River rafters and a few landowners have been at each other’s throats for decades over recreational water rights. The latest battle – involving commercial rafting companies and a group of property owners along the Elk River – shows once again the need to have clear, sensible laws on the books. Current laws are a mishmash that lack clarity about the rights of landowners who demand absolute privacy and boaters who wish to use the waterways for recreation.
It’s time to settle the matter once and for all – by ensuring that the rights of river enthusiasts to travel on Colorado’s navigable waterways are protected.
The legislature ought to weigh in and clarify the laws; the sooner, the better. Senate President Joan Fitz-Gerald, whose district is prime turf for some of the battles, said the issue could be ripe for action next year. We hope so.
Most states have laws that clearly outline the rights of boaters and those of property owners. Colorado does not. “People aren’t sure what the law is,” said Denver water lawyer Joseph Dischinger. The issue is in the absence of clear guidance from either the state or federal constitutions.”
In the Elk River dispute, rafters argue federal case law saying all navigable rivers should be open to public passage regardless of who owns the land adjacent to it. Landowners cite a 1979 state Supreme Court ruling that said floaters who pass through their property without permission violate their right to privacy and commit civil trespass. That law was interpreted in 1983 by the state attorney general to mean that no trespass occurs if boaters don’t touch the riverbed or riverbank, but property owners rely on the 1979 ruling.
Jason Robertson, vice president of the national paddling group American Whitewater in Maryland, said Colorado law needs to be clarified to not only allow boaters to use the rivers but to allow “incidental rights of use,” as in other states. Such incidental rights allow rafters to “portage” – meaning to walk around a rapid, water fall, dam or even a barbed wire fence – and “scout,” meaning look at a rapid before running it. Both portaging and scouting might involve stopping along a river bank. “The equivalent is if you’re driving down a highway and have a flat tire, you’re allowed to pull over and fix it,” he said.
Clearly, the issue needs a third-party remedy. Lawmakers should put the matter on their 2006 agenda and resolve it as soon as possible.
