Print this as a one-page flyer, on standard office paper (8.5 by 11 inches).

You can help end the present unlawful “without touching” policy on rivers in Colorado, and the false claims that fishermen and paddlers are trespassing, by contacting these four elected officials:

1. Governor Jared Polis, who aims to be “Colorado’s Outdoor Governor.” Urge him to end the present unlawful “without touching” policy on the rivers in Colorado that are navigable in paddlecraft. Contact him at:  Governorpolis@state.co.us, or colorado.gov/governor/share-comments, or Governor Polis, 200 E. Colfax Ave, Room 136, Denver CO 80203, or the Governor’s Office, 303.866.2471.

2. Attorney General Phil Weiser. Urge him to end the unlawful “without touching” policy on the rivers in Colorado that are navigable in paddlecraft, at: attorney.general@coag.gov, or Attorney General Phil Weiser, 1300 Broadway, 10th floor, Denver CO 80203. 720.508.6000.

3. Your State Representative, and State Senator, who represent you in the Colorado General Assembly in Denver. Talk with both of them about how to end the present unlawful policy. See contact information at: leg.colorado.gov/find-my-legislator.

River law basics

The rivers and creeks in Colorado and other states that are navigable in fact in kayaks, rafts, or canoes are navigable in law under the U.S. Constitution and the decisions of the U.S. Supreme Court.  ■  There is a navigational servitude on the private land along these rivers and creeks, including a public easement for paddling, portaging, wade fishing, bank fishing, and walking along the riverbank (but not to pick up interesting rocks and take them home, because the rocks, sand, and dirt are still privately owned).  ■  There is a constitutional right to travel down these natural routes of travel, in kayaks, rafts, canoes, or similar paddlecraft, and to portage, fish while wading, fish from the riverbank, or simply walk along the riverbank. These rivers in Colorado are of immense economic value, to the state economy and the national economy, so it is unconstitutional for the state government to restrict the public easement on them.  ■  State governments cannot deny that these rivers and creeks are navigable in fact, and therefore navigable in law, so no state navigability designation is needed. It is a violation of federal law (33 U.S.C. 403) and Colorado state law (C.R.S. 18-9- 107) for officials, sheriffs, or landowners to interfere with the public easement along these waterways, and it is a public safety risk to expect people to paddle or fish without touching riverbeds or banks, so the “without touching” policy is unlawful.

■  No Colorado state decision denies that these waterways are navigable in fact, and therefore navigable in law. (In several water rights cases, judges remarked that there are no navigable rivers in Colorado, but in each case, there was no evidence or legal argument about navigability, so the remarks were only dicta, not legal precedent.)  ■   No Colorado state decision denies the public easement to walk on the privately owned riverbeds and banks of these navigable waterways. (The Emmert decision by the Colorado Supreme Court was about non-navigable rivers. The state definition of private “premises” along rivers, and the “without touching” policy, both clearly state that they apply only to non-navigable streams, not to navigable rivers and creeks.)

In review

Many lawyers say that state governments have authority to restrict the public easement on rivers that are navigable in fact, but this is because they work for landowners or state governments, not because it is valid law. They also claim that the public easement is a taking, but constitutional rights are not a taking. The current “without touching” policy in Colorado is only politics, not valid law – there is no statute or court decision supporting it, and it conflicts with the U.S. Constitution. Therefore Governor Polis and Attorney General Weiser have authority to end this unlawful policy now, without new legislation.  ■  The state legislature also has authority to end it, with new legislation.  ■  Contact the four individuals listed above to urge them to end this unlawful policy, by either of these two methods.

For legal citations, explanations, illustrations, and free ebooks about river law, see:  riveraccess.info

Send questions, comments, or counter-arguments to: riveraccessinfo@gmail.com

Paddlers and fishermen should de-escalate any on-river conflicts with landowners, who may be armed and misinformed.