Ignore your rights and they'll go away - Mountain Buzz
 



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Old 08-11-2006   #1
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Ignore your rights and they'll go away

After boating a short stretch on the Frying Pan today we were met at our truck by an Eagle County Sheriff Officer. He informed us that this was a privately owned river and was therefore unnavigable. We quickly informed him that NO, in fact, the water was public use and we had the rights to navigate the small river. He just mumbled a bit and gave us stiff warning then left. Later in the evening I emailed him Colorado River Law to enlighten his knowledge of our glorious river rights. Know your rights, be educated, and paddle hard. Brent

Read up on the laws:
http://www.nationalrivers.org/states...oat-rights.htm

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Old 08-13-2006   #2
 
e-town, Colorado
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thats some great reading, finally nice to understand the laws in colorado! its a little dry but important for every boater to read. Thanks for the info!
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Old 08-14-2006   #3
 
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Colorado law is very gray in this area of floating colorado rivers. There has been a win and a loss that gives both side ammo on this issue. I have been ticketed twice in cheeseman and was in a high profile case about the floating of rivers in Co. The judge did throw these tickets out after AWA came to bat and defended us.

Hopefully Ken Ransford or another lawyer that understands these conflicts in the colorado law can explain it better. All I know is you can get arrested and ticketed for paddling on private property. Yes it will probably get thrown out in court but the hassle still sucks. Above is how I always have read the laws yet I have been ticketed multiple times using the same resources as above as ammo.

Be stealth and fast through private property. Been there and done that. Join AWA it is a great org to have on your side.

Gary
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Old 08-14-2006   #4
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I sent this site to the Eagle County Sheriff's Dept and got a reply saying they would look it over and call me. I've been very polite and am trying to be diplomatic about it. we'll see what happens....
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Old 08-14-2006   #5
 
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Access issues

Hey All. A couple of people have emailed asking for Colorado Whitewater's perspective, so here it is. As much as I enjoyed the advocacy in the nationalriver.org legal summary, the law is not nearly as clear cut as the summary suggests. The Colorado Supreme Court clearly ruled in People v. Emmert that the public does not have a right under Colorado's constitution to float on waters flowing through private lands. While the Emmert decision has been roundly criticized, it has not been overruled. It is equally clear, however, that a boater does NOT commit a criminal offense if he floats through private lands, so long has he or she does not touch the bed or banks that are privately owned.
On behalf of Colorado Whitewater, Jay Kenney and I have each met with law enforcement types and repeatedly represented boaters charged with criminal trespass when the boaters were simply floating through private land. In every instance, the DA's office agreed not to pursue charges or to dismiss charges that had been filed, based on the 1983 AG opinion that concluded Colorado's criminal trespass statutes do not prohibit boaters from floating through private property, assuming they do not touch the bank or beds.
Two issues remain unclear. First, can a private landowner lawfully prevent boaters from floating through private property on civil trespass grounds. Private landowners argue they are entitled to do so, citing Emmert. Boaters cite the current version of Colorado trespass statute, other relevant law, and authority from other jurisdictions to support their argument that landowners cannot prohibit boaters from floating through private property on civil grounds. This was the precise issue in the Lake Fork of the Gunnison lawsuit several years back. There, the landowners sought to enjoin Cannibal Outdoors from running commercial trips on water that flowed through private property. Unfortunately, the Lake Fork case ended before the entry of a final order that could be appealed.
The second issue concerns whether boaters have the right to portage or scout a rapid while on private property. Colorado Whitewater supports the right of any boater to portage or scout whenever a boater believes it necessary and wise to do so. While a number of legal theories support this position, no reported Colorado cases directly addresses this factual setting. In 1996 or so Colorado Whitewater and AW tried to get the legislature to pass a stream safety act to address these issues. We didn't want boaters to run a rapid they did not want to run for fear of being prosecuted. The bill was defeated. Interestingly, some opponents argued the legislation was unnecessary, contending Colorado's choice of evil statute could serve as a defense to a criminal trespass charge. The point though is you shouldn't be charged in the first place. In any event, Colorado Whitewater believes boaters have the right to scout and portage whenever it is reasonable to do so. If we have to fight that issue in court, we will do so.
I Hope this perspective helps.
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Patrick Tooley
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Old 08-14-2006   #6
 
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Hmmmm, Patrick, does that mean that I can sue the lady that chased me with a garden hose while I was attending to a possibly hypothermic swimmer???? Will you represent me? That really freaked me out!
Just thought I would lighten it up a bit.
Anyway, this is just about as clear as mudd!!! In your opinion, do you think that this problem can ever be solved? Are there steps that we can take to alleviate the conflicts?

Kim
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Old 08-15-2006   #7
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What was wrong with the Stream Safety Act?
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Old 08-15-2006   #8
 
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Good questions

Hey Kim. Love the hose story. Reminds me of Frank Zappa's Uncle Remus tune. My understanding is that landowners did not like the act because, from their perspective, it created rights for boaters that did not exist. The general pitch from landowners is they have the right to exclude anyone they want from their property, that legislation allowing boaters to walk on private property is contrary to that right, and that any legislation allowing portage or scouting rights constitutes a taking by the government, entitling the landowners to payment from the government.
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Old 08-15-2006   #9
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hey uncle b, what section of the pan were you on? paddled some of it last year when the water was running high and had no problems. in the spring, when the dam is releasing water, there are usually a handful of boaters on the pan and i've never heard of any problems. however, when the water gets low and the fishing gets good, i can imagine that some landowner called the cops on you to protect his/her 'private' water. bummer for sure.

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Old 08-15-2006   #10
 
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Also Ken Ransford did a write up about your rights in crc2. The laws have not changed since this article.

Gary
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