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Old 07-23-2008   #31
DurangoSteve's Avatar
Durango, Colorado
Paddling Since: 2001
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Mr. Brown is a good pal. It is, however, a pretty one-sided "relationship."

The beautiful mountain river that I have the good fortune to enjoy every day is in reality a beautiful irrigation ditch. All that crystal clear snowmelt belongs to the City of Durango and a bunch of alfalfa farmers downstream. I just get to live there. Philosophically I agree with your definition of land "ownership." I like to think of myself more as a "caretaker" than an "owner." The selfish, self-righteous me says I'm a better caretaker of an awesome riparian habitat than some guy who wants to mindlessly kill the wild trout that swim in my backyard, and throw that beautiful balance out of whack.

A person paddling through has ZERO impact on that amazing environment. And a person scouting or portaging has ZERO impact on that environment.

Would I feel differently if I wasn't so lucky to buy a piece of mountain river frontage in 1992 when it was still within the reach of a working stiff? Sure. I recognize that we all see the world through our own self-focused lens.

Originally Posted by 14kayaking2 View Post
I must say that that is a very nice pet fish. I agree with both sides... i personally would love to own so much property to lock up everything... and I also see why people should have a right to be on those rivers. the big depressing thing is that so many people have to bicker in the first place. I mean I understand if someone comes in and takes a bunch of apples from your apple orchard...or posts a hunting camp right in your backyard. However I also think that no one person can truly own land. The indians didn't believe in it (course we pushed them off of all the land they were inhabiting). kinda a crappy situation for some either way. However I would love to catch some of yer pet fish. Hope you all realize I wasn't trying to slam anyone, just inform on true water rights law. I got a degree in Forestry, and water rights is one of the biggest topics as far as western forest systems go.

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Old 07-23-2008   #32
Andy H.'s Avatar
Wheat Ridge, Colorado
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if that river, or stream(even if intermittent) is navigable(IE we can get a kayak, raft...inner tube down it), then it becomes a public right of way.
Unfortunately I've heard that there are some stipulations about the term "Navigable" that rule out most, if not all rivers in Colorado. Primarily that the waterway has to have been used for commercial purposes for a certain length of time (longer than commercial rafting's been around). Its a bummer but the boating community needs to get that straight or else we'll continue pissing in the wind (or getting arrested) using that argument.

Can someone with more legal smarts than I have please clarify?


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 07-23-2008   #33
Join Date: Jun 2006
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in MT

the state claims ownership of navigable waterways as state highways. Not all rivers are considered navigable, they must have been used commercially at some time. Often that use goes back to fur trading and log floating when waterways were the highways. Smaller creeks not on the states navigable list can and have been shutdown by private landowners.

Our access laws are better then most states, but just because you can float a boat doesn't make it legal.

As to the fishing, barbs kill fish. When's the last time you saw a worm jerker or metal chucker fishing barbless?
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Old 07-23-2008   #34
caspermike's Avatar
Bozeman, Montana
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navigatablility should be able to be proved through numerous decents and shouldn't be limited to what has happened in the past. nobody has a right to say what is and what isn't navigatable because we have people like Ben Stooksberry, Pat Keller, and Tyler Bradt boating super insane shit.

nav·i·gate // verb, -gat·ed, -gat·ing.
–verb (used with object) move on, over, or through (water, air, or land) in a ship or aircraft: to navigate a river. direct or manage (a ship, aircraft, or guided missile) on its course. ascertain or plot and control the course or position of (a ship, aircraft, etc.). pass over (the sea or other body of water), as a ship does. walk or find one's way on, in, or across: It was difficult to navigate the stairs in the dark. –verb (used without object) direct or manage a ship, aircraft, or guided missile on its course. pass over the water, as a ship does. walk or find one's way. travel by ship or boat; sail.
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Old 07-23-2008   #35
Frisco, Colorado
Join Date: Jul 2008
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water rights never has to be commercial, and can be an intermittent stream.

To this day, state constitutions affirm public ownership of all running waters. They typically say that “every natural stream” or “all surface waters” are owned by the state, for use by the public. Various state courts have upheld public access to running waters, calling it an “easement,” and saying, for example, “The capability of use of the waters for recreational purposes determines their availability for recreational use by the public. Streambed ownership by a private party is irrelevant. If the waters are owned by the State and held in trust for the people by the State, no private party may bar the use of those waters by the people.” Public access to streams, and trails along streams, is further supported by the legal doctrines of custom and prescription. Willow River Club v. Wade, 100 Wis. 86, 76 N.W. 273 (189. Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875, 102 Am.St.Rep. 865 (1904). Day v. Armstrong, 362 P.2d 187 (Wyo. 1961). People v. Mack, 97 Cal. Rptr. 448, 19 Cal. App. 3d 1040 (1971). Montana Coalition for Stream Access v. Curran, 210 Mont. 38 (1984).
What about navigable rivers? While all running waters are held in trust for the public, rivers and streams that are navigable have additional legal status. Public navigation rights, like fishing rights, have been recognized since ancient times. After the American Revolution, the founding fathers moved quickly to ensure public rights to navigate on all navigable rivers and streams. In discussing rivers and their tributaries, the very first law passed by the United States Congress said these “navigable waters,” as well as “the carrying places between the same, shall be common highways, and forever free” to the public, “without any tax, impost, or duty therefor.” An additional federal law in 1796 confirmed public rights to “all navigable waters.” Note the reference to portable watercraft such as canoes, and the right to carry them from one stretch of river to another. River navigation at the time was in canoes and small boats, using oars and paddles. Canoes and kayaks are thousands of years old. (“Canoe” was an Indian word, and the Eskimo word “kayak” is related to the ancient Greek word for a small boat.) From 1804 to 1806 the Lewis and Clark expedition, sponsored by Congress and President Thomas Jefferson, canoed from St. Louis to the Pacific Ocean and back, carrying their canoes where necessary. (Steamboats were not developed until later in the 1800s.) Also note that government agencies cannot charge fees for river access, and that public rights to rivers are “forever,” not just until landowners try to block them. In 1954, courts held that a canoeist was not trespassing when he pulled his canoe over a landowner’s fence across a stream (pushing down the fence in the process,) continued canoeing on the stream through private land, pulled the canoe up on the bank to get around a log jam, then waded on the streambed to fish, before getting back in the canoe and continuing downstream, leaving the private land. Courts have recognized “a public right of access for fishing and navigation to the point of the high water mark,” adding that the public can “cross private property in order to portage around barriers in the water,” but holding that “the right to portage must be accomplished in the least intrusive manner possible.” In addition, federal courts have held that “all navigable rivers” are subject to the federal navigation servitude, and are therefore open to navigation by the public, regardless of state or private ownership of the beds and banks. For example, the Jackson River in Virginia is navigable because, as the court ruled, “canoes can navigate the upper river without trouble except during the late summer, and canoeing experts consider the Jackson to be a very fine canoeing stream, except for troubles with landowners along the river.” Northwest Ordinance of 1787, 1 Stat. 50. Act of May 18, 1796, 1 Stat. 464. The Journals of Lewis and Clark, 1804-1806. Gibbons v. Ogden, 22 U.S. 1, 6 L.ed 23 (1824). Elder v. Delcour, 364 Mo. 835, 269 S.W.2d 17 (1954.) Loving v. Alexander, 548 F.Supp. 1079 (1982).

just look up water rights issues....
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Old 07-25-2008   #36
Park City, Utah
Paddling Since: 1985
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For boating access, this is pretty fantastic. If I owned property that had an intermittent stream bed and it bacame a path of access to the wilderness, I think that would annoy me. This is probably as good as it gets for boaters, and as bad as it gets for property owners.

Great commentary on Telluride access (oprah ranch). A ruling like this in Colorado would open alot of previously difficult to reach terrain.

Any ideas on streams this could effect other than those I listed?
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Old 09-09-2009   #37
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Littleton, Colorado
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I thought I'd dig this one up and re-kindle the fire.

DurangoSteve - It seems like you're one of those guys that would buy a house by the highway and then complain about all the traffic and noise. You make the case to deny access based entirely upon the misconception that if "your" little slice of heaven were open to the public to fish that the public would be carrying "your" fish out on stringers. It would appear your gripe is not with access but with fishing regs. If you don't want "your" fish killed for the table, then petition the DOW to change the regs to catch and release, flies and lures only. As you'll notice, I've placed quotations around the term "your" as neither the river nor the fish belong to you. You may also noticed I specifically used the analogy of a house on the highway, as I find it particularly appropriate in this instance. Historically speaking, rivers were and still are highways. Before motorized transportation and improved roads humans used rivers to move goods and services from point A to point B. Human Civilization as we know it grew up on rivers. Every wonder why Durango was built right on the Animas? The idea of rivers as public thoroughfares is as old as human civilization itself, while the idea of private ownership of streambeds is a rather new concept (born in 1983 as far as Colorado is concerned). If you think private ownership is the key to resource preservation, you've got a lot of reading to do, and a bit of travelling as well. Just fly 'cross the pond to merry old England and you'll get a good taste of the end product of your convoluted logic. Fact is if you want access to flowing water anywhere in the U.K. you'll have to pay for it. On my last trip I shelled out close to a grand (U.S. dollars) for three days of un-guided access to streams where the fish were by and large stocked, and the rivers were far from wild and untouched by the hand of man. If this is truly your vision of an ideal world, I'll just go ahead and put you on the same list as Paul Jones, Huey Lewis, and Bruce Wills, all of whom are of the firm belief that their millions have bought them the right to have and keep a PUBLIC resource all to themselves. Furthermore, if you bother to carefully read the title to your land, I highly doubt it includes any specific ownership of the streambed, as most in this state do not.

If any of you should find yourselves faced with a trespassing charge for a trespass alleged to have occurred between the natural high water marks you'd be stupid not to research the title to the land on which you were alleged to have trespassed. In my 9 (and counting) trespass citations, not one of the D.A.'s were able to prove private ownership of the streambed and the case was dismissed. Full disclousure: in 5 of the 9 the charge was dropped the very moment I entered a not guilty plea. In 2 of the 9 I prevailed in motions for dismissal. In the remaining 1 I was found guilty by a judge that didn't bother to consider any of the evidence I presented, only to have his verdict overturned by the Colorado Court of Appeals.

The point I'm trying to make is that the only way landowners can take access away is if you refuse to stand up for your rights, don't know the law, and don't bother to apply it.

-Rant off-
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Old 09-09-2009   #38
DurangoSteve's Avatar
Durango, Colorado
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Slave, you're entitled to your opinions. If you enjoy spending time in courtrooms and money on lawyers, go wild! I'm sure your lawyers love the business.

As I have stated many times in many threads, I think the AG's opinion regarding boaters is silly and dangerous. Boaters should have the right to portage and scout on private land.

My opinion about wading fishermen is obviously quite different. As a fisherman, surely you know the difference in fish health and population on private stretches of river vs. public stretches. Interestingly, the DOW stocks public water and doesn't stock private water. Stocking is funded by license fees, and fishermen can't access private water, therefore no stocking. It seems that the DOW recognizes ownership of riverbeds, and structures their stocking accordingly.

Also, I suggest you read the DOW's "Angler Ethics" page. Angler Ethics - Colorado Division of Wildlife Bullet Item #1: "Be aware of, and respect, the rights of others—anglers and property owners."

Did I change your mind? Probably not.
You can never step into the same river; for new waters are always flowing on to you. - Heraclitus of Ephesus
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Old 09-09-2009   #39
slavetotheflyrod's Avatar
Littleton, Colorado
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First, let me appoligize, Steve. I re-read my response and realized it came across a bit personal. I in know way intended to attack you personally, though I realize that's how it came across.

Second, they're not my opinions, I'm using written opinions from the U.S. Supreme Court as the basis for my arguments.

Suprisingly, I've spent a grand total of maybee 20 minutes inside courtrooms, and not a single red cent on legal fees, much to the dismay of my lawyers. I should mention that my lawyers are all friends and family. Like I wrote in another thread - It's a charmed life I lead.

You're a bit mis-informed about what the DOW does and doesn't stock. Just two weeks ago the DOW stocked three ponds on the (private) ranch I guide(deer and elk hunters) for, free of charge. In addition they've worked with us on a fisheries improvement plan for the two creeks that flow through the property which includes stocking to be done next summer. We do, and always have allowed public access to the streams, however, due to the remote location have never (to my knowledge) had any takers. Once the stream improvements are completed we plan to post signs at the property line allowing public access to the streams, and asking the anglers to keep to the stream bed, pack out all trash, fish with only barbless flies and lures, and release all fish they catch. Another part of the plan includes constructing handicapped access to the ponds and for hunting.

Like you, I'm also a bit of a fly fishing elitist, and also take offense to the comments from the likes of Casper Mike to the effect that fly fishing is just as harmful as bait fishing. I've personally never seen a gut hooked fish in my 14+ years of fly fishing and guiding. I have fished and guided both public and private water and would disagree with your statement regarding fish health and populations on public vs. private water. Take for example the Fryingpan, Taylor, Blue, Green, Yampa, South Platte, North Platte, Eagle, Roaring Fork, Colorado and a few others. The fishing is as good if not better in the public water on those rivers. In the areas of those rivers where the private water is better it has more to do with costly improvements and stocking on the part of the landowners. In the case of the lower Blue, which is one of my favorites, the monster fish are a result of private stocking and pellet feeding by the owners of Blue Valley Ranch. I have no problem with landowners wanting to improve fisheries at their own expense so long as they realize that they're improving the public resource (in Colorado the fish become property of the state the minute they hit the water, regardless of who stocked them, in rivers anyway). I do have a major problem with landowners like Paul Jones, who owns Blue Valley Ranch, who try to use those improvements as justification to attempt to deny public access to a public resource.

For the record, I do also oppose the pending application for wild and scenic river designation on the Lower Blue. If you've ever been down that stretch I'm sure you'd agree that yes it is scenic, but wild? Not when you've spent 37 million on artificial habitat structures, "Irrigation Dams", non-native genetic mutant fish, fish pellets, waterslides, tennis courts, a paintball course, an office, a 14,000 sq foot house, bridges, ATV trails, a little indian village and so on. All of the above done right on the river, in the riparian zone, and smack dab in the middle of the prime wildlife habitat. I do understand the land is his to do with as he sees fit, I just won't allow him to accuse myself and the other boaters who lawfully float through and fish the river through his property to be characterized as the threat to the resources.

The fact of the matter is, that a few exceptions notwithstanding, boaters, anglers, hunters and other outdoor recreationalists are respectful of the resources. In the rare instances when I come across those that aren't I first try to educate them, and if that fails, I report them to the proper authorities.

Judging by some of the posts you've made in the past I would assume you're the kind of guy I could sit down with over a cold beer and carry on an intelligent conversation about this issue and others, I'd even buy. Casper Mike, not so much.

While you haven't changed my mind, you have intelligently made your case, and for that you've earned my respect. I'm not the type that feels we all have to agree in order to get along. I honestly believe the world would be a much better place if more people learned to argue intelligently (as you have) rather than emotionally.

That's all I've got
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Old 09-09-2009   #40
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Durango, Colorado
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I stand corrected on the DOW stocking claim I made. I based that statement on a conversation I had with a DOW employee in Durango who was in charge of stocking the Florida River with Colorado River cutts after the Missionary Ridge Fire (and subsequent floods) decimated the trout in my neighborhood river. I was told that this stocking of private water was an exception to standard DOW practice, as they were trying to reestablish native fish in a piece of river... all private... that they determined to be devoid of fish. Turns out they were wrong. Way more rainbows and browns these days than cutts. Turns out there were some hardy survivors.

Anyhow, I took no offense at your post. I admit that I'm a NIMBY when it comes to wading access to my backyard.

You're buying? Cool. I could use a beer right about now.

Oh, and I like Willie Nelson too...

You can never step into the same river; for new waters are always flowing on to you. - Heraclitus of Ephesus
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