Originally Posted by Andy H.
The people working on this for the private boaters are veterans of river access efforts. They are currently working on behalf of the main organizations private boaters have to represent us. The CW/AW team needs our support, not someone throwing spears at them from behind while they face down Goliath.
Let me respond to your post by making a number of points. I trust I will cover the points you have raised.
1. I understand the frustration I detect in your comments. I also note that many were blindsided by the seeming sudden emergence of this issue. In addition I am also cognizant of the notion that it may seem unfair for me or anyone else to make negative comments in the fashion I did at this juncture of the proceedings. However:
1. This is serious stuff. There are a lot of other people who have a stake in the ability to float who will be negatively affected if this doesn't turn out well. The "law of unintended consequences" better known as Murphy's law will kick in at some point.
2. It is fine to point out that the people promoting this bill are well-intentioned and are working hard at this. That's not good enough. For a lot of people failure is not an option, and second place doesn't cut it. Results are what count.
3. If one looks at 3 proximate neighbors, Utah, Wyoming and Montana and note the manner in which their right to float has been established it was via court cases. Not seeking the assistance of politicians. In Colorado the attempt to promote a political solution via a plebiscite or a ballot initiative in the past ended in failure. Why would anyone think that landowners have changed and that a political solution would work this time?
4. The opponents to this bill are well monied, organized and know what they are doing. They know how to buy political influence and as demonstrated they know how to tie up an issue for years. Shunting this off to a committee is lobbying 101. So long as you play in their bailiwick you play by their rules.
5. If you actually look at the history of the development of the public trust doctrine in America it has been observed that the judiciary developed the doctrine so that it was legislatively incapable of being reversed because of fears of political corruption and influence buying. It has been the judiciary which has developed these protections for the public not the legislatures. Take Conatser in Utah. The Legislature has just passed legislation winding back the effect of that decision in a mad scramble because the view was that it went too far in relation to the recreational use of Utah water. You would be perfectly happy with the resulting legislation which is about to become law. But it took a court case to get there.
6. In my view and the view of others, most of the points addressed in the draft bill are in fact existing rights anyway. As many have indicated, even if the bill is passed, there will be plenty of litigation on the part of the landowners. So why bother fiddling around the edges? The answer to this question is that some proponents think it is a clever tactic to get something on the table so that the state will spend its money defending it rather than the floaters. Well, rolling the dice on that has got the bill where it is.
7. So a reasonable question is how could this have been addressed in the alternative? Here is one view for what it is worth.
a. The smartest tactic is to try and use the law as a shield and not a sword.
b. There is already a provision on the Colorado Statutes which is directed at landowners blocking a water way. I have noted it above. From that provision it is relatively easy to develop the theory that it is the intention of the legislature to stop landowners from preventing floating on waters in natural streams as implied by the constitution and hence any landowner that does so is acting contrary to the spirit and intent of the Legislature.
c. There is also a long history now of use of the Taylor for floating. There is ample evidence of commercial use of the waterway and there should be plenty of evidence of interstate travelers being paying customers of rafting companies floating through there. This lands it squarely in the Federal jurisdiction under the trade and commerce power and the Federal public trust doctrine.
d. There are also plenty of other legal theories one could reasonably apply in the present circumstances to test the issue. There are possible prescriptive rights, the Colorado Constitution and certainly good arguments in equity that a willing court could fashion to prevent the landowner from complaining in this instance. There is also enough development in the law since Emmert's case to enable judges to fashion a remedy which would suit most parties. Have a look at the legislative solution adopted by Utah. They have recognized the Federal public trust test as well as the notion of a provable recreational use for the public and a right to float by floaters.
So a reasonable course could have been for the rafting community to prepare for a fight in a test case and let the landowner bring the matter to court and let him defend his actions and the rights he claims. If a rafter took the journey as a test case and the industry indicated that it was prepared to back it, landowners would have been forced to think about how they handled this very seriously and would not want to run the risk of getting a decision like Conatser.
And as I suggested earlier, if a concerted approach was taken in both the Federal and State courts, fears that opponents might not get a fair hearing in a State court would be dissipated. Frankly, given the history of water rights and public recreational use I would have a lot more faith in the judiciary at the end of the day than some.
So that's my view. The only reason I posted yesterday is that obviously many of those reading this string and posting are frustrated with the whole process and were blind sided by the move. Some were obviously more aware. But now some note that they are going to spend their time berating their local politicians. Fine. But it won't get a result. It’s a money game. In addition it is obvious that too few people understand the law in this area and make decisions and comments based on rumor. So I just thought I would throw in another line of thinking for some to consider if they are frustrated by the present situation.
Finally you ask me to put you in touch with other people I might know who could jump in. For what? The answer is no for a simple reason. As I said I am not convinced that the present direction will work and until I see something that makes sense to me, there is no good reason. A camel is a horse designed by a committee. And that is what you have now.
This is a matter of tactics. Not the law. Informed opponents know that their position is untenable in the longer term. But so long as they can string this out they will win. You are looking at an end result. They aren't. They are just looking at screwing up the process as long as they can. There were many comments made about Felt's observation concerning a committee formed in 2002 which supposedly was going to "explore" this issue. What happened? Nothing. Just understand their game and you will get a handle on what to do. Get it into the courts where it can't be postponed forever and that will force their hand. Have a look at Emmerts case. What happened immediately after the majority found for the landowner? The legislation was amended. Why wasn't that done before then? Because they didn't have to.
So I am sorry that you take my input as an insult. But it is obvious in many comments in various forums that what I have said is not a topic of discussion. It ought to be because it is a viable course given the history of the development of this body of law over the past 200 years. I might be wrong. Fine. But it ought to be a discussion.