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.
Join up, suckas.
"People demand freedom of speech to make up for the freedom of thought which they avoid."
- Soren Kierkegaard