National Rivers: Colorado River Law, on river conservation, river access, paddling, canoeing, kayaking, rafting, fly-fishing, and Colorado river ownership.

The National Rivers Website, River Law in Colorado:

Public Ownership of Rivers in Colorado

Answers to frequently-asked questions about river law in Colorado,
regarding river ownership, use, access, and conservation.

This is about public ownership of rivers in Colorado, public rights to use rivers, and river conservation. If you are faced with a river dispute, do not try to “settle” it with confrontations or threats of violence, which can lead to criminal charges, fines, and jail time, without settling anything. Instead, follow the steps outlined t the end of this folder. By reading this folder and related materials, you can educate yourself and other people about river law, and avoid ostly and frustrating problems.

This is intended to supplement Public Ownership of Rivers in the United States. Following is a summary of that article, then a discussion of federal and state law as they apply in Colorado:

The U.S. Supreme Court has held that rivers have been public since ancient times, in all civilized societies. Under ancient law, all rivers were public, whether navigable or not, and the public had the right to use the beds and banks of rivers, as well as the surface of the water.
In America, public fishing rights were codified in the 1600s, soon after the colonies were founded. After the American Revolution, state and federal courts upheld public fishing rights to rivers. The U.S. Supreme Court held that states hold surface waters “in trust” for the people, so that the people will have “liberty of fishing therein freed from the obstruction or interferences of private parties.”
To this day, many state constitutions affirm public ownership of all running waters. Various state courts have held that the public has an “easement” to walk along streams flowing through private land, saying that “streambed ownership by a private party is irrelevant.”
A second level of legal status applies to rivers and streams that are temporarily physically navigable in canoes and other small craft. Under federal law, these rivers and streams, as well as the “carrying places” between them, must remain “forever free” to the public, and are subject to the federal navigation servitude, regardless of state or private ownership of their beds and banks.
A third level of legal status applies to rivers and streams that are regularly used (or capable of being used) by small craft, during the boating season, and are therefore navigable for title purposes. On these rivers, the beds and banks are actual public land, (not just an easement,) up to the ordinary high water line.
The U.S. Supreme Court has held that “rivers that are navigable in fact are navigable in law,” so no official designation is necessary. State courts and legislatures cannot establish their own more restrictive standards of navigability; they must abide by the national standards.
Public rights to rivers are a matter of long-standing law, and are not determined by local property deeds. Rivers did not pass from public to private ownership simply because the adjacent uplands passed to private ownership. Federal courts have confirmed that since rivers were public all along, allowing public use of streams is not a “taking” under the Fifth Amendment, and landowners are not entitled to compensation when public use rights are upheld.
The public does not have a general right to cross private land to get to and from rivers, but does have a right to get to rivers at traditional access points, particularly to get from public bridges down to rivers.
State governments can manage river resources, but in ways that do not conflict with federal law. Since state governments hold river resources “in trust” for the public, they cannot sell or give them away to private ownership or control.

What is the history of public rights to fish and boat on rivers and streams in Colorado? In the 1700s, (while our nation’s founding fathers were enacting laws to ensure public rights to fish and boat on rivers and streams,) the land that is now Colorado was mostly wilderness. It was inhabited by several Indian tribes, who often fished and canoed on the rivers and streams. In the 1800s, numerous fur trappers canoed the region’s rivers and streams as they gathered beaver pelts. Settlers used rivers and streams to float logs down from the surrounding mountains to build the territory’s first towns. Residents and visitors alike fished in the rivers and streams, for food and for sport.

Colorado became a state in 1876. The Colorado State Constitution, like other state constitutions, declared public ownership of running waters, subject to appropriation for irrigation. It said, “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.”

In 1903 the State Legislature passed a law saying, “the public shall have the right to fish in any stream in this state, stocked at public expense, subject to actions in trespass for any damage done property along the bank of any such stream.” But in the 1906 case of Hartman v. Tresise, state courts held that this law, by allowing the public to fish on non-navigable streams passing through private land, was unconstitutional under the Fifth Amendment, as a “taking of private property without just compensation.” Regarding the State Constitution’s guarantee of public rights to use “every natural stream,” the court held that these rights were not just subject to appropriation, but rather that appropriation was the only use the people could make of streams. (A dissenting judge held that the Constitution means that streams “are dedicated to the use of the people, to be used by them in such manner as they see fit,” not just for appropriation.) However, due to the separation of powers in government, courts do not have the authority to simply overrule legislation and assume that streams are private property; they must be able to cite a legal basis for doing so. (As explained earlier, streams do not pass from public to private ownership simply because the adjacent uplands pass to private ownership.) The Constitution had affirmed public rights to use streams, and over thirty years earlier the U.S. Supreme Court had affirmed public fishing rights in Martin v. Waddell and other Public Trust Doctrine cases, based on ancient law recognized throughout western civilization. (See the national article for citations.) The State Legislature had never granted streams, or fishing rights, to private ownership or control. (Such a grant would have violated the Public Trust Doctrine.) Consequently, there was no legal basis for the court’s assumption that the right to fish in streams had passed to private ownership, and therefore no legal basis for the claim that allowing the public to fish on streams was a “taking” of private property. The court’s decision also conflicted with the Public Trust Doctrine. Colo. Sess. Laws, 1903, ch. 112, section 7 at 233. Hartman v. Tresise, 36 Colo. 146, 84 P. 685 (1906).

In a 1912 dispute about whether the State Legislature could spend public funds to investigate whether the federal government had water rights on streams in Colorado, state courts said that the federal government “knew that the natural streams of this state are, in fact, non-navigable,” while also saying that “the property right in the natural streams, and the waters flowing therein, has never been renounced or relinquished by the state.” The comments claim that no stream in the state is navigable, with no legal or factual basis for doing so. At the same time, the comments seem to say that the public owns all streams, navigable or not, and that public ownership includes the streams themselves, not just the waters of the streams. Since the case was a decision about authority to spend public funds, not about streambed ownership or navigability, the comments are not determinative anyway. Stockman v. Leddy, 55 Colo. 24, 129 P. 220 (1912).

The issue next appeared in 1976 when David Emmert and two companions were charged with trespassing, while they were walking and floating down the middle of a stream flowing through a ranch (fishing as they went,) wearing fishing waders that included a flotation tube around the waist. Mr. Emmert (of Greeley, Colorado,) appealed to the Colorado Supreme Court, representing himself, and relying solely on the “every natural stream” clause of the State Constitution, with no reference to federal navigability law, the Public Trust Doctrine, or other law. He was opposed by half a dozen experienced attorneys representing a variety of commercial and industrial interests. Both sides stipulated that “the river is non-navigable” (without citing any legal basis for doing so,) and the court agreed that the issue was whether the three fishermen had the right “to float and fish on a non-navigable natural stream” flowing through private property. In its conclusion, however, the court did not distinguish between navigable and non-navigable streams, but simply made a sweeping statement that “the public has no right to the use of waters overlying private lands for recreational purposes.” The court relied on the same “takings” notion as in the 1906 Hartman case, and cited the medieval common law rule of “cujus est solum, ejus est usque ad coelum.” (Literally, “he who owns the ground, owns up to the sky.) However, public rights to rivers and streams were well established under ancient law, and the “up to the sky” rule did not conflict with them. As in the Hartman case, the court had no legal basis for assuming that public rights to fish and boat on streams had passed to private ownership, and its conclusion conflicted with federal law. People v. Emmert, Colo. 597 P.2d 1025 (1979).

In 1977 (while the Emmert case was on appeal) the State Legislature changed state law defining “premises,” for purposes of trespassing, to include “the stream banks and beds of any non-navigable fresh water streams,” but not the surface of the water. (C.R.S.18-4-504.5) The subsequent Emmert decision seemed to conflict with this. In 1983, the State Attorney General issued an official opinion interpreting the 1977 statute, citing the transcript of legislative debate from 1977. The opinion said, “one who floats upon the waters of a river or stream over or through private property, without touching the stream banks or beds, does not commit a criminal trespass.” (AG Alpha No. NR AD AGALA, 1983.) The opinion did not consider any other federal or state law, so it was not an overall conclusion about public rights to rivers and streams in Colorado. It was only a statement about the 1977 legislation. That legislation applied only to “non-navigable fresh water streams.” If the opinion was intended to apply to streams that are not physically navigable, it did not apply to much of anything, because people who float down a stream, without touching the banks or beds, are navigating. (Unless they are swimming, which is very rare in Colorado.) If it was intended to apply to streams that are physically navigable, or are navigable for title purposes, it conflicted with federal law.

No additional legal decisions on the subject have been issued since then. At present, a number of landowners and sheriffs, relying solely on the 1983 “without touching” opinion, with no reference to other law, believe that people can navigate on the surface of streams passing through private land in Colorado, but if they touch the beds or banks they are commiting a criminal trespass. Under this belief, two fishermen can canoe down a stream through private land, stop in an eddy, and fish there all day, at arm’s length from the shore, as long as one of them keeps using his paddle to hold the canoe in position. But if they step out and stand on the shore, even for a minute, the landowner can summon the sheriff and charge them with criminal trespassing. Similarly, two canoeists can paddle for miles on a stream through various ranches, but if they come to a dangerous log jam across the stream and portage around it along the bank for a short distance, they too are guilty of trespassing. Or, hundreds of people can raft and kayak on a stream through private land all day long, laughing and splashing (without touching the bed or banks,) but if a lone elderly man stands in the water near the shore for a while, fishing quietly, he too is a criminal trespasser. Or a troop of boy scouts can canoe down a stream (earning their eagle scout badges,) but if one canoe tips over and the boys can’t get back into it without touching the stream bed, they too are guilty of trespassing. If the troop leader recognizes that one of the boys has hypothermia and needs immediate re-warming to survive, perhaps he would be better advised to let the boy die, rather than stop his troop on the bank to re-warm the boy, making them all criminals in the process!

All of this is absurd, which is why the notion that the public has the right to float on the surface of the water, but not touch the bed or banks, has never gained much legal recognition. Instead, the law since ancient times has recognized that the right to use a stream necessarily includes the right to stand or walk along the banks in the process.

A number of federal cases involving rivers have dealt with navigable streams. Consequently, another common misconception is that the public has the right to stand and fish on streams that are navigable by small craft, but not on those that aren’t. This belief, if true, would lead to various instances of a fisherman, a landowner, and a sheriff, (perhaps none of whom had ever canoed,) arguing about whether a certain stream could be canoed. The landowner might insist that it couldn’t, while the fisherman might insist that it could. This would quickly become absurd. It is impossible to neatly divide all the streams of a state into those that are navigable and those that aren’t. This is why ancient laws, the Public Trust Doctrine, and current state consitutions affirm public ownership and use rights on all running waters, not just those that are navigable.

In summary, what are the public’s current rights to fish, boat, and otherwise recreate on the rivers and streams of Colorado as they flow through private lands? There are three levels of public rights, as follows:

First, on every natural stream, the public has the right to fish, and to stand or walk along the bed and banks while fishing, (in the manner least intrusive to private land,) under ancient law, the Public Trust Doctrine, and the 1903 state law. However, a number of landowners and sheriffs in Colorado currently believe that the public does not have this right.

Second, on streams that are temporarily physically navigable by small craft such as canoes, (even if they are not navigable for title purposes,) the public has the right to navigate, including scouting and portaging, and to fish, including standing and walking along the stream, (in the manner least intrusive to private land,) under federal statutes and court decisions. However, a number of landowners and sheriffs in Colorado currently believe that the public only has the right to navigate on the surface of the water, without touching the beds or banks.

Third, rivers that are used (or capable of being used) for navigation such as commercial raft trips, or that were historically used to float logs downstream, or by fur trappers in canoes, are navigable for title purposes, under federal law. On these rivers, the beds and banks form an actual strip of public land, up to the ordinary high water line, including the sandy beaches and gravel bars. State government agencies hold this strip of land “in trust” for the public, and must conserve it for future generations. The public can navigate and fish on these rivers and their banks, and can also use the banks for other non-destructive recreation such as picnics, camping, walking, resting, reading, photography, and painting. The public can walk above the high water line as necessary to get around obstacles, in the manner least intrusive to private land. The public can use the banks of these rivers year round, even if the water has dried up. (On rivers that are not navigable for title purposes, the public can only use the banks as necessary to make use of the water, and the right to use the banks comes and goes with the water.) But again, a number of landowners and sheriffs in Colorado do not believe that the public has these rights, and do not believe that the state owns the beds and banks of these rivers.

Important! What to do in case of river disputes: First, as stated earlier, do not try to “settle” river disputes by confrontations or threats of violence, which lead to irrelevant criminal charges that could cost you a fine and land you in jail, without settling anything.

If the dispute has to do with construction near a river or environmental damage, discuss it with government agencies that protect the environment, and consult an environmental law attorney with knowledge of river ownership law.

If the issue is public access, it could be very unwise to sue anybody or try to initiate a “test case.” The pertinent facts in any river dispute must be legally proven and admitted in court, which takes a lot of time and costs thousands of dollars. If you seek justice for river access issues in local courts, the costs and frustration will be enormous, and in the end the court is very likely to rule on narrow, technical grounds that don’t solve the real issues. Even if you win the case, it won’t significantly change centuries of river law.

Most of the rivers in Colorado that are of recreational interest are navigable for title purposes, so they are public land up to the ordinary high water line anyway, under federal law. Additional streams that are physically navigable in canoes and similar small craft (but perhaps not navigable for title purposes,) are still open to canoeing and fishing, under federal law. (See the national article for citations.)

Since the time Colorado became a state, the only thing the legislature has done on this issue is confirm fishing rights (on any stream stocked at public expense) in 1903, and confirm navigation rights in 1977. To the extent that the 1977 legislation, and the Attorney General’s opinion of 1983, prohibited touching the banks or beds of streams, they either did not apply to any actual streams (as discussed earlier,) or, to the extent that they applied to streams that are physically navigable, they conflicted with federal law. Regarding the state court decisions, to the extent that they said that fishing and boating rights passed to private owners, they had no legal basis for doing so, and they conflicted with federal law anyway. These public rights were affirmed by our nation’s founding fathers, and they are not extinguished by state courts. They have been in effect in Colorado all along.

Therefore, despite the conflictive history discussed in this folder, neither a new court case, nor a new state law, is necessary to clarify public rights to fish and boat on rivers and streams in Colorado. Public rights to rivers are a matter of long-standing law. They are not something to be re-debated from scratch in state legislatures or state courts, which would be an enormous waste of time.

Instead, clarifying public rights to rivers in Colorado is a matter of education. If you are faced with a river access dispute, leave the river and avoid a confrontation, then distribute this folder to local landowners, river users, sheriffs, district attorneys, private attorneys, and government agencies. Include photocopies of some of the cases cited herein or other material relevant to the particular situation. Meet with them in person when possible, or contact them in writing and by phone. Explain the problem, and ask them to correct it, in compliance with existing law.

Some people will claim that public rights don’t apply to “their” river. This is simply a stalling tactic to avoid complying with the law. However, most people are willing to look at the law, so you can make a difference by continuing to educate more people about it.

Do not expect immediate success. The wheels of government turn slowly, and it takes time for people to shift their beliefs. When you work on river issues like these, you are working for the long term, not for immediate results.

Review of the relationship of federal and state law regarding rivers:

The section on National River Law discusses river ownership, use, and conservation law throughout the United States. Following is a review of what individual states can and cannot lawfully do with the rivers within their borders.

The U.S. Supreme Court has ruled that rivers that are navigable, for title purposes, are owned by the states, "held in trust" for the public. This applies in all fifty states, under the "Equal Footing Doctrine."
Rivers that do meet the federal test are automatically navigable, and therefore owned by the state. No court or government agency has to designate them as such.
The federal test of navigability is not a technical test. There are no measurements of river width, depth, flow, or steepness involved. The test is simply whether the river is usable as a route by the public, even in small craft such as canoes, kayaks, and rafts. Such a river is legally navigable even if it contains big rapids, waterfalls, and other obstructions at which boaters get out, walk around, then re-enter the water.
The states own these rivers up to the "ordinary high water mark." This is the mark that people can actually see on the ground, where the high water has left debris, sand, and gravel during its ordinary annual cycle. (Not during unusual flooding.) It is not a theoretical line requiring engineering calculations. Where the river banks are fairly flat, this mark can be quite a distance from the edge of the water during medium water flows. There is often plenty of room for standing, fishing, camping, and other visits.
States cannot sell or give away these rivers and lands up to the ordinary high water mark. Under the "Public Trust Doctrine," they must hold them in perpetuity for public use.
The three public uses that the courts have traditionally mentioned are navigation, fishing, and commerce. But the courts have ruled that any and all non-destructive activities on these land are legally protected, including picnics, camping, walking, and other activities. The public can fish, from the river or from the shore below the "ordinary high water mark." (Note that the fish and wildlife are owned by the state in any case.) The public can walk, roll a baby carriage, and other activities, according to court decisions.
States do have authority and latitude in the way they manage rivers, but their management must protect the public uses mentioned above. They can (and must) prohibit or restrict activities that conflict with the Public Trust Doctrine. "Responsible recreation" must be allowed, but activities that could be harmful, such as building fires, leaving trash, and making noise, can legally be limited, or prohibited, in various areas. Motorized trips and commercial trips can legally be limited or prohibited by state governments.
State and local restrictions on use of navigable rivers have to be legitimately related to enhancing public trust value, not reducing it. Rivers cannot be closed or partially closed to appease adjacent landowners, or to appease people who want to dedicate the river to fishing only, or to make life easier for local law enforcement agencies.
State governments (through state courts and legislatures) cannot reduce public rights to navigate and visit navigable rivers within their borders, but they can expand those rights, and some states have done so. They can create a floatage easement, a public right to navigate even on rivers that might not qualify for state ownership for some reason, even if it is assumed that the bed and banks of the river are private land. Note that this floatage easement is a matter of state law that varies from state to state, but the question of whether a river is navigable, for title purposes, and therefore owned by the state, is a matter of federal law, and does not vary from state to state. Note that a state floatage easement is something that comes and goes with the water: When the water is there, people have a right to be there on it, and when it dries up, people have no right to be there. But rivers that are navigable for title purposes are public land up to the ordinary high water mark, so that even when the river runs dry, people still have the right to walk along the bed of the river.
Only federal courts can modify the test of standards that make a river navigable for title purposes. States cannot create their own standards, either narrower or wider in scope. They can’t make definitive rulings about which rivers are navigable for title purposes, only a federal court can.
The situation gets confusing when a state agency or commission holds hearings about navigability and public use of rivers. Landowners, sheriffs, and other people tend to think that such an agency or commission can create state standards that determine which rivers are public and which are private. But these are matters of federal law which state agencies cannot change.
State agencies should make provisional determinations that various rivers meet the federal test of navigability for title purposes. These provisional determinations should be based simply on the rivers' usability by canoes, kayaks, and rafts. They should then proceed to the question of how to manage navigation and other public uses of the river. In these days of government cut-backs, the agency should look for solutions that use existing enforcement agencies rather than setting up new ones. Littering, illegal fires, offensive behavior, trespassing on private land, and numerous other offenses are all covered by existing laws, and offenders can be cited by the local police, sheriff's office or state police.

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.

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