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House Bill 1188… a real game changer

March 25, 2010
Author: Trouts Staff

In a huge step forward for the states recreational boating community, the Colorado state senate passed a revised House Bill 1188 last Monday night, paving the way for the a ultimate resolution to posted signthe age old question of who ultimately owns our states rivers.  For those of you not up to speed on this legislation, House Bill 1188 addresses the issue of whether commercial and recreational boaters have the right to float through private property without fear of civil prosecution.  If passed, the bill would make it legal or commercial and recreational (private) boaters to pass through private property so long as they do not touch the river bottom or banks.  In addition, it would allow boaters to navigate (portage) around hazardous obstacles that may pose a safety risk, without the risk of civil prosecution.

But haven’t boaters (commercial and private) always been allowed to float through private property?

The answer is yes, that is until now.  This particular bill was conceived as a result of a civil lawsuit filed by a private land owner Wilder on the Taylor, who was attempting to bar access to their property by Scenic River Tours, a commercial rafting company. (click here to see a letter from the land owner to the rafting company)  The land owner has claimed that by floating through their property, the raft company was trespassing on their land.

Now I feel that it is important to lay out a couple of key facts that are important in this debate.  First, according to Colorado Law, land owners own the river banks and the river bottom.  However they DO NOT own the water that flows through their land.  That belongs to the citizens of Colorado, and ultimately the individual or entity that owns the rights to that water.  So up until now there has been a general understanding by land owners, boaters, as well as law enforcement and government agencies that it was legal to float through a private property so long as you accessed the river from public property (or private property where consent was given), and that you didn’t touch the river bottom or banks.

A second key fact has to do with the “navigability” of a river, as river’s that are deemed to be “navigable” are legal for boats to pass through.  Historically, rivers are deemed “navigable” where commerce has taken place in the past.  This is where the water gets a little murky, as the term commerce has been defined in many different ways.  Some feel that it applies only to waterways where ships have moved goods and services (i.e the Mississippi), yet others have argued that it covers all forms of commerce; whether that be a trapper moving goods up and down a river in the 1800’s or a fishing outfitter running a float trip in 21st century.  Yet despite the debate, the U.S. Supreme Court has repeatedly ruled that “rivers that are navigable in fact are navigable in law.” Essentially they have ruled tat if a river is physically navigable, it is legally navigable.

So what is the current status of House Bill 1188?

On Friday, Sen. Al White, R-Hayden, convinced a group of senators to move to have the bill amended to a study of the issue, with the study to be completed by Oct. 31 by the Colorado Water Congress (a private group that focuses on water issues primarily for agriculture and municipal drinking water, and not recreation or tourism).  The benefit of this, as well as the anticipated outcome seems to differ based upon party affiliation, with Republicans praising this move as a halt to legislation that was moving too rapidly without enough discussion; and Democrats calling the study useless, and nothing more than an excuse for senators to not have to vote on the contentious issue.  There has also been talk from some senators of the possibility of this issue being put before the voters in November elections, but chances of this happening are still up in the air.

So it appears for the time being that this issue will sit idle for the 2010 fishing season.  Whether this is a good thing or not is entirely up to the individual.  I feel that this has been on contentious and controversial issue for far too long, and it seems that it is about time that it be laid to rest for good.  Boaters in Colorado have long held the right to float through private property, and that shouldn’t change because of one land owner on one river in the state doesn’t like watching people pass through his property.  I am 100% in favor of private land owners rights, and I strongly appose  anybody who feels it is okay to trespass.  But the truth is that land owners do not own the water that passes through their property, and it is wrong for one individual or group to change that for their own personal gain.  Recreational boating, both commercial and private, brings a lot of revenue to our state, and has been a favorite pass time of residents and visitors for decades.  House Bill 1188 isn’t attempting to change private land owner rights, or rewrite the law.  It is simply attempting to clarify once and for all the rights of river enthusiasts and land owners a like.  It is my hope as Colorado native, an avid angler and boater, as well as a business man whose lively hood relies on our ability to access our states watersheds, that this bill be passed and this issue be resolved for good.

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