What's the distinction between erecting a livestock fence over a navigable waterway and erecting a fence as a hazard to kayakers to force them unto private property?

 

Sounds like Dave is trying his own brand of Routt County River Enforcement...

It is settled civil law that a person has a privilege to tresspass on another's land if their safety is threatned. So the issue is going to boil down to two things:

On the civil end, if the boater knows that the obstruction is in place on the river, does that somehow invalidate the privilege? I think Moss' lawyer will have a hard time selling this to a court.

On the criminal end, if Moss forces a boater to touch the banks or bed by virtue of his obstructing the river, does this create an affirmative defense to criminal trespass on his land? Again, I think it's hard to sell that one too.

DirtyWater - I believe the difference here is that if you erect a fence for the specific reason of affecting kayakers at all, you are purposefully acting in a way that endangers them. Even if Dave Moss has a legitimate livestock reason to put a fence, I have a pretty good feeling that he knows for a fact that such a fence poses a danger to boaters. He has had plenty of contact with boaters knows our safety concerns.

Any fence over Willow Creek is obstructing a public waterway. The argument to be made here is in the legal section of CRC2: Moss can no more obstruct the river to prevent its otherwise legal use any more than someone who owns land on each side of a public road can cut a tree down over the road to stop people from driving down it. The problem here is that these arguments have yet to be tested in a Colorado court, at least as far as I know. The state legislature tried to pass a recreational access bill last year, which would have guaranteed the right to portage hazards, but rural Republicans led a successful charge to kill the bill.

I think Dave Moss is taking a HUGE risk to his personal assets (all that pretty land) by obstructing the river. If any boater is injured or killed at a hazard he creates, he will get sued like nobody's business - and IMO it won't look good for him when the court hears how he purposefully created a hazard he KNEW would pose a LETHAL threat to kayakers. Even if someone just gets jacked up and pinned there, there may well be enough evidence to win on other civil charges. I won't be surprised if he starts something up next spring, but his lawyer ought to be advising Mr. Moss of the legal dangers to him. Because if the SHTF at anything Dave puts over the river, his attorney had best have advised him of his liability well before it all goes down.

 

Access is BLM and then goes to National Forest. The plats I have looked at shows that Willow Creek only crosses the Mosses land at the takeout. Not sure how long the run is total, but they own a very small part that has to be flat water. I will email you a pdf of his land on a plat. (Can't figure out how to attach it to the post if you can) From past experience with him, I tend to think that he is under the impression he owns more than he does. Wouldn't be surprised if the fence winds up on National Forest. Pete would be a good source for the first D. I would imagine some time ago. Here we go.[/img]

 

Sounds like we'll be goin to court Assume your fee will be waived for this one, bud

 

Just out of curiosity, who is Dave's lawyer?

 

td,

I pm'd you.

Perhaps Dave is just trying to intimidate us. There are many lawyers willing to write a nasty letter for a fee. If you ask me, Dave is wasting his money.

It may be that some people steer away from Willow due to the angry landowner. If the Court were to rule against Dave on this issue, he could have a lot more boaters in his backyard. I doubt he wants to risk that.

What's the difference if some landowner strung up a fence across the Yampa just above C hole?

BTW, according to his lawyer, Dave doesn't own the land at the takeout. His brother does.

 

Time to band to gether for a peaceful float.

Sounds like Dave might be the perfect person to finally get this issue setted in court. I know the fishing clubs keep dropping the court issues. Sounds like this guy is just about hardheaded enough to fight it out in court. This might be just what we've been waiting for. Colorado Whitewater and American Whitewater could step up to the plate and finally get this issue resolved once and for all. Moss puts up the fence, we float the river. I could see a few hundred folks cruising down Willow. It would look like I-70 on a Sunday afternoon. That might get the State Supreme Courts attention.

Remember there are only two reasons for a fence. To keep animals in or to keep people out.

 

Taking this through court has big risks on both sides. The reality is the rich landowners on the taylor and other waterways in the state probably have more money to pour at the problem than us boaters on our best day.

The risk is high on both sides.

 

Very interesting. Ken c is right, lots of consequences on this one, but the issue needs to be resolved. Caspian has great points as Mr. Moss understands the consequences of his actions and is tempting the RTF issue as he's done over the recent past. Let's do our homework, get the right group together and be prepared for the mass session down willow next year. kv

 

count me in

I've got time and money to throw at this freak. Let's convince AWA to place this on their priority list for general access reasons alone. I know zilch about this creek but the map shows it somewhat roadside with numerous campsites. Someone please confirm it's worthy of a fight other than just a hairy 1stD.

 

The put-in and take-out on this run are roadside, but the creek itself is not. It is in northern Routt and has a great "wilderness-y" feel to it. By no means is this some "hairy 1st d." Rather, depennding upon the flows, it is IV+ to V-ish. We here in the 'Boat definitely wat to protect access to this gem. It typically starts to run early (late march early april) due to dam releases from Steamboat Lake and provides a great warm-up to the season.

I too, feel that with the proper support, this stretch of river could provide the spark we need to set some real precedent here in CO. Dave Moss surely has some $ for the laywers- but not the kind that multi-millionaire, second-home-owning, sportsman pardise, HOA groups can bring to the table. Approached correctly, I believe that recreational water users' rights in our state could be both advanced and secured through this waterway.

I know that we, here in Routt, would certainly appreciate any help, if needed, this spring from any of you 'buzzards out there with the time and/or expertise. So, come on up early next season and hit the first hole goin' and we'll be more than happy to guide you down this tasty creek.

 

what is the story this year? anyone been down yet? is the usually water the 1st week of june? thanks

 

When my group did Willow in 2003(?), some guy at the CRC2 listed take out told us we couldn't park there. Said he or the guy he worked for (can't remember all the details) owned essentially not only the shoulder but the road too. We didn't want to argue so we just ran the lower Elk after Willow. Fun run, and the Elk was flooding so it was a nice little surprise and was glad the guy sent us downstream to park.

If the guy doesn't want boaters to park there, I think a simple sign stating that, and directing them to the lower Elk take out would absolutely solve the problem. I think most here on the Buzz would respect that and properly convey our disapproval to any who broke that rule. I don't know of any kayaker that would risk the access to a waterway or the rath of the boating community to have convenient parking.

I bet we could even get a collection and pay for the sign. I've got $20 to spare, anyone else?

But if the guy just doesn't like kayakers and doesn't want them in "his" creek... well, he and we will have to waste a bunch of time and effort, get angry at each other, and end up paying a bunch of money to let someone else decide what is going to happen.

Does the Elk go through his property also? If so, why isn't that an issue?

If he is scanning the Buzz, I'd like to hear his view and perhaps we could come to an agreement. But I'm sure his lawyer would advise against this as it could lead to an arrangement where he didn't get paid.

-d

 

Hey Buzzards and Buzz Administrator,

When they start releasing out of Steamboat Lake and Willow starts to go, can we post a sticky on the buzz to organize a group float? I think it's very important to identify legal parking areas and to not leave trash in the said post, too. Don't want to give this guy or other residents any legitimate issues with boaters.

I think a great example of a good relationship and collaboration is the access at Bailey. I've met representatives of that property by the twin culverts put-in twice and both times it was very cool, but the person did tell me once that they've had a few isolated instances where people were parking too far out in the road. I've also seen some trash left there (of course we picked it up, but it pissed me off). Trash and destructive/ obstructive parking seem like two of the biggest reasons why people don't like to see recreationists of any kind in their back yards.

I'll bring at least one car of front rangers up there for a run. . .now that Chunder's not gonna' get me with his AT when he sees my Golden, CO ID (damn, I miss those posts).

 

Not at all trying to stir the pot, but didn't an acsess issue happen down on the lakefork in the mid 90's? If I remeber correctly, it did involve a commercial outfitter , and in a nut shell, a super rich land owner dropped a tree across, making it a madatory portage....... a portage that took place on his land.

Also, as I understand, the landowner won.

I know this topic is geared toward private boaters, but its still apples and apples, or is it?

 

Willow's been on my list. I'd like to do that and would certainly support a group float. Obviously, if we do something like that, we want to set a good impression, so it would be nice to know whether the take-out is legit or if we need to continue down further before we accidentally bring a bunch of people in to access the river illegaly, if that is in fact the case. Wouldn't exactly help our cause, if you know what I mean. If there's an access issue, the Buzz Crew is definately in support of stickying the thread for the event when it comes around.

COUNT

 

Anyone have info on the case Oarbender is referring to - names, dates, etc? I know there have been problems on the Lake Fork, but I've not heard of that incident and would like to know more. I would actually be quite surprised if that had happened, because the that is exactly the kind of situation that everyone is contemplating up on Willow this year, and I've not seen any legal precedent on that specific issue. If a court ruled that way, it would limit our floating rights substantially.

While the legal bills might run up in order to prove it, as I mentioned in my previous post, I believe the bigger danger lies with Dave Moss than with any kayakers paddling Willow without touching banks or riverbed on Moss' land. Just remember that if the case goes against us, it could alter our rights permanently. Like the guys above said, best to have a good relationship with the landowner...but Dave seems to be intent on asserting his fictional right to prevent legal passage on Willow.

And yes, there are private property and parking issues at the put-in and/or take-out. I'm sure someone from Routt County will shed some light on that when the reservoir starts releasing.

 

We're going with BillyD on the put-in being public prop. He's in the biz and in the know on those issues. The take-out, as has been previously mentioned ,is not even owned by DM, but rather his brother.

 

The fence is an interferance of sportsmans rights. If they interfere in such a manner, file a suit to take his land. You can not put a fence up and then expect boaters NOT to go around it. Colorado is way to pussy to make a judgement on the issues at stake. But, hey! All the other states have decided upon the high water mark.
BTW, What lot and subdivision is this in? Ill look at a plat map, available at the clerk and recorder for $5

 

mass flotilla

Mass flotilla this spring... we are not breaking any laws, the sheriff is on our side. We have the right to float that shiat.

 

You like to float on shit? Weirdo.

 

I will do some looking, but the next few are going to be wicked busy.

If any one has the time, the commercial outfitter was cannibal outdoors, or outfitters, or something like that.

also, I know , there was a float like your talking about. the lake fork went form having 4-7 boats, on an average day to....well, quadtriple that....and then some. I missed it, was in Idaho.

 

Here's some info on the Cannibal Outdoors case. There really wasn't a decision reached as Jack went out of business.

American Whitewater - Colorado!
National Rivers: Colorado River Law, on river conservation, river access, paddling, canoeing, kayaking, rafting, fly-fishing, and Colorado river ownership.
Colorado Report - The Right to Float Makes New Waves in Colorado - Water Resources Committee Newsletter Archives - Vol. 5, No. 5 - August 2002

Jed

 

What is a Massive crew of boaters going to accomplish? except a really dangerous scene when we all try to eddie out above the fence. A few years ago their was a fence right above the bridge before the confluence. We all came way to close to washing into the fence. A last second effort to scramble and grab branches barely saved our lives. We should charge his ass with attempted murder! Dave Moss is definately trying to start shit, he's had serious beef with boaters on Willow creek and the the Elk River. We don't need to prove anything, because the put in and take out are legit. Moss is creating an unnecasary scene just to spite the entire boating community. This issue really pisses me off, and we need to figure this out another way. If we rally a bunch of people and make a scene he'll have some really good evidence of boaters tresspassing on his land(He will seriously hike out their and take pictures). He snaps pics of Bucking Rainbow Outfitters all season, to try and capture a boat pinned or someone walking on the shore. I think we need to rally the boating community, and talk with Moss and his lawyer, and figure something out before we create a scene. If he's not willing to talk maybe the help of AW, and their legal expertise will do the trick.

 

i read this post earlier last week, and thought that this sounded strangely familiar to the stories i was hearing last year. i just now noticed that this post was actually started last spring and had been recently bumped back to the top. is the fence still an issue, or has it been removed? has dm calmed down since the sheriff has had to intervene.

i remember the first time i paddled willow about five years ago. dm pulled up at the takeout just after we had taken out. he was pretty angry. from what i remember, he was yelling at us because he thought we were parking there for a take out on the elk. i really don't think he realized that we had just paddled across his property on willow. he said he owned the elk river bank beside the road and didn't want us crossing his land.

if i remember right, it seemed that the main reason he didn't want us parking there was because he thought that fishermen would see cars parked there. then they would think it was ok for them to park there also, and walk across his property to go fishing on willow, or the elk. i don't know if this was the first run in with him, but nobody told me about the angry landowner before that.

does anyone know if the county has fee ownership of the land that the road is on, or does the county just have an easement to cross his land? from what i understand if the county just has an easement, then you could be tresspassing by walking on the road, because you are touching his land. it is basically like the river. if you float or drive over his land, then you are ok. if you get out of your boat or car and are touching his land, then you are tresspassing.

if the county has fee ownership of the land that the road is on, then they have a right of way that is some given number of feet wide. if you are on this land, then you are not tresspassing. if there is no way to take out there without crossing or touching his land, then we should just use the take out downstream on the elk. if we can take out there without touching his land, then we should push the issue.

my brother does title work for properties here in steamboat. if he can find some free time, i will try to get him to take me to the courthouse and research the property there. it would be nice to know what the deal is with the road. this would give us a better idea of what our rights really are at the takeout.

i haven't boated willow in about three years, but would love to go again. keep me posted if some people want to go.