Routt County commissioners made the right decision last week in allowing rafting outfitters to continue guiding trips on the Elk River.
As Commissioner Nancy Stahoviak noted, it is not the commissioners' role to sort out conflicts in state and federal water law. Rather, the commissioners' job is to apply county rules and regulations fairly. They did so in upholding a permit that allows Bucking Rainbow Outfitters to guide trips on the Elk River.
We think that Colorado water law should, within reason, allow for public uses of the state's waterways, including those that flow past private property. Certainly it should allow for something with minimal effect, such as commercial rafting, which occurs in limited numbers on the Elk for a short period of time.
Unfortunately, Colorado law isn't so cut and dry.
Opponents of Bucking Rainbow's permit argued that by granting the permit, the county was allowing civil trespass to occur on landowners' property along the river. The group cited a 1979 case, People vs. Emmert, in which the state Supreme Court ruled that those who float through private property without the landowner's permission had committed civil trespass.
Colorado's attorney general later interpreted the court's ruling to mean that civil trespass occurs if the boater touches the riverbed or shoreline but not if the user simply floats over and past the property.
Assistant County Attorney Eben Clark's interpretation for commissioners was that current law does indicate floating over private property is a civil trespass, in part because Colorado case law states there are no navigable rivers, or rivers open to public use. But Clark added that Colorado's rules conflict with federal law and the law of other states, and thus could be vulnerable.
Given the legal confusion, commissioners were right to stick with what they know -- was Bucking Rainbow's permit issued properly? It was.
If the Elk River property owners think the rafting operation constitutes civil trespass, they should pursue the case in court. They don't appear likely to do so. Andy Wirth, spokesman for the group, said "we don't have the heart or the intent to participate in taking the issue farther."
In a way, that's unfortunate. Case law in this area remains open to interpretation. A case is needed to force a legal ruling strictly on the issue of floating over private property.
Better yet, the Colorado Legislature could take the initiative to clarify law regarding use of all the state's waterways.
As the city of Steamboat Springs' application for recreational water rights on the Yampa River demonstrates, recreational water uses are a significant economic draw in Routt County and throughout Colorado. As such, the Legislature should be seeking ways to preserve, not restrict, the public's access to the state's rivers.
We think that the state's waterways belong to the public, and as long as the public's use is reasonable and doesn't damage the waterway, it should be allowed. We hope the Legislature -- and ultimately, the courts -- agree.