David R. Moss: The right, and wrong, to float
June 4, 2005
This letter is in response to your editorial “Protecting the Right to Float.” While I am a member of the Seedhouse Road Coalition, the views expressed are exclusively my own.
I agree with the major points in your editorial in that the Board of County Commissioners should not have tried to sort out the legal issues associated with the use of rivers through private property. It also is clear that legislation is required to clarify the legalities of the “right to float.” Until then, there will continue to be conflicts between the landowners and the people who desire to use the rivers.
Your editorial did not address the issue of strainers, i.e., trees that fall across the river and pose a danger to the river users. This issue is important to me because of a major trespass incident earlier this year. Someone slipped onto our property between 10:30 a.m. and 4 p.m. April 19 and illegally removed a 3-foot-diameter spruce tree that had fallen across Willow Creek about 100 yards above the Willow Creek Bridge. These same people floated a smaller tree through our cattle fence above the bridge and destroyed it.
Because kayakers are the only people concerned with trees and fences across Willow Creek, we strongly suspect them as the culprits. The Routt County Sheriff’s Office has a report of this incident and pictures of the trespasser’s footprints.
This is the type of incident that causes problems between the “right to float” community and the landowners. The removal of strainers should be negotiated between the landowners and the float community before removal occurs. It is in the best interest of both that these dangerous trees be removed, but the landowners should be able to control both the access and process.
I think the “right to float” on the water owned by the state is best examined by analogy. Based upon common law, the game and fish belong to the state. Thus, Colorado Division of Wildlife issues hunting and fishing licenses. Having a valid hunting license for elk that belong to the state does not allow a hunter to trespass on anyone’s private property. Similarly, people with valid fishing licenses cannot stop along Seedhouse Road on private property and fish from the road, the bank or by standing in the Elk River. They can be charged with criminal trespass if they do so without permission. In each of these cases, private property rights trump the “right” of people to hunt or fish for animals that belong to the state. It is worth noting that Seedhouse Road is an historic easement through the Moss property, and we continue to pay taxes on the roadway.
While the Seedhouse Road Coalition probably will not take legal action against Bucking Rainbow, any individual or small group of Elk River owners can.
It might be best to bring a civil trespass action against Bucking Rainbow and seek a “cease and desist” order until the issue can be solved in the Colorado Legislature.
Your editorial indicates that there might be some value to a court case. Ever since Bucking Rainbow applied for its original permit in 2000, I have strongly recommended that they move their operation up the Elk River into the Routt National Forest. They could use the Elk River Guest Ranch as their take-out. This solution would allow the commercial rafting on the Elk River and still protect the private property rights of those below the national forest.
David R. Moss