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Old 07-28-2006   #1
latenightjoneser's Avatar
steamboat, Colorado
Join Date: Feb 2004
Posts: 417
Willow Creek Update (Routt County)

Just got a phone call from the Moss's lawyer. They may have built a new fence at their property line, probably 1-2 miles upstream from the takeout. I think their property line is below the major rapids.

Also, they plan to pursue criminal charges next spring. If that doesn't work, they plan to pursue a civil action against anyone who trespasses on their property. Obviously, if a boater encounters a fence, he is likely to portage around it. This will be their basis for the trespass. Not sure how defense of necessity impacts a known hazard, not that the hazard is known right now or anything.

I was also informed about new signs at the put-in warning about trespassing. I thought the put-in was public land, not sure though.

Any beta on history of floating Willow Creek? 1st D?

They apparently read the 'buzz and got offended at all the trash talking. Go figure!

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Old 07-28-2006   #2
Join Date: Jul 2006
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What's the distinction between erecting a livestock fence over a navigable waterway and erecting a fence as a hazard to kayakers to force them unto private property?

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Old 07-28-2006   #3
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Englewood, Colorado
Paddling Since: 1978
Join Date: Oct 2003
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Sounds like Dave is trying his own brand of Routt County River Enforcement...

It is settled civil law that a person has a privilege to tresspass on another's land if their safety is threatned. So the issue is going to boil down to two things:

On the civil end, if the boater knows that the obstruction is in place on the river, does that somehow invalidate the privilege? I think Moss' lawyer will have a hard time selling this to a court.

On the criminal end, if Moss forces a boater to touch the banks or bed by virtue of his obstructing the river, does this create an affirmative defense to criminal trespass on his land? Again, I think it's hard to sell that one too.

DirtyWater - I believe the difference here is that if you erect a fence for the specific reason of affecting kayakers at all, you are purposefully acting in a way that endangers them. Even if Dave Moss has a legitimate livestock reason to put a fence, I have a pretty good feeling that he knows for a fact that such a fence poses a danger to boaters. He has had plenty of contact with boaters knows our safety concerns.

Any fence over Willow Creek is obstructing a public waterway. The argument to be made here is in the legal section of CRC2: Moss can no more obstruct the river to prevent its otherwise legal use any more than someone who owns land on each side of a public road can cut a tree down over the road to stop people from driving down it. The problem here is that these arguments have yet to be tested in a Colorado court, at least as far as I know. The state legislature tried to pass a recreational access bill last year, which would have guaranteed the right to portage hazards, but rural Republicans led a successful charge to kill the bill.

I think Dave Moss is taking a HUGE risk to his personal assets (all that pretty land) by obstructing the river. If any boater is injured or killed at a hazard he creates, he will get sued like nobody's business - and IMO it won't look good for him when the court hears how he purposefully created a hazard he KNEW would pose a LETHAL threat to kayakers. Even if someone just gets jacked up and pinned there, there may well be enough evidence to win on other civil charges. I won't be surprised if he starts something up next spring, but his lawyer ought to be advising Mr. Moss of the legal dangers to him. Because if the SHTF at anything Dave puts over the river, his attorney had best have advised him of his liability well before it all goes down.
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Old 07-28-2006   #4
Join Date: Oct 2003
Posts: 85
Access is BLM and then goes to National Forest. The plats I have looked at shows that Willow Creek only crosses the Mosses land at the takeout. Not sure how long the run is total, but they own a very small part that has to be flat water. I will email you a pdf of his land on a plat. (Can't figure out how to attach it to the post if you can) From past experience with him, I tend to think that he is under the impression he owns more than he does. Wouldn't be surprised if the fence winds up on National Forest. Pete would be a good source for the first D. I would imagine some time ago. Here we go.[/img]
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Old 07-28-2006   #5
Join Date: Oct 2003
Posts: 118
Sounds like we'll be goin to court Assume your fee will be waived for this one, bud
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Old 07-29-2006   #6
Join Date: Apr 2005
Posts: 39
Just out of curiosity, who is Dave's lawyer?
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Old 07-31-2006   #7
latenightjoneser's Avatar
steamboat, Colorado
Join Date: Feb 2004
Posts: 417

I pm'd you.

Perhaps Dave is just trying to intimidate us. There are many lawyers willing to write a nasty letter for a fee. If you ask me, Dave is wasting his money.

It may be that some people steer away from Willow due to the angry landowner. If the Court were to rule against Dave on this issue, he could have a lot more boaters in his backyard. I doubt he wants to risk that.

What's the difference if some landowner strung up a fence across the Yampa just above C hole?

BTW, according to his lawyer, Dave doesn't own the land at the takeout. His brother does.
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Old 07-31-2006   #8
Preacher of the Profit Paddling Since: 1990
Join Date: Oct 2003
Posts: 1,062
Time to band to gether for a peaceful float.

Sounds like Dave might be the perfect person to finally get this issue setted in court. I know the fishing clubs keep dropping the court issues. Sounds like this guy is just about hardheaded enough to fight it out in court. This might be just what we've been waiting for. Colorado Whitewater and American Whitewater could step up to the plate and finally get this issue resolved once and for all. Moss puts up the fence, we float the river. I could see a few hundred folks cruising down Willow. It would look like I-70 on a Sunday afternoon. That might get the State Supreme Courts attention.

Remember there are only two reasons for a fence. To keep animals in or to keep people out.
I love to dance, but who needs the music- It throws me off.
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Old 07-31-2006   #9
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Taking this through court has big risks on both sides. The reality is the rich landowners on the taylor and other waterways in the state probably have more money to pour at the problem than us boaters on our best day.

The risk is high on both sides.
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Old 07-31-2006   #10
Master of Chaos
Join Date: Apr 2004
Posts: 73
Very interesting. Ken c is right, lots of consequences on this one, but the issue needs to be resolved. Caspian has great points as Mr. Moss understands the consequences of his actions and is tempting the RTF issue as he's done over the recent past. Let's do our homework, get the right group together and be prepared for the mass session down willow next year. kv

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