The National Rivers Website, River Law in Colorado:

Public Ownership of Rivers in Colorado

Letter from NORS to Colorado State Attorney General Ken Salazar, February 2001:

Ken Salazar, Attorney General
State of Colorado, Department of Law
1525 Sherman Street -- 5th floor
Denver, CO 80203

February 20, 2001

Dear Attorney General Salazar:

We see that in 1998 and 1999 your office received various requests to clarify public rights to canoe, kayak, and raft through private land on rivers in Colorado. These requests came from boaters, riparian landowners, sheriffs, county commissioners, and district attorneys. Some of these requests also asked whether riparian landowners may erect barriers to physically obstruct rivers. As you know, almost all of the rivers in Colorado flow through a patchwork of public and private lands, including the popular rivers on which thousands of people canoe, kayak, and raft every year.

Your July 22, 1999, reply to these requests included an overview of the law on this issue written by your deputies. This overview cited four things: the Colorado Supreme Court’s 1979 decision in People v. Emmert; (FOOTNOTE 1) the Colorado Legislature’s 1977 definition of trespassing in CRS § 18-4-504; the Colorado Attorney General Opinion of 1983;(2) and the Colorado criminal obstruction statute, CRS § 18-9-107. Based on these four things, your letter concluded that "the current legal framework is confusing and deficient" and suggested that the state government could "designate selected rivers with high public usage as areas where floating is allowed while at the same time designating other rivers and streams as completely off limits to floaters."

In February 2000 the District Attorney in Montrose, Colorado, repeated his request to your office for a formal opinion on this issue, particularly regarding the rights of adjacent landowners to obstruct rivers.(3) Your reply said that the matter "remains legally unclear," and that your July 1999 view "has not changed in the intervening months".(4) In March the County Commissioners in Gunnison, Colorado, asked state officials for a resolution to "this serious problem," noting that the boating season was fast approaching.(5)

In July 2000 a certain landowner along the Taylor River, not far from Gunnison, confronted several kayakers on the river, who were visiting from New Mexico. He reportedly pointed his rifle at them, cocked it, and demanded that they leave the river, which they did.(6)

American Whitewater, a national association, collects reports of river access problems nationwide, submitted by kayakers and canoeists. The organization receives nearly four times the number of reports from Colorado as from any other state, involving various charges of trespassing as well as fences strung across rivers, a potentially fatal situation.(7)

The following federal court decisions are on point regarding the public’s right to canoe, kayak, and raft on rivers through private lands:

In 1982 in Loving v. Alexander,(8) several riparian landowners asked the court to declare the Jackson River closed to canoeists, or, if it were to remain open to canoeing, to pay them for the "taking" of their property rights, since they owned the bed of the river under state law. The federal court confirmed that they do own the bed of that river, but also confirmed the public right to canoe on such rivers. The court overruled three previous state court decisions to the contrary, including a state supreme court decision, holding that the public’s right to canoe on such rivers is a matter of federal law, not state law, and that allowing the public to canoe on rivers is not a "taking." The court noted that the Jackson River is "narrow, crooked, rocky, and shallow," with a depth of "about ten inches to six feet," an average gradient of 21 feet per mile, an average flow of 486 cubic feet per second, and a low flow of less than one cubic foot per second. These same characteristics are typical of rivers in Colorado used by canoeists, kayakers, and rafters.

In 1987 in Goodman v. City of Crystal River,(9) the owner of the land under and around a spring-fed pond sought to prevent the public from canoeing and kayaking into the pond from an adjacent river, passing through a narrow, shallow channel. He said this boating was trespassing and a "taking of his property for public use without just compensation." He had stretched a cable across the mouth of the channel to block boaters. The court agreed that he owned the bed and banks of the pond under state law, but held that that the public’s right to canoe and kayak on such waters is a matter of federal law, not state law, and that allowing canoeing and kayaking is not a "taking."

In 1997 in Atlanta School of Kayaking v. Douglasville County Water,(10) a county government agency sought to prevent the public from canoeing and kayaking the Dog River through private land, then taking out at a reservoir. The government agency claimed that there is not a public right to boat on such small, shallow rivers, noting that canoeists and kayakers describe the Dog River as a whitewater river that is enjoyable "only after rainfall, and then only for a brief period of time," and that even American Whitewater magazine said that the river "is generally considered a high water run that is runnable on an infrequent basis at best." But the court held that "the answers to these questions are determined by federal law," and held that the public does indeed have the right to canoe and kayak on such rivers under federal law.

These cases reaffirm previous federal court decisions. In 1874 the U.S. Supreme Court held that the Fox River is a public river, explaining that rivers are public even if they have "rapids and sand-bars" and other "natural barriers" or "obstructions" to boating.(11) In 1921 the Supreme Court held that the Desplaines River is a public river, even though its "shallow water, with boulders and obstructions," makes it boatable only in canoes and similar small craft. The court overruled a previous state supreme court decision to the contrary, and held that public rights to rivers such as this are not "capable of repeal by one of the states."(12) The court also explained that public rights to canoe on such rivers are not just a matter of Supreme Court decisions, but rather "have a very definite origin," in laws passed by Congress in 1787, 1789, and 1796. These laws confirmed public rights to boat on rivers, declaring that the rivers of any one state shall be "forever free" to the residents of that state as well as residents of other states, including the "carrying places" between the boatable stretches.(13) A large canoe is about the largest craft that people can carry from place to place. The boats used on rivers at the time were canoes and other small, human-powered craft, which were regularly used by colonists as well as Indians. The government-funded Lewis and Clark expedition, using canoes, was in 1804-1806. Steamboats were not invented until later in the 1800s, and diesel and gas motors were not invented until the turn of the century. Even though motorized boats became widespread, the 1921 Supreme Court decision confirmed that the public’s right to canoe, on shallow rivers that are not useable by motorized boats, continues to endure.

The public’s right to run rivers in small, human-powered craft is thousands of years old. When Congress passed the 1787, 1789, and 1796 laws, the public’s right to run rivers in such craft had previously been recognized under the common law of England, as well as the civil law originating in Roman times and in other ancient civilizations, where it was known as the Law of Nature.(14)

Nevertheless, some people claim that canoeing, kayaking, or rafting through private land on Colorado rivers is trespassing. They emphasize that the beds of a number of rivers in Colorado are owned by the adjacent landowners under state law, and they claim that allowing the public to boat on these rivers would be a government "taking" of private property without just compensation, which is prohibited by the U.S. Constitution. This subject is discussed in the three recent federal cases cited above. In each case, the courts specifically confirm the public’s right to canoe, kayak, and raft on rivers whose beds are owned by the adjacent landowners. Earlier U.S. Supreme Court decisions also explained that private ownership of the bed does not interfere with public rights to boat on rivers. In 1900 the court said that private title to a river bed "is a qualified title, a bare technical title."(15) In 1906, the court said such title is "not the same as the title to the shore land."(16) In 1950 it said private ownership of a stream bed "long has been limited by the right of the public to use the stream," noting that "such property is subject to a dominant public interest," and noting that the Supreme Court had accepted the case "because of the importance of the constitutional questions raised."(17)

In other words, river bed ownership and the public’s right to boat on rivers are two different subjects. Public boating on rivers with privately-owned beds is not trespassing, and allowing the public to boat on these rivers is not a "taking." (However, even when ownership of the river bed is the subject at hand, federal courts have held that the beds of rivers that are boatable only in canoes, kayaks, and rafts are actually owned by the public, not the adjacent landowners.)(18)

Historical use of a river can also be relevant. Based on the Acts of Congress discussed earlier, the U.S. Supreme Court held that rivers that were actually used—or were capable of being used—for historical activity such as fur trappers in canoes must continue to be public rivers, open to modern-day canoeing and similar boating.(19) In recent cases the federal courts have discussed in detail how historical use by lumber men transporting logs is helpful—but not necessary—to show that such rivers must remain open to modern-day canoeists, kayakers, and rafters.(20) In 1981 federal courts confirmed public rights on the White River (overruling an earlier decision by a state supreme court) due solely to historical use by Indians in canoes and by lumber men transporting shingle bolts downstream. (Shingle bolts were defined as a quartered section of log, normally cedar, about 4’6" in length.)(21)

Colorado history is rich with references to these historical uses. Fur trappers in canoes used various Colorado rivers in their trade.(22) The Rocky Mountain News reported a river trip on the Arkansas River through the Royal Gorge in 1872, before Colorado became a state.(23) The American Canoe Association was founded in 1880, and was headquartered in Denver for many years. Lumber men transported thousands of logs and railroad ties down rivers and creeks in Colorado to build railroads for early mining towns. In fact, two of the rivers that people who oppose boating have most pointedly tried to close, the Taylor River and the Lake Fork of the Gunnison River, were used to transport great quantities of railroad ties, as well as logs to build the original town of Gunnison.(24) They were also used—or were capable of being used—by fur trappers in canoes. The other rivers in Colorado that are useful for modern canoeing, kayaking, and rafting were also historically used—or were capable of being used—for these purposes. Under federal law, these rivers must remain open to modern-day canoeing, kayaking, and rafting.

The people who oppose boating in Colorado have acknowledged these federal court decisions, and they have acknowledged that rivers elsewhere must remain open under federal law to canoeists, kayakers, and rafters, but they contend that such rights in Colorado were terminated by the state court decision in Emmert.(25) This contention—that Colorado stands as an exception to federal law regarding boating rights—is the heart of their claim, so we must discuss it carefully, both from the federal point of view and from the state point of view.

From the federal point of view, the three Acts of Congress discussed earlier said that rivers useable by canoes and similar human-powered craft must remain "forever free" to public boating, by the residents of any one state as well as residents of other states. These laws do not allow these boating rights in a particular state to be terminated by state court decisions, then later reinstated only when and if a state or federal court reinstates them. The U.S. Supreme Court subsequently confirmed that states hold rivers "in trust for the people" and cannot "abdicate" their responsibility to allow public use of rivers, "freed from the obstruction or interference of private parties,"(26) and that public rights to boat on shallow rivers boatable only by canoe are not "capable of repeal by one of the states."(27)

At the same time, federal courts held that state property laws can grant private ownership of river beds in a particular state to the adjacent landowners.(28) People who oppose boating tried to use those decisions to claim that states can deny boating rights on those rivers. But the federal courts disagreed (as mentioned earlier,) holding that this private ownership of the river bed is "a bare technical title" that "long has been limited by the right of the public to use the stream," and that boating rights on smaller rivers are confirmed by federal law.(29)

Over the years, federal courts also had to decide which rivers are affected by admiralty law, federal dam building authority, or other legal matters. The courts held that to be navigable for these other areas of law a river may have to meet additional criteria.(30) Consequently, shallow rivers boatable only by canoe may not be affected by these other areas of law. Again, people who oppose boating tried to claim that these additional criteria were also necessary to confirm boating rights on shallow rivers under federal law. However, the federal courts specifically rejected this claim. As discussed earlier, the U.S Supreme Court rejected it in 1874 and 1921, and other federal courts rejected it in more recent decisions that reconfirmed modern-day public rights to canoe, kayak, and raft on shallow rivers. In each of those more recent cases, the courts discussed the earlier federal court decisions about admiralty law, federal dam building authority, and other matters, and they made it clear that those decisions do not affect public rights to canoe, kayak, and raft on shallow rivers. They specifically confirmed that when the subject is nothing more than public rights to boat, even shallow rivers useable only by canoes, kayaks, and rafts must remain open to such boating under federal law.(31)

Nevertheless, as the use of motorized boats became widespread, people who oppose boating tried to claim that federal law confirms public rights to boat only on larger rivers that are navigable for commerce in the sense of motorized boats carrying freight, and that state law determines the right to boat on smaller rivers that are useable only by canoes and other human-powered craft. Consequently, so they claimed, smaller rivers in a particular state aren’t open to boating unless state courts or legislatures designate them as open. When state courts in various states did confirm the public right to canoe, kayak, and raft on smaller rivers, people who oppose boating characterized these state court decisions as an extension of boating rights to smaller rivers, rather than as a mere state confirmation of public rights on smaller rivers already confirmed by federal law.(32) They said these state courts were applying a "recreational boating standard" to extend boating rights to smaller rivers, since federal law supposedly covered boating rights only on the larger rivers useable for "commerce" in the sense of larger, motorized boats. However, federal courts never accepted this view. Instead, they specifically confirmed that canoeing, kayaking, and rafting are a valid form of "commerce" on rivers, and they confirmed that even small, shallow, rocky rivers useable only by canoes, kayaks, and rafts are public rivers under federal law.(33) We also see that in the three Acts of Congress discussed earlier, Congress said that rivers that are boatable by canoes and similar human-powered craft must remain "forever free" to all boaters, not just those engaged in commerce.

In response to the claim that federal law covers boating rights only on larger rivers, some state courts confirmed boating rights on smaller rivers by citing state law. Some cited language in their state’s constitution or legislation, although that language was often not specific. Some cited previous state court decisions, but those in turn typically cited federal law. While the language in state law cited in these decisions was supportive, it appears that the true source of public boating rights on smaller rivers was actually federal law. In any event, the source was not the state court decisions in and of themselves.

In addition, the claim that boating rights on smaller rivers depend on decisions by state courts (or legislatures) conflicts with reality. The public was boating on smaller rivers throughout the Midwest and the West well before the twentieth century. Such boating was a key to the opening of the West. If people who oppose boating concede that this earlier boating was a lawful public right, then state courts (or legislatures) have no solid legal grounds for terminating it. On the other hand, if people who oppose boating claim that all this earlier boating was unlawful (which is itself a preposterous claim) then state courts (or legislatures) have no solid legal grounds for creating this right—unless this right has existed all along under federal law. Either way, the claim that boating rights on smaller rivers hinge on state court decisions (or legislative designations) does not add up.

More recently, people who oppose boating also tried to claim that boating rights on rivers having whitewater rapids are not covered by long-standing federal law, on the theory that running rapids was made possible only recently by the invention of plastic canoes, kayaks, and inflatable rafts. But the old-fashioned canoes of the past also ran rapids—boaters just had to spend more time patching them, and they made more portages, than modern boaters do. The U.S. Supreme Court specifically confirmed public rights to boat on rivers having rapids and portages many years ago.(34) More recently, federal courts specifically reconfirmed that rivers with whitewater rapids are still public rivers under federal law, including those with very large volumes of water and huge rapids, as well as those with very small volumes of water and rocky rapids.(35)

The overall claim that federal law confirms boating rights only on larger rivers, and that smaller rivers can be opened or closed to boating by state courts or legislatures, has been repeatedly rejected by the U.S. Supreme Court. The court has consistently reaffirmed public rights on smaller rivers useable only by canoes and similar craft, overruling state supreme court decisions to the contrary, and holding that this is a matter of federal law, not state law. In almost exasperated tones, the court has emphasized that it is the useability of rivers, in and of itself, that makes rivers public, not some designation by state courts or legislatures.(36) It is the useability of a river that determines its legal status, not its legal status that determines its useability. If a river is useable for boating, the public has the right to boat it under federal law. The recent federal decisions discussed earlier have specifically confirmed the public’s modern-day right to canoe, kayak, and raft on rivers that are useable for these purposes, and have confirmed that federal law is controlling on the subject of these rights, not state law.(37) Boating rights on such rivers endure in a state even if they are not presently confirmed by the courts or legislature in that state. State confirmation is helpful to maintain public boating rights on rivers in a particular state, but it is not necessary.

Now we must look at the same contention—that Colorado stands as an exception to federal law regarding boating rights—from the point of view of the Colorado state courts. First, we see that some people previously tried to claim that water rights on rivers in Colorado are solely a matter of state law. In 1982 the Colorado Supreme Court observed that this contention had been "for many years an article of faith throughout the West and was adopted by this Court in Stockman v. Leddy" [in 1912]. Nevertheless, the court overruled Stockman v. Leddy and confirmed the supremacy of federal law, in accordance with the Supremacy Clause of the U.S. Constitution.(38)

As a similar "article of faith," people who oppose boating claim that boating rights on rivers in Colorado are solely a matter of state law. They also claim that boating rights on rivers in Colorado were terminated in 1979 by the Colorado Supreme Court in the Emmert decision, which upheld the trespass conviction of three fishermen wearing fishing waders with flotation tubes around their waists.(39) However, courts are bound to decide the case that is before them, not some other hypothetical case. The fishermen in the Emmert case were not boating, and they did not claim the right to boat. In a misguided attempt to simplify the matter, the fishermen stipulated that public rights on that stretch of river were not covered by federal law. (Fishing rights on rivers are another subject, which we will address separately, at another time.) The fishermen claimed the right to fish, in the manner they had been fishing, based solely on a passage in the Colorado State Constitution that declares public ownership of "the water of every natural stream."(40) In response, the court held that the state constitution, in and of itself, does not create such a right. The court did not discuss federal law regarding boating rights on rivers, and it did not deny boating rights in Colorado that are confirmed by federal law, nor could it have lawfully done so. Under the Supremacy Clause of the U.S. Constitution, federal law is "the supreme Law of the Land" and "the judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding."(41)

Furthermore, before the court completed its ruling, the legislature acted to neutralize it by rewriting the state’s trespass law to allow boating on streams, at least on the water surface. The justices acknowledged this in the decision, so their statements supporting the earlier trespass conviction were something of a formality that they knew was already superseded.

For all of the foregoing reasons, public rights to canoe, kayak, and raft on rivers useable for these purposes in Colorado were not terminated by the Emmert decision. Federal law strongly confirms these rights, and state law does not deny them, nor could it lawfully do so. These public rights are thousands of years old, and they endure in Colorado to this day, without specific court confirmation.

In an attempt to put boaters in the same category as the hapless Emmert fishermen with their flotation tubes, people who oppose boating on rivers in Colorado often refer to rafters and kayakers as "floaters" who are "floating through private property." They claim that the Emmert decision prohibits the modern-day rafting and kayaking industry on rivers in Colorado—the same industry that federal courts specifically endorsed in Atlanta School of Kayaking and in Alaska v. Ahtna (which was appealed to the U.S. Supreme Court).(42) Since this industry has become a summer counterpart of the ski industry in Colorado, the claim that it is unlawful is not likely to go very far. Consequently, people who oppose boating have recently proposed that the state government should designate certain popular rivers as open to boaters, and designate other rivers as completely off limits to boaters.

By proposing this process of state designation, people who oppose boating are indirectly conceding that their claims about trespassing and "taking" of private property are invalid. If allowing boating were indeed a taking, then the legislature could not allow it on certain popular rivers without committing a taking. On the other hand, if allowing boating is not a taking on those rivers, then it’s not a taking on the other boatable rivers either. A state designation process would be unlawful, since federal courts have emphasized that state designations cannot deny boating rights on rivers that are in fact useable for canoeing, kayaking, and rafting. As discussed above, the U.S. Supreme Court has insisted that it is the useability of rivers for human-powered boating, in and of itself, that makes rivers public, not their state designation, and not their actual use or current popularity.(43) Even rivers that whitewater kayakers consider to be runnable on an infrequent basis at best, only after a rain, and then only for a brief period of time, must remain "forever free" to boaters under federal law. State governments cannot "abdicate" their responsibility to maintain public boating rights on these rivers.

Now we must discuss the rights of the public to touch the banks and beds while boating on rivers in Colorado. When the state legislature rewrote the state trespassing law in 1977, it defined landowner "premises" as including "the stream banks and beds," but not the water surface.(44) In 1983 the Attorney General issued a formal opinion saying that this definition allowed boaters to boat through private property, "without touching the stream banks or beds."(45) People often do not realize that this was only a statement about this one definition, not an overall conclusion about public rights under federal law. As a result of this "without touching" language, certain people have been telling boaters that if there is any point on a stretch of river through private land where their boats touch the bed in passing, then the whole stretch is legally closed to boating. A few riparian landowners have strung fences across rivers, erected barriers, or added material to natural obstructions in a river, on the theory that if boaters can’t get through without touching the bed or portaging along the bank, then that stretch of river is legally closed to boating. A few claim that they have the legal right to erect such fences or barriers (despite state law prohibiting the obstruction of waterways,)(46) on the theory that the public does not have the right to run rivers through private land in the first place. They claim that boating on the water surface is "civil trespassing" (even if it’s not "criminal trespassing" under the legislature’s definition), and that touching the banks or beds is both civil and criminal trespassing, so that boaters supposedly have no right to portage.

However, the right to portage around obstructions while running smaller rivers has been repeatedly confirmed by federal law. In the acts discussed earlier, Congress specifically confirmed the public’s right to use the "carrying places" between boatable sections of river.(47) In those days, people got their canoes or other human-powered craft upstream by carrying them, or by pulling them upstream using ropes from the bank, pulled by men or oxen, a process known as "cordelling."(48) Cordelling was still common a century later, and the U.S. Supreme Court reaffirmed its lawfulness in 1874, as well as the public’s right to portage around obstructions.(49) In 1921 the Supreme Court again confirmed public rights to canoe on rivers having "shallow water, with boulders and obstructions," and to use the "carrying places" between the boatable stretches.(50) The more recent federal cases discussed earlier have reconfirmed modern-day canoeing and kayaking rights on the Jackson River, a narrow, crooked, rocky river that is only a few inches deep in places, and the Dog River, a whitewater river that is runnable only briefly after a rain.(51) Contact with the banks and beds is necessarily involved in canoeing and kayaking on such rivers. Federal courts have also confirmed public boating rights (as well as actual public ownership of the river banks and beds) on the McKenzie, Gulkana, Kandik, Nation, and Kukpowruk rivers, which are also shallow, rocky rivers, used for whitewater rafting trips, similar to typical rivers in Colorado.(52) Therefore public rights to make contact with the beds of shallow rivers while canoeing, kayaking, and rafting, and to portage along the banks to get around obstructions, are thoroughly confirmed by federal law.

On the other hand, riparian landowners do have certain legal rights on rivers passing through their lands. Therefore the rights of boaters and riparian landowners coexist under federal law. This coexistence is an undeniable result of the law, but it is not always clearly explained. We have seen various discussions of this coexistence over the years, but perhaps the most complete discussion was written years ago by a state court, discussing this coexistence under federal law, not under state law. The court wrote:

The navigation right is the right of passage merely, and so long as the right is preserved without unreasonable impairment the riparian owner may abridge the stream, or use water therefrom, or even throw a dam across it, if he makes provision for the right of passage. The rights may be said to be reciprocal, each modifying the other, each to be used so as not to interfere unreasonably with the other right. The riparian landowner is not bound to provide a better passage than is furnished by nature. He may even abridge the rights to some extent, if he leaves a convenient passageway.(53)

In other words, riparian landowners can build diversion dams and cattle fences, but they must provide a boat chute or portage route through or around any obstructions they build, and they must allow boaters to pass in peace. The boat chute or portage route must be convenient for boaters, though not necessarily more convenient than what is found elsewhere on the run. Each must respect the rights of the other, and not attempt to eliminate the rights of the other. This explanation reconciles any seeming conflict between riparian landowner rights and public boating rights. The riparian landowner has rights to use the river that the public must respect, but whatever the landowner does, the public’s right to run the river, and boat or portage around obstructions, must be maintained.

People who oppose boating acknowledge that portage rights exist elsewhere, but they claim that in Colorado these rights were terminated in 1977 by the state legislature’s definition of "premises." The banks and beds are indeed part of the landowner’s premises under this definition (at least on some streams in Colorado), but as discussed earlier, the U.S. Supreme Court has confirmed that this private ownership is "a bare technical title" that "long has been limited by the right of the public to use the stream."(54) When the legislature confirmed public rights to boat on the surface of the water, it did not deny additional rights confirmed by federal law, nor could it have lawfully done so.(55) Therefore state law confirms the right to boat on the surface of the water of rivers in Colorado, while federal law confirms the additional right to make contact with the banks and beds while boating and portaging. There is no conflict between the two.

Since the public has the legal right to boat the rivers of Colorado that are useable for canoeing, kayaking, and rafting, including the right to portage, riparian landowners who erect fences or diversion dams, without providing a convenient boat chute or portage route, are indeed violating the state’s criminal obstruction statute, CRS § 18-9-107, as well as federal law regarding obstructions.(56)

Now we must discuss how these coexisting rights of riparian landowners and boaters have been handled in Colorado recently. Since late 1999, the Colorado Department of Natural Resources has held a series of meetings, every month or two, called the "River Surface Recreation Forum." This forum has consisted of riparian landowners, water users, agricultural interests, attorneys, state government officials, and boaters. The state official who chairs the meetings has directed the forum in discussing various ways to advise the public that certain people oppose public boating rights on rivers in Colorado. However, he has not allowed the forum to discuss the law itself, so the forum members continue to have the same misconceptions about the law that they had when the meetings started over a year ago. The very name that officials chose for the meetings, "River Surface Recreation Forum," suggests support for the misconception that boaters can’t legally run rivers where they have to portage around obstructions.

It’s pointless to discuss possible solutions for this dispute about public boating rights while refusing to discuss what the law actually says about those rights. If the chairman would allow the forum to examine and discuss the law, these misconceptions could be mostly cleared up in one or two meetings. It would be easy enough to pass copies of the federal and state decisions around the table and discuss what they actually say. The forum members would then begin to see that public boating rights (and portage rights) on rivers in Colorado that are useable for canoeing, kayaking, and rafting have been thoroughly confirmed by federal law, and that Colorado state courts have not terminated those rights, nor could they lawfully do so. The discussion could then turn to possible ways of informing the public about the coexisting legal rights of riparian landowners and boaters, along the lines of the example discussed earlier, or similar explanations.

At recent forum meetings, one state official suggested that rafting companies on the Arkansas River, a popular rafting river, could pay all the riparian landowners along the river for the right to boat through their lands. (This would greatly raise the price of a river trip, would presumably close that river to other parties who haven’t paid the riparian landowners, and would also tend to close other rivers on which no one has paid landowners.) Another official suggested closing some rivers to boaters entirely, or limiting boating in various ways as desired by certain adjacent landowners. These proposals would be unlawful. As discussed earlier, state officials cannot "abdicate" their legal responsibility to maintain public boating rights on rivers in Colorado that are useable for canoeing, kayaking, and rafting.(57)

The most recent meeting of the Forum was in January 2001, and no further meetings are planned until fall. Based on the meetings, the state government now plans to post signs (bearing the state seal) on various rivers, saying:

ATTENTION: The rivers of Colorado are used by many people. When these rivers flow through public land managed by local, state, or federal agencies, they are generally open for a wide variety of recreational uses. When rivers flow through private land, though, the situation changes. Whether or not you may float through private property is an uncertain aspect of the law.

The signs go on to say that smaller markers, posted on the banks along the rivers, will show where public land begins and ends. The neighboring states of Wyoming, Montana, and Idaho also post such markers along rivers showing where public land begins and ends, but those states have confirmed public rights to canoe, kayak, and raft on those rivers, including the right to make contact with the banks and beds to get over shallows and portage around obstacles.(58) In that context, the markers simply tell the public to not use the privately-owned upland away from the river. The proposed Colorado signs, by contrast, cast doubt on the public’s right to boat through private land at all, especially where shallows or portages are involved.

The wording of these proposed Colorado signs was approved by the forum (over our objection), but such approval is not legally important, since the public’s legal rights to boat on rivers cannot be negotiated away at meetings of boaters and people who oppose boating.

The impetus for these proposed signs came from certain riparian landowners, particularly one individual who has strung a cable across the South Platte River, two miles downstream from Deckers, with a sign hanging on it warning the public to not proceed down the river past that point. (The river is well suited for canoeing and kayaking.) He represents the Creekside Coalition, which has the same anti-boating goals as those of the Riverfront Protective Association, which were overruled by federal courts in Oregon v. Riverfront Protective Association.(59) The stringing of cable across the river, and the claims that boating is trespassing and a "taking" of private property, are the same things that were specifically rejected by federal courts in Loving v. Alexander and Goodman v. City of Crystal River.(60)

The people who oppose boating are beating a dead horse. The questions they raise about boating rights on smaller rivers, state confirmation of boating rights, trespassing, takings, portage rights, cable stringing, and barrier building have all been asked and answered by the U.S. Supreme Court and the federal appeals courts, in cases ranging from 1874 to May of 2000.(61) After more than a year of these meetings, the people who oppose boating have produced nothing in writing that actually supports their claims. At the meetings, they verbally claim that rivers are not legally open to boating "until designated by a court of competent jurisdiction," or "until litigated case by case," or "until designated by the legislature." This official-sounding language is an empty façade that only influences people who have not read the cases on the subject.

Some people have suggested that boaters should go to court to clarify boating rights in Colorado. But these rights have already been thoroughly confirmed by federal law, and neither the state courts nor the legislature have denied them, nor could they lawfully do so. There is nothing left to litigate in court.

As discussed earlier, state officials cannot "abdicate" their legal responsibility to maintain public boating rights on rivers "freed from the obstruction or interference of private parties."(62) The proposed state signs, as presently worded, are a violation of federal law, particularly when viewed in conjunction with the unlawful cables, signs, and barriers that state officials know have already been erected by certain people, in addition to the rifle pointing and related intimidation of boaters by some individuals. (On the other hand, signs advising the public of the coexisting rights of boaters and riparian landowners, as discussed earlier, would be lawful.) By copy of this letter, we are asking the responsible state officials to not proceed with the present unlawful signs.

The rivers of Colorado must remain "forever free" to canoeing, kayaking, and rafting by the people of Colorado as well as people from other states. Of course, we understand that as the State Attorney General you are charged with a number of pressing responsibilities. As discussed earlier, state confirmation is helpful to maintain public boating rights on rivers in a particular state, but is not necessary.(63) Consequently, an opinion from your office would be helpful to maintain public boating rights on rivers in Colorado, but is not necessary.

Thank you for your cooperation.

Sincerely,

Eric Leaper,

Executive Director.

1. People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979).

2. Attorney General Opinion NR AD AGALA (1983).

3. Letter of February 3, 2000 from Wyatt Angelo to Ken Salazar.

4. Letter of March 8, 2000 from Ken Salazar to Wyatt Angelo.

5. Letter of March 28, 2000 from Gunnison County Commissioners to Colorado Dept. of Natural Resources.

6. Sheriff's incident report.

7. Letter of January 8, 2001 from Ken Ransford, American Whitewater program director, to the Colorado River Surface Recreation Forum.

8. Loving v. Alexander, 548 F.Supp. 1079 (W.D.Va. 1982), aff'd, 745 F.2d 861 (4th Cir. 1984), LEXIS 17955. (Discussed at www.vwrrc.vt.edu/pdf/sv13-1999.pdf).

9. Goodman v. City of Crystal River, 669 F.Supp. 394 (M.D.Fla. 1987). (Discussed at www.envpoly.org/takings).

10. Atlanta School of Kayaking v. Douglasville County Water, 981 F.Supp. 1469 (N.D.Ga. 1997). (Discussed at www.bondurant-mixson.com).

11. The Montello, 87 U.S. 430 (1874.) (At www.findlaw.com).

12. Economy Light & Power Co. v. United States, 256 U.S. 113 (1921.) (On the Internet at www.findlaw.com).

13. 1 Stat. 50. 1 Stat. 52. 1 Stat. 464. (At www.findlaw.com).

14. The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, by Jan S. Stevens, 14 Davis Law Review 195 (1980); Forever Free: Navigability, Inland Waterways, and the Expanding Public Interest, by Richard M. Frank, 16 Davis Law Review 579 (1983). (Copies available at any library through interlibrary loan). Public Trust Rights, by Althaus et al., (1978). (421-page manuscript available from the U.S. Dept. of the Interior, Office of the Solicitor, Portland, Oregon, or the Oregon Division of State Lands.)

15. Scranton v. Wheeler, 179 U.S. 141 (1900). (At www.findlaw.com).

16. West Chicago Railroad Co. v. Illinois, 201 U.S. 506 (1906). (At www.findlaw.com).

17. United States v. Kansas City Ins. Co., 339 U.S. 799 (1950). (At www.findlaw.com).

18. Oregon v. Riverfront Protective Association, 672 F.2d 792 (1982) (confirming boating rights, and public ownership of the banks and beds, on the McKenzie River, a shallow river used for rafting); Alaska v. Ahtna, 891 F.2d 1401 (9th Cir. 1989), cert. denied, 495 U.S. 919 (1990) (confirming boating rights, and public ownership of the banks and beds, on the Gulkana River, a shallow river used for rafting); Alaska v. United States, case 96-36041 (9th Cir. 2000) (confirming boating rights, and public ownership of the banks and beds, on the Kandik and Nation rivers, which are shallow rivers used for canoeing and rafting); Alaska v. USA, case 98-35310 (9th Cir. 2000) (confirming boating rights, and public ownership of the banks and beds, on the Kukpowruk River, a shallow river used for canoeing). (The latter two are at www.findlaw.com).

19. Economy Light & Power Co. v. United States, 256 U.S. 113 (1921). (At www.findlaw.com).

20. Loving v. Alexander, 548 F.Supp. at 1084; Oregon v. Riverfront, 672 F.2d at 795.

21. Puget Sound Power & Light Co. v. Federal Energy Regulatory Commission, 644 F.2d 785 (9th Cir. 1981).

22. LeRoy R. Hafen, Mountain Men & Fur Traders of the Far West, University of Nebraska Press, 1965; David J. Wishart, The Fur Trade of the American West, 1807-1840, University of Nebraska Press, 1979. (These activities are also described in the popular historical novel Centennial by James Michener. )

23. Rocky Mountain News, November 27, 1872, page 4.

24. Duane Vandenbusche (professor of history in Gunnison,) The Gunnison Country, B & B Printers, Gunnison, 1980. (Available at Colorado libraries.)

25. People v. Emmert, 597 P.2d 1025 (Colo. 1979).

26. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892); Shively v. Bowlby, 152 U.S. 1 (1894); Scranton v. Wheeler, 179 U.S. 141 (1900). (At www.findlaw.com).

27. Economy Light & Power Co. v. United States, 256 U.S. 113 (1921). (At www.findlaw.com).

28. Shively v. Bowlby, 152 U.S. 1 (1894). (At www.findlaw.com).

29. See footnotes 15, 16, and 17.

30. United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899) (regarding federal authority over dam building); United States v. Utah, 283 U.S. 64 (1931) (regarding federal and state authority over oil and gas leasing); United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940) (regarding federal authority over dam building); Kaiser Aetna v. United States, 444. U.S. 164 (1979) (regarding federal authority over a marina built on private land). (On www.findlaw.com).

31. Loving v. Alexander, 548 F.Supp. at 1087; Goodman v. City of Crystal River, 669 F.Supp at 398; Atlanta School of Kayaking, 981 F.Supp. at 1473.

32. Guilliams v. Beaver Lake Club, 90 Or. 13, 175 P. 437 (1918) (confirming human-powered boating rights on smaller rivers over privately-owned beds in Oregon. Other boating rights cases in Oregon are listed at http://statelands.dsl.state.or.us/cases.htm); Elder v. Delcour, 364 Mo. 835, 269 S.W.2d 17 (1954) (confirming canoeing rights on smaller streams in Missouri, through farms having fences across streams. Discussed at www.conservation.state.mo.us/conmag/1995/ nov/mccarter.html); Day v. Armstrong, 362 P.2d 187 (Wyo. 1961) (confirming canoeing, kayaking, and rafting rights on shallow rivers in Wyoming, "irrespective of the ownership of the bed or channel of the waters"); State v. Bunkowski, 88 Nev. 623, 503 P.2d 1231 (1972) (confirming these rights on smaller rivers in Nevada); Southern Idaho Fish & Game Association v. Picabo Livestock Co., 96 Idaho 360, 528 P.2d 1295 (1974) (confirming these rights on smaller rivers in Idaho); People v. Mack, 97 Cal.Rptr. 448, 19 Cal.App.3d 1040 (1979) (confirming these rights on smaller rivers in California. At http://www.snowcrest.net/ klewis/mack.htm); Montana Coalition for Stream Access v. Curran, 210 Mont. 38, 682 P.2d. 163 (1984) (confirming these rights on smaller rivers in Montana); Adirondack League Club v. Sierra Club, 706 N.E.2d 1192 (N.Y.1998) (confirming these rights on smaller rivers in New York. At www.law.cornell.edu/ ny/ctap/ 198_0162.htm).

33. Loving v. Alexander, 548 F.Supp. at 1090 (confirming canoeing rights on the shallow, rocky Jackson River, noting that "the exercise of federal authority over the river is appropriate because future recreational use by out-of-state visitors of the proposed trout fishery will affect interstate commerce"); Goodman v. City of Crystal River, 669 F.Supp. at 399 (confirming canoeing and kayaking rights, noting that sightseeing trips through a shallow channel in small craft are commerce); Alaska v. Ahtna, 891 F.2d at 1405 (confirming that whitewater raft trips on the Gulkana River are commerce, saying, "to deny that this use of the river is commercial because it relates to the recreation industry is to employ too narrow a view of commercial activity"); Swan Falls Corp., 53 F.E.R.C. 61,309 (1990) (confirming that canoe trips on the shallow, rocky Saco River are commerce); David Zinkie, 53 F.E.R.C. 61,029 (1990) (confirming that the small, shallow Fawn River is a public river due to its potential for commercial recreation); State ex rel. New York State Dept. of Conservation v. Federal Energy Regulatory Commission, 954 F.2d 56 (2d Cir. 1992) (confirming that fishing guides using drift boats on the shallow, rocky Salmon River are commerce); Atlanta School of Kayaking v. Douglasville County Water, 981 F.Supp. at 1473 (confirming that instructional whitewater kayak and canoe trips on the Dog River are commerce).

34. The Montello, 87 U.S. 430 (1874) (confirming public rights on rivers with "rapids" and "carrying places"). (At www.findlaw.com).

35. Sawczyk v. U.S. Coast Guard, 499 F.Supp 1034 (W.D.N.Y. 1980) (regarding raft trips on the Niagara River, through some of the largest, deepest rapids in the nation); Atlanta School of Kayaking at 1471 (regarding kayak trips on the Dog River, which is typical of some of the smallest, shallowest whitewater rivers in the nation). See footnotes 8, 10, 11, 12, and 18.

36. The Montello, 87 U.S. 430 (1874) (overruling lower courts and holding that useability by "vessels of any kind," even with rapids and portages, makes rivers public under federal law); Economy Light & Power Co. v. United States, 256 U.S. 113 (1921) (overruling state supreme court, and holding that shallow rivers useable only by canoe are public under federal law); United States v. Holt State Bank, 270 U.S. 49 (1926) (confirming that state law is the "wrong standard" to use in deciding if shallow lakes and rivers are public). (At www.findlaw.com).

37. Loving v. Alexander, 548 F.Supp. at 1089 (overruling three previous state court decisions and confirming that river canoeing rights are a matter of federal law); Goodman v. City of Crystal River, 669 F.Supp at 398 (overruling a previous state determination and confirming that canoeing and kayaking rights are a matter of federal law).

38. United States v. City and County of Denver, 656 P.2d 1 (1982), Stockman v. Leddy, 129 P. 220 (1912).

39. People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979). .

40. Colorado Constitution, Article XVI, section 5. (At http://i2i.org/SuptDocs/ColoCon/iscolocn.htm).

41. United States Constitution, Article VI, clause 2.

42. Atlanta School of Kayaking, 981 F.Supp. at 1473; Alaska v. Ahtna, 891 F.2d at 1405.

43. Economy Light, 256 U.S. 113 (confirming that the Desplaines River is a public river, despite a state supreme court decision to the contrary, even though it is not presently being used by canoeists). (At www.findlaw.com).

44. Colorado trespass law, CRS 18-4-504.5. (At http://www.leg.state.co.us/inetcrs.nsf/revstat?OpenView).

45. Attorney General Opinion NR AD AGALA (1983).

46. Colorado obstruction law, CRS 18-9-107. (At http://www.leg.state.co.us/inetcrs.nsf/revstat?OpenView).

47. 1 Stat 50. 1 Stat. 52. 1 Stat. 464. (At www.findlaw.com).

48. Paul O'Neil, The Old West: The Rivermen, Time-Life Books (1975), page 64. (Available at libraries).

49. The Montello, 87 U.S. 430 (1874) (confirming public rights to use "carrying places" to get around "obstructions" on rivers, and to use boats "propelled by animal power," there being no way to propel a boat by animal power except from the bank.) (At www.findlaw.com).

50. Economy Light & Power Co. v. United States, 256 U.S. 113 (1921). (At www.findlaw.com).

51. Loving v. Alexander, 548 F.Supp. at 1084; Atlanta School of Kayaking, 981 F.Supp. at 1471.

52. See footnote 18.

53. Miller v. State, 137 S.W. 760, 124 Tenn. 293 (1911) (discussing landowner and boater rights under federal law on smaller streams useable only by human-powered craft).

54. See footnotes 15, 16, and 17.

55. See footnote 41.

56. 33 USC 403, (at www.findlaw.com), and rights to boat on smaller rivers under federal law as discussed earlier.

57. See footnotes 26 and 27.

58. Day v. Armstrong, 362 P.2d at 151 (Wyoming, confirming that canoeists, kayakers, and rafters "may, when necessary, disembark and walk, or wade, upon submerged lands in order to pull, push, or carry craft over or across shallows, riffles, rapids or obstructions," and that such use "may not be interfered with or curtailed by any landowner"); Southern Idaho Fish & Game Ass'n v. Picabo Livestock Co., 528 P.2d at 1297 (Idaho, confirming the right to "walk or portage such craft around irrigation dams" on private property, then "re-enter the stream immediately below said dams at the nearest point where it is safe to do so"); Montana Coalition for Stream Access v. Curran, 682 P.2d 163 (1984) (Montana, confirming the right to "portage around barriers in the least intrusive manner possible, avoiding damage to the adjacent owner's property and his rights."). For a discussion of scouting and portage rights generally, by a deputy of the Texas Attorney General, see http://world.std.com/~reichert/ jr_useba.htm. For a discussion of public access rights from bridges to rivers generally, by the Montana Attorney General, see www.doj.state.mt.us/ago/opinions/00/48-013.htm.

59. Oregon v. Riverfront, 672 F.2d at 794.

60. Loving v. Alexander, 548 F.Supp. at 1081; Goodman v. City of Crystal River, 669 F.Supp. at 397.

61. The Montello, 87 U.S. 430 (1874); Alaska v. USA, case 98-35310 (9th Cir. May 2000). (At www.findlaw.com).

62. See footnotes 26 and 27.

63. See footnotes 33, 35, 36, 37, and 38.

See also:

Colorado Supreme Court, Emmert decision, 1979.

Colorado Attorney General Opinion of 1983.

To post your question about river law in Colorado:

Click here to go to River Rendezvous--State River News, and post your question under Colorado River Law. The webmaster will subsequently ask a qualified attorney to answer your question, and will add the question and the answer to the above list.

The National Rivers Website and the Rivers of Colorado section are made possible by the generosity of the members of the National Organization for Rivers (NORS.) To start or extend your membership, go to NORS Memberships.

The National Rivers Website is part of Adventure Sports Online.