Whether the Elk River can be owned was a topic of discussion at the Routt County Planning Commission's Thursday meeting.
Bucking Rainbow Outfitters asked to renew its permit to run as many as 20 commercial rafts daily on a six-mile stretch of the Elk River during the summer.
Some people who own property along the river said they think the operation should not be allowed because it takes away from their enjoyment of their property. Attorney Sandy Horner, representing a coalition of property owners on Seedhouse Road, said that state law considers it trespassing to float over private property.
Routt County planning commissioners, however, said legal arguments should not be a part of their discussion. They voted unanimously to grant the permit for two years, and they approved a new in-put that owner John Duty requested.
Duty said he withdrew his request to add 10 rafts to the 20 allowed in his previous permit because of neighbors' complaints and because there is no immediate need for the expansion.
"I personally believe that the water is all of ours," Planning Commissioner Wayne Adamo said. He said he's seen rafters on the Elk River for the 30 years he's been in the area. "I think recreation is an extremely important thing for this community. ... And this is the type of recreation that I think should continue."
Planning Commissioner Terry Hunter said he had "extreme personal disdain for (the idea of) owning the river and keeping people out" and for calling the Elk River "my river."
Planning Commissioner Gary Miller said the Elk River and North Routt County were important for tourism, which brings money into the area.
Planning commissioners also said it was important to monitor cumulative effects on the river and to make sure effects on neighbors are as limited as possible.
Because the permit is a conditional-use permit, the Planning Commission makes the final decision.
Andy Wirth, who lives off Seedhouse Road, represented the Seedhouse Road Coalition, which includes various property owners in the area. Wirth's property runs under the river, as does at least one other coalition member's property, he said.
Wirth said there was no question that Bucking Rainbow Outfitters ran a good operation.
However, he said case law suggests that river users are trespassing if they don't have permission from private property owners.
"We cannot support the petition" because of those civil trespass concerns, Wirth said. He said that the Planning Commission should not facilitate such a trespass.
Horner said that laws about trespassing via a waterway are not that murky. He said for it to be a criminal trespass, someone has to touch the river's bank or bed. For a civil trespass, however, someone only has to float through private property.
"By granting this conditional-use permit, you are facilitating a trespass -- you're allowing it to happen," Horner said.
Horner said other rivers are floated because no other private property owners have made a big deal out of it.
Horner said Wirth plans to talk with neighbors about whether they want to appeal the Planning Commission's decision. They have 10 days to do so.
David Moss said his family owns about a mile of river bottom and banks. He said that since Bucking Rainbow's first permit was granted in 2000, he consistently has said the use does not respect private property.
He said he preferred working through the issue without a court case.
Joy Rasmussen said that a main reason she bought property off the Elk River was the quiet environment and recreation the river afforded. She said a commercial operation benefiting financially from the river did not make sense, and it means residents "have to give up what we paid for."
Planning Director Caryn Fox said the planning department's position was that the county issues the permit so the business can use land at the put-in and take-out locations. The county does not have control of use of the water, she said.
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