allow them to stroll on river banks below the waterline.

In 1979, the Colorado State Supreme Court ruled that floaters who pass private property could be charged with criminal trespass. However, while the court was considering the case, the Legislature drew up a statute that allowed floating along private property, as long as floaters did not disturb the premises. In 1983, responding to a request by the Department of Natural Resources, Colorado Attorney General Duane Woodard wrote an opinion defining the term "premises" as it applied to criminal trespass. He said it included the riverbed, banks and buildings, meaning floaters could float as long as they did not touch the banks or the streambed.

"Rivers are like highways," says Jay Kenney, president of American Whitewater and its local affiliate, the Colorado Whitewater Association. "They belong to you. They belong to us. They belong to everybody. We believe we have an absolute right of passage."

But on the stretch of the Lake Fork that runs through Gateview Ranch, Lutwak says that right is far from absolute. When the landowner got a call from the BLM in 1998, warning him that one of his cow fences across the river was in the process of being washed away, he called his lawyer; he was concerned about his responsibility to keep the river safe for boaters. "Our lawyer said he didn't think they had a right to be there in the first place," he says.

He began sending a representative to the meetings of the Water Surface Recreation Forum, a roundtable organized by the Department of Natural Resources to bring property rights advocates and floaters together.

"We're trying to figure out a way around legislation, lawsuits and ballot initiatives," says Greg Walcher, executive director of the Colorado Department of Natural Resources. "Both sides have the law on their side to some degree. Both have a moral right to some extent."

The roundtable has been meeting for about a year and a half and has come up with an inventory of key stretches of river and some site-specific solutions. But Lutwak has lost patience with the process, and the Gateview Ranch controversy is still headed for court.

A water park?

Lutwak believes a civil suit is the only answer for the stretch of river that runs by his ranch. The handful of fly fishermen who pay Gateview to spend about 40 days on the river bring in more money than the ranch's cows, says Lutwak, and the boaters often scare the fish away.

"But we're not after money," he says. "If we were, we'd have sold the place and be living on the Cayman Islands." He says he's most concerned about the land itself. The approximately 600 boaters that float the stretch in an average year, he says, often drag the river bottom and disturb the streamside habitat. "Our goal is to preserve the Lake Fork," he says. "But how can we protect the land around the river while in the middle it is turning into a water park?"

He says he planned to take out a conservation easement along his riverbanks, as he has for a stretch of his ranch along the road to Lake City. "But why should we promise to never ever build if they're building up in the middle of the river?" he asks. "We see the boats as development."

Meanwhile, Jack Nichols' flotilla quietly meanders down the river. Paddles splash quietly into the water. A blue heron flaps overhead. As boaters float under bridges and cables marking the boundaries of private property they do not say a word. They smile. They wave. They flash peace signs to the small clusters of people gathered on the bridges and banks.

Nichols steers his boat into the take-out. The floaters drag each of the 50 or so crafts, one by one, up through the willows. The float-in, says Nichols, was a success. "All we really wanted to do was demonstrate our right to float. We want to let the citizens of the state know there's some people out there trying to close off the rivers."

Shara Rutberg, a former HCN intern, is a writer in Crested Butte, Colorado.

Copyright © 2001 HCN and Shara Rutberg

• Recreation