Navigation rights make a splash in landowner's skirmish with river rafters
By Jessica Fender
The Denver Post
Posted: 01/31/2010 01:00:00 AM MST

A skirmish between a Texas developer and two rafting outfitters on the Taylor River could throw the futures of Colorado's rafting companies into jeopardy and leave a lasting imprint on the rights of riverfront landowners.

Dallas-based firm Jackson-Shaw bought 2 miles of Taylor riverbank near Almont for an exclusive fishing club community and wants to bar from passing through two commercial rafting outfitters who have operated there for decades.

A band of lawmakers has waded into the long-standing debate on whether rafters have the right to float through private property in an attempt to change ambiguous laws to favor rafters.

Without legislative action, any one of the state's 160 rafting companies could be the
next sued out of business as stretches of river they once traveled are blocked off, said Mark Schumacher, who has run the Three Rivers Resort rafting operation on the Taylor since 1983.

"Our fear is if they filed a civil trespass charge against us and win, it will set the precedent and any landowner on any river who doesn't want people to float through (will follow)," Schumacher said. "The well- to-do, elite landowners are like Goliath. We're like David."

House Bill 1188 would allow commercial rafting companies licensed before 2010 to incidentally touch banks or bottoms without fear of a civil trespassing lawsuit. They could also briefly climb onto riverbanks to bypass obstacles that would otherwise pose a danger to their crews.

It's scheduled for its first hearing Feb. 15, according to its sponsor, unaffiliated Rep. Kathleen Curry of Gunnison.

Several lawmakers from both parties have signed on as sponsors.

Lawyer John Hill represents Jackson-Shaw and said if the state legislates in favor of the rafters, they'll have to pay landowners' compensation for lost land value and business.

"The public has no right to float through private property without the consent of the landowner," Hill said.

"That's the law. You can't change that without paying just compensation."

The courts and the legislature decades ago decided and re-decided the right-to-float issue on the criminal side, and it's not a crime to pass through private property on a river.

But in the past three decades, there has been no such definitive answer for whether floaters can be sued for civil trespass if they float through private land.

Tensions have escalated over the years to the point where landowners in some areas have strung barbed wire across their section of the river to snag boaters.

On the Taylor, rafting crews put in and take out their crafts on public land as the river flows from public to private to public again.

It's the midsection that's problematic, and not just for the land-development company.

Steve Roberts' voice quivers with frustration as he talks about the land his family has operated — Harmel's Ranch Resort — for more than a half century. It's home to a fishing resort where he's dropped more than $100,000 on river improvements to build up his stock on the three-quarters of a mile of the Taylor next to the Jackson-Shaw development.

Roberts worked out a compromise with Schumacher, but the other nearby rafting crew floats big groups through his land twice a day, sometimes disrupting fish and upsetting Roberts' clients, he said.

"They're splashing the water, going 'whee!' over the dams I created when I improved the fishing. They've hit the bridge with paddles," Roberts said "So here I am, getting overrun with trespassers because trespassing is popular."

But where Roberts has not had the wherewithal to pursue a court case, Jackson-Shaw does, though a cease and desist order from the company stops just short of promising a lawsuit.

The development planned isn't some bare-bones, hinterland resort.

The Wilder on the Taylor development features 15 lots on 2,000 acres, a shared pool, a herd of steer to practice cutting and penning in the summer, and a concierge. The development's website plays up its secluded fishing opportunities, both on the river and in streams and ponds specially crafted for wealthy vacationers.

HB 1188 would provide direction to courts in a potential court case.

Were a court to decide in favor of Jackson-Shaw, it could be the tipping point in an uneasy truce between rafters and landowners, who have both worried in the past about losing ground in a final court decision.

That, said lawyer Lori Potter, could trigger similar lawsuits on thousands of miles of river throughout the state. She's helping the rafters, and said cases like the one brewing on the Taylor are infrequent but important.

"You see one every other year or so," Potter said. "The reason that it's a bigger issue than that frequency would indicate, is that it threatens to put entire companies out of business."

Read more: http://www.denverpost.com/ci_14303397#ixzz0eFIgrPCK

I don't believe anyone should own the rights of a river, but I do wish the rafters would keep their shit in their boats. i f I had a dollar for every bottle of sunscreen or squirt gun I had to pick up out of the river i could pay someone else to type this.

I hope the rafters win. Wealthy Texas landowners shouldn't be dictating Colorado law. That being said, the "river improvements" are a disgusting way of turning a diverse waterway into a single channel with a pond full of fed fish on either side. The landowners should not be allowed to change the course of the river and make these so called improvements.

Zach,
This isn't about a Texan dictating Colorado law.
Colorado law is absolutely clear on this issue.
In 1979 the Colorado Supreme Court (People vs. Emmert) ruled: "The public has no right to use the waters overlying private lands for recreational purposes without the consent of the owner".
It doesn't get any more clear than that. This decision has also been upheld in the district courts since that time.
I don't much care which way the decision goes on this, the problem is the process. The outcome of this lawsuit, and trying to pass leigislation as if it was just this little piece of river involved, will dictate the use of rivers, streams and creeks for thousands of miles all over the state at all times of the year. This test will allow the classic problem of "legislating from the bench" to run amuck ....again...
The proper way to address the problem is to propose legislation with the proper analysis done in an open debate which would recognize the huge scope/ramifications of this legislation and not just treat it is if it is some dude from Texas trying to tell Colorado what to do on one little 2 mile stretch of river. The "unintended consequences" of passing this bill as if it was just this little issue could be absolutely devastating to literally millions of landowners and water users alike.

They need the same laws Missouri has. You can't own any river itself passing through your property. Only the land itself. It's illegal to tresspass through there property to get to the river. But it's not illegal to enter it from a publics access then float threw private property. It seams by colorado alowwing private ownership of what should be public water for all has created there own problems.

It really does'nt matter what the states say. All rivers fall under fedral control. This thing will go to the Suppreme Court. Like the Amy Corp of Engineers & the Coast Guard. Any body of water that a boat can float in is considered navigatable water. Which is Coast Guard jursdiction. The Tards in Utah & Colorado that try to restrict this are going to get a real dose of reality when it goes that far. Stopping for shore lunch on private property is Tresspassing. But the water & land under that the water is under it belongs to the fedral Goverment.