Routt County commissioners on Tuesday upheld a permit allowing a rafting outfitter to guide trips on the Elk River.
Commissioners chose not to take a stand on the divisive issue of whether the public can float on Colorado rivers that cross private property.
"This is an issue that needs to be decided by the courts, not by the Routt County commissioners," Commissioner Nancy Stahoviak said, pointing out the conflict and confusion about current right-to-float rules in Colorado.
Property owners along the river had challenged the permit, saying it would be a civil trespass for anyone, including Bucking Rainbow Outfitters, to float over their property.
That point can be, and was, debated at Tuesday's hearing. Colorado law is clear that touching the banks or riverbed is criminal trespass. What is not clear is whether floating on the surface is civil trespass.
People who packed the hearing room gave more than 1 1/2 hours of comments before Stahoviak and Commissioner Dan Ellison voted to let the permit stand. Commissioner Doug Monger was not present.
The permit lets Bucking Rainbow Outfitters put boats in the Elk River at two places for commercial raft trips. Stahoviak added a condition that the permit does not authorize civil or criminal trespass.
Stahoviak asked why the Seedhouse Road Coalition, the group that appealed the permit, opposed commercial rafting but not private rafting.
The property owners' fear that the rafting operation could lead to more commercial operations on the river also concerned Stahoviak. She emphasized that county officials consider cumulative effects when approving recreational uses but don't consider speculation on what could happen in the future.
Assistant County Attorney Eben Clark presented his interpretation of the law to county commissioners. He said current Colorado law indicates floating over private property is a civil trespass, in part because Colorado case law says there are no navigable rivers, or rivers open to public use. But Colorado's rules conflict with federal law and the law of other states, and thus could be vulnerable, Clark said.
Attorney Sandy Horner, representing the property owners, argued that county commissioners could not grant a permit that would result in civil trespass and other negative effects to property owners.
"It is essentially allowing commercialization of their back yard," he said.
Attorney Patrick Tooley, representing Bucking Rainbow Outfitters, encouraged county commissioners not to try to decide the "complicated legal issue" of whether floating a stream in Colorado is civil trespass. The issue could be argued in court only after months of evidence and testimony.
Rather, he said the county commissioners' role was to determine whether the permit had been issued correctly by the Planning Commission.
Mark Robbins, a board member and past president of the Colorado Whitewater Association, agreed that the debate should be decided by a court. He said he didn't know about any cases in which a local jurisdiction denied a rafting permit because of potential civil trespassing.
Several local outfitters spoke in support of Bucking Rainbow Outfitters' permit. Most of the people packed into the hearing room raised their hands when asked who came to support the outfitter.
Property owner Don Moss said he is upset the most when trees from his property that fall into the river and are removed without permission.
After the commissioners gave their decision, Andy Wirth, spokesman for the Seedhouse Road Coalition, said he personally did not intend to pursue the debate in court.
"We don't have the heart or the intent to participate in taking the issue farther," he said. However, he said that other property owners might choose to do so.
John Duty, who owns Bucking Rainbow Outfitters with his brother, Jarett Duty, said the appeal process has been an ordeal but that he was happy with the outcome.
They said they were more than willing to meet with property owners to help resolve issues.
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