The only real way to get the 'right to float' issue resolved is via legislation, which requires heavy lobbying by the boaters, boating organizations, and the boating industry itself.
I have a good friend at Mendez & Steadman who is a professional lobbyist. As ugly and backdoor politicking as that sounds, I fear that's the only real way to do this.
Phil,
Good to meet you and boat with you on LTB. Sorry I had to miss out on Sunday's float. I'm wearing a cast on my left arm to the elbow. Hairline fracture on the ulna and hyperextension of the ligament. 16 days and I can go back to boating.
Reading the article and the subsequent posts, I feel compelled to share a little A. Wirth story. (Hope you don't mind G-man)
Driving back to Steamboat, along the Elk, doing about 30, something huge and with a force that I can't describe here, hit our truck. I glanced in the side window in time to see a tree, yes a tree, fall off the back of the truck and crash onto the road. I can't tell you how stunned I was. My husband was like "what the ___ was that". I'm like, "a frickin tree just fell in the forest and landed on our truck!"
I had stopped the truck by then and looked back to see a dude step out of the forest with a chainsaw in his hand. Then shit hit the fan, we were pissed. It was pretty heated for a few moments and then his only question was "Do you ski?"
It just so happened that the GT and Lil Joe on the roof rack saved the truck, and the boats were ok, with a few new scratches. The rack itself was broken though. We drove up into his yard and he helped us jerry rig it.
He did then purchase the parts for the rack. This winter though, he would not return our e-mails regarding the free ski tickets. What a cheap ass. Maybe I should talk to a lawyer regarding my intense anxiety attacks when driving through the woods!
We were lucky. BUT WHAT KIND OF FREAK CUTS TREES, ALONE, ACROSS PUBLIC ROADS?
I just need some clarification on the part about owning the air over the property. Is this for real? If so, how high does one own the air over the property?
I mean could I prevent planes from flying over my extremely small parcel of property based on trespass issues?
I'm sorry but it seems even more asinine to portend to own the air than waterways.
land owners do not own the air above their land anymore than they own the stream that may flow through their property.
Controlled airspace in the United States is designated as follows:
Class G - (uncontrolled airspace) That airspace not designated as Class A, B, C, D, or E.
Controlled Airspace - An airspace of defined dimensions within which air traff ic control service is provided to I FR flights and to VFR flights in accordance with the airspace classification.
Note 1 - Controlled airspace is a generic term that covers Class A, Class B, Class C, Class D, and Class E airspace.
Note 2 - Controlled airspace is also that airspace within which all aircraft operators are subject to certain pilot qualifications, operating rules, and equipment requirements in FAR Part 91 (for specific operating requirements, please refer to FAR Part 91). For IFR operations in any class of controlled airspace, a pilot must file an IFR flight plan and receive an appropriate ATC clearance. Each Class B, Class C, and Class D airspace area designated for an airport contains at least one primary airport around which the airspace is designated (for specific designations and descriptions of the airspace classes, please refer to FAR Part 71).
Class A - Generally, that airspace from 18,000 feet MSL up to and including FL600, including the airspace overlying the waters within 12 nautical miles of the coast of the 48 contiguous States and Alaska. Unless otherwise authorized, all persons must operate their aircraft under IFR.
Class B - Generally, that airspace from the surface to 10,000 feet MSL surrounding the nation's busiest airports in terms of IFR operations or passenger enplanements. The configuration of each Class B airspace area is individually tailored and consists of a surface area and two or more layers (some Class B airspace areas resemble upside-down wedding cakes), and is designed to contain all published instrument procedures once an aircraft enters the airspace. An ATC clearance is required for all aircraft to operate in the area, and all aircraft that are so cleared receive separation services within the airspace. The cloud clearance requirement for VFR operations is "clear of clouds."
Class C - Generally that airspace from the surface to 4,000 feet above the airport elevation (charted in MSQ surrounding those airports that have an operational control tower, are serviced by a radar approach control, and that have a certain number of IFR operations or passenger enplanements. Although the configuration of each Class C airspace area is individually tailored, the airspace usually consists of a surface area with a 5NM radius, and an outer circle with a 1 ONM radius that extends from 1,200 feet to 4,000 feet above the airport elevation. Each person must establish two-way radio communications with the ATC facility providing air traffic services prior to entering the airspace and thereafter maintain those communications while within the airspace. VFR aircraft are only separated from IFR aircraft within the airspace.
Class D - Generally, that airspace from the surface to 2,500 feet above the airport elevation (charted in MSQ surrounding those airports that have an operational control tower. The configuration of each Class D airspace area is individually tailored and when instrument procedures are published, the airspace will normally be designed to contain the procedures. Arrival extensions for instrument approach procedures may be Class D or Class E airspace. Unless otherwise authorized, each person must establish two-way radio communications with the ATC facility providing air traffic services prior to entering the airspace and thereafter maintain those communications while in the airspace. No separation services are provided to VFR aircraft.
Class E - Generally, if the airspace is not Class A, Class B, Class C, or Class D, and it is controlled airspace, it is Class E airspace. Class E airspace extends upward from either the surface or a designated altitude to the overlying or adjacent controlled airspace. When designated as a surface area, the airspace will be configured to contain all instrument procedures. Also in this class are Federal airways, airspace beginning at either 700 or 1,200 feet AGIL used to transition to/from the terminal or enroute environment, enroute domestic, and offshore airspace areas designated below 18,000 feet MSL. Unless designated at a lower altitude, Class E airspace begins at 14,500 MSL over the United States, including that airspace overlying the waters within 12 nautical miles of the coast of the 48 contiguous States and Alaska. Class E airspace does not include the airspace 18,000 MSL or above.
Service - A generic term that designates functions or assistance available from or rendered by air traffic control. For example, Class C service would denote the ATC services provided within a Class C airspace area.
Special VFR Operations - Aircraft operating in accordance with clearances in Class B, C, D, or E surface areas in weather conditions less than the basic VFR weather minimum. Such operations must be requested by the pilot and approved by ATC.
Surface Area - The airspace contained by the lateral boundary of the Class B, C, D, or E airspace designated for an airport that begins at the surface and extends upward.
Terminal VFR Radar Service - A national program instituted to extend the terminal radar services provided to instrument flight rules (IFR) aircraft to visual flight rules (VFR) aircraft. The program is divided into four types of service referred to as basic radar service, terminal radar service area (TRSA) service, Class B service and Class C service. The type of service provided at a particular location is contained in the Airport/Facility Directory.
1. Basic Radar Service: These services are provided for VFR aircraft by all commissioned terminal radar facilities. Basic radar service includes safety alerts, traffic advisories, limited radar vectoring when requested by the pilot, and sequencing at locations where procedures have been established for this purpose and/or when covered by a letter of agreement. The purpose of this service is to adjust the flow of arriving lFR and VFR aircraft into the traffic pattern in a safe and orderly manner and to provide traffic advisories to departing VFR aircraft.
2. TRSA Service: This service provides, in addition to basic radar service, sequencing of all lFR and participating VFR aircraft to the primary airport and separation between all participating VFR aircraft. The purpose of this service is to provide separation between all participating VFR aircraft and all IFR aircraft operating within the area defined as a TRSA.
3. Class C Service: This service provides, in addition to basic radar service, approved separation between lFR and VFR aircraft, and sequencing of VFR arrivals to the primary airport.
4. Class B Service: This service provides, in addition to basic radar service, approved separation of aircraft based on IFR, VFR, and/or weight, and sequencing of VFR arrivals to the primary airport(s).
I live here in Steamboat. If you put in on public property it is ok. Fuck the property owners. If you run into a fence....go around it. If the landowner says anything, he /she is interfering with sportsmans rights and could possibly be sued for thier property. These rednecks put barb wire fences right up to our PUBLIC bridges and then put no tresspassing signs up. Bridge easments are owned by the public for 15 ft in all directions. This is taxpayer money.
I have had direct problems with this Lawyer Mike Holloran. He also provides services for the Cattlemans association.
I am very fotunate to have a fellow floater , and lawyer , on my side if anything happens.
Navigability includes conducting commerce on a waterway. It is an old maritime law and may be changed. This would change everything.
What I reaally need to do is get caught "civil tresspassing". Then it would go to court ansd I would literally kick the shit out of the prosecution.
They would probablly drop the case so that the issue was avoided
Whatever you do!!!!!!!!!Put in and take out on public property, anything in between is fair game. Dont "Criminal tresspass unless you need to get around a dangerous obstruction.
My 2 cents
Mike, don't take this personally, because I sure wish I agreed wtih you, but I don't think those FAA regulations aren't applicable to our argument. I strongly believe the case would stand or fall on other grounds.
A court is extremely unlikely to apply those kind of regulations (which were probably made by bureaucrats, not Congress) as applicable to defining the kind of property rights we're fighting over - those regs deal with use of airspace, not ownership of it. However, of far greater significance is that is it well-established case law that a landowner has the right to the sole use and possession of his or her land for a reasonable distance above the ground. As silly as it may seem, if you toss a football over my land, onto the next guy's land, you just trespassed (civil) agianst two people. If you fly a helicolter over my land at 1000 feet, no trespass. Obviously, there are buidings over 1000 feet tall, so then what? Well, "reasonable distance" is not fixed, it is only reasonable, so you have to factor it the whole picture to determine what is reasonable.
Another distinction that should be made regards the Emmert case. That was a criminal case and it applies to criminal trespass. To my knowledge, there is no precedent for this type of civil trespass in Colorado. While Emmert and the attorney's general opinion that it prompted may be used to persuade a judge, they aren't binding in a civil trespass case as far as I can see.
I believe that the best argument we can make in court is that the right to be in the water also contains and implicit right to make use of the airspace above the water for a reasonable distance. Here, reasonable would probably be considered about as high as a rafter standing up waving a paddle in the air, or as high as the stern of a Dancer coming out of an ender - you get the point. But again, as far as I know, we are faced with a lack of legal precedent on the civil trespass issue as it pertains to boating.
Now, as for portaging, if there is a serious hazard to life and limb, you can portage on private land. You can still be held liable for any damage to the land, but cannot be assessed damages for the actual violation of someone else's space - if you portage because of serious threat to life or health and don't damage any real or personal property, you are off the hook. That is established. However, I think a determined landowner would argue that such a privilege to trespass should not apply if the boater knew the portage would be necessary prior to putting in. Then, consider the implications if the obstacle portaged was natural or put there by the landowner - the permutations of this problem go on and on. This is a very, very gray area of the law, I believe. I think we really need a statute on the books, as even a court decision will only resolve a few of the issues we're grappling with.
FWIW
DISCLAIMER: This post is the author's personal opinion only, posted here for solely informational purposes and is not intended to be legal advice. Neither the posting of this mesage, the act of sending electronic mail to the author, the act of sending a private messsage to the author, nor the act of posting a respsonse in this forum creates an attorney-client relationship.
I wrote a letter to the editor of the Pilot yesterday. He called me last night to make sure I didn't mind if he published it. I told him to go ahead. It references our good friend and ambassador of Steamboat tourism, Andy Wirth. I don't know when they publish these, probably on the weekend. The editor told me that several others have written similar letters.
Caspian, you will be happy to know that I mentioned the criminal charges these "terrorists" face when attempting to scare others out of the river. I wonder what Doug Monger thinks about it? Terrorists? Ha Ha. I am sure I know where Jack Taylor stands.
As for legislation on the issue, keep dreaming. It will be a cold day in hell before this state passes a law explicitly giving people the right to float on streams throught private property. First, they would have to redefine everyone's property boundaries. Any potential legislation would be directed at property boundaries, basically taking away portions of what landowners can currently lay claim to, rather than granting some sort of recreational easement. Because of issues related to homeowner's insurance, etc., a more appropriate legal remedy would be for the State to claim title to streams, streambeds. Unfortunately, because of the ranching culture out here, that is not going to happen. Sure, the State has the power of emminent domain, but taking land from people is not a popular political podium.
Ebaker, don't you have some work to do? How are things going since I left? Are you guys managing without me?
Things are sloooooow around here, but somehow we're making it without you. How's it going with you? Good to see you chime in here, being all knowledgable on the legal side of things. My guess at this point, is that the city will approve the new permit (they may have already) but the Seedhouse group will pursue this issue. It's also ironic that the lawyer representing them allows for public use of his land by mountain bikers...but I guess that could be argued as he allows for private use as opposed to commercial use. If they are going to prohibit commercial floaters, then they should also prohibit commercial use by fisherman as well...but I doubt that will happen. What's the story with your Willow trip and did you get a new creeker? I still have no boat, but that will change soon enough. Later.
, on my side if anything happens.
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