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.
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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