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.]