Impractical rafting bill threatens Colorado’s property rights

Imagine fishing in your favorite spot on a river in Colorado. Suddenly, your peace and quiet, as well as your fishing success, are ruined by raft-loads of people floating through riffles and pools. Eventually, they will pass through, but this experience will repeat itself frequently for the rest of the day. Trout have quit rising and the noise from rafters is going to continue, so you call it a day.

Then, suppose this is all happening on your land. Perhaps you even have invested your hard-earned savings in improving your streamside property, developing a retreat where others can fish and enjoy the great outdoors on vacation, so you can earn a little extra money to supplement your ranch income. Meanwhile, you find your ditch-diversion structure has been damaged by rafters, so you can’t channel your share of water to your property. Or, maybe your fence has been broken and your cattle have escaped.

Now, what if the state government were to step in and force you to put up with this kind of intrusion, no matter how much harm it does,  even though it’s trespassing, pure and simple? What if commercial rafters no longer had to even ask your permission to cross? A controversial bill pending at the Colorado Capitol would do just that.

House Bill 1188 would take away the only practical means property owners currently have of protecting their rights in such situations. It would take away their ability to seek legal relief where warranted, effectively handing commercial rafters a license to trespass, torpedo property values and, in some cases, degrade the property. It would allow rafting to trump all other uses without any restriction or balancing of the rafting industry’s interests with the land’s historic uses.

Certainly, river rafting is a great part of the outdoor experience. However, those who operate these often sizable, high-impact businesses have a responsibility not only to tread lightly on the environment, but to respect the rights of those who own property along our waterways.

Eddie Kochman, a retired state aquatics manager for the Colorado Division of Wildlife, has said that from a fishing standpoint, the pressure on streams and rivers flowing through private lands could intensify under HB 1188. The result would be overharvest, especially on wild and self-reproducing trout fisheries. The only actions available would be mandatory catch-and-release regulations and supplementary stocking by the Division of Wildlife and private landowners.

The river-rafting industry has grown and prospered over the years in Colorado — without HB 1188’s disregard for property rights. The industry has thrived in most cases simply through common-sense cooperation with neighboring landowners. That means reaching agreements about crossing private land, as good neighbors do, and working out details such as where and when to portage a raft over dry land if there’s a river obstacle.

HB 1188 scraps that sensible, case-by-case approach that has worked for decades and replaces it with a one-size-fits-all attempt to cut short landowners’ basic right to seek help in court, if all else fails, to stop encroachment on private property.

The bill was introduced to cater to some commercial rafters at odds with landowners along the Taylor River near Gunnison. In other words, there’s no statewide pattern of problems being addressed here, just a dispute that can and should be worked out among the parties involved.

Should HB 1188 pass, the spirit of cooperation that long has prevailed among many rafters and property owners would be gone. There no longer would be an incentive for rafting operations to work with their neighbors.

The measure has caused uproar among a wide range of stakeholders, pitting commercial rafters against anglers and other recreationalists as well as farmers, ranchers and other landowners. No wonder influential organizations such as the Colorado Cattlemen’s Association, the Colorado Water Congress, the Colorado Farm Bureau and Club 20 have denounced the bill.

Past experience on the upper Arkansas River near Salida has proved common ground can be reached between rafters, landowners and fishermen. Restrictions are in place that limit rafting hours to allow bank fishermen the chance for a quality experience. Landowners have cooperated without having challenges made to their private property rights and the system has worked for years. HB 1188 will destroy such cooperation.

At the very least, the Legislature should not adopt any legislation until the concerns of all stakeholders have been addressed. Maybe this is the time for lawmakers instead to appoint a special commission to study the issue, ensuring that the panel includes representatives from the state Division of Wildlife and the state Division of Parks and Recreation, as well as the rafting industry, agriculture, fishermen and hunters and the many resorts likely to be affected.

Contrary to the rafting industry’s assertions, there is not an unlimited right under Colorado law to raft through private property. The Colorado Supreme Court held in a 1979 ruling that, for nonnavigable waters, “the public has no right to use the waters overlying private lands for recreational purposes without the consent of the owner.” To legislate otherwise would amount to a seizure of private property for the benefit of the rafting industry and, under the Constitution, that could entitle affected landowners to just compensation. Expect massive litigation if HB 1188 becomes law.

Why let it come to that? Why can’t we all just continue to be good neighbors, instead?

Rebecca Frank is a former chairwoman of the Colorado Wildlife Commission. Lee Spann is a fourth-generation rancher in Gunnison and a past president of the Colorado Cattlemen’s Association.

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