Access Legal Issues - Mountain Buzz

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Old 05-19-2011   #1
Fort Collins, Colorado
Paddling Since: 1986
Join Date: Apr 2007
Posts: 287
Access Legal Issues

I hae read a number of different posts recently where people have opined about Colorado's trespass laws and river access. I would caution everyone that win or lose, right or wrong, it's gonna be painfull to get a ticket.

A number of people refer to the Emmert case (597 P.2d 1025, Colo 1979 for you nerds out there) which went to the Colorado Supreme Court and resulted in the defendants' covictions being upheld. People should take note that the Defendants were David B. Emmert, Berlin Taylor and Elbert Wilson and that THEY LOST. Their lawyer was David B. Emmert. I would infer from this that Emmert either represented himself and his buddies or they were all represented by his Dad. This costs a lot less money than what normal people have to pay.

Getting a trespass ticket on agricultural property, or what the Sheriff (who's probably related to the landowner) wants to call agricultural property can get you arrested and taken down to the county jail. On the Taylor, this means you go to Gunnison, even if your car is up near Almont or CB. They then hold you until a judge sets your bail if they want, this can take till monday afternoon when you are now a long way from your car and 5 hours late for work in Denver which is 4 hours away. You then have to go all the way back to that county to fight the ticket, and get a lawyer, and pay the lawyer, and go back for pre-trial hearings, and the trial, and then sentencing, and then you have to pay the lawyer to draft and file the appeal, and pay for a transcript of the trial, and the pre-trial hearings.

This shit goes on forever and you might not get your boat back until after the trial or you roll over and plead guilty. Then the Sheriff tells the landowner that you got off easily so he files a civil suit that you have to retain an attorney to defend. Or roll over and let him win, and then garnish your paychecks and bank accounts.

The point here is that sometimes being right or wrong is immaterial when merely being in the process means you lose. Buzz Homies got your back, but see what happens when you post on the Buzz that you need to raise $25K for trial and an appeal first to the Colorado Court of Appeals and then again to the Supreme Court just because of the principle involved.

Expect that proving your point will be a long and painfull process. Colorado law is very unclear on river usage. A 30 year old opinion from a guy who ain't the Attorney General anymore is not binding law on anyone and it is not likely to determine the outcome of your case. Six of the landowner's neighbors in a jury trial that will cost your in the range of $5,000.00 just for the trial will determine the outcome of your case.

I am Not your attorney and my observations are not legal advice.

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Old 05-19-2011   #2
slavetotheflyrod's Avatar
Littleton, Colorado
Paddling Since: 98
Join Date: Sep 2009
Posts: 387
Martin -

You're observations are pretty much spot on.

Some of you might be interested in a bit more info about the Emert case, it's actually pretty interesting how the whole thing went down. The following details are quoted from the legal textbook Water Resource Management, Fifth Edition p. 461

"The record shows that on July 3, 1976, the defendants entered the Colorado River from public land to do a float trip downstream. The Colorado River flows westerly and bisects the ranch of the Ritschard Cattle Company. As it passes throught the ranch it varies in depth from 12" to several feet. The rafts on which the defendants floated were designed to draw five to six inches of water, and had leg holes through which the occupants could extend their legs into the water below the rafts. This enabled the defendants as they floated down the river to touch the bed of the river from time to time to control the rafts, avoid rocks and overhangs, and to stay in the main channel of the river. They touched the riverbed as it crossed the Ritschard ranch. The defendants did not, however, leave their rafts or encroach upon the shoreline or manks of the river or islands owned by the Ritschard Cattle Company.

Upon being notified that a party of floaters was approaching, Con Ritschard and his foreman extended a single strand of barbed wire across the river at the location of the Ritschard private bridge. The strand of barbed wire was from eight ot ten inches above the surface of the water and was placed in this position specifically to impede the defendants. Ritschard and his foreman remained on the bridge to tell defendants they were trespassing on private property. Defendants Taylor and Wilson were stopped at the bridge and told they were trespassing. They denied this and floated their rafts under the barbed wire and remained under the bridge for a period of time until defendant Emmert, and others in the rafting party caught up with them. Shortly, a deputy sheriff arrived and placed the defendants under arrest, and they were subsequently charged with third degree criminal trespass

The parties stipulated that the river is non-navigable and had not historically been used for commercial or trade purposes of any kind. However, the river had been used in the past by recreational floaters using rafts, tubes, kayaks and flat-bottomed boats, despite the express objection of the Ritschards. At the time of the incident, the river had been posted with no-trespassing signs.

Also, it was agreed that substantially all of the Ritschard ranch land was deeded land with no exclusion of the bed of the river, and that the area where the defendants were stopped was such an area, with the land on both sides of the river owned by the Ritschard Cattle Company"

David Emmert was not, and is not a lawyer, to my knowledge. He represented himself as a pro se defendant. Any lawyer worth his salt would have never agreed that to the stipulation that the river was non-navigable, and anyone who passed 6th grade history knows full well that the Colorado had in fact been used for commercial purposes, historically. Instead, Emmert chose to contend that his actions were lawful according to section 5, Article XVI of the Colorado Constitution, which reads: "The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided"

While the Emmert decision is not in fact, a law, it does represent the Colorado Supreme Court's interpretation of section 5, Article XVI, at that time. Many feel that the court interpreted the article incorrectly and that the current court might interpret it differently. I happen to be one of those folks, as were justices Groves and Carrigan, who dissented. In his dissent, Carrigan wrote: "The constitutional language in no way supports any intent to provide for exclusive private use of public waters" I couldn't agree more...
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Old 08-10-2011   #3
cadster's Avatar
Join Date: May 2005
Posts: 614
On a Taylor canyon run this year we had a swimmer in Initiation and paddlers who go out on river left to help. They were shouted at by a homeowner who called the sheriff. The sheriff met us at the takeout and lectured our group, but told us he wouldn't enforce trespassing in case of an emergency which he deemed the swimmer to be. I attached the sheriff's commentary regarding floating trespass from last year.

I also attached the table from the HCN story: Montana's stream access law stays strong — High Country News

The table doesn't list cases of emergencies.
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Old 08-10-2011   #4
Blarney, Iowa
Join Date: Aug 2010
Posts: 537
That's a very helpful chart. Thanks for posting.
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