The Colorado book, Public Rights on Rivers in Colorado, describes fur trading and log drives on rivers and creeks in Colorado in the past, and cites U.S. Supreme Court decisions saying that there is a public easement to navigate, fish, and walk along the banks of such rivers. A 1983 Colorado Attorney General opinion said that the public can float on the surface of “nonnavigable” streams “without touching the stream banks or beds.”
“That applies to non-navigable streams, like it says, such as ankle-deep creeks that are not navigable in any craft,” says Eric Leaper, the organization’s executive director. “However, it does not apply to rivers that are physically navigable for rafting and kayaking in Colorado today. Those rivers were usable in the past by fur trade canoes and for log drives, and they are usable today for commercial raft and kayak trips, so they are legally navigable under federal law.”
“The U.S. Supreme Court has held that rivers that are navigable in fact are navigable in law, and that navigation includes canoes and log drives, not just larger boats,” Leaper says. “Navigation also includes commercial raft trips and kayak classes. Federal law confirms a public easement on rivers that are usable in these ways.”
In 2010, the Colorado General Assembly held hearings about House Bill 1188, which would have confirmed an easement for commercial rafting companies to continue operating on rivers that already had a history of use for commercial rafting. The bill died in committee.
“That bill was unnecessary,” Leaper says. “Federal law already says that physically navigable rivers are legally navigable and must remain open to public use, including walking along the beds and banks while portaging, fishing, or duck hunting. This public easement does not need further confirmation by the state legislature.”
The book includes several examples of river controversies in Colorado. On the Taylor River, north of Gunnison, ranch owners have claimed that rafting on the river through their land is trespassing. On the Conejos River, southwest of Alamosa, landowners have strung several barbed-wire fences across the river that could cause fatal entrapments for rafters or kayakers. The Lake Fork of the Gunnison River, near Lake City, was used for commercial raft trips until a landowner sued the rafting company, which went out of business rather than pay for lengthy litigation. On the Arkansas River, landowners claim that fishermen can only fish on sections of the river that are within public land.
“It is not a crime for the public to navigate or walk along the banks of physically navigable rivers flowing through private land in Colorado,” Leaper says. “On the other hand, it is a crime for landowners to block that public easement, either on the water or along the banks, with fences, signs, other obstructions, or verbal threats. Even so, river users should not argue if confronted along a river, because that can escalate and lead to separate criminal charges, as it did in Missouri last summer, where it led to a fatal shooting. Instead, they should report such crimes to organizations such as Crime Stoppers, and follow up with law enforcement officials to make sure that the public easement on physically navigable rivers is respected by landowners.”
The organization will soon publish similar books regarding public rights on rivers in other states where these rights are disputed by some landowners, including Virginia, Georgia, Kansas, Utah, and other states.
The new book is available at sporting goods stores across Colorado, or online at www.nationalrivers.org .