River rights debate rages

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Seedhouse Road resident Jim Rowe enjoys sitting on the deck of his home, where he can watch the Elk River, listen to the fast-flowing water, gaze at the surrounding forest.

"And then," he said, "a raft comes down."

During a typical summer day, he might see several commercial rafts guided by Bucking Rainbow Outfitters float by his property.

Rowe and other nearby property owners want the commercial rafting to stop.

They voiced their opposition before the Routt County Regional Planning Commission on April 7, when Bucking Rainbow Outfitters asked for a renewal of its commercial rafting permit for the Elk River.

The recently formed Seed--house Road Coalition was represented by coalition member Andy Wirth at the meeting. The coalition members, all of whom own property along the Elk River, said that floating on a river over private property without permission is a civil trespass. Their attorney, Sandy Horner, detailed that argument.

The coalition's position, as with most legal issues, can be debated.

By some readings of the law, it is clear that people do not have the right to float on private property without permission. But by other readings, the law does not clearly keep the public from floating rivers over private property.

The one constant is that the issues are personal.

Floating on a river through someone's property is, for many landowners, like walking in their bedrooms or bathrooms, local attorney and rancher Mike Holloran said.

"People pride themselves on their property, they take care of it," Holloran said. "That's the last thing I want, is people coming down the river, screaming and yelling all the time."

But for others, the idea of restricting the public from any river is enough to make their skin crawl.

"Rivers have always been public ... from as far back as Lewis and Clark, around here," said Gordon Banks, author of "Colorado Rivers and Creeks," a guide book about the state's water. "For these guys to think all of a sudden that they own the river in front of their house, I don't know how to label those folks, but I think they're wrong."

The Planning Commission ultimately approved the permit renewal, but the Seedhouse Road Coalition has appealed the decision. The Routt County Board of Commissioners will hear the appeal May 24.

The case at hand

Bucking Rainbow Outfitters, owned by John Duty, has operated trips on the Elk River for nine years.

The company offers guided trips on five rivers and has the necessary licenses and permits for each trip. All of the trips float through some stretches of private property, Duty said.

The trip on the Elk River is special, he said.

"Out of all the rivers we run, that's by far ... our clientele's favorite river," he said.

But for some of the people living along the river, the operation is a threat.

"We continue to be concerned that these guys are running a commercial operation, making money off of what our attorney says is civil trespass," David Moss said. Moss and his brothers own about 500 acres in the North Routt area.

One trigger point for Moss and others is whether and how trees that block the river are removed.

Moss and his brothers were angered by the mysterious removal of a large spruce tree that fell and blocked a popular kayaking area that feeds into the Elk River at their property. No one asked for permission to remove the tree, and its removal damaged part of a fence in the creek used to keep cattle in, he said. Moss reported the incident to the Routt County Sheriff's Office.

Wirth said that although the Seedhouse Road Coalition does not want to limit private river users, the group doesn't agree with a commercial operation it thinks is based on trespass.

If commercial use isn't limited now, more commercial operators could come, Wirth said. Another concern is that the current operation could establish a permanent easement on the river.

More debate

To many people, rivers are like highways.

Kent Vertrees, manager of the local rafting and tubing company Blue Sky West, said that just as people can't be stopped from driving on Seedhouse Road, they should not be stopped from using the Elk River.

"If this goes to court, it sets precedent for not only commercial users but private users," Vertrees said.

Besides, he said, it's good for the local economy. The Elk River provides the sort of rafting trip that brings tourists back year after year, he said. One day, he would like to run commercial trips on it.

Peter Van De Carr, owner of Backdoor Sports and an avid boater, said it's important that river users respect the rights of property owners and that they invest in protecting the river habitat and environment.

But for him, the bottom line is that the river belongs to everyone.

"Owning the river is a very new, untraditional, unestablished legally, concept," Van De Carr said.

Holloran, however, said he does not want a highway through his land. Letting the public float through private land results in security and private property issues for landowners, he said.

Some landowners lease the section of river on their properties to fishing clubs, and people floating through can disrupt those clubs. And, he said, the public can overuse rivers, destroying wildlife habitat and ruining that environment.

The rules

Colorado is an "outlier" when it comes to right-to-float rules, said Jason Robertson, managing director of American Whitewater.

In most cases, the national standard is that if you can get to a waterway legally without trespassing, you have a privilege to be on the water, he said.

Colorado has no navigable rivers -- rivers used for commerce, either now or in the past -- that the public has the right to use.

Rivers that go through public lands, such those owned by the U.S. Forest Service, are open to the public. It's the rivers through private lands that create an issue.

Colorado's main precedent for floating on rivers that go through private property is a 1979 Colorado Supreme Court case.

The case, People v. Emmert, involved three people who floated down the Colorado River and touched the riverbed as they crossed a private ranch. The court ruled that people do not have a right to float through private property without the landowners' permission.

"Emmert is the law of Colorado, and nothing has chan--ged it," said John Hill, a Gunnison water attorney who represented landowners for a recent float case on the Lake Fork of the Gunnison River.

Although attorneys argue about it, to Hill, the issue is not gray.

Holloran agrees. Property owners don't own the water in the river, but they do own the banks, riverbed and river surface, as well as the air above it, he said.

The only way for someone to float down a Colorado river without trespassing is to be in a scuba outfit and never break the water surface, he said.

Civil vs. criminal

But for Fritz Holleman, there is more to the Emmert decision. Holleman is a Boulder-based water rights attorney who was involved in the same case for the other side.

"I think both sides have a piece of paper they can wave at each other," he said. "Both feel like maybe they're right."

While the Emmert case was pending, the state Legislature amended the criminal trespass statute, defining a "premise" in a way that did not entail water of a stream.

Then-Attorney General Duane Woodard gave the opinion that it would not be a criminal trespass to float through private property as long as the floater did not touch the banks and bed of the stream. That opinion, to some, allows floating without touching the banks and streambed.

The open question, in Holle--man's view, is whether floating over private property can constitute a civil trespass.

"Civil trespass is the big, gray area, and then navigability," Holleman said.

The case involving the Lake Fork of the Gunnison in which Hill and Holleman were involved did not provide many answers.

Cannibal Outdoors, a river outfitting company, was charged with civil trespass for taking float trips through private property. The outfitter eventually had to drop out of the case, some say because it ran out of money. It did not set any precedent because no decisions were made by an appellate court of the Colorado Supreme Court, Hill said.

About a decade ago, Hollo--ran brought a case in Routt County Court against a guide who brought fishermen on rafts down the Yampa River. The group admitted to touching the fencing or banks or sides of the river as it went through Holloran's property, Holloran said. The County Court decided against the guide, and with that decision, Holloran said he dropped the complaint because he had the decision he wanted.

What's next?

The issue with the Elk River has not entered the courts. Seedhouse Road Coalition attorney Horner said the group has not taken the next step of considering litigation. Instead, it is waiting to hear the county commissioners' decision.

In the meantime, Holloran said he thinks the best solution would be for fishing and rafting outfitters to work out leases with landowners if their trips go through private property.

Van De Carr disagrees, saying that although river users should respect private property, leases are not necessary.

"It's not their river, it's everybody's river," he said.

Mark Schumacher, owner of Three Rivers Resort and Outfitting on the Gunnison River, said that lawsuits likely would end up driving legislation concerning the public's right to float.

But the potential for lawsuits means anyone who floats on a river that goes through private property could be at risk.

"All of these outfitters, and all the private and public boaters, we're at risk at any time," Schumacher said. "If some landowner, wealthy landowner, wants to file a civil lawsuit, we have to defend ourselves. So we're at the mercy of private landowners, and it's expensive."

-- To reach Susan Cunningham, call 871-4203 or e-mail scunningham@steamboatpilot.com

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