Weekly Register-Call/ Gilpin County News

A bill debated in the CO State Senate could halt some float trips

Every spring it’s fun to watch boaters in big yellow rafts take the plunge on Clear Creek. They float many other rivers, of course, but these are the ones we locals tend to watch. Some of these paddlers are overnight tourists, often from out of state. They stay in local motels and gamble in local casinos. These rafters leave some significant amounts of money behind too. The rafting industry is a major money maker state wide. Of course, state laws affect the industry directly. But there’s plenty of disagreement about just how much regulation there should be. Particularly “sticky” are the rules concerning rafters passing through private lands.

Kathleen Curry’s Bill Hits Rough Water

Folks often violently disagree about whether or not boaters have the legal right to float on Colorado waters. Last summer I heard a panel discussion featuring lawyers John Hill and Lori Potter on just those disputed legal points. Though that panel left the legal waters muddy, clarification may be on the way. This spring the Colorado General assembly is wrestling with a bill by Rep. Kathleen Curry, (who’s running as an independent this time, by the way). Her house bill 1188 floats briskly along so far and passed in the state house by a big majority. Today the bill is circling almost dead in the water in the state senate. That bill guarantees the right of people on guided river tours to float and touch the bottom, even portage if necessary. Those who argued for it saw it as common sense. But, not everyone agrees, particularly developers of big second home districts along rivers and a few tourist lodges by the rivers edges.

What The Heck Does The Law Say?

Lately boaters have at least felt safe from being cited for criminal trespass (if no one touched the bottom of the stream) under a ruling by the Attorney General. “Wrong!” Counselor John Hill stated flatly last summer. He thinks Attorney General Duane Woodard was dead wrong about criminal trespass. Woodard based his ruling on the definition of “premises” in state law. He didn’t see the water itself as actual premises, but rather public property hence there could be no trespass. To add to the confusion, just in 2001 a Gunnison court ruled that the premises definition cited by Woodward in criminal trespass is not a defense in a suit for civil trespass. Counselor Hill says Woodard’s ruling offers no bailing bucket to those boaters he tries to sink for civil trespass.

Deep In Legal Water

Attorney Lori Potter (of Kaplan, Kirsch & Rockwell) pointed out last summer that in some states there is a clear right to float. Utah and Wyoming are examples of that as is Montana. Still, as Lori reminds, things in Colorado are never clear and sometimes get ugly. In Grand County a boater stepped onto the river bottom and was arrested for civil trespass just last summer. Other boaters have encountered barbed wire strung across rivers and in a couple of extreme cases boaters have been given warning shots for “trespassing”.

She admits that 30 years ago the Colorado Supreme Court ruled that it is criminal trespass for boaters to touch the river bed or banks in a privately owned segment of non-navigable river. However, that is usually cited as a badly flawed ruling which failed to cite the basic constitutional provision that all the waters of Colorado are reserved to the people. Every other ruling has directly countered that 30 year old ruling.

Representative Curry’s bill would clear all of that ambiguity up for river guides. Under her bill guided trips could touch river bottom and banks and even portage around obstacles. But, her bill does nothing for the rights of ordinary canoe paddlers or an innocent fisherman floating down the stream, not to mention river guides licensed after 2010. A few who object in the Senate are on that “unfair to private parties” tack. Most objectors, however, are following the lead of John Hill who is famous for arguing landowner rights over streams and rivers.

Counselor John Hill Is Definitely Heard From

John Hill (of Bratton, Hill, Wilderson & Lock) is well known for representing landowners who do not cotton to river rafters. Currently he represents “Wilder on the Taylor,” a huge multi-million dollar second home development managed by a Texas development firm called Jackson-Shaw. Counselor Hill concedes that if rivers like the Taylor were navigable under federal law he wouldn’t have a case. But, says he, few Colorado rivers are a “continuous navigable interstate waterway.” Unless a river meets that criterion, it’s fair game for the civil and possibly criminal trespass actions he plans to vigorously pursue. Even if the legislature passes the Curry bill the state is liable for damages in his view. He’s ready for lots of tough litigation ahead.

Some Boaters Say, “Float Or Die”

Last summer Greg Felt said he’d rather die than give up his right to float. Felt is one passionate boater! He laments that despite the fact the state licenses river guides and the federal government issues permits on individual rivers, boaters still paddle under the legal cloud of civil trespass. Last summer he asked, “Do boaters have to become lawyers?” Greg tells some hair-raising tales, including being “sighted in” by a rifleman (who didn’t shoot). For now he’s going to keep floating, he says, no matter what. Said he, it’s “float or die”.

Gov. Gilpin and the Fundamental Right To Float

When it comes to rivers, our first Territorial Governor, Wm. Gilpin, is clear and so was our first territorial legislature. They based their river law on the water doctrine set up even before there was a territorial government, simply stating that all waters in Colorado are public. That law was enacted right along with Colorado’s basic water law of “first in use, first in right” by the Territory of Jefferson. The extra legal Territory of Jefferson was set up in the gold camps of 1859 in what became Gilpin County. “The waters of this great territory shall forever belong to the people of this land and may always be traversed!” That was our original Colorado doctrine as Gilpin so clearly put it.

Gilpin was ever the mystic visionary. He based his river doctrine on the abundant universe he saw about him, including abundant water. He foretold an unlimited supply of river water and unlimited transportation thereon. What else could be true in our blessed Colorado territory (where he was sure the “isothermal zodiac” transected the “angle of intensity”)? Suffice it to say he applied his view of river law to the 1.5 million acres of San Luis Valley land and miles and miles of streams he purchased from Charles Beaubien. As he assured us, the Territory of Jefferson, and later the Colorado Territorial Assembly, wasn’t about to abridge the right to float.

The Slow Floating Out of River Law

Law gets worked out anew in each generation and river law is no exception. The Curry bill now being debated in the CO State Senate is just one more part of that working out. Gilpin had great faith in the wisdom of “the Great Coloradoan people” to figure out these questions. If we ever do guarantee a right to float, old William Gilpin will be smiling down from the golden dome in Denver. He, at least, knew those boaters on Clear Creek have a right to be there.