How to Rectify River Access in Colorado

As explained in the previous article, there is actually no provision of Colorado law that denies paddling and fishing rights on the rivers and creeks in the state that are navigable in paddlecraft. (Current state policy only applies to non-navigable rivers, not rivers that are navigable in paddlecraft.) Furthermore, Colorado common law, and the relevant Colorado statute (18-9-107) confirm paddling and fishing rights on waterways whether they are designated as navigable or not. Therefore the current state government policy about paddling and fishing rights is only unlawful administration policy, not law. Consequently, it can be changed rather quickly, by the current state government administration. The current Governor, Jared Polis, has authority to direct his administration to issue a clarification, saying that state agencies and landowners cannot interfere with the public easement, under present applicable law, to walk along privately-owned riverbeds and banks of rivers and creeks in the state that are usable for paddling.

Constituents can contact the Governor to urge him to issue this clarification, without undue delay. Constituents can also contact their State Representative, and their State Senator, asking them to contact the Governor directly, to further urge him to replace the current unlawful policy with new, valid policy.

The current Colorado Attorney General, Phil Weiser, would likely play a role in the matter. He has authority to issue an official Opinion, clarifying that the 1983 “without touching” Opinion (issued by a previous Attorney General) applied only to non-navigable rivers, not the numerous rivers and creeks in Colorado that are physically navigable in paddlecraft, and are therefore legally navigable already, with no official designation needed. 

There is no need for new legislation at this point in time. However, if the Governor (and/or the Attorney General) don’t correct the current unlawful policy after a reasonable period of time, at that point the legislature could pass a formal resolution urging them to do so without further delay. (Resolutions do not require the Governor’s signature.) 

This is mainly a matter of public rights under the U.S. Constitution, confirmed by the U.S. Supreme Court and the Acts of Congress cited in the previous article, as well as by Colorado common law and statute. As the U.S. Supreme Court has repeatedly confirmed, “Rivers that are navigable in fact are navigable in law.” The simple, observable fact that a river is navigable in paddlecraft is what makes it legally navigable, and makes the private land along it subject to the public easement to walk along the riverbeds and banks while paddling or fishing. State governments cannot interfere with this, such as by claiming that it’s trespassing, as the Colorado state government is currently doing. It is quite appropriate for Colorado state legislators to individually contact the current administration to issue a clarification, or collectively pass a new resolution calling for a clarification (as noted above). However, passing new state legislation that approves only restricted public rights, on only some rivers in Colorado, would not be lawful. State governments

Despite the above, some farming, ranching, and landowner organizations currently claim that the Colorado legislature would have to pass new legislation, before the paddling and fishing rights mentioned above would apply in Colorado. Their lawyers cite the selected snippets of state law discussed in the previous article, but those snippets apply only to non-navigable rivers, not rivers that are navigable in paddlecraft, so their legal conclusions are not valid. Part of their claim is that state confirmation of public paddling and fishing rights along rivers would be a taking of private property, requiring just compensation (under the Fifth Amendment of the U.S. Constitution). Indeed, a dissenting judge in the People v. Emmert state court decision did suggest that such compensation would be necessary. Again, however, this was based on the false assumption that no rivers in Colorado are navigable. In reality, courts and legislatures have reconfirmed paddling and fishing rights on many thousands of miles of rivers in the U.S., without paying landowners anything, because the rivers are navigable in paddlecraft, as explained earlier. So there is no taking involved, and no need to pay landowners anything.

The Colorado Attorney General’s Office is currently making the claim that only the state legislature can change current state policy, but again, this claim is not valid, because it conflicts with Colorado common law and statute, and with the U.S. Constitution. The Constitution grants control of navigation, including navigation by paddlecraft, to the national government, thereby denying it to the state governments. Public rights under the U.S. Constitution do not need to be reconfirmed state-by-state by state legislatures, nor can they be denied by state governments. These public rights apply in Colorado already.

Readers may note legal parallels to the Jim Crow era. Obviously racism and river rights are two very different subjects, but what they have in common is a constitutional basis that state governments cannot ignore. During the Jim Crow era, state attorneys general, in some southern states, claimed that their state could continue to enforce school segregation, a theory declared unconstitutional by the U.S. Supreme Court in 1954 in Brown v. Board of Education [347 U.S. 483]. Private landowners also claimed that they could continue to engage in customer segregation on their private land, a theory declared unconstitutional by the U.S. Supreme Court in 1964 in Heart of Atlanta Motel v. United States [379 U.S. 241]. Today in Colorado, some landowners claim that they can prevent paddling and fishing along rivers flowing through their private land, a claim that has consistently been declared unconstitutional by the U.S. Supreme Court since the 1800s (in the decisions cited in the previous article). Likewise, the Colorado Attorney General’s office currently claims that touching the privately-owned riverbeds and banks, of rivers that are navigable in fact in paddlecraft, is trespassing, and that only the Colorado legislature can change that policy, a claim that is equally unconstitutional.

Constituents can discuss this when writing or meeting with officials at the Governor’s office, state agencies, or the Attorney General’s office. It is inappropriate for the state government to continue to misinform the public about paddling and fishing rights under the U.S. Constitution. It is quite appropriate for constituents to fully expect lawful clarity from the state government about these rights under present valid law.

Paddling and fishing organizations tend to repeat these same false claims on their websites and printed information, which raises an additional issue: If their goal is only to tell people where they can paddle and fish with no hassle from landowners or deputy sheriffs, that much is a valid public service, if their information is clearly described as being only for that practical purpose. However, if their information creates the impression that current state policy is legally valid, that is a serious disservice to the public, because people need to know that current state policy is indeed unlawful, and they need to know how to contact the Governor, Attorney General, their State Representative, and their State Senator, to rectify the current unlawful situation. So the appropriate members of those paddling and fishing organizations should update the organization websites accordingly, to make the situation clear: Due to current state government policy, landowners and deputy sheriffs think that touching riverbeds and banks is trespassing, so paddlers and fishermen should avoid confrontations with them along a river – but the policy is unlawful, so paddlers and fishermen should contact their elected officials to get new, lawful policy issued by the current state government administration.

Some organizations compound the confusion by proposing other legal solutions. One proposal says that the Colorado state government should designate various rivers as navigable, but this is misguided because “rivers that are navigable in fact are navigable in law” – it’s a factual matter, nationwide, not a political matter for state governments to decide. A second proposal says that the state government should claim ownership of numerous riverbeds and banks, based on the doctrine of navigability for title purposes (as was attempted in the state court case of Hill v. Warsewa, available online). That proposal is also misguided, because navigability for title purposes governs sand and gravel ownership along rivers, not paddling and fishing rights, which are a matter of the public easement as explained earlier, not a matter of land ownership. A third proposal says that the state government should claim public paddling and fishing rights based on public ownership of the water in rivers, as was attempted in People v. Emmert (where it was endorsed by the dissenting minority in the resulting Colorado Supreme Court decision). That approach is a possibility, but it’s a novel legal theory based on water law, not on the age-old legal principle of navigability in paddlecraft. State governments in other states have confirmed paddling and fishing rights in one of these three ways, so the proposals claim that the Colorado state government should do the same. However, the current contentious circumstances in Colorado make those three solutions unlikely, and there’s no good reason to pursue them, because paddling and fishing rights are already confirmed under the U.S. Constitution anyway, as explained previously.

The situation is analogous to choosing unusual settings on your computer: Doing so may help with some particular project, but later it may cause the computer to freeze up, causing you to go back to the default settings. For paddling and fishing rights on rivers, the “default setting” is the navigability of the river in paddlecraft, as it has been since ancient times, as repeatedly reconfirmed by the U.S. Supreme Court under the U.S. Constitution. So in Colorado, working to confirm paddling and fishing rights as a matter of public riverbed ownership, or as a matter of public water ownership, would be an unnecessary detour, and it’s likely to be counter-productive. Navigability in paddlecraft is the age-old basis for paddling and fishing rights, long upheld by the U.S. Supreme Court, and undeniably valid in Colorado today. That is the legal principle that paddlers and fishermen should discuss with their elected officials, to rectify the current unlawful situation in Colorado. ▉