I have a confession to make. I am a trespasser. A serial, criminal trespasser. I have floated a boat on more than one Colorado river or stream that passed through more than one stretch of private land and in doing so, I have touched the streambed, hit some rocks and occasionally bumped into the bank.
Under Colorado law, that makes me a criminal. In virtually every other state in the country, and under the laws of most of the developed world since at least the time of the Roman Empire, my acts would be legal. But not in Colorado. Under a 1979 decision from the state’s Supreme Court, I am criminally liable for trespass.
The problem with Colorado law has come to a head on the Western Slope’s Taylor River, where a wealthy private landowner has decided to block a commercial rafting company’s access. Due to a low bridge constructed by the prior landowner, the rafting company’s clients are forced to get out of their raft and portage around it. They’d rather not. They’d rather stay on the water and float through.
But during certain times of the year, the water is too high to pass safely under the bridge. So, they get out and walk around it. Now a new landowner claims a property right to deny these people the right to get around the obstacle that his predecessor created. Moreover, this property owner believes that he can keep them off “his” section of the river. And he has threatened to sue if boaters continue to raft through his property.
Rep. Kathleen Curry has a legislative fix for this problem and deserves credit for tackling an issue that should have been addressed long ago. Unfortunately, her solution is narrowly tailored to protect only commercial rafters, and then only on rivers where commercial companies currently operate. So the effect of her legislation — which passed the House Feb. 12 — is to throw the rest of us private boaters and fishermen under the bus.
To their credit, the commercial rafters have argued for broader legislation that would protect the public’s right of access. There’s precedent: The Colorado Constitution provides that “the water of every natural stream … is … the property of the public…dedicated to the use of the people….” A plain reading of this language suggests a broad public right of access to Colorado’s rivers and streams.
Indeed, broad public access to waterways is the norm throughout the United States. Nonetheless, the Colorado Supreme Court has been reluctant to find public access rights without some direction from the Legislature. Until now, the Legislature has shown little interest in taking the bait. Curry’s House Bill 1188 changes that, but far from expanding public rights, it would likely narrow them.
If, like me, you find yourself outside the class of people protected by the proposed legislation, it will set you up as a target. You will be a target for all of those frustrated landowners who will no longer be able to stop commercial rafters from floating through their property. But landowners will understand that private boaters and fishers have been relegated to second-class, indeed to criminal status.
If the Colorado Constitution, which dedicates the waters of all natural streams to public use, protects the public’s right of access, as I believe it does, then surely it protects those rights for all water users, not merely those who can afford to pay a commercial rafting company. Those who support the current proposal, which now goes to the senate, argue that this is just a first step, and the law will eventually be expanded. Maybe so. But if this legislation becomes law in its current form, the commercial rafting community will hold a monopoly on the lawful recreational use of our rivers, and it is hard to see how it will be in their economic interest to promote access rights for the rest of us.
It is long past time for the Colorado Legislature to give all Colorado residents the rights that are guaranteed under our Constitution and enjoyed by the residents of virtually every other state in this country. As for me, I’m tired of being a criminal; we need to provide stream access for everybody.
Mark Squillace is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is a professor of law and the director of the Natural Resources Law Center at the University of Colorado Law School in Boulder. The views expressed here are his own.
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