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Old 04-07-2010   #1
Kingston, New York
Join Date: Apr 2007
Posts: 33
"Navigability" - Relevant Concept or Distraction?

Based on my posts in the HB 1188 thread I received a private message using this subject heading, suggesting that the concept of navigability might be a dead end and perhaps we should "focus on legal concepts that are relevant to our situation". As long as I wrote the response, I figured I'd share with everyone why I think that navigability is the key concept to focus on. I think the judicial process is ourt best bet, but legislation can potentially address rights that I believe already exist, even though they aren't widely accepted and understood.

First, let me note that any qualification I have as a "legal eagle" is strictly from my own readings of cases that I think are relevant. It's entirely possible that much of what I think is wrong, and probable that some of it is wrong. I've offered my thoughts so that others can do with them what they want, but boaters clearly need some highly skilled legal representation in order to make any gains through the judicial process.

I think navigability is the key concept to the entire issue, because that's what determines the rights we *have*. Depending on which court cases you read and how a state chooses to do things, navigability can be as simple as being able to float down the river in a modest boat. The main federal criteria that applies to all states is what was common *at the time of statehood* and it doesn't matter if a river was being navigated. It only matters that the river was capable of being navigated in that fashion. Figuring that in 1876 there should have been plenty of people still using fairly small boats, especially in frontier states, I would expect that streams that are capable of economically viable raft trips should be considered navigable. It's also important to note that Supreme Court cases have ruled that the existence of hazards and obstacles doesn't prevent a river from being navigable. In the past it was commonplace to unload boats in order to drag them along a section of river or to portage. I *think* some cases have ruled that portage is an inherent part of the right of navigation. Not that my opinion carries any weight in court, but I would think that court rulings that declare rivers to be navigable despite obstacles that require portage should be viewed as a judicial precedent that portage should be considered a public right that necessarily attaches to the right of navigation. Any existing right of navigation can be clarified by legislative action (but still subject to court challenge), or guaranteed by judicial action.

Other than the right of navigation, I'm not sure that boaters have a particularly good case in Colorado. The only logical interpretation I see for the constitution's wording about the water of streams belonging to the public is that the public has a right to make use of *the water* and that such use includes floating on the water. I see two limitations to that. One is the possibility that the courts will accept the aviation law's statement that landowners own the airspace above their property. I think it's BS, but it would prevent the public from using the water by floating through that airspace. The more practical problem I see is that boaters need more than the right to simply float on publicly owned waters. Other than on large and placid rivers, we need the right to make use of the bed and banks, for scouting and portaging, or even to simply run aground in shoals. Unfortunately I see nothing in the constitution's provision for public ownership of the *water* of streams that is in conflict with private ownership and exclusive use of the banks and beds.

That leaves the third, and probably final, possibility that we could be given rights that we don't already have. If we don't somehow already have a right then the only way we can get it is by legislative action, and that has numerous problems. Let's assume the legislature will give us anything we ask for. What's the chance that the courts won't find that such action means that something is being taken from landowners? There have been cases that rule that laws that restrict an owner's ability to use property, or government actions that reduce the value of property don't require compensation, but there are other cases where compensation has been required. In at least one case compensation was required when environmental regulations limited construction on ocean front property to limit erosion and storm damage. If we get the right to boat, and more importantly to scout and portage, by legislative action it's possible that court mandated compensation for the resultant taking of property could be financially catastrophic.

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Old 04-07-2010   #2
pocatello, Idaho
Paddling Since: 1991
Join Date: Feb 2010
Posts: 471
I think I read in Idaho code that there is a test of navagability involving floating logs of a 4" diameter down the river. If they can be coaxed down then a stream is navigable and open to floating.

I could be wrong but I think the definition has bailed out many boaters from trespassing.

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Old 04-07-2010   #3
Andy H.'s Avatar
Wheat Ridge, Colorado
Paddling Since: 1995
Join Date: Oct 2003
Posts: 2,911
During the HB1188 discussions I sent a PM to the scagrotto and some others who seemed more versed in river access law than I. I've heard that there's more to "navigability" than being able to float a log, or float a boat. Frankly, if just being able to float a creekboat down a river made "navgable," that would be great, however I don't think the issue is as simple as that or we wouldn't be fighting for a right to float. I'd like some clarification so that we don't waste our time basing arguments on an incorrect assumption.

Here is my original question that went to d.e. , marino , Ole Rivers , patrickt , scagrotto:

My question relates to how lots of folks are throwing around the term "Navigability" with respect to HB1188 and Right to Float in Colorado.

Its my understanding that whether a river is considered "Navigable" in the US involves a set of criteria that extend far beyond whether one can merely float down a river. These include precedent of historical commerce, transport of goods (prior to rafting in Colorado) and that Colorado does not have any rivers that actually fall into that category. Could someone who knows this issue well please shed some light on this so that if I'm wrong, we can continue to speak in terms of this concept?

If I'm right, the boating community needs to quit being distracted by this policy dead-end and focus on legal concepts that are relevant to our situation.
I received a few replies but I don't think any were from actual attorneys.

It would be good if we could keep speculation and arm-waving out of this discussion and hear from folks that are versed in the laws surrounding this.

Nothing in the world is more yielding and gentle than water. Yet it has no equal for conquering the resistant and tough. The flexible can overcome the unbending; the soft can overcome the hard. - Lao Tse
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Old 04-07-2010   #4
Steamboat, Colorado!
Paddling Since: 2005
Join Date: Sep 2005
Posts: 149
So I am sitting in Water Law class right now.... I would not consider my opinion 100% reliable but here is what I know.

1. There are two types of navigability federal and state. Federal navigability is the first tier of analysis and determines who owns the river bed. If a river is federally navigable then the bed is not subject to private ownership. If, however, it is NOT federally navigable they title to the river bed can be passed to a private owner.
2. Federal Navigation is determined by looking at the time of statehood whether
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Old 04-07-2010   #5
Steamboat, Colorado!
Paddling Since: 2005
Join Date: Sep 2005
Posts: 149
Oh should be paying class

Federal Navigability is determined by looking at the time of statehood whether
1. bodies of water were used or susceptible of use for a highway of commerce
2. commercial use is possible under natural conditions
3. commerce was conducted in customary mode of trade

This must be determined on a mile by mile assessment (that is what the lady and the book says not me).

State navigability determines whether there is a right to float. Colorado follows the common law which says a landowner owns everything below and above their property (kind of a legal fiction).

In the major case that is talked about People v Emmert the parties stipulated that the river was non-navigable and that is why there was probably a lack of discussion and generally a feeling that this is unimportant

Maybe someone has a differing opinion, maybe this doesn't makes sense but right now I feel like my tuition just had practical use...
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Old 04-07-2010   #6
Denver, Colorado
Paddling Since: 2006
Join Date: May 2009
Posts: 27
You may want to take a look at how Section 10 of the CWA defines navigability. The only Section 10 water in Colorado is the Colorado downstream of GJ. Keep in mind, all federal law must be tied to the Commerce Clause.

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