Originally Posted by Andy H.
You keep talking about the high water line and upland access or trespass as if there's something special about it with respect to Colorado law. Its my understanding that in Colorado, under the State's reading of the current law the high water line is irrelevant with respect to whether we can be cited with trespass. If you have a citation, precedent, or some accepted reading of the Colorado laws by entities responsible for law enforcement or policy enactment from Colorado, that states boaters and others can walk on private property below the high water line and be immune from trespass, please share it with us. You will have found the document that has eluded the attorneys for state and national boating advocacy groups working to reform and clarify Colorado's riparian trespass laws for decades.
If, however, you are referring to rights given in the 47 or 48 other states that allow river users to walk below the high water line, please do not speak about it as if it is our right here in Colorado.
None of us like the current riparian trespass laws in Colorado. However until they change, giving folks misleading information based on what we all WISH we could do only sows confusion, does a disservice to the boating community and could set up an unnecessary confrontation with a landowner that makes the rest of us look bad.
Assuming your reply is referring to the words of my previous post rather than from another thread...
I didn't use the term "high water mark". Rather, I used the term "line of ordinary high water". Ordinary high water mark is much different than high water mark and should never be confused with the other. "up land" is different than "bed land" and, yes, I absolutely emphasize "up"
, the purpose of which is to clarify the difference from "bed land" in legal terms relating to ancient, common, federal and, yes, Colorado law when referencing navigable waters.
Yes, of course, I have read and understand the Colorado trespass statutes, in particular, the "premises" definition in criminal trespass concerning "beds and banks". Further, I understand the definitions of "beds" and "banks". For all intents and purposes, yes, the ordinary high water mark is relevant to trespass citations because beds and banks include all that submerged or submersible land below the ohwm.
As for citations, precedents, readings and policy enactments of Colorado concerning trespass, I'd point you to the history of the enactment of the trespass law in relation to Emmert and the Attorney General's opinion. Effectively, it's a bad law that, with competent attorneys, could be tested in court and, ultimately, lose, imo. Nobody's tested the trespass law and/or Emmert back up to the Supremes... Nobody's immune, as you write, from a trespass citation, however, I didn't write that anyone is immune.
Andy, just as other folks interested in the access and use issues, I am all about reform and clarity through legislative, judicial or initiative processes rather than on the water confrontation. I have persistently gathered many, many docs that support, confirm and help to determine these issues, some known and unknown to others, within the judicial or legislative procedural system.
As to rights achieved in other states, it should be understood that the latter states legislatively or judicially confirmed their rights based on the former ancient, common, states and federal rulings and statutes and, likely, will be confirmed in a similar fashion here in Colorado.
Yes, many, including myself, prefer language different than the existing trespass law. However, rather than wishing change, I am doing what I can to make change with clear information in a cooperative, compromise and All Win spirit.
Lastly, to get back to what I actually wrote in my previous post about emergency use of the above
the ordinary high water mark up land, the language used is just about word for word of Section 3 of Oregon 2010 SB 1060 "Recreational Use of Certain Waters", which I find to be reasonable yet negotiable language for both private and public interests so that All Win.