River Access in Colorado

Facts and Law about River Access in Colorado

Online article, and pdf file ready to photocopy as a 4-page handout — see links at end of article:

Under the U.S. Constitution, U.S. Supreme Court decisions confirm that the rivers within each state that are legally navigable include those that are physically navigable only in paddlecraft, such as kayaks, rafts, and canoes (but not larger boats or barges). This includes rivers with rapids, boulders, waterfalls, and obstructions that paddlers portage around (they carry their paddlecraft around, by walking along the riverbank). Therefore some waterways that are named as creeks on maps are legally navigable. (Cases cited in Endnote 1.)

There is no national system of designating legally navigable rivers and creeks. The U.S. Army Corps of Engineers makes an administrative designation of navigability before beginning an engineering project along a particular stretch of river, but Army Corps designations cover only a tiny percentage of the thousands of river miles in the nation that are navigable under the relevant U.S. Supreme Court decisions. The rivers and creeks in each state that are physically navigable only in paddlecraft are already legally navigable, because of their characteristics alone, without Army Corps designation, or state government designation. In other words, U.S. Supreme Court decisions define which rivers and creeks within each state are already navigable, not which rivers and creeks would be navigable if the state legislature or courts in that state choose to designate them. State government decisions and policies cannot lawfully say, or act as if, such rivers and creeks are not legally navigable. (Note 2.)

U.S. Supreme Court decisions confirm that there is a servitude on the private property along these rivers and creeks. (In property law, a servitude is a right by which a piece of land owned by one person must remain open to specified uses by other people.) This servitude includes a public easement. (An easement is a right to walk along a strip of private property.) The uses allowed under this public easement include paddling down the river or creek, bumping against privately-owned riverbeds while paddling, stepping on riverbeds to push paddlecraft off a shallow spot such as a gravel bar, walking along privately-owned riverbanks to scout or portage around rapids or obstructions (or repair damaged paddlecraft,) and fishing, whether from a moving paddlecraft, or wading on the riverbed, or standing on the riverbank. (Note 3.)

In some states, the state government has reconfirmed that various rivers and creeks are legally navigable. In other states, that process has not happened. In several states, past state court decisions (or legislation or attorney general opinions) have said that rivers and creeks that are physically navigable only in paddlecraft are not legally navigable, and consequently, that the public cannot paddle down those rivers and creeks, or walk along their riverbeds and banks, or fish along them. Those state government decisions are “still on the books,” in the sense that they have not been repealed by the state government, so people can still read them in law libraries and online, and lawyers working for riverside landowners can still cite them as if they were valid law. But they are not valid law (also called controlling law, or simply good law,) because, as discussed above, state government decisions cannot lawfully say (or act as if) such rivers and creeks are not legally navigable, so they cannot lawfully restrict the public easement to paddle, fish, and walk along the riverbeds and banks of such rivers and creeks (except in rare circumstances such as public emergencies). (Note 4.)

In Colorado, rivers and creeks that are physically navigable in paddlecraft (though not in larger watercraft) have been customary routes of public travel for many centuries, first by Native Americans, then under French and Spanish dominion, then under U.S. dominion as a territory, then as a U.S. state starting in 1876. Therefore the public easement to paddle down such rivers and creeks, walk along their beds and banks, and fish along them, must remain unrestricted under Colorado common law, as well as under the U.S. Constitution and U.S. Supreme Court decisions discussed earlier. Landowner fences, wires, cables, or No Trespassing signs across these rivers violate federal statute 33 U.S. Code 403, saying that it is unlawful to obstruct a navigable river. Colorado statute 18-9-107 reconfirms this, saying that it is unlawful for anyone to obstruct a waterway (unless the waterway is completely surrounded by private land, such as a pond within a farm, or a small lake completely surrounded by private homesites). As in a number of other states with similar statutes, there is no requirement that the waterway be officially navigable – it only needs to be a waterway that people can physically paddle down.

Therefore, the rivers and creeks in Colorado that are physically navigable in paddlecraft are already legally navigable, because of their characteristics alone, with no official designation needed, and it is unlawful for the state government, or landowners, to close such waterways, or restrict the public easement to walk on the privately-owned riverbeds and banks of them while portaging, fishing, or simply sightseeing, under federal and state law.

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There are five elements of Colorado law that initially seem to cloud the matter, but it turns out that all five are not controlling law on this matter, for the following reasons: 

The first two elements were state supreme court decisions in 1912 and 1913, containing a remark to the effect that there are no navigable rivers in Colorado, but both cases were about water rights, not navigability. No evidence or legal argument was presented to the court about the various rivers in Colorado that are physically navigable in paddlecraft, and are therefore legally navigable. The legal principle in such circumstances is that court remarks about other legal issues that were not argued, with supporting evidence, in the case at hand, are only remarks, not valid legal precedent. (The law calls such remarks dicta.)

The third element was a state supreme court decision in 1979, known as the Emmert decision. The case was a trespassing charge against three fishermen who were floating down a river in float tubes, while also walking on the privately-owned riverbed in places where the water was shallow enough for that. The unprepared fishermen presented no evidence or legal argument about navigability and the resulting public easement for fishing. Their only defense was that the waters of the state are owned by the public, under the state constitution. The court concluded that their defense was not adequate, so they were indeed trespassing, and similar river users, on other rivers in the state flowing through private land, would also be trespassing. But since there was no evidence or legal argument about navigability, the decision was only legal precedent about possible public paddling and fishing rights due to public water ownership, not about paddling and fishing rights due to navigability and the resulting public easement to walk on privately-owned riverbeds and banks while navigating, portaging, fishing, and simply sightseeing.

The fourth element was a statute passed by the legislature while the Emmert case was still in the appeals process. It reconfirmed that riverbeds and banks along nonnavigable rivers flowing through private land are indeed privately-owned, which nobody would dispute anyway, because the legal issue is the public easement to walk on privately-owned land along navigable rivers, not the ownership of land along nonnavigable rivers. Recorded discussion among the legislators showed that their intent was to “give the property owners the help of law enforcement officials against a few people bent on causing trouble,” as opposed to people wanting to paddle down a river but “not bother the properties.” (In hindsight, it appears that people in the Office of Legislative Legal Services should have used clearer wording for the statute, to better express legislative intent.)

The fifth element was a formal Opinion in 1983, from the Colorado Attorney General, interpreting the statute just discussed. Like the statute, the Opinion said that it only applied to nonnavigable rivers. It said that people paddling down such rivers are trespassing unless they manage to paddle down the river “without touching” any privately-owned riverbeds and banks. It should be kept in mind that people are often paddling down the down the surface of a river, and bumping against the riverbed in shallow spots, at the same time, and that people embarking on a river trip often can’t tell in advance (due to changing water levels) whether they will end up bumping the riverbed on a particular day or not. 

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Today, even though that 1983 Opinion said that it only applied to nonnavigable rivers, state government agencies and sheriffs are unlawfully applying it on the various rivers and creeks in Colorado that are physically navigable in paddlecraft, and therefore are already legally navigable, with no official designation needed, under Colorado common law and the U.S. Supreme Court decisions discussed earlier. When applied in this manner, this is only unlawful state policy, not actual law, because the three state supreme court decisions discussed earlier were not legal precedent about navigability, and the 1977 statute and 1983 Opinion were only about nonnavigable rivers. In addition, state government decisions such as these cannot conflict with U.S. Supreme Court decisions anyway, under the Supremacy Clause of the U.S. Constitution. This current state policy unlawfully restricts the public easement discussed earlier, which includes walking along privately-owned riverbeds and banks. It also violates the federal statute mentioned earlier (33 U.S. Code 403) and the Colorado statute mentioned earlier (C.R.S. 18-9-107,) both of which make it unlawful to obstruct these navigable waterways.

Void for vagueness:  As noted earlier, people embarking on a river trip often can’t know in advance whether they will end up bumping the riverbed or not, so the “without touching” policy also violates the legal principle known as void for vagueness, due to the unpredictability involved. Paddlers can’t predict if the water level in a river will drop a couple of inches during their trip, making the difference between supposed criminal trespassing and not trespassing. Paddlers new to a river can’t predict if their particular paddlecraft (large canoe, small kayak, or rafts of various sizes) will bump the bottom or not. Paddlers can’t predict if logs and large sticks washed into a rapid the night before and created a dangerous logjam, requiring them to commit a supposed crime in order to portage around it. State government policies with unpredictable results such as these are unlawful.

Inciting vigilante violence: Since many people know (or at least suspect) that the current policy is unlawful, sheriffs in some counties enforce it, while those in other counties do not. This in turn causes a few landowners (mainly along smaller rivers that are navigable in paddlecraft but have fewer paddlers) to engage in unlawful and dangerous vigilantism (defined as law enforcement undertaken by individuals without legal authority, especially when it unlawfully harms people). Some landowners string wire across rivers, just above the surface, which can snare and drown someone paddling down the river, or lacerate them if it is barbed wire. Others yell at paddlers and fishermen, throw rocks at them, or wave firearms at them, sometimes shooting into the air, as a warning that shooting directly at the river users may come next. This unlawful and dangerous vigilantism is escalating, not decreasing. In Missouri in 2013, a landowner confronted a group of rafters who had stopped to rest on a gravel bar in a river. The landowner claimed that they were trespassing, and demanded that they leave immediately, showing that he had a gun to back up his demand. A father in the group replied that they were certainly not trespassing (which was correct under those circumstances) and told him to put away his gun and leave them in peace. The landowner, now feeling defensive, shot the father to death, in front of his horrified family. The landowner is now spending the rest of his life in prison, but it’s too late to bring back the dead father, or explain to the landowner that his “without touching” theory about supposed trespassing along rivers was unlawful. The state government of Missouri is spending (by published estimates) roughly a million dollars of taxpayer money to prosecute the landowner, then incarcerate him for life. Such are the horrible consequences of the unlawful “without touching” theory.

Economic harm: The current unlawful policy is also causing immense harm to the state’s economy. In 2001 a lawyer for Gateview Ranch, which is along the Lake Fork of the Gunnison River, sued a rafting company for alleged trespassing. The company was almost the only company operating raft trips on that river, offering them mostly to visitors staying in Lake City, further upstream. Due to the impending legal costs and hassle alone, the company owner decided to close his Colorado business and move to Arizona instead, where he continued in the rafting business. So it was Colorado’s economic loss and Arizona’s gain, but the actual merits of the lawsuit never got debated. Since then, no rational entrepreneur in Colorado would start (or invest in the expansion of) a rafting business, kayak school, or float-fishing service, for fear of being confronted by a similar lawsuit. The economic loss is not just these activities themselves, but extends to lodging, dining, and other businesses that shrink (or disappear completely) when mountain towns lose rafting, kayaking, and fishing businesses (or new businesses never start up in the first place,) leaving visitors with less reason to stay longer than just briefly driving through a scenic area. The loss of a couple of recreation businesses may seem to be small at first, but economists explain how the ripple effects of small losses such as these turn into massive losses over time. Money not spent by visitors in Colorado to go rafting, kayaking, or fishing, and not spent employing people to outfit and guide such trips, turns into money not spent on lots of other things, in an economic chain reaction.

Since the present “without touching” policy is only unlawful policy (not law,) it can be changed rather quickly, by the current state government administration. The Attorney General has authority to issue a new Opinion, clarifying that the 1983 Opinion only applied to nonnavigable 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. Constituents can contact the Governor and Attorney General to urge them to replace the current unlawful policy with new policy, without undue delay.  Constituents can also contact their state representative, and their state senator, asking them to contact the Governor and the Attorney General directly, to further urge replacement of the current unlawful policy.

There is no need for new legislation at this point in time, unless the Attorney General refuses to act after a reasonable time period. If that happens, the legislature could then pass a resolution directing him to act without further delay. If he still refuses, at that time new legislation could be necessary. However, this is largely a matter of constitutional rights (under the U.S. Constitution,) so these rights cannot be lawfully restricted by political compromises, of the sort typically made in the course of getting legislation passed by a state legislature. Therefore the sponsor of any proposed legislation in Colorado would appropriately be prepared to withdraw the proposal, in the event that such political compromises get added to it. Therefore an important alternative to legislation would be a well-prepared lawsuit (with competent expert witness testimony and legal argument, unlike the Emmert case,) asking the Colorado Supreme Court to reconfirm, at the state level, that the rivers in Colorado that are physically navigable in paddlecraft are already legally navigable, because of their characteristics alone, with no official state designation needed, so there is a public easement to walk on the privately-owned riverbeds and banks of them while portaging, fishing, or simply sightseeing. Then, if the Colorado Supreme Court refuses to reconfirm this public easement, the appropriate next step would be a similar well-prepared lawsuit in federal court, similar to the Atlanta School of Kayaking lawsuit in 1997, which was a dispute about the public easement to walk on privately-owned riverbeds and banks (as kayak students repeatedly do after tipping over, and as fishermen do,) on small, shallow, rocky rivers that are suitable for kayak classes, but not larger rivercraft. In that dispute, the federal court ruled that “the answers to these questions are determined by federal law,” not state law passed by a state legislature or a state supreme court. So in Colorado, the public easement could be confirmed at the state level by new legislation or new litigation, either way, and if neither way succeeds, it could appropriately and lawfully be reconfirmed by a federal court.

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Endnote 1: Rivers and creeks that are physically navigable only in paddlecraft, and have rapids, waterfalls, and portages, are legally navigable: The Montello, 87 U.S. 430 (1874). Economy Light, 256 U.S. 113 (1921). Appalachian Electric, 311 U.S. 377 (1940). Montana v. United States, 450 U.S. 544 (1981). Note 2: State government decisions and policies cannot lawfully say, or act as if, such rivers and creeks are not legally navigable: United States v. Holt State Bank, 270 U.S. 49 (1926), together with the cases cited in Note 1, and the Supremacy Clause of the U.S. Constitution. Note 3: The public easement includes walking on privately-owned riverbeds and banks, including walking and standing while fishing or sightseeing: The cases cited in Note 1 (since navigation on rivers with rapids, waterfalls, and portages inherently includes walking on the riverbeds and banks,) together with Martin v. Waddell, 41 U.S. 367 (1842), and Montana v. United States (cited above,) both specifically including sport fishing. Note 4: State government decisions and policies cannot lawfully restrict the public easement to walk along the riverbeds and banks: The cases cited in notes 1, 2, and 3, together with the Supremacy Clause.

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Counter-arguments, and why they are not valid . . . . (to be added here) . . . .

CAUTION: In Colorado many landowners and officials believe that paddlers and fishermen on rivers flowing through private land are trespassing, so avoid confronting them. If they confront you, leave quickly. After leaving the river, distribute a printed copy of this article to the sheriff and landowners along that river. If you obtain their cell phone numbers and/or email addresses, send them links to this web page.

(This new article is now available as a pdf document for a four-page stapled handout or folder, ready to be reproduced by anyone, at almost any print shop or public library, then used as a free handout at meetings of paddlers, fishermen, landowners, and government officials.)

You are welcome to reproduce as many copies of this article as you wish, to hand out at meetings of paddlers, fishermen, landowners, water rights holders, and government officials. (But please, never to escalate a quarrel that could lead to violence!)

Copy as a STAPLED HANDOUT: (See and download as a PDF file, ready to photocopy or print onto four pages of standard 8.5 x 11 copy paper, single-sided or back-to-back, then staple and hand out.)

Copy as a  LARGE FOLDER: (As a PDF file ready to copy onto one sheet of 11 x 17 paper, back-to-back, an option that is available on most photocopiers and at most print shops. Then you fold the sheet in half to end up with four standard 8.5 x 11 pages, so the folder will fit conveniently into a standard file folder or notebook).