New state measure is bad public policy and could hurt non-commercial boating and fishing interests, says the director of CU’s Natural Resources Law Center
By Bob Berwyn
SUMMIT COUNTY — Some non-commercial kayakers, rafters and anglers around Colorado are rallying to change a proposed state law on river access, claiming the measure benefits commercial operations at the expense of private river users.
And they’re getting some legal backing from Mark Squillace, director of the Natural Resources Law Center at the University of Colorado’s School of Law.
“I just think as a matter of public policy it’s inappropriate,” said Squillace, who testified about the bill during a Feb. 8 hearing. “You’re dividing people into two classes. Those who can pay (for a commercial raft trip) and those who can’t or prefer not to … The implication of the law is that everybody else lacks the same rights that the commercial outfits have, he said.
Other non-commercial boaters support the measure, saying it’s a step in the right direction for the greater “right-to-float” movement.
House Bill 1188 would protect commercial river running operations from trespassing charges on Colorado waterways with historic commercial use. The bill was passed by the Colorado House Judiciary Committee this week and could be headed for a floor vote next week. Colorado water law gives boaters and anglers the right to float down streams and rivers, but if they touch bottom or the riverbank, they are technically trespassing.
Conflicts have increased in recent years as recreational use of rivers and stream-side development have grown in tandem, along with the state’s population. Landowners believe the law is clearly on their side, as established be previous court cases, and they insist on their right to bar trespassing on rivers that flow through their property.
In some cases, landowners have strung barbed wire across streams and reported inappropriate behavior by boaters who abuse their legal rights to float down the river. At the same time, boaters and anglers in Summit County have said that they’ve been aggressively pursued by landowners and in some cases even threatened with guns on the Blue River below Green Mountain Reservoir.
Sponsored by Independent Rep. Kathleen Curry of Gunnison, HB 1188 is narrowly crafted to address some existing legal conflicts in her district, and to clarify the rules of the river. Democratic Rep. Christine Scanlan, of Dillon, is a cosponsor.
Under the threat of lawsuits from riverside landowners, some commercial operators in Curry’s district are facing serious business challenges. The bill is aimed at ensuring the viability of those businesses and has been billed as a jobs protection act by the whitewater rafting industry.
Scanlan said she’d like to see the bill expanded to cover private boaters, and those discussions will continue in the next few days. But she said Curry does not seem willing to broaden the measure. Only a narrowly worded bill has a chance of passing, Curry said Monday, explaining that the law faces serious opposition from landowner, agricultural and development lobbyists.
Proponents, including the Colorado River Outfitters Association, said access rights for private boaters could be addressed with future legislation. Testifying before the judiciary committee, commercial boaters said they’re not opposed to giving private boaters the same protection.
“It just puts a target on the backs of the rest of us,” said Squillace. “Landowners aren’t happy with any of this.” If the law passes, he expects that landowners could vent their frustrations by targeting private boaters for trespassing.
At some level, Squillace said a challenge to the proposed law could be made on a constitutional basis.
“There’s potentially an argument that it denies private boaters equal protection under the law,” he said, adding that it would be a tough case, since courts tend to give the legislature a lot of leeway in determining a rational basis for enacting legislation.
“No other state in the west or the nation has two classes of water users,” said Jeff Candrian, a boater and a law student who is is trying to spur interest among private boaters with a new organization called Stream Access For All.
Squillace said the State Legislature could use this opportunity to provide some clarity on an issue that has been vexing to both sides for a long time.
“The (Colorado) Supreme Court has said it’s open to making some changes,” he said, referring to a 1979 court case that addressed the trespass issue. “The court said it would accept some guidance from the legislature,” he added, explaining that the judges have been reluctant to wade into the river of water law without that guidance from lawmakers.
Some Colorado boaters have weighed in on a discussion threat at MountainBuzz.com, where even the fundamental language of the measure seems to cause confusion.
Calling people who float down rivers non-commercially is inaccurate, according to one participant in the discussion, who said that those folks more accurately should be called “the public.” Rafting companies who charge for river trips should more accurately be called “private commercial boaters.”
Other boaters advocated for support of the bill, saying that river users should stand together, and that the current measure would be a foot in the door for the “right-to-float” movement. If it fails, it could encourage stream-side landowners to pursue further prosecution against “trespassers,” potentially setting even more damaging precedents against boaters and anglers.