This spring, the Colorado Legislature is considering a bill, which helps protect the rights of commercial boaters to float on commercial sections of river, and increases the safety of boaters by decriminalizing incidental contact with private land to portage obstacles. HB -1188 is a good bill, but doesn't go far enough! American Whitewater, Colorado Whitewater, and our team of advisors need your help to ensure the bill provides safe access and rights of navigation to ALL boaters on EVERY river.

HB-1188 passed out of the House by a vote of 40-25, and is scheduled to be introduced in the Senate Judiciary Committee for a vote on March 17th. We urge you to contact members of Colorado’s Senate Judiciary Committee and ask them to support HB-1188, and to amend the bill to include all members of the paddling public.

Background

In 2009, Colorado’s Taylor River, near the communities of Crested Butte and Gunnison, became the latest centerpiece in the decades old debate of river access in the state, and the rights of navigation.  A parcel of private land bordering the Taylor River was acquired by a wealthy Texas businessman with plans to develop an exclusive community with private fishing and recreational opportunities.  The actions of the landowner closed this section of the Taylor, which has been widely used by commercial and non-commercial river runners for over two decades. The commercial rafting businesses were informed by the landowner of the risk of civil and criminal trespass charges if rafting operations were to continue on his private river.

In response, the Colorado River Outfitters Association (CROA) approached State Representative Kathleen Curry (Ind. - Gunnison) to sponsor a bill in the 2010 General Session clarifying Colorado’s Right of River Navigation, and establishing a right to float through private property. American Whitewater Staff worked closely with CROA to draft a bill that would have statutorily defined rivers and streams in Colorado as navigable. Representative Curry was unwilling to carry such a bill, and suggested CROA seek another sponsor for such legislation. Rather than losing their sponsor, CROA invested in legal and legislative assistance to deliver Representative Curry a narrower bill that protects the rights of commercial outfitters and addresses the immediate threats facing outfitters on the Taylor River. Representative Curry introduced the River Outfitters Viability Act, HB 10-1188.

Opponents of HB 1188 argue that the State will diminish the value of private property by granting the general public a right to float through private property and the right to portage on private lands. The right of navigation existed before statehood and pre-existed private property ownership.  Many states have already examined the takings argument and have decided that the right of navigation does not cause a taking of adjacent or underlying property.   For example:

• New Mexico:  State v. Red River Valley, 182 P.2d 421 (N.M. 1947) (The New Mexico Supreme Court stressed that while the riparian owner may own the land, this does not deprive the public of the right to float upon the waters)
• Wyoming:  Day v. Armstrong, 362 P.2d 137, 145-6 (Wyo. 1961) (“Irrespective of the ownership of the bed or channel of waters, and irrespective of their navigability, the public has the right to use public waters of this State for floating usable craft and that use may not be interfered with or curtailed by any landowner”)
• Oklahoma:  The riparian landowner “is the owner of the river bed; such title, however, is not absolute but is subject to certain burdens imposed by the river…  The water is in the nature of a street or highway so that people who get on the river without committing an act of trespass has the right to boat on either side of the middle of the stream.”  Curry v. Hill, 460 P.2d 933 (Okla. 1969)
• Idaho:  “members of the public have the right to use the waters . . . and the bed, channels and banks . . . up to the high water mark, as a public highway for travel and passage … so long as they can enter into the waters thereof by not crossing dry land owned by the defendant.”  This includes portage.  S. Idaho Fish & Game v. Picabo Livestock, 528 P.2d 1295 (Id. 1974)
• New York:  “Having never owned the easement, riparian owners cannot complain that this rule works a taking for public use without compensation.”  (Adirondack v. Sierra Club, 706 N.E. 2d 1192, 1196 (N.Y.Ct. Apps. 1998))

American Whitewater’s position on House Bill 1188 is neutral at this time.  We believe it is premature to make a formal decision to oppose or support HB-1188. The River Outfitters Viability Act makes an incremental change in recognizing the right of navigation under Colorado Law. However, every member of the boating public should be able to portage around life threatening obstacles without fear of criminal prosecution.

Private boaters who have contacted AW about HB-1188 differ in their views about the legislation as currently written. Some believe private boaters should oppose HB-1188 because it advances only the interests of commercial boaters, possibly to the detriment of private boaters. Others believe HB-1188 will not adversely affect private boaters and that any law that promotes river access is a positive, if incremental, step in the right direction.

American Whitewater contacted the sponsor of HB-1188, Representative Curry asking that the Bill be amended to include private boaters. For a variety of reasons, the Bill has not yet been amended in the State House, although we remain hopeful that it can be changed to include private boaters later in the Senate. American Whitewater and Colorado Whitewater continue to speak with legislators, and we remain committed to pursuing changes to HB-1188 that will promote the interests of our club members and the general public.

The Bill must pass a number of procedural hurdles before it makes its way to Governor’s desk; multiple amendments will no doubt be proposed along the way. American Whitewater’s position may change as HB-1188 winds its way through the legislature. We are working to persuade legislators to improve HB-1188 in ways that will benefit the general public. We believe that calls to amend, rather than to defeat, House Bill 1188 is a better strategic decision at this point in time.

Colorado State Senate – Judiciary Committee:

MORGAN CARROLL (D) - CHAIR
Colorado State Senator, District 29
Office Location: 200 E. Colfax
Denver, CO 80203
Capitol Phone: 303-866-4879
E-Mail: morgan.carroll.senate@state.co.us

PAT STEADMAN (D) – Vice Chair
Colorado State Senator, District 31
Office Location: 200 E. Colfax
Denver, CO 80203
Phone: 303-866-4861
E-mail: pat.steadman.senate@state.co.us

EVIE HUDAK  (D)
Colorado State Senator, District 19
Office Location: 200 E. Colfax
Denver, CO 80203
Capitol Phone: 303-866-4840
E-Mail: senatorhudak@gmail.com

KEITH KING (R)
Colorado State Senator, District 12
Office Location: 200 E. Colfax
Denver, CO 80203
Capitol Phone: 303-866-4880
E-Mail: keith.king.senate@state.co.us

KEVIN LUNDBERG (R)
Colorado State Senator District 15
Office Location: 200 E. Colfax
Denver, CO 80203
Capitol Phone: (303)866-4853
E-Mail: kevin@kevinlundberg.com

LINDA NEWELL (D)
Colorado State Senator, District 26
Office Location: 200 E. Colfax
Denver, CO 80203
Capitol Phone: 303-866-4846 
E-mail: linda.newell.senate@gmail.com

SCOTT RENFROE (R)
Colorado State Senator, District 13
Office Location: 200 E. Colfax
Denver, CO 80203
Capitol Phone: 303-866-4451
E-mail: scott.renfroe.senate@state.co.usPat Steadman (D)