"Our Framers were not Elitists"

Jeff Candrian's Testimony to House Judiciary Committee (2/8/10)

First of all, I’d like to thank Rep. Curry for carrying a bill on stream access. It’s an extremely important issue for our state’s future, and it has been the elephant in the room for too long. However, I oppose the bill presented here today because it doesn’t go nearly far enough. As drafted, it gives greater stream access to commercial rafters, but denies it to everyone else.

Current law threatens the rafting industry. And if passed, House Bill 1188 gives rafters the protection they need to stay in business. The bill grants them a right to float all the streams they currently operate on. More importantly, the bill grants them a special exemption from trespass violations, when they float on waterways adjacent to private property. This is a good result for the rafters, but bad for everyone else. For everyone else would be stuck with the status quo. That means private boaters and fisherman – who pump over $700 million into our economy annually – would remain subject to a trespass violation if they float the exact same stream as a commercial rafter.

Such a system runs contrary to the clear language in our state Constitution. Article 16, section 5 doesn’t read the water belongs to the paying public. And it doesn’t read Colorado’s streams and lakes belong to those who own waterfront property. It says “The water of every natural stream . . . is hereby declared to be the property of the public . . . dedicated to the use of the people of the state, subject to appropriation.”

Colorado has arguably the worst stream access laws in the nation – certainly in the West. If anyone in this room has floated on a stream or a lake that borders private property, you have committed a civil trespass. If you’ve incidentally touched the bed of that same waterway, or portaged around an obstacle like barbed wire, you’ve committed a criminal trespass. In other words, a major sector of our economy operates illegally. Not surprisingly, our law sets us far apart from our neighbors.

For example, Wyoming, Montana, and Utah – states that also have a strong tourism economy – all grant the public a right to stream access.

Wyoming allows the public to recreate in waterways capable of floating a craft. And if a waterway is capable of floating a craft, regardless of a privately owned streambed, then the public may incidentally touch the stream banks or beds with a watercraft, paddle, oar, or angling equipment – and even disembark to portage around obstacles.

Montana also allows public stream access for waterways that are capable of being used for recreation, up to the high water mark – which includes most of the banks. That’s been the law in Montana since 1984.

And finally, Utah allows the public to wade into or touch the bed or banks on any Utah waterway, navigable or otherwise.

No state described above – or anywhere, for that matter – differentiates between private and commercial users like HB 1188. In fact, any attempt to alter trespassing laws so that they are more advantageous to one group, vs. another, feasibly violates the Equal Protection Clause in our Constitution.

In sum, I don’t think our laws should continue to block access to our state’s waterways for the millions of people who can’t afford to own property next to a waterway. Our Framers were not elitists, and the Constitution means what it says.

Justice Hobbs elaborated on the public’s right to water in a 2002 Colorado Supreme Court case. There, the Court denied a takings claim by a landowner, who argued that he owned all the water on his property.[1]

According to Justice Hobbs (and I quote) “By reason of Colorado's constitution, statutes, and case precedent, neither surface water, nor ground water . . . belong to a landowner as a stick in the property rights bundle."

I agree with Justice Hobbs. So it follows that our stream access laws – like those in our neighboring states – should be drafted for all of the public, not some of the public. I urge you to amend this bill.

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[1] Bd. of County Comm'rs v. Park County Sportsmen's Ranch, LLP, 45 P.3d 693, 707 (Colo. 2002).

It's Time to Provide Stream Access for All

It’s Time to Provide Stream Access for All

Mark Squillace © 2010

I have a confession to make.  I am a trespasser.  A serial, criminal trespasser.  I have floated a boat on more than one Colorado river or stream that passed through more than one stretch of private land and in doing so, I have touched the bed, hit some rocks, and occasionally bumped into the bank.  Under Colorado law, that makes me a criminal.  In virtually every other state in the country, and under the laws of most of the developed world since at least the time of the Roman Empire, I would be acting legally.  But not here in Colorado.  Under a 1979 decision from the Supreme Court, I am criminally liable for trespass.

The problem with Colorado law has come to a head on the Taylor River where a wealthy private landowner has decided to block access to a commercial rafting company that has operated on the river for years.  Because of a low bridge constructed by the prior landowner, the clients of the rafting company are forced to get out of their raft and portage around this obstacle.  They’d rather not.  They’d rather stay on the water and float through.  But during certain times of the year, the water is too high to pass safely under the bridge.  So, they get out and walk around the bridge.  Now a new landowner claims a property right to deny these people the right to get around the obstacle that his predecessor created.  Moreover, this property owner believes that he can keep them off “his” section of the river.  And he has threatened to sue them if they continue to raft through his property. 

Representative Kathleen Curry has proposed a legislative fix for this problem.  She deserves credit for tackling an issue that should have been addressed long ago.  Unfortunately, her solution, House Bill 1188, is narrowly tailored to protect only commercial rafters, and then, only on rivers where commercial companies currently operate.  Representative Curry is right to want to protect the commercial rafting industry and the many communities throughout the state that they support.  They deserve our support.  But the effect of this proposed legislation – intended or not – is to throw the rest of us private boaters and fisherman under the bus. 

To their credit, the commercial rafters have argued for broader legislation that would protect the public’s right of access.   That’s a good thing and it reflects the hope and aspirations that many Coloradans have for their state.   And it is grounded in the foundational documents that comprise our law.

The Colorado Constitution provides that “the water of every natural stream … is …the property of the public…dedicated to the use of the people….”  A plain reading of this language suggests a broad public right of access to Colorado’s rivers and streams.  Indeed, contrary to what some private property advocates would have us believe, broad public access to waterways is the norm throughout the United States, often based upon language far less compelling than that in Colorado’s constitution.  Nonetheless, the Colorado Supreme Court has been reluctant to find public access rights without some direction from the legislature.  In the 1979 decision mentioned above, the Court specifically invited the legislature to change the rules on public access.  But until now, the legislature has shown little interest in taking the bait.  House Bill 1188 would, of course, change that. But far from expanding public rights, it would likely narrow them.  If like me, you find yourself outside the class of people protected by the proposed legislation, and if you prefer to recreate on streams not encompassed by the legislation, then this legislation sets you up as a target.  You will be a target for all of those frustrated landowners who will no longer be able to stop commercial rafters from floating through their property, but who will see the clear lines that the new legislation draws, relegating private boaters and fisherman to second class – indeed, criminal status.

If the Colorado constitution, which dedicates the waters of all natural streams to public use, protects the public’s right of access, as I believe it does, then surely it protects those rights for all water users, not merely those who can afford to pay a commercial rafting company.  Those who support the current proposal argue that this is just a first step.  If this passes they assure us they will be back to support stream access for the rest of us.  Maybe so.  But if this legislation passes in its current form, the commercial rafting community will hold a monopoly on the lawful recreational use of our rivers and it is hard to see how it will be in their economic interest to promote access rights for the rest of us. 

It is long past time for the Colorado legislature to give all Colorado residents the rights that are guaranteed under our constitution and enjoyed by the residents of virtually every other state in this country.  It’s time to provide stream access for all.

[The author is a professor of law and the Director of the Natural Resources Law Center at the University of Colorado Law School.  He serves as an informal advisor for a new student organization called “Stream Access for All.”  The views expressed in this editorial are his own, and do not necessarily reflect the views of the University of Colorado or the Natural Resources Law Center.]