Freedom-to-float bill deserves quick passage in Legislature
Quick approval by the Colorado House Judiciary Committee on Rep. Kathleen Curry’s bill to permit commercial rafters to float rivers that cross private lands may bode well for this essential legislation as it moves through the House and Senate.
Like a 12th century baronial fiefdom on the Rhine River, the Wapiti Ranch squats across the Taylor River in Gunnison County. Like their medieval predecessors who stretched chains across the Rhine to stop traffic so they could demand outrageous tolls, Colorado’s latter-day barons claim control over navigation on rivers that flow through their land.
Though state law is unclear about the right of river passage through private land, Wapiti Ranch developer, Jackson-Shaw/Taylor River Ranch LLC of Dallas, Texas, has informed two commercial rafting firms that have used the river for years that they are trespassing on company land.
“It is my firm opinion any individual or group or company rafting through our private property is committing an act similar to someone walking across your lawn on a shortcut to the grocery store,” wrote Lewis Shaw, president of Jackson-Shaw.
Earlier court rulings have held that rafters who do not make contact with the banks or riverbed while crossing private land are not liable for criminal trespassing. This ruling does not, however, preclude the filing of a charge alleging “civil trespass.”
Mark Schumacher has run a commercial rafting operation on the Taylor River since 1983. He claims, “There is no statute or law in Colorado in reference to civil trespassing.”
Schumacher characterizes the threat as a “David and Goliath situation, where we have to defend ourselves from private developers who bought the land knowing we float through it.”
In a previous case, an outfitter who had rafted the Lake Fork of the Gunnison River for years was charged with civil trespass by a developer seeking to cut off his access to the river. The rafting company went out of business before a decision was reached in the litigation, and the suit was settled out of court. The case established no precedent as to whether or not floating on a river across private land without permission is a civil offense in Colorado.
With landowners claiming ownership of the banks and bottom of the rivers, and commercial rafting outfits claiming the right to float through private lands, conflict is inevitable. “Both sides definitely have enough information to create their own philosophies about what these laws say,” said Bob Hamel, chairman of the Colorado River Outfitters Association.
Attorney John Hill, representing the Wapiti Ranch developer, argues that there is no right to float in Colorado — which along with North Dakota is one of only two Western states that do not ensure public access to rivers as they cross private property.
Hill claims that ownership of the streambed and banks gives landowners the legal right to control access to waterways. Allowing boaters to portage across private property, he argues, is unconstitutional. “This is a physical invasion taking,” he claims. “It’s authorizing people to go on private property.”
Curry’s bill, House Bill 1188, resolves the ambiguity in the law by legislating the right of commercial rafters to cross private property, including necessary short portages on land. “In Colorado,” Curry says, “it’s almost impossible to float a river without touching something. The (current) statute does not realistically address normal rafting conditions in this state.”
Under provisions in Curry’s bill, outfitters would be liable for any damages to private property, and landowners would be protected from liability in the event of an accident on their land.
Pertaining only to commercial rafting, the bill offers no new privileges to private or noncommercial boaters and rafters.
By calling her bill the “River Rafting Jobs Protection Act,” Curry reminds legislators of the importance of the commercial rafting industry, which adds $124 million to Colorado’s economy annually. “We’re trying to protect an industry,” says Bob Hamel. “We’re being pushed.”
The House should quickly pass this important bill and send it to the Senate for their action. With spring rapidly approaching, rafting companies need to know that the chains are off the river and that their freedom to float will not be held hostage to private greed.