House committee approves rafting along private land
By Jimy Valenti
A large group of school children approach the display of life vests, paddles and a bright blue raft in the Capitol’s first floor rotunda.
“My daddy rafts everything!” shouts a student on a field trip to the Capitol from Summit Cove Elementary in Dillon.
The student’s father could be trespassing. Rafters floating through private property may face a civil trespassing lawsuit if they touch the riverbank or bottom.
Members of the Colorado River Outfitter Association installed the rafting display along with signs taped to paddles proclaiming “Why 1188? Jobs, Jobs, Jobs” and “Keep rivers open” in the effort to clear up cloudy water laws in the state.
Lawmakers took the first step in deciding whether commercial outfitters have the right to float through private property Monday when the House Judiciary Committee gave House Bill 1188 a favorable recommendation after nearly six hours of testimony from river outfitters, landowners, district attorneys and water law experts.
Rep. Kathleen Curry, U-Gunnison, sponsored the bill that codifies the right to float in Colorado rivers. It specifies 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. Colorado is the only western state besides North Dakota that has not codified this right.
The bill recognizes English common law dating back to 1607 giving boaters the right to navigate rivers and a 19th Century U.S. Supreme Court decision cementing that right. Whether or not Colorado has navigable waters at all or the right to float in any private river was hotly contested by both sides in a discussion steeped in history about 19th Century Colorado fur trappers and inland 17th Century English boaters.
Mark Schumacher, owner of Three River Resort rafting operation along the Taylor River near Gunnison, said the committee hearing went well and he was proud to see so much support.
“The battle is far from over,” said Schumacher, whose business is threatened by a Dallas-based real estate company lawsuit if he continues to float through their property.
Jackson-Shaw purchased the two-mile stretch of the Taylor River near Gunnison and wants to prohibit Schumacher and another local raft company from floating through their 2,000-acre high-end resort with plans for 25 luxury homes and an exclusive fly-fishing experience.
Ches Russell, owner of Scenic River Tours — the other company threatened by the Jackson-Shaw lawsuit — said that if civil ligation is successful, a domino effect could bring lawsuits to the other 160 rafting companies in Colorado.
Russell said that he wants to avoid the lengthy and expensive court process and resolve the situation in the Legislature.
“I’m very concerned about the future of our rivers,” said Russell. “We have rafts and they have jets.”
In committee, Jackson-Shaw’s lawyer, John Hill, said he doesn’t believe the bill clarifies floater’s rights, but takes away the rights of landowners. He also said he doesn’t think its fair for the Legislature to preempt a potential court decision.
“The right to exclude others is one of the most important sticks in the bundle that we know of as property rights,” said Hill. “This bill is a taking of the right to exclude others.”
Lewis Shaw, president of Jackson-Shaw, said that rafting through private property is like “someone walking across your front lawn on a short cut to the grocery store.” In a Dec. 17 letter to Scenic River Tours, he requested that they stop rafting through his property.
Steve Roberts owns Harmel’s Ranch Resort down river from Scenic River Tours and offered passionate testimony how the stretch of river along his property is full with fishermen paying upwards of $100 to fish there. Roberts said he is convinced his fishing business will dry up if rafters continue to float through his property.
“It’s like showing a movie and having a train come through every half an hour,” said Roberts. “I’m shocked that they would be willing to say that rafters are more important than fisherman.”
Mark Hurlburt, a Summit County district attorney representing the Colorado District Attorney’s Council, testified in favor of the bill. He said that prosecutors and the public need clarification.
“When the rules are clear, that tends to short-circuit a lot of bad feelings that can turn into violent feelings,” said Hurlburt.
Many opposed the bill because they did not feel it goes far enough in securing the public’s right to float. Mark Squillace, a University of Colorado law professor and advisor for Streams Access for All, a CU law student group, said the bill gives commercial outfitters the right to float through private property while leaving the public in the status quo — afraid of civil trespass suits.
Squillace also said the bill doesn’t go far enough in opening up every Colorado river in the state, but only those where commercial outfitters have run in the last two years.
The bill received a favorable recommendation from the House Judiciary Committee with a 7-3 vote. Representatives Lois Court, Daniel Kagan, Joe Miklosi, BJ Nikkel, Sal Pace, Beth McCann and Claire Levy voting yes while Bob Gardner, Steve King and Mark Waller voted no. Rep. Su Ryden was excused.
Groups testifying against the bill included Club 20 and Colorado Cattleman’s Association, while the Colorado Water Congress supported the measure. An array of private boaters were both for and against the measure.