By Jimy Valenti
THE COLORADO STATESMAN
A bill to allow rafters the right to float the state’s whitewater rivers was toppled over Friday when the state senate decided to send the controversial bill upstream for more study. Since results of the study aren’t due until Oct. 31, after the session has recessed, it means that for the time being, legislators will have to tread water on an issue that has sharply split the sportsmen and tourism industries.
Earlier in the week, House Bill 1188, sponsored by Rep. Kathleen Curry, U-Gunnison, and Sen. Mary Hodge, D-Brighton, barely cleared the Senate Judiciary Committee despite a unified front from the state’s ranchers, farmers, landowners and fly-fishing resort owners.
After seven hours of testimony, the committee’s 4-3 party line decision hung on Sen. Evie Hudack, D-Westminster, who stalled for nearly two minutes before voting to send the bill to the Senate.
“I was undecided until the very last second. I’m not kidding you,” Hudak told reporters moments after the committee hearing on Monday.
The Colorado House passed HB 1188 last month on a nearly party line vote with Democrats arguing that rafters have a right to float the rivers and Republicans arguing for private property rights. The senate bill was much different from the House version.
The House bill would have clarified only commercial rafter’s rights, specifying that raft guides do not commit civil or criminal trespass if they enter a river from public land or private land with consent, and if the boat or passengers make incidental contact with the bed or banks of the river to avoid obstacles. However, it would not have allowed loitering such as camping or picnicking on private riverbanks. It also would have give landowners liability protection.
The Senate version was amended to:
• Remove the right to portage around obstacles;
• Include private boaters among the people with a right to float only on commercial stretches; and
• Expand the bill to include any river floated commercially since 2000.
Commercial rafters and private river recreationalists, some of whom were dressed in life vests and river helmets, testified that the Colorado Constitution gives boaters the right to float and highlighted the industry’s positive economic impact.
Both sides hotly contested the issue of whether Colorado does have a right to float. The state constitution says that the state’s waterways belong to the people, but a state Supreme Court case in 1979 found a man guilty of trespassing when touching the riverbed.
Mark Squillace, a University of Colorado law professor and advisor for Streams Access for All, a CU law student group, testified that the Colorado Constitution gives all Coloradans access to every Colorado waterway and said even as amended the bill does not go far enough in providing access.
“It seems very rushed and not very well thought out,” said Squillace. “They put a square peg in a round hole. It just doesn’t fit very well.”
Ranchers testified that giving boaters a full right to float could upset fencing needed to keep cattle from crossing shallow rivers and streams.
Landowners from across the state testified that agreements between them and boaters should be done privately and said the current system has worked well over the last 30 years.
Eddie Kochman, a retired Division of Wildlife official who owns riverfront property, argued that the Legislature does not need to intervene.
“We have to come together as brother and sister and get along without legislation being forced upon us,” said Kochman.
A gentleman’s agreement may not work so well for those involved in a potential lawsuit in Southwest Colorado.
The issue of whether rafters have a right to float in Colorado was brought to Rep. Curry’s attention after a Texas-based developer threatened to sue two Gunnison-based rafting companies if they continued to float his two-mile stretch of the Taylor River in Southwest Colorado.
Lewis Shaw plans on developing 25 luxury homes on his 2,000-acre high-end resort that would feature a private fly-fishing experience. He said rafters disrupt his exclusive resort and are essentially trespassing. Many rafters fear a court decision in this case could set a statewide precedent prompting landowners to close access to many of the state’s rivers and streams.
Brad Roberts is co-owner of Harmel’s Ranch Resort on the Taylor River upstream from Shaw’s property. He also has rafters float by his private fly-fishing retreat. Roberts testified that he agreed rafting is an important economic driver in the state, but that fishing is just as important. He said his fishing resort grosses nearly one million dollars annually.
“We appreciate the value of the rafting industry, but we also appreciate the value of other recreational industries, especially the fishing industry,” said Club 20 executive director Reeves Brown. “The passage of this bill would open up a Pandora’s box of who else are we going to allow this exclusive right to. If I were a hot-air balloonist and this bill passed, I would be next in line to say, ‘We should have an access right as well.’”
Lori Potter, an attorney representing the Colorado River Outfitters’ Association, said 42 states have right-to-float laws.
“Many (states) allow fishing, many allow stream access for fishing, some allow hunting,” Potter said. “(HB) 1188 is much more limited and still ensures that these two rights, the rights of the boater and the rights of the landowner, could still exist.”
Squillace said lawmakers should ask the state Supreme Court to determine the scope of water rights in Colorado before passing any legislation.
Rep. Scott Renfroe, R-Greeley, said he voted against the bill because he did not want to expand access to private boaters.
Democrats Morgan Carroll, Pat Steadman, Evie Hudak and Linda Newell voted for the measure in the Senate committee, with Republicans Scott Renfroe, Keith King and Kevin Lundberg against it.
The Senate bill was amended Friday to include the provision for further study. Hodge called the latest legislative move nothing more than a stall tactic on a difficult decision for lawmakers.