Stow the oars on rafting bill

Opposition to Rep. Kathleen Curry’s rafting-rights bill, House Bill 1188, has been growing. A column on the facing page today lays out some of the reasons for that opposition.

We don’t necessarily accept all the arguments made by the bill’s opponents. But we agree with one of the ideas expressed in the column next door: It makes sense to take more time to examine the issues in greater detail — and try to come up with cooperative solutions — than to pass a contentious bill that all but guarantees lawsuits over issues such as private property rights and what constitutes a navigable river.

The Daily Sentinel supports the notion that rafters, canoers and kayakers should be able to float on the larger rivers of this state, so long as they don’t trespass on private property along streambanks.

But there are several problems with Curry’s bill, reasons we think the Senate should kill it and allow new ideas to develop.

First the bill addresses only the rights of commercial river rafters. That’s because it was drafted in response to a dispute on the Taylor River in Gunnison County involving a commercial outfitter and a private landowner. But it leaves out that huge segment of recreational rafters who don’t use commercial outfitters. Why should those who make money from river rafting have rights tailored to suit their interests that may not serve the needs of private rafters?

Second, the Curry bill would give the commercial rafters and their clients the right to make “incidental contact” on private land if it is necessary for them to get around a bridge, fence or other obstacle. Boaters see this as a limited “portage right.” Ranchers and others opposed to the bill see it as a “right to trespass” that could eventually spur other recreation groups to demand a right to cross private lands.

We don’t believe that slope is quite as slippery as opponents of the bill make it out to be. Legislative language can be crafted to make it clear that the incidental contact is not a precedent for other forms of trespass.

But it’s evident the provision is a flash point for opposition to the bill and for future lawsuits if the bill is passed. It is sensible to call a timeout and look for other ways to resolve the issue.

Finally, and perhaps most importantly, Curry’s bill does nothing to answer the question of what constitutes a navigable river. It creates a specialized definition for a “waterway,” and it lists a little-defined “right of navigation.” But it appears to muddy a 1979 Colorado Supreme Court decision that said people don’t have a right to float on “nonnavigable” rivers and streams, and people may commit trespass if they do boat on those streams.

This is the crux of the legal dispute. The main portions of the state’s larger rivers — say the Colorado and the Gunnison — are generally agreed to be navigable rivers. But there is no clear legal determination about whether the smaller streams of Colorado, such as the Taylor River, are indeed navigable waterways. If they are, people have a right to boat on them. If they’re not, landowners can legally prohibit access.

Here is where a group such as Club 20, which opposes HB 1188, could play an important role. The organization has a history of creating groups representing a variety of interests to study these sorts of problems and recommend solutions. That kind of cooperative approach is definitely needed to provide guidelines about what constitutes a navigable stream in Colorado. Additionally, such a group could study how to deal with the question of incidental contact when it is clearly necessary to avoid an obstacle in a stream.

In suggesting that HB 1188 be killed, and more study of the issue be undertaken, we don’t mean to give the impression that the issue will simply go away if it is ignored. It won’t. As more and more people take to Colorado’s waters in rafts, kayaks and other craft, the disputes will only multiply. Better legal definitions are needed. Unfortunately, HB 1188 isn’t the vessel to deliver them.


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