"Navigability" - Relevant Concept or Distraction?
Based on my posts in the HB 1188 thread I received a private message using this subject heading, suggesting that the concept of navigability might be a dead end and perhaps we should "focus on legal concepts that are relevant to our situation". As long as I wrote the response, I figured I'd share with everyone why I think that navigability is the key concept to focus on. I think the judicial process is ourt best bet, but legislation can potentially address rights that I believe already exist, even though they aren't widely accepted and understood.
First, let me note that any qualification I have as a "legal eagle" is strictly from my own readings of cases that I think are relevant. It's entirely possible that much of what I think is wrong, and probable that some of it is wrong. I've offered my thoughts so that others can do with them what they want, but boaters clearly need some highly skilled legal representation in order to make any gains through the judicial process.
I think navigability is the key concept to the entire issue, because that's what determines the rights we *have*. Depending on which court cases you read and how a state chooses to do things, navigability can be as simple as being able to float down the river in a modest boat. The main federal criteria that applies to all states is what was common *at the time of statehood* and it doesn't matter if a river was being navigated. It only matters that the river was capable of being navigated in that fashion. Figuring that in 1876 there should have been plenty of people still using fairly small boats, especially in frontier states, I would expect that streams that are capable of economically viable raft trips should be considered navigable. It's also important to note that Supreme Court cases have ruled that the existence of hazards and obstacles doesn't prevent a river from being navigable. In the past it was commonplace to unload boats in order to drag them along a section of river or to portage. I *think* some cases have ruled that portage is an inherent part of the right of navigation. Not that my opinion carries any weight in court, but I would think that court rulings that declare rivers to be navigable despite obstacles that require portage should be viewed as a judicial precedent that portage should be considered a public right that necessarily attaches to the right of navigation. Any existing right of navigation can be clarified by legislative action (but still subject to court challenge), or guaranteed by judicial action.
Other than the right of navigation, I'm not sure that boaters have a particularly good case in Colorado. The only logical interpretation I see for the constitution's wording about the water of streams belonging to the public is that the public has a right to make use of *the water* and that such use includes floating on the water. I see two limitations to that. One is the possibility that the courts will accept the aviation law's statement that landowners own the airspace above their property. I think it's BS, but it would prevent the public from using the water by floating through that airspace. The more practical problem I see is that boaters need more than the right to simply float on publicly owned waters. Other than on large and placid rivers, we need the right to make use of the bed and banks, for scouting and portaging, or even to simply run aground in shoals. Unfortunately I see nothing in the constitution's provision for public ownership of the *water* of streams that is in conflict with private ownership and exclusive use of the banks and beds.
That leaves the third, and probably final, possibility that we could be given rights that we don't already have. If we don't somehow already have a right then the only way we can get it is by legislative action, and that has numerous problems. Let's assume the legislature will give us anything we ask for. What's the chance that the courts won't find that such action means that something is being taken from landowners? There have been cases that rule that laws that restrict an owner's ability to use property, or government actions that reduce the value of property don't require compensation, but there are other cases where compensation has been required. In at least one case compensation was required when environmental regulations limited construction on ocean front property to limit erosion and storm damage. If we get the right to boat, and more importantly to scout and portage, by legislative action it's possible that court mandated compensation for the resultant taking of property could be financially catastrophic.