Overview 

During the 1970s, some landowners (though not others) in Colorado claimed that paddling and fishing were trespassing. This led to a Colorado Supreme Court decision, a change in state legislation, and an official Attorney General Opinion. All three of those things specified that they applied to nonnavigable rivers, but the rivers in Colorado that people paddle down (in kayaks, rafts, or canoes) are legally navigable under the relevant U.S. Supreme Court decisions and Colorado common law. Therefore the Colorado state government cannot lawfully claim (or act as if) they are not navigable.

At present, however, Colorado state government agencies say that people are trespassing if they touch privately-owned riverbeds or banks while paddling or fishing on any river in the state, based on an unfounded assumption that there are no navigable rivers in the state. The following paragraphs explain why this “without touching” policy is unlawful, dangerous, and economically harmful, and what people can do to rectify this situation.

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Caution: Because many Colorado landowners and sheriffs are presently misinformed about river access law, paddlers and fishermen should avoid riverside confrontations with landowners or sheriffs that could lead to harm. All parties should reference the following paragraphs (online or printed out) and the free ebook shown at the end of this article, to discuss river access rights in an office, or other location away from private land along a river.

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Valid current law in Colorado

There is a common, unfounded assumption that there are no navigable rivers in Colorado. This is based on two Colorado Supreme Court decisions in 1912 and 1913 about water rights (not about navigability) that each included a remark to the effect that there are no navigable rivers in Colorado. The relevant legal principle is that unless there has been evidence presented and cross-examined, and competent legal argument presented and debated, remarks about other legal issues that were not debated in a case are not legal precedent, but rather are only dicta (unsupported remarks). [Stockman v. Leddy, 55 Colo. 24, 129 P. 220 (Colo. 1912). In re German Ditch and Reservoir Company, 139 P. 2 (Colo. 1913).]

Valid current law is that the rivers and creeks in Colorado that are usable for travel in paddlecraft (such as kayaks, rafts, or canoes) and have boulders, rapids, waterfalls, obstructions, and portages (all of which are common in Colorado) are legally navigable under the U.S. Constitution, because they are usable for travel in paddlecraft, per the relevant U.S. Supreme Court decisions. [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), and other decisions citing these four.] [The U.S.  Supreme Court decisions cited in this article are available online.] These same rivers and creeks are also legally navigable under Colorado common law, because they have been used as public routes of travel for centuries, first by Native Americans, then by fur trappers and traders, then lumberjacks transporting lumber downstream to build frontier towns, then for transporting railroad ties and shingle bolts (sections of logs about 30 inches long by 15 inches in diameter, destined to be split up into roofing shingles at a building site,) then since the early 1900s, for recreational travel in paddlecraft of various types.

These rivers and creeks are legally navigable simply because they are usable for paddling. No state-by-state designation or other form of government approval is legally necessary. The U.S. Army Corps of Engineers designates river sections as navigable before starting a construction project on them, but that involves only a tiny percentage of the navigable rivers of the nation. Other than that, there is no national system of designation of navigable rivers. On the contrary, the U.S. Supreme Court has repeatedly ruled that rivers that are navigable in fact are navigable in law, meaning that rivers that are physically navigable, including those navigable only in paddlecraft, are already legally navigable, with no further state-by-state authorization needed. Therefore Colorado state government laws and policies cannot lawfully say, or act as if, these rivers and creeks are not legally navigable. [United States v. Holt State Bank, 270 U.S. 49 (1926), Loving v. Alexander, 548 F.Supp 1079 (W.D.Va. 1982), Alaska v. Ahtna, 891 F2d 1401 (9th Cir. 1989), Atlanta School of Kayaking v. Douglasville County, 981 F.Supp. 1469 (N.D.Ga. 1997), together with the decisions cited earlier, and the Supremacy Clause of the U.S. Constitution.]

There is lots of private land under and along these navigable rivers and creeks, in Colorado as in other states and nations, because rivers have served as property boundaries since ancient times. It is impractical to make the edge of a river the boundary between properties, because rivers expand and contract seasonally, and they shift course substantially during occasional floods. Therefore the deepest part of the river has been the property boundary since ancient times, and that deepest part typically shifts over time. So in Colorado (as in many other places), where a river flows through private land, the riverbeds and banks are private land. However, there is a permanent navigational servitude (in the property law sense) on the private land along these rivers and creeks. This servitude includes a public easement to walk on the privately-owned riverbeds and banks, in the course of navigation, fishing, or simply viewing the river. Due to this permanent public easement, state and local governments must allow paddlers to “enjoy the navigation of the waters” of these rivers and creeks, and allow fishermen to have “liberty of fishing therein, freed from the obstruction or interference of private parties.” [Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).] Private land ownership along these rivers and creeks is “a bare technical title” that is “at all times subordinate” to “the public right of navigation.” [Scranton v. Wheeler, 179 U.S. 141 (1900).] “In a navigable stream the public right is paramount” and it must remain “free and unobstructed.” [West Chicago Railroad v. Illinois, 201 U.S. 506 (1906).] This public right “supersedes any claim of private ownership.” [United States v. Cress, 243 U.S. 316 (1917).] “The public right is paramount” to land ownership along these waterways. [Submerged Lands Act of 1953, 67 Stat. 462, 43 U.S. Code sections 1301-1315.] This public easement for paddling and fishing applies “regardless of who owns the riverbed” in various places along shallow, rocky rivers and creeks, in Rocky Mountain states such as Colorado. [Montana v. United States, 450 U.S. 544 (1981).]

This public easement includes the right to bump against privately-owned rocks in the course of paddling down a river or creek, to run aground on privately-owned sand and gravel bars then push off and continue, to walk along privately-owned riverbanks to scout or portage around rapids or obstacles, to fish while wading in the water or standing on the riverbank, and to walk along the riverbank while viewing the river. [Due to the decisions cited in the first paragraph above, because navigation on rivers with rapids, waterfalls, and portages does indeed include walking on the riverbeds and banks, together with Martin v. Waddell, 41 U.S. 367 (1842), Montana v. United States, and Loving v. Alexander (cited above) because all three decisions specifically include sport fishing as well as paddling. Also Atlanta School of Kayaking (cited above) because kayak students frequently tip over, then walk on privately-owned riverbeds and banks to get back into their kayaks and continue down the river, in essentially the same manner as fishermen who are wading in a river or walking on a riverbank.]

However, the public easement does not include a right to pick up interesting rocks on the riverbeds and banks and take them home, because that would be stealing. The rocks, gravel, sand, and dirt remain private property. The public easement is only to walk on them, or stand or sit. 

Contrary to common assumptions, there is actually no provision of Colorado state law that denies this public easement to paddle, fish, and walk along the banks of rivers and creeks that are navigable in paddlecraft. The Colorado provisions of law that are related to this matter specify that they apply only to non-navigable rivers and creeks. [People v. Emmert, 597 P.2d 1025 (Colo. 1979), specifying that “the parties stipulated that the river is non-navigable.” Colorado Revised Statutes 1973, 18-4-504.5, specifying that it applies only to “non-navigable fresh water streams.” Attorney General Opinion No. ONR8303042/KW 1 (August 31, 1983) specifying that it applies only to “non-navigable streams.”] 

Even if there were a provision of Colorado state law denying this easement on rivers and creeks that are navigable in paddlecraft, it would be void under the U.S. Constitution, because state laws cannot lawfully restrict the public easement to paddle, fish, and walk along these waterways. As the U.S. Supreme Court has repeatedly explained in the relevant decisions, “We are dealing here with the sovereign powers of the Union, the Nation’s right that its waterways be utilized for the interests of the commerce of the whole country.” The relevant legal decisions confirm that kayak classes and personal travel by kayak, and fishing classes and personal fishing, as well as rafting and canoe trips, are indeed part of this national commerce on waterways, which state laws and policies cannot lawfully curtail. In addition, reconfirming these public rights would also be a tremendous economic benefit within Colorado. [The decisions cited earlier, together with the Supremacy Clause of the U.S. Constitution. The quote is from Appalachian Electric, cited earlier. The other decisions, from The Montello in 1874 to Atlanta School of Kayaking in 1997 (ranging from fur trading canoes in the 1700s, to steamboats in the 1800s, to kayak classes today) use the same legal reasoning.]

No state-by-state acceptance or approval of U.S. Supreme Court decisions is legally necessary. Conversely, no rejection of these decisions by a state government is legally valid. Under the U.S. Constitution, state laws and policies can reconfirm constitutional rights and principles, and expand upon them if a state government so chooses, but they cannot lawfully reduce them. For example, Colorado state policy can reconfirm Fair Housing rights in Colorado, and it could expand upon them, but it cannot reduce them. In river matters, Colorado state policies can require safety items for paddling (such as lifejackets and helmets) and they can limit the number of fish that can be taken while fishing (using which fishing methods and devices). However, Colorado policies cannot lawfully claim that paddling and portaging are trespassing, or that fishing while standing on the beds and banks of rivers and creeks usable for paddling is trespassing. These current policies are invalid. State government officials who continue making these claims are violating 33 U.S. Code 403, which prohibits interfering with the public easement on navigable rivers, which include rivers and creeks usable for paddling. They are also violating Colorado Revised Statutes 18-9-107, which prohibits obstructing public use of a waterway (whether the waterway is designated as navigable or not).

Landowner fences, cables, or “No Trespassing” signs across navigable rivers and creeks violate the federal and state laws just cited. It is also a violation of the Clean Water Act to allow cattle to trample, eat, and defecate on the pollution-filtering vegetation along riverbanks, so landowner fences must run parallel to rivers, not across them, and the fences must be located far enough from the water to prevent cattle from defecating on the riverbank vegetation, and to allow the public to walk along the riverbanks unimpeded.  Fences built during low water times, so as to project down into the water during medium to high water times, are unlawful. [33 U.S. Code 403, Colorado Revised Statutes 187-9-107, and the Clean Water Act, 33 U.S. Code 1251, section 101.]

Three additional constitutional issues

There are three additional reasons why current Colorado state government policy regarding river access violates the U.S. Constitution:

Void for vagueness:  People embarking on a paddling trip down a river often can’t know in advance whether they will end up bumping the riverbed or not. They can’t predict whether the water level in a river will drop a few inches during their trip, making the difference between supposed criminal trespassing and not trespassing. People new to a river can’t predict if their particular paddlecraft (large canoe, small kayak, or rafts of various sizes) will bump the riverbed or not. They can’t predict if logs and large sticks washed into one of the rapids 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 violate the constitutional principle known as void for vagueness, because members of the public have to know in advance whether a planned activity will be lawful or not. In these circumstances the wording of the state policy is clear enough (it claims people can paddle down a river only “without touching” privately-owned riverbeds or banks) but whether touching privately-owned rocks or gravel will be involved in a particular river trip is often unknowable in advance. Obviously, the root cause of this legal flaw is the state government’s unlawful splitting of the public easement into two parts, the surface of the water and the riverbed underneath it, even though people navigating on rivers are often on the surface and touching the riverbed at the same time, on the rivers of Colorado as on the best-known rivers of the U.S. and the world, such as the Mississippi, the Rhine, the Nile, and so on. (Artificial dredging maintains a deeper channel on a number of river sections.) The situation is analogous to telling motorists that they can drive on a county road through a farm, but they can’t stop on the side of the road if they get a flat tire or their engine starts to smoke. In short, this current Colorado state policy is not valid law.

Incitement of vigilante violence: Since many people know (or suspect) that the current policy is unlawful, sheriffs enforce it in some counties but not others, or on some rivers but not others. This in turn causes a few landowners (though certainly not others) to engage in unlawful and dangerous vigilantism (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 along 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 not trespassing (which was correct under the 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. This scenario is now likely to be repeated in Colorado, at any time, perhaps more than once, because current Colorado state government policy is unlawful.

Unlawful economic harm: The current Colorado policy is also causing immense and unlawful economic harm. In 2001 a lawyer for Gateview Ranch, a trophy ranch along the Lake Fork of the Gunnison River, sued a rafting company for alleged trespassing. The company was about 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. So the loss for the Colorado economy is vast. In addition, this economic harm is unlawful under the U.S. Constitution because (as cited earlier) it conflicts with “the Nation’s right that its waterways be utilized for the interests of the commerce of the whole country.” Rivers in Colorado are typically of greater commercial value, due to their scenery and rapids, than typical rivers in neighboring midwestern states. They are prime candidates for new rafting operations, kayak classes and trips, canoe trips, float fishing trips, fly fishing lessons, and personal recreational travel along rivers. The Colorado state government, and county sheriffs, cannot lawfully continue to interfere with the public easement to paddle down these rivers and fish along them.

What people can do to rectify this unlawful situation  

As explained earlier, the current state government policy is only policy, not law, so it can be changed rather quickly by the current administration. The current Governor, Jared Polis, has authority to direct his administration to issue a clarification, saying that under present applicable law, state agencies and landowners cannot interfere with the public easement  to walk along the privately-owned riverbeds and banks of the rivers and creeks in the state that are usable for travel in paddlecraft. 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 policy with lawful policy.

There is no need for new legislation at this point in time. It is quite appropriate for legislators to individually contact the current Governor and State Attorney General, to urge them to issue the clarification just mentioned. On the other hand, passing new compromise legislation that approves only some public rights, on only some rivers in Colorado, would not be lawful, because it would conflict with the U.S. Constitution. ▉

For further details, see the additional article:  

How to Rectify River Access in Colorado.

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• REMINDER: In Colorado many landowners and officials mistakenly believe that paddlers and fishermen on rivers flowing through private land are trespassing, so avoid confronting them along a river. 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 article.

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You are welcome to print 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 riverbank quarrel that could lead to violence! (Note that the printed handouts are slightly shortened and edited to fit on the printed pages.)

• 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.)

See the complete, free, illustrated ebook:   

Public Rights on Rivers in Colorado,  as a pdf on your screen.

(After seeing the illustrated ebook, you can return to this page by clicking the back arrow, typically near the upper left corner of your screen.)