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Old 04-25-2011   #11
 
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some law clarification

According to the colorado supreme court there are no navigable rivers in colorado. we are not talking about little creeks - the supreme court decision in question held that the colorado river west of glenwood was not navigable for title purposes. This is important because if waters are navigable then the land up to the normal high water line is owned by the public, however if the waters are not navigable the land in the river bed is owned by the owner of the adjacent land. So in Colorado whoever owns the land next to the river owns the river bed.

This is complicated because in Colorado no one can own water, you can just own rights to use water. This is the reason it is illegal to capture rain in rain barrels in Colorado. So the owner of land next to a river owns the river bed but they don't own the water. This means (probably-it is unclear) that you cant be guilty of criminal trespass if you stay on the water.

The problem is what happens if you have to portage an obstruction - like a barbed wire fence.

The criminal law has a lesser of two evils defense. So if you portage to avoid drowning in the barbed wire you are not guilty of criminal trespass. I don't think civil trespass has the same defense, so you could probably be liable in a civil suit. Also I don't think there is a law against putting a fence across a river (so long as you own the land). Further, if you cut down the fence I am pretty sure thats going to be a crime of some sort - a few come to mind.

Ultimately, the law is unclear and confusing. That is why there was the big push last year to get a statute passed that would clarify all these rules. Unfortunately, the law was killed by a variety of interests. Hopefully, Colorado can get something passed to clear this up.
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Old 04-26-2011   #12
 
Arvada (Denver), Colorado
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Originally Posted by lmyers View Post
Montana is not Colorado....plain and simple. It would be nice if that was the water law here, but it's not. There are lots of navigable waterways in Co that have fences over them and your not going to change anyone's mind by saying that it's different in Montana. This has been a constant issue here, and it needs to be worked on...but through the proper channels.

A river...or better said a creek is not a highway, and just because it has a couple hundred cfs flowing through it for a couple months a year doesn't make it a navigable waterway. I am not a lawyer, but I have engaged in enough of these conversations to know that you have to involve Colorado Whitewater if you want to have any luck with the local law enforcement.

I don't want to see a fence on any stretch of water enjoyed recreationally, but I doubt you have any "right of way" in this particular area.
Well, if you're referring to my mention of Montana's Public Bridge Access law, then it's not plain and simple that Montana and Colorado's public access laws are different. Access gained by public bridge rights of way is confirmed both here in Colorado and in Montana. The difference lies in the clarity in Montana and confusion in Colorado of this law. Montana's Public Bridge Access law simply clarified the right of public access via public county bridges. Colorado has yet to clarify that right. It is indeed one of the issues I have and will continue to actively work on through the proper channels both here in Colorado and in Utah for the last couple of years with many government, private and public interest folks, including AW and CW.

So as to clarify, a river, creek, natural stream or etc is a navigable water... and is a highway... to use and enjoy for commerce, fisheries, navigation, recreation, etc, activities as found in settled ancient, Common, Federal laws and the Public Trust Doctrine, whether privately or publlcly owned bed lands even if it is a shallow, intermittent or seasonally flowing water. Read Illinois Central, the Daniel Ball, Atlanta Kayak, etc.

The difference between Montana and Colorado is, once again, clarity. And good law vis a vis bad law. Emmert and the trespass law, if challenged in court by competent attorneys, would, imo, be overturned and repealed big time. They just need to be tested and challenged. Easy to say, hard to do.

Lastly, as far as having a confirmed right of way through, over, to, from and around a fence obstruction, yes, there is a ROW, it simply needs to be clarified (not proven, clarified) here in Colorado.
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Old 04-26-2011   #13
 
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Your are all taking the wrong approach. Just convince Exxon that they need this to get their big rigs through to Canada. The fence will be gone overnight ...
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Old 04-26-2011   #14
 
Arvada (Denver), Colorado
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Originally Posted by BrianK View Post
According to the colorado supreme court there are no navigable rivers in colorado. we are not talking about little creeks - the supreme court decision in question held that the colorado river west of glenwood was not navigable for title purposes. This is important because if waters are navigable then the land up to the normal high water line is owned by the public, however if the waters are not navigable the land in the river bed is owned by the owner of the adjacent land. So in Colorado whoever owns the land next to the river owns the river bed.

This is complicated because in Colorado no one can own water, you can just own rights to use water. This is the reason it is illegal to capture rain in rain barrels in Colorado. So the owner of land next to a river owns the river bed but they don't own the water. This means (probably-it is unclear) that you cant be guilty of criminal trespass if you stay on the water.

The problem is what happens if you have to portage an obstruction - like a barbed wire fence.

The criminal law has a lesser of two evils defense. So if you portage to avoid drowning in the barbed wire you are not guilty of criminal trespass. I don't think civil trespass has the same defense, so you could probably be liable in a civil suit. Also I don't think there is a law against putting a fence across a river (so long as you own the land). Further, if you cut down the fence I am pretty sure thats going to be a crime of some sort - a few come to mind.

Ultimately, the law is unclear and confusing. That is why there was the big push last year to get a statute passed that would clarify all these rules. Unfortunately, the law was killed by a variety of interests. Hopefully, Colorado can get something passed to clear this up.
Yes, BrianK, I sorta agree about the navigable waters thing here in Colorado. I believe only a couple miles around GJ have been determined to be navigable rather than non navigable and that there are only a few other short stretches that are determined to be "navigable waters". The natural streams in Colorado are obviously navigable via historical (use of streams for, say, commerce, at the time of Colorado statehood-1876) and modern (kayaking, etc) use and can be confirmed (not proven, confirmed) as such through judicial, legislative and/or initiative procedures.

That said, it is my contention that, upon test and challenge in judicial proceedings, natural streams in Colorado would ultimately be determined and confirmed to be navigable waters and, in the wake of the process, the Emmert ruling would be found in error and would be overturned because of dicta and standards used in Emmert to get to its decision... of course, with competent attorneys doing their thing.

Judicially, there needs to be a citation, say, trespass, or a complaint to get the question into court and up to the Supremes. Otherwise, all this talk is just that... talk. Don't mean a thang if it ain't got that swang...

Rather than "normal high water line", it's "ordinary high water mark". Just sayin'

And, no, "if waters are navigable then the land up to the normal high water line is owned by the public" is not correct. Waters are navigable whether or not the bed lands within the ordinary lines of high water are publicly or privately owned. Under the Daniel Ball, etc, "if the waters are navigable in fact, they are navigable in law", regardless of bed land ownership and are held in the Public Trust ( Champions of the Public Trust, Water Use in Wisconsin Video ) by the state to manage and steward for the public common good. Thus, because of this distinction between the adjacent up lands above the ordinary high water mark and the bed lands below the ohwm, the public interest has the dominant right-of-way to use and enjoy the waters below the ordinary high water mark ("waters" is "natural streams" in Colorado statutory lingo) while the adjacent up land owner has the servient burden to provide that use.

BrianK states: "you cant be guilty of criminal trespass if you stay on the water."

Rather, you're innocent of trespass if you use any or all of the water and have contact or touch the bed land incidental to that use. Yes, it is unclear (confusing) and, therefore, needs to be clarified judicially, legislatively and/or initiatively. And, yes, I am actively pursuing the issues to Use and Access Natural Streams in all 3 procedures...

As for portaging an obstruction, such as the fence in question in this thread, there's legislative, judicial and initiative language that clarifies the right to portage for safety and emergency purposes along or reasonably near a natural stream while taking into account the private title holder interests' right to private property and liability limitations. This is where All Win, compromise, good faith language is needed in any of the procedures. There is such language, however.

Yes, you're correct about the lesser of evils defense for criminal trespass and I believe a Supreme Court wouldn't ultimately find for civil or criminal trespass on a bed land, again, if there's competent attorneys on the case. However, if you're outside a reasonable distance from the natural stream, thus, "roaming at will", then, yeh, you're nailed and don't let the door hit ya...

Lastly, yep, the present law in Colorado is confusing so legislation, judicial action or ballot initiative is needed to clarify. The HB 1188 was confusing and a bad bill to clarify the rights to Use and Access Natural Streams. I believe that, legislatively, the frameworks of Montana's 2009 Public Bridge Access HB 190, now law, and Oregon's 2010 SB 1060 (Google them for their language) have the best language for All Win compromise to Use and Access Natural Streams while respecting the private title holder ownership interest so that's why I mentioned Montana Public Bridge Access law in my comments above.
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Old 04-26-2011   #15
 
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Originally Posted by slamkal View Post
Your are all taking the wrong approach. Just convince Exxon that they need this to get their big rigs through to Canada. The fence will be gone overnight ...
Good one, we do need a "like" button for posts!
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Old 04-26-2011   #16
 
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So... Can I walk around number 5 on the Ark?
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Old 04-26-2011   #17
 
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Thank you for all the information. If I am understanding all of this correctly, it seems that floating on the water is allowed since that is public. The confusing portion is whether the river meets the definition of the waterway mentioned in the statute that refers to obstructing a waterway? So if the landowner indicates that the fence is there to keep cattle (no cattle seen anywhere around), he can keep it? If he indicates it is there to keep the tubers from traveling through his property does that make a difference? It seems that takes the argument down the same path as the Taylor. If the fence does injure someone floating down the river, does that change the argument?
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Old 04-26-2011   #18
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Print a map to send with your complaint. I think the fact that it is a named river would be compelling.
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Old 04-26-2011   #19
 
salmon, Idaho
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It might pay to approach the land owner with the concern for public safety and see if there is a solution where everybody wins, without getting into a big legal battle. That may do more damage than good, from a PR perspective.
If the fence is there to control livestock, then they may be open to suggestions, if it's there to keep tubers out, then maybe not. In that case, pick the fight, because that's not cool.
Here is a simple fix we have used here in ID that seems to work. Might be a little obnoxious, but nobody gets hurt.
It's just a thought. I don't pretend to know anything about the local law, or the motives of the landowner, but sometimes mutual respect goes a long way further than a sheriff knocking on the door.
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Old 04-26-2011   #20
 
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Originally Posted by SALRVRRT View Post
It might pay to approach the land owner with the concern for public safety and see if there is a solution where everybody wins, without getting into a big legal battle. That may do more damage than good, from a PR perspective.
If the fence is there to control livestock, then they may be open to suggestions, if it's there to keep tubers out, then maybe not. In that case, pick the fight, because that's not cool.
Here is a simple fix we have used here in ID that seems to work. Might be a little obnoxious, but nobody gets hurt.
It's just a thought. I don't pretend to know anything about the local law, or the motives of the landowner, but sometimes mutual respect goes a long way further than a sheriff knocking on the door.
What a great idea! Do you by chance have any information about who or how that type of fence is made? I think taking that approach will also determine if he really is planning to keep cattle or stop people from using his stretch of river...Thanks.
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