Colorado private property access laws - Mountain Buzz
 



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Old 09-12-2014   #1
 
Steamboat, Colorado
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Colorado private property access laws

So.... I was wondering, because apparently I can't research worth shit, what are the laws on portaging and such through private property?
I have heard a few different things....
Don't get out of your boat?
It's ok to get out of your boat if it's an emergency?
I read an amendment to the Colorado Constitution that says we have access to the high water mark.... but I don't really see if or when that passed?
I don't know.... just curious.
Anyone know for sure?

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Old 09-12-2014   #2
 
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The amendment didn't pass.

This is a real gray area in Colorado. Real soon a user named National Rivers is probably going to get on here and tell you that you have a right to float and access any river in the country, and he may be right. However, when the Colorado Supreme Court looked at this issue they disagreed. See People v. Emmert. Many people, myself included, think Emmert is wrong according to various holdings of the US supreme court, but the problem is that we don't currently have a Colorado court holding that agrees.

This is precisely the issue the amendment was going to clear up. (From what I understand the Fishermen's lobby asked for a little too much, and that ended up killing the amendment. But that is speculation.)

So right now the best answer is we don't know. (Although National Rivers is very confident that we do.)

Either way, when it comes to portaging, Colorado criminal law has a lesser of two evils defense. Basically you are not guilty of criminal trespass if you take the lesser of two evils (i.e. trespassing while portaging a barbed wire fence or Class V rapid). This defense should protect you in most criminal trespass situations. This defense doesn't protect you from civil liability - so if you damage property, etc while portaging you could still be sued.
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Old 09-12-2014   #3
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I thought it was pretty clear....if a dirty boater gets out of the river on the property of your 4 million dollar second home that you live in two weeks a year then you have every right to shoot 'em on sight.....
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Old 09-14-2014   #4
 
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Never get out of the boat.
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Old 10-20-2014   #5
 
Arvada (Denver), Colorado
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Quote:
Originally Posted by soggy_tortillas View Post
So.... I was wondering, because apparently I can't research worth shit, what are the laws on portaging and such through private property?
I have heard a few different things....
Don't get out of your boat?
It's ok to get out of your boat if it's an emergency?
I read an amendment to the Colorado Constitution that says we have access to the high water mark.... but I don't really see if or when that passed?
I don't know.... just curious.
Anyone know for sure?
Info about the ancient, Common, Federal, state, local, etc. history, rulings, statutes, Constitutional amendments concerning stream/water/natural resource access, use, enjoyment can be found at nationalrivers.org (or .com). This site's info essentially advocates, procedurally, for all to learn and raise awareness about these issues and, substantively, that water dependent activities' folks have the dominant easement, or "right of way", about these use, access and protection issues so that they may be confirmed and resolved. My accumulation of info about these issues may also be of assistance to your questions. For starters, see my previous posts in my Profile. As with national rivers, I may not know everything but I sure as hell am one excitable water guy about this stuff.


You may also want to brush up on the "Public Trust Doctrine" which is the basis for protecting your public trust interests in and control of public natural resources, such as air, water and wildlife (as in "fish"). Just check out the "Colorado Water Plan", "2014 Colorado Ballot Initiative #'s 89 and 103" and the "Colorado Oil and Gas Task Force" at the Department of Natural Resources web site for a couple of major reasons why you should understand, focus on and advocate for your rights.


As nationalrivers explains and Ancient, Common and Federal, etc., law confirms, you have the right to use the water you publicly have a trust interest in for, among other uses, "fisheries" and "navigation" and the easement (right of way) to make incidental contact with the bed land, banks (land in between the low and high ordinary water marks) and even along the stream for that public water use.


"If it's navigable in fact, it's navigable in law." --> "The Daniel Ball" US Supremes ruling.


So, based on the above, you can get out of the boat. Based on the errant, imo, and narrow Emmert Colorado Supreme Court ruling, which litigation, legislation, initiation and/or even education can overturn by confirming the supreme laws, amendments and rulings, stream access and use is looked at, as BrianK put it, as a gray area.


Getting out of your boat in an emergency, such as personal injury or equipment mishap, is also covered under Federal, etc. See nationalrivers and I also probably have some docs on that.


Access to "ordinary" high water mark was indeed part of the language of "2012 Colorado Ballot Initiative #3" but didn't get enough valid signatures to get on the 11/2012 ballot. Good language to confirm your public trust rights... check it out.


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Old 10-20-2014   #6
 
Arvada (Denver), Colorado
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Quote:
Originally Posted by BrianK View Post
The amendment didn't pass.

This is a real gray area in Colorado. Real soon a user named National Rivers is probably going to get on here and tell you that you have a right to float and access any river in the country, and he may be right. However, when the Colorado Supreme Court looked at this issue they disagreed. See People v. Emmert. Many people, myself included, think Emmert is wrong according to various holdings of the US supreme court, but the problem is that we don't currently have a Colorado court holding that agrees.

This is precisely the issue the amendment was going to clear up. (From what I understand the Fishermen's lobby asked for a little too much, and that ended up killing the amendment. But that is speculation.)

So right now the best answer is we don't know. (Although National Rivers is very confident that we do.)

Either way, when it comes to portaging, Colorado criminal law has a lesser of two evils defense. Basically you are not guilty of criminal trespass if you take the lesser of two evils (i.e. trespassing while portaging a barbed wire fence or Class V rapid). This defense should protect you in most criminal trespass situations. This defense doesn't protect you from civil liability - so if you damage property, etc while portaging you could still be sued.
Courts interpret, Legislature makes and Executive, well, executes laws. Legislated statute creations or amendments and Constitutional amendments trump. See "Utah Stream Access Coalition"'s website for their Public Trust litigation, Utah Supreme Court and legislation battles concerning stream access and use. Emmert err'd and can and should be placed in its subservient position to your rights by educational awareness raising and learning (first), litigation, legislation and/or Constitutional amendment.


BrianK, the amendment you refer to is the "2010 HB 1188" "rafting bill". The commercial, private business boating outfitters bill language benefitted only their private interest and provided no language to benefit the public's trust interest to use, access and enjoy public water and make incidental contact with land, whether public or private, in doing so.


The bill was killed and rightly so.
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Old 10-20-2014   #7
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Fedral law vs. State law

Marijuana is illegal according to the Federal Government. Navigating a navigable waterway below the high water water line is legal according to the United States of America. Colorado has no respect for Federal law...Don't even think about touching the private riverbed/shore property unless you have to avoid a hazard here in Colorado...
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Old 10-20-2014   #8
 
Arvada (Denver), Colorado
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Quote:
Originally Posted by BrianK View Post
Either way, when it comes to portaging, Colorado criminal law has a lesser of two evils defense. Basically you are not guilty of criminal trespass if you take the lesser of two evils (i.e. trespassing while portaging a barbed wire fence or Class V rapid). This defense should protect you in most criminal trespass situations. This defense doesn't protect you from civil liability - so if you damage property, etc while portaging you could still be sued.
Google "CRS 18-4-504.5 Colorado Criminal Trespass" for the relevant statute language. Read the exact language. This 1977 statute, Emmert and the CO Attorney General's 1983 Opinion are the access and use precedents referred to for these issues. Emmert is in error, IMO, 1977 SB 360 that amended 18-4-504.5 to accommodate the Emmert ruling was mindnumbingly misinformed (I have the Committee hearings' audio cd's) and the AG's Opinion is, well, just an opinion.


"Lesser of evils" is indeed a confirmed basis but its language is not found in 18-4-504.5. If it is in CRS, I'd like to know its citation...
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Old 10-20-2014   #9
 
Arvada (Denver), Colorado
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Quote:
Originally Posted by ~Bank View Post
Marijuana is illegal according to the Federal Government. Navigating a navigable waterway below the high water water line is legal according to the United States of America. Colorado has no respect for Federal law...Don't even think about touching the private riverbed/shore property unless you have to avoid a hazard here in Colorado...
Bank, it's "ORDINARY high water mark" rather than "high water mark". Big difference.


If you touch bottom and go to court with a competent attorney with, of course, the bucks to pay for it, you'll eventually win, IMO, based on Ancient, Common and Fed law. If pressed, my dough would also be on the case being dropped. Nationalrivers states, accurately, that it's already been confirmed.
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Old 10-20-2014   #10
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Culture Change

I fished as a kid around Westcliffe, along narrow creeks without fences, nobody thought of fencing. We are getting a concentration of self righteous folks that are pissing off ( land owners or boaters) and causing conflict. I don't think fences should ever cross rivers. Who fences the river anyway! If the rivers not checking your ego your in to big of a boat.
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