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Old 04-25-2011   #1
 
cpollema's Avatar
 
loveland, Colorado
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Fence over water questions

I recently found out about a new fence constructed over the Big Thompson river near Loveland. This is certainly not an area for rafts or kayaks, but is popular with tubers during the summer. Once the water levels come up, this fence will likely be an entrapment hazard. I have researched threads on the forum and found reference to:


C.R.S. 18-9-107. Obstructing highway or other passageway.
(1) An individual or corporation commits an offense if without legal privilege such individual or corporation intentionally, knowingly, or recklessly:
(a) Obstructs a highway, street, sidewalk, railway, waterway, building entrance, elevator, aisle, stairway, or hallway to which the public or a substantial group of the public has access or any other place used for the passage of persons, vehicles, or conveyances, whether the obstruction arises from his acts alone or from his acts and the acts of others; or...
(2) For purposes of this section, "obstruct" means to render impassable or to render passage unreasonably inconvenient or hazardous.
(3) An offense under this section is a class 3 misdemeanor.

Are there additional laws, statutes, or regulations that apply? Have any of you dealt with landowners over this issue? I'm looking for ideas on how best to approach this potential hazard and looking for ideas. Thanks.

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Old 04-25-2011   #2
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With a pair of wire fence cutters at night
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Old 04-25-2011   #3
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That fence would not be legal. Now you have to find a LEO willing to enforce the law. Good luck.
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Old 04-25-2011   #4
 
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Quote:
Originally Posted by Theophilus View Post
That fence would not be legal. Now you have to find a LEO willing to enforce the law. Good luck.
Is the statute mentioned above the most relevant? I've heard intent even makes a difference. Is the fence there to keep cattle in or people out? I don't understand why that makes a difference. To me it offers a life safety hazard to someone floating down the river, so shouldn't it be straightforward to say 'remove it'? I guess laws are never that simple...
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Old 04-25-2011   #5
 
Arvada (Denver), Colorado
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A related law concerning gated fences, enacted in 2009 in Montana, is the Public Bridge Access law, found at http://data.opi.mt.gov/bills/2009/billpdf/HB0190.pdf

As for the Big Thompson fence obstruction:

Identify the exact property by going to Assessor Property Records Search

Then go to Larimer County - Sheriff to send an email to Larimer County Sheriff Justin Smith (upper right, under Sheriff Smith's image) for resolution about your concern.

Here's my email suggestion:


(Insert picture of the fence obstruction, if possible)

Sheriff Smith ,

There's a newly built fence located across and over the Big Thompson at or near (provide property info here) which may represent an immediate health and safety concern to tubers, bathers and other public water users. Because runoff will begin shortly, will you please contact the owner at your earliest convenience to either remove or gate the fence barrier to provide safe and sufficient passageway, control livestock and/or manage the property as provided for in C.R.S. 18-9-107 and/or other related Colorado statutes, regulations and/or rules?

Would you also please reply with the resolution to this matter?

Thank you for your attention.

Regards,

Your Name
Your Address (optional)


********************************

PS If you post the public record property location and/or ownership info to this thread, betcha $.37 cash money Sheriff Smith receives a few more emails.... nothin' like the light of day...
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Old 04-25-2011   #6
 
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The issue has to do with Colorado's "vague" water laws. What is a "navigable water way" is the law in question.... There are lots of fences over rivers that run high enough to boat around here (south fork arkansas, chalk creek, etc). Is it commercially used at all? Are there pasture or ranch lands nearby? I would suggest you contact Colorado Whitewater if you really feel it's going to be an issue.

Oh, and I wouldn't suggest going at it with wire cutters...you might just end up being the criminal....
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Old 04-25-2011   #7
 
Arvada (Denver), Colorado
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Quote:
Originally Posted by cpollema View Post
Is the statute mentioned above the most relevant? I've heard intent even makes a difference. Is the fence there to keep cattle in or people out? I don't understand why that makes a difference. To me it offers a life safety hazard to someone floating down the river, so shouldn't it be straightforward to say 'remove it'? I guess laws are never that simple...
Just as private land titleholders have a right of ownership to fence their lands in order to control livestock and manage property so do public water users have a right of access to passage to, from, around (portage), through or over natural streams for their use and enjoyment.

A simple, cost effective and reasonable solution to these concurrent rights is to gate the fence barrier, whether over and across the natural stream or on the land at the public county bridge, park or road right-of-way as has been legislated and is now the law in Montana.

A waterway, just as a roadway, is a highway.

Common highways forever free.
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Old 04-25-2011   #8
 
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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.
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Old 04-25-2011   #9
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I say Hayduke it, but the again it is blocking walking access right now and that is o.k by the law because you can float thru the river but if you touch the river bed then you are trespassing on the land(see other threads regarding the taylor) but We all see the leftovers and have gotten our rafts torn on something like this but do what you think is right and be willing to accept the responsability if you get caught. And remember if you are caught keep your mouth shut, ask for your bail amount, and keep your mouth shut. The D.A.'s will use anything you say to a L.E.O. against you
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Old 04-25-2011   #10
 
Arvada (Denver), Colorado
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Quote:
Originally Posted by lmyers View Post
The issue has to do with Colorado's "vague" water laws. What is a "navigable water way" is the law in question.... There are lots of fences over rivers that run high enough to boat around here (south fork arkansas, chalk creek, etc). Is it commercially used at all? Are there pasture or ranch lands nearby? I would suggest you contact Colorado Whitewater if you really feel it's going to be an issue.

Oh, and I wouldn't suggest going at it with wire cutters...you might just end up being the criminal....
This thread has to do with a fence that appears to obstruct safe and sufficient passage of a waterway. For that obstruction issue, for this fence on this Big Thompson River in this Larimer County, the most relevant law is likely CRS 18-9-107 "Obstruction of Highways" and the most reasonable authority to handle this situation civilly, peacefully and responsibly is the Larimer County Sheriff Department. I'm quite confident that Leslie, Patrick, Nathan, Jay and etc of CW and AW would agree that the Sheriff Dept is best equipped to deal with it as the first, and probably last, step to resolution.

If resolution is not achieved through the Sheriff Dept. and a citation or complaint is filed and brought in a court procedure for a judicial resolution, then other statutes may be asserted. In this instance, no way it gets even remotely close to court, therefore, the Sheriff route.
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