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Old 09-05-2009   #131
 
slavetotheflyrod's Avatar
 
Littleton, Colorado
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Well after reading 13 pages of this thread, I'm dumbfounded by the lack of knowledge on both sides of the issue. First - there is and has never been any state law dealing with the ownership of stream beds. The popular misconception that the water is public, but the streambed is private goes back to an Attorney General's written opinion from 1984 which deals with access to the beds of NON-Navigable rivers. The opinion was written to clarify the 1977 Emmert decision, in which two wading fishermen were citited for tresspassing in a NON-Navigable river, while wearing inner tubes around their waists. At trial, the hapless fishermen chose to represent themselves and tried to make the case that they were not tresspassing due to the fact they were "boating", hence the inner tubes. They lost. That decision and the AG's opinion are the entire basis for our states convoluted water "laws". In fact, neither the Emmert decision or the subsequent AG's opinion have any bearing upon the states navigable rivers. What does apply are the countless federal laws and U.S. Supreme Court Decisions written between 1879 and the present. Here's a link that should help clarify things for both sideshttp://www.adventuresports.com/river/nors/states/co-law-boat-rights.htm
If you read it carefully, you'll see very clearly that you do have every right to scout, portage, make rescues or repairs as needed, regardless of land ownership. For that matter you have every RIGHT to get out, wade, touch rocks and do what you will, between the high water marks as in other states. Hope this helps
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Old 09-05-2009   #132
 
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Durango, Colorado
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River access in Colorado is a messy, unresolved issue. I think you offer bad advice by saying that public access to the high water line is certain. I'm no attorney, but I suggest that there is no certainty. Right now we're operating under the 1983 AG's opinion that floating access is OK, but touching the streambed is not. While I personally believe that the state legislature needs to clarify Colorado river access issues, they haven't yet and we're in a pretty weird limbo state right now. The good news is that boaters have used the AG's opinion successfully to defend against trespassing claims. Nevertheless, I think it's a very bad idea for you to advise folks that they have absolute access rights.

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There is a great deal of dispute between boaters and private property owners about the right to float through private property. The issue is most intense on smaller, lower volume streams and creeks throughout the state. CW interprets criminal law forbidding trespass, and an Attorney General's Opinion from 1983, as permitting downstream passage on the waters of the state as long as no contact is made with the beds or banks of the stream (where the beds or banks are privately owned). Almost without exception, sheriffs, prosecutors, and law enforcement officers agree with CW's position. CW has defended and is committed to defending club members who are floating on rivers through private property and are cited for trespassing as a result of floating on rivers through private property, as well as boaters charged with trespassing because they scouted or portaged a section of river or unavoidable obstacles. Colorado does not recognize either a statutory or common law right to walk up to the high-water mark of rivers. In practice, on most rivers in Colorado, you are free to travel downstream as long as you do not get out of your boat.
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River Access
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Originally Posted by slavetotheflyrod View Post
Well after reading 13 pages of this thread, I'm dumbfounded by the lack of knowledge on both sides of the issue. First - there is and has never been any state law dealing with the ownership of stream beds. The popular misconception that the water is public, but the streambed is private goes back to an Attorney General's written opinion from 1984 which deals with access to the beds of NON-Navigable rivers. The opinion was written to clarify the 1977 Emmert decision, in which two wading fishermen were citited for tresspassing in a NON-Navigable river, while wearing inner tubes around their waists. At trial, the hapless fishermen chose to represent themselves and tried to make the case that they were not tresspassing due to the fact they were "boating", hence the inner tubes. They lost. That decision and the AG's opinion are the entire basis for our states convoluted water "laws". In fact, neither the Emmert decision or the subsequent AG's opinion have any bearing upon the states navigable rivers. What does apply are the countless federal laws and U.S. Supreme Court Decisions written between 1879 and the present. Here's a link that should help clarify things for both sideshttp://www.adventuresports.com/river/nors/states/co-law-boat-rights.htm
If you read it carefully, you'll see very clearly that you do have every right to scout, portage, make rescues or repairs as needed, regardless of land ownership. For that matter you have every RIGHT to get out, wade, touch rocks and do what you will, between the high water marks as in other states. Hope this helps
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Old 09-05-2009   #133
 
Cisco, Utah
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What's in a name? that which we call a trespassing citation
by any other name would smell as sweet....

splitting hairs on what rock is okay to get out of your boat and stand on seems ridiculous to me. There may be no where on earth that land ownership and property rights weigh as heavily as in these Litigious States of America. Bottom line for me is that it is your responsibility as a boater and an individual to know what land is public and what land is private before you go trespassing. Unless it is a true emergency (like CPR) I should have no reason to test the boundaries of trespassing.
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Old 09-07-2009   #134
 
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Littleton, Colorado
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Quote:
Originally Posted by DurangoSteve View Post
River access in Colorado is a messy, unresolved issue. I think you offer bad advice by saying that public access to the high water line is certain. I'm no attorney, but I suggest that there is no certainty. Right now we're operating under the 1983 AG's opinion that floating access is OK, but touching the streambed is not. While I personally believe that the state legislature needs to clarify Colorado river access issues, they haven't yet and we're in a pretty weird limbo state right now. The good news is that boaters have used the AG's opinion successfully to defend against trespassing claims. Nevertheless, I think it's a very bad idea for you to advise folks that they have absolute access rights.
I've got a pile of supreme court decisions and federal law going back to 1774 on my side, they've got a poorly written AG's opinion from 1983 which cites no case law whatsoever, and uses logic that is flawed at best. That and a team of talented attorney's that never charge me a dime. Charmed life I lead.
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Old 09-14-2009   #135
 
Thronton, Colorado
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Originally Posted by slavetotheflyrod View Post
I've got a pile of supreme court decisions and federal law going back to 1774 on my side, they've got a poorly written AG's opinion from 1983 which cites no case law whatsoever, and uses logic that is flawed at best. That and a team of talented attorney's that never charge me a dime. Charmed life I lead.
So I take it you are an attorney?

If not, I have to agree with DurangoSteve - thanks for the pile of info, but a good attorney will rip the average boater a new one if you test him. Best advice is to what UserName said - know what is public and what is private and stay off private land as much as possible. I wouldn't let a true emergency get in the way of that advice, I'd rather face the attorney than let someone die, but otherwise, stay on the water unless you know for sure it's public access or the private land owner doesn't mind.
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Old 09-14-2009   #136
 
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Very interesting new insights into the law. If this is correct, then most if not all the folks I know are confused on the matter.

Regardless, I believe this post has been wrapped up. The guy we have been "yelling" at is not a hostile kayak-hating land owner. He just would rather we not deficate on is land, use his land as a public access, strip down naked and change in front of his family, etc. There is a public access just a few hundred yards down-stream, use it. Scout from the road. Let's all try to get along and be happy.
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Old 09-14-2009   #137
 
Arvada (Denver), Colorado
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And I'll go with slaveoftheflyrod

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Originally Posted by BoilermakerU View Post
So I take it you are an attorney?

If not, I have to agree with DurangoSteve - thanks for the pile of info, but a good attorney will rip the average boater a new one if you test him. Best advice is to what UserName said - know what is public and what is private and stay off private land as much as possible. I wouldn't let a true emergency get in the way of that advice, I'd rather face the attorney than let someone die, but otherwise, stay on the water unless you know for sure it's public access or the private land owner doesn't mind.
The average boater, no offense intended, has little, if any, clue as to what the settled ancient, common and federal laws are, let alone that state level law in many areas surrounding recreational use of or access to/from waters and their beds are unclear or untested here in Colorado. Hence, the mythology of secondhand gossip is, in blind faith, followed about doomsday for trespassers. The best advice is to know the law, get it changed if necessary and/or cooperate towards mutual understanding and agreement. Simply put, Slaveoftheflyrod apparently knows the law well enough to have applied that knowledge successfully 9 out of 9 times when tested. That's a record many "good" attorneys would like to have... but don't.

As for portage/scouting on #5 or elsewhere, google something like "Texas portage" or "Texas fishing guide" and read the stuff about portage/scouting in TX for a broad overview of laws historically pertaining to portage/scouting. Basically, ancient, common and Federal settled law already provides for portage/scouting in emergencies, or "necessity", when the "lesser of the evils", that is, portaging (as opposed to trespassing) or negotiating manmade or natural obstructions or hazards are the two choices. As long as it causes no unnecessary injury to the land above the water mark, usually the ordinary high water mark, and a reasonable route is taken around the obstruction, portage/scouting is allowable under the law.

As for "good" attorneys, they are only as good as the specific sets of laws they know. Of course, there are many water law attorneys. However, from my experience, for the most part, these water law attorneys know about consumptive water law rather than recreational use water law, so "good" is an inoperative term concerning the latter type of law. Sure, procedurally, attorneys know a good bit. However, slavefortheflyrod apparently knows and has experienced a good bit of procedure, enough to know how to win his point of view under the law when faced with a real life situation. Many, in fact.

This also goes for the landowner as well as the scouting/portaging boaters in the original basis for this thread. Common sense has a lot to do with which rights dominate over servient among the many coexisting rights we all have. When it's the turn, or right of way, for the pedestrian to cross the street, he goes. When the light changes for the oncoming car traffic, then it's the car driver's turn. Generally speaking, people know when they're trespassing and when they're portaging/scouting. They also know when they're harassing and when shooting the breeze. Where there are laws that are clear and broken, they should be enforced whether landowner or water user. Where there are laws, or lack thereof, that are confusing or nonexistent, they should be clarified or created. That's what legislation and judiciary systems are for.

The best way to determine who has the right of way in coexisting rights, however, is cooperation. Slaveoftheflyrod, I am sure, would go for cooperation most of the time. However, I am also sure, that when reason is less than prevailing, he is entitled to the use of and access to any and all legal routes as the last resort to ensure his rights under the law.

And, while you're at it and, of course, interested, stay tuned for upcoming (January 2010) access/use legislation over in Utah (Google Alert "Utah public water access" or similar) as it may affect your access here in Colorado...
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Old 09-15-2009   #138
 
Park City, Utah
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Federal versus state

Slave,

It looks like you are arguing federal law on this? Eventhis isproblematic because most western states want strict control over "their"water, and would hedge at opening that door in a recreational issue. I don't think we should advocate advancing this issue through any individual championship based on loose facts. I would argue that isf you want to set precedent on these issues in any western state, you should attempt to line yourself with AWA if your a boater and one of the many fishing access advocacy groups if you re not.

While I have read some case law on this issue. I can't say I have any expertise, or am an expert. This thread shows how complex the issue is. We boaters want to scout and cross his land. He says, I used to be cool with that until photographers cut down trees for better angles on shots and people were using my land as a toilet. As this played out, I probably side with the land owner in this case. I know how mush I hate cleaning up other peoples dog feces in our front yard. Human waste is taking it to a whole other level!
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Old 09-15-2009   #139
 
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Littleton, Colorado
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BoilermakerU - What difference does it make what I do for a living? If I flipped burgers at Burger King would it make the information I've provided any less useful? Does it make the U.S. Supreme court decisions I've used to exonerate myself any less valid?

Let's get one thing straight here, once and for all - There's NOTHING unclear whatsoever about river access laws in this state or any other. What is unclear is why, we, the boating, fishing public allow landowners, Sheriffs, DA's and elected officials to make up the rules as they go along. I for one, refuse to sit idly by and watch the rivers of our state slowly but surely become the exclusive domain of the landed gentry. If you'd like a glimpse of the ultimate end product of your complacency, just fly over to jolly ol England, where every inch of every flowing river is private and the rule is you have to pay to play. And I'm not talking about a few pounds for a days play. Suffice it to say most of us on here (myself included) couldn't afford a day on the river in England without making some serious sacrifices.

Some responses have mentioned compromise. Why? It's all clearly written in black and white. I've got a better idea - lets all quit being a bunch of lazy pussies and learn our rights, and then protect them at all costs. Or are we too scared of a few "good" attorney's?
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Old 09-16-2009   #140
 
Thronton, Colorado
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Originally Posted by slavetotheflyrod View Post
BoilermakerU - What difference does it make what I do for a living? If I flipped burgers at Burger King would it make the information I've provided any less useful? Does it make the U.S. Supreme court decisions I've used to exonerate myself any less valid?

Let's get one thing straight here, once and for all - There's NOTHING unclear whatsoever about river access laws in this state or any other. What is unclear is why, we, the boating, fishing public allow landowners, Sheriffs, DA's and elected officials to make up the rules as they go along. I for one, refuse to sit idly by and watch the rivers of our state slowly but surely become the exclusive domain of the landed gentry. If you'd like a glimpse of the ultimate end product of your complacency, just fly over to jolly ol England, where every inch of every flowing river is private and the rule is you have to pay to play. And I'm not talking about a few pounds for a days play. Suffice it to say most of us on here (myself included) couldn't afford a day on the river in England without making some serious sacrifices.

Some responses have mentioned compromise. Why? It's all clearly written in black and white. I've got a better idea - lets all quit being a bunch of lazy pussies and learn our rights, and then protect them at all costs. Or are we too scared of a few "good" attorney's?
Actually, yes it does matter what you do. I don't take legal advice from people that flip burgers at Burger King. If you're not a lawyer, then I don't consider youo an expert, and I don't think you should be spoting off like one. A lot of people claim to know a lot of things just because they read it on the Internet. A lot of people think they know all about the Constitution, the legal system, etc. When push comes to shove, they really don't know anything more than any other amateur, they just think they do and have a very strong opinion. Sorry if I offend you, but if you're not a lawyer, then I don't consider you to know any more than a burger flipper at Burger King - no matter what your profession.
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