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Old 04-08-2009   #21
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and of course I didnt mean you as in YOU, just speaking in generalities
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Old 04-08-2009   #22
 
Arvada (Denver), Colorado
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Quote:
Originally Posted by Canada View Post
Durango, not flaming on you. Just a poor attempt at humor.

I think this thread should have stayed on the main board. These issues are some of the most important we face. By moving something like this it is effectively killed. It is boating related and probably a bit more encompassing and relevant than whether Pedro swam or which creek boat is best.

Ole, it is the lack of a Supreme Court ruling that is the crux of the matter. While the argument that a party floating past your house is a taking lacks common law support, it certainly passes the smell test to an uneducated juror. i.e. They spent $1mil upgrading their property and then some guide is coming through and catching and killing all of their fish. While I find this mindset without merit, it exists. That is why we need to be careful that we don't test this idea with a confrontational keg filled in your face mass float.

I thought the new law here in Utah would result in someone getting shot. Maybe communication will work and I am just too jaded.
Again, rather than a lack of a Supreme Court ruling here in Colorado, the crux of the matter is understanding, learning and clarifying the existing laws and creating new laws, as necessary. The "Takings" mindset of the private land interests is simply a legend in their own minds and, time after time, is unsuccessful as an argument in a court proceeding whether or not "uneducated jurors" have a smelling problem. The common public water owners, rather than taking the ownership of the streambed away are, rightfully, using the streambed and causing no unnecessary injury to the ownership interest.

We agree that much consideration should be given to testing the law. However, if it comes to the landowner dead set on trying out the law based on this misguided concept, the user will either submit, thus letting the landowner "win" by default, or test out the landowner's resolve by using the water, fish and/or streambed based on rights and law as he, or a floatilla, sees them. Plus, if so, he or they should be prepared to see it through the entire judicial system, up to the Colorado Supreme Court. Otherwise, it is just another Cannibal case, money and time are wasted and nothing gets clarified.
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Old 04-08-2009   #23
 
Arvada (Denver), Colorado
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Originally Posted by DurangoSteve View Post
Kinda thought so, but one of those smiley face thingies helps those of us who are slow on the uptake.

Just yesterday I had a run-in with a trespasser. I threatened legal action, but he just pooped on my deck... after he ate "my" trout.
Witty example, DurangoSteve!

However, the osprey is not trespassing as it only touched the water and traveled in the air above the water in its use rights, neither of which have anything to do with the streambed property, and, therefore, nothing to do with "taking" any right of or causing unnecessary injury to ownership by the streambed's owner.

The osprey, as does the human floating boater, as does the human water user, has the coexisting and dominant right to use the public water to fish (right of "fisheries") for the fish!
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Old 04-08-2009   #24
 
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LOL. True, it didn't touch the streambed. It did, however, make a hell of a splash when it snatched the fish. While I don't "approve" of its method, the osprey's fishing skills were impressive!
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Old 04-08-2009   #25
 
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This is one issue I agree with CasperMike on. Get some of your armed to the teeth Buzz friends to come with you (Casper, TimberTroll, Theo etc.), get AW memberships for all of them and make sure you contact Nathan beforehand.
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Old 04-08-2009   #26
 
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i don't know if armed to the teeth would be the best route.
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Old 04-08-2009   #27
 
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A waterway, just as a roadway, is a highway

Quote:
Originally Posted by yetigonecrazy View Post
My take on it is this:

The guy spent millions of dollars to improve the riverbed for fishing and for the economic prosperity of his resort. This I have no problem with. Now he doesn't want the floaters to come through because he doesn't want people to fish in the improvements he spent so much to build. This is where I make my stand. I don't think we should be fishing in the reaches along his property, IF, he allows us access to just scoot through. I honestly think it's kinda rude to fish in an area like that, and as long as he lets people float through there is no big deal. My big problem is when he restricts access altogether.

There is a situation on the Gunnison that has resolved itself pretty well over the years just below town where it goes through private property owned by these (fortunately very nice) folks from texas. They spent a whole bunch of money a number of years back to re-shape the riverbed into prime fishing country. Now, they are kind enough to let folks float though, but they strongly discourage fishing in that area, and most of the folks that run the river comply with those wishes, because the Moncriefs do allow us to run through without problem.

I know some of you are serious fishermen and will disagree with me on this, but that is how I feel. Let us pass through, and we will do so quietly and quickly, and we'll refrain from fishing until the public areas. Seems a little bit like giving in to him, but its really not.

The public has their rights, easements and estates, as thoroughly settled in ancient, Common, Federal (which has "Supremacy" over state laws) and Colorado Constitutionally created state law to ownership and use of the state's natural waters and its fish. The private streambed property owner has no rights for "letting" the public use these waters and fish. It is just buying into the elite notion begun many years ago by the Normans in Great Britain that landowner is "kind enough" to allow usage of common waters, or, for that matter, that their "discouragement" of fishing the now public improvements should be adhered to.

It goes both ways. If they spent bucks to improve their streambed, that's great. However, that has nothing to do with common use of the waters and fish incidental to recreation as long as the improvements do not obstruct the right of passage. When they do, the public user has the right to portage as necessary and reasonable. Conversely, if the travel above the high water mark is not necessary and reasonable, then there is trespass. Harassment can also come into the picture.

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

Just as the public user has the coexisting, dominant right of way, and easement, to use the roadway that is on the private landbed in the front of your house as a highway to travel, the same public user has the same rights and easements to use the water rights of way for common travel. As long as they don't obstruct traffic in either situation, the public user can stay in the same spot, whether it's the side of a road or an eddy created by a private landowner, wouldn't you agree?

The problem is this. While the laws are very clear for roadway (sidewalks included) usage, they are not as clear for waterway usage in Colorado and elsewhere. That's why there is a need for clarifying laws here in Colorado either by statute revision or creation or by court ruling, as well as ballot initiatives, Attorney General opinions or, on individual bases, cooperation.

It is not a matter of individual groups disagree, we are all water owners and water users, no matter the type of recreational use and have the same inherent and legal rights and easements for that use.

And, yes, it is very much a large bit of giving up coexisting dominant rights and easements of the water owner/user to the coexisting servient rights of the streambed owner/user when submitting to landowner allowance to use, boat, fish, etc, public waters.
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Old 04-08-2009   #28
 
Arvada (Denver), Colorado
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Originally Posted by Canada View Post
It is never that simple.

Yours (Yeti) is the courteous response. If you made your living taking people down the river and hauling out fish, you might feel differently. Many anglers feel differently. They see the infrastructure the state has put into sustainable wildlife, and believe we the people own the fish and have a right to fish for them. As a landowner, I am probably somewhere in the middle. Like Durango, I am a fly fisherman and don't have a problem with people accessing to chase with a fly. As evidenced by an earlier thread where Casper attacked us with mortality "facts" of a bait fisher versus a fly catch and release, even these facts can be skewed to support various opinions.

I've come down on the if you can float it, it should be open camp. I don't think you should be allowed to anchor or walk through private property, but you can float through it and fish or kayak. I actually think the Utah law went too far. I don't think you should be able to walk up an intermittent stream bed on someone’s private property.

I do chafe every time I come across a fence over a river or stream. I get angry when property owners sting cables over a river and create potential death traps.

Your answer is the best. If only we all could be courteous. As a fisherman I have had kayakers eddy out on my line while I had a fish on in the Colorado. As a boater I have had people intentionally throw lures at me as I quietly floated by. There are unfortunate parties on both sides of this issue that are just itching for a fight. It's this that probably leads to the Sheriffs giving tickets that are later thrown out in court. They are just de escalating the confrontation.
It is not a matter of belief that the public owns the waters of Colorado, it is factually written as a law in the Colorado state Constitution, Article XVI, Section 5.

Rather than "floating", I am of the "Recreational USE of" camp. Floating is using only the water surface.

As for allowance to "anchor and walk through private property", the 8 year long process July 18, 2008 Conatser v Johnson Utah Supreme Court unanimous ruling http://www.utcourts.gov/opinions/sup...tser071808.pdf found:

30 We hold that the scope of the easement provides the
public the right to float, hunt, fish, and participate in all
lawful activities that utilize the water. We further hold that
the public has the right to touch privately owned beds of state
waters in ways incidental to all recreational rights provided for
in the easement, so long as they do so reasonably and cause no
unnecessary injury to the landowner.

You all can decide if you feel this ruling went too far. It's my hope that, if the Doughboy/floatilla case comes to fruition, the Colorado Supremes conclude the same.

As for usage of intermittent or seasonal bodies of water, notice that the Utah SCt ruling, Colorado Constitution and ancient, Common and Federal laws use the term "all natural waters" and/or "navigable" waters. Or check out the term "navigable in fact is navigable in law".

As for fences that obstruct passage on public waters, there is a law, CRS 18-9-107, presently on the Colorado books for "obstruction of highways" that may need clarification at http://www.michie.com/colorado/lpext...main-h.htm&cp= . As mentioned before in a separate reply, "a waterway, just as a roadway, is a highway." Just as the water user can break or adhere to laws, so can the landowner.

As for fences that obstruct recreational access to/from public waters at bridge or county roads rights of way, check out http://www.newwest.net/city/article/...nor/C396/L396/ which is fully supported by both private and public interests. This is an access solution waiting to happen here in Colorado and which I advocate for and to Colorado state legislators for clarifying legislation. All Win.

And, lastly, yes, as I've mentioned in a previous reply, courteous cooperation is the easiest and best path.
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Old 04-08-2009   #29
 
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I appreciate OleRivers' informed contribution to the discussion and the most sentiments voiced by most on this thread, however I gotta call this statement out as giving up too much to the landowners:

yetigonecrazy:
Quote:
The guy spent millions of dollars to improve the riverbed for fishing and for the economic prosperity of his resort.....I don't think we should be fishing in the reaches along his property, IF, he allows us access to just scoot through. I honestly think it's kinda rude to fish in an area like that, and as long as he lets people float through there is no big deal...
I'm not a fisherman but to me this is kind of like making a unilateral decision to spend my money paving and fixing the potholes in the road in front of my house, then expecting the public to limit or forfeit their right to park or drive on the street because I fixed the potholes. I certainly hope before he spent the money on the habitat improvements someone told the landowner that we, the public, will still have a right to float and fish our river afterwards. We already lack the right to use the river bed up to the high water mark which is a given in most states. We already have the right to "just scoot through." And now someone advocates giving the fishing part of that up? Giving up our right to fish in such a situation as above is the start down a slippery slope toward giving up our right to float.

That said, I encourage all boaters to show only respect for the landowner and the law when they pass through private property, yet still exercise our right to float and fish if desired. Please bear in mind that showing disrespect will only be used against the boating community whenever we need public support of our right to float.

And... Pardon the threadjacking but there's something that bothers me about these folks that modify the riverbed for "habitat improvements." Don't they need a permit from the USACOE to modify the riverbanks and bottom? Why can landowners make these river modifications but whitewater improvements require a substantial permit process?

These riverfront landowners really need to get their legal advice from someone other than their realtors before they buy / improve their property or the riverbeds...

-AH
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Old 04-08-2009   #30
 
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Andy - "Habitat Improvments" do require a permit from the Corps of Engineers. A few years ago, I called the Corps regional office in Albuquerque about the permitting process. I don't remember specifics, but I do recall that pretty straightforward work that doesn't "significantly" change the nature of the river can be done under a "blanket permit," and it isn't all that difficult to get... unlike whitewater park construction. I never went through with the work I had in mind because of the cost, and concerns about driving a trackhoe up the river during either the brown or rainbow spawning seasons. Instead, I just move rocks by hand during low water. Then the damkeeper above me cranks open the gates and a lot of my work gets peeled off. In the fall, I do it again... kinda like in the "myth of Sisyphus."
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