# Colorado private property access laws



## soggy_tortillas (Jul 22, 2014)

So.... I was wondering, because apparently I can't research worth shit, what are the laws on portaging and such through private property?
I have heard a few different things.... 
Don't get out of your boat?
It's ok to get out of your boat if it's an emergency?
I read an amendment to the Colorado Constitution that says we have access to the high water mark.... but I don't really see if or when that passed?
I don't know.... just curious.
Anyone know for sure?


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## BrianK (Feb 3, 2005)

The amendment didn't pass.

This is a real gray area in Colorado. Real soon a user named National Rivers is probably going to get on here and tell you that you have a right to float and access any river in the country, and he may be right. However, when the Colorado Supreme Court looked at this issue they disagreed. See People v. Emmert. Many people, myself included, think Emmert is wrong according to various holdings of the US supreme court, but the problem is that we don't currently have a Colorado court holding that agrees. 

This is precisely the issue the amendment was going to clear up. (From what I understand the Fishermen's lobby asked for a little too much, and that ended up killing the amendment. But that is speculation.)

So right now the best answer is we don't know. (Although National Rivers is very confident that we do.) 

Either way, when it comes to portaging, Colorado criminal law has a lesser of two evils defense. Basically you are not guilty of criminal trespass if you take the lesser of two evils (i.e. trespassing while portaging a barbed wire fence or Class V rapid). This defense should protect you in most criminal trespass situations. This defense doesn't protect you from civil liability - so if you damage property, etc while portaging you could still be sued.


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## yetigonecrazy (May 23, 2005)

I thought it was pretty clear....if a dirty boater gets out of the river on the property of your 4 million dollar second home that you live in two weeks a year then you have every right to shoot 'em on sight.....


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## treehugger (Jul 29, 2009)

Never get out of the boat.
https://www.youtube.com/watch?v=_4dFDBYWuTc


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## Ole Rivers (Jul 7, 2005)

soggy_tortillas said:


> So.... I was wondering, because apparently I can't research worth shit, what are the laws on portaging and such through private property?
> I have heard a few different things....
> Don't get out of your boat?
> It's ok to get out of your boat if it's an emergency?
> ...


Info about the ancient, Common, Federal, state, local, etc. history, rulings, statutes, Constitutional amendments concerning stream/water/natural resource access, use, enjoyment can be found at nationalrivers.org (or .com). This site's info essentially advocates, procedurally, for all to learn and raise awareness about these issues and, substantively, that water dependent activities' folks have the dominant easement, or "right of way", about these use, access and protection issues so that they may be confirmed and resolved. My accumulation of info about these issues may also be of assistance to your questions. For starters, see my previous posts in my Profile. As with national rivers, I may not know everything but I sure as hell am one excitable water guy about this stuff.


You may also want to brush up on the "Public Trust Doctrine" which is the basis for protecting your public trust interests in and control of public natural resources, such as air, water and wildlife (as in "fish"). Just check out the "Colorado Water Plan", "2014 Colorado Ballot Initiative #'s 89 and 103" and the "Colorado Oil and Gas Task Force" at the Department of Natural Resources web site for a couple of major reasons why you should understand, focus on and advocate for your rights.


As nationalrivers explains and Ancient, Common and Federal, etc., law confirms, you have the right to use the water you publicly have a trust interest in for, among other uses, "fisheries" and "navigation" and the easement (right of way) to make incidental contact with the bed land, banks (land in between the low and high ordinary water marks) and even along the stream for that public water use.


_ "If it's navigable in fact, it's navigable in law._" --> "The Daniel Ball" US Supremes ruling.


So, based on the above, you can get out of the boat. Based on the errant, imo, and narrow Emmert Colorado Supreme Court ruling, which litigation, legislation, initiation and/or even education can overturn by confirming the supreme laws, amendments and rulings, stream access and use is looked at, as BrianK put it, as a gray area. 


Getting out of your boat in an emergency, such as personal injury or equipment mishap, is also covered under Federal, etc. See nationalrivers and I also probably have some docs on that.


Access to *"ordinary"* high water mark was indeed part of the language of "2012 Colorado Ballot Initiative #3" but didn't get enough valid signatures to get on the 11/2012 ballot. Good language to confirm your public trust rights... check it out.


Ignorance may be bliss, but knowledge is power.


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## Ole Rivers (Jul 7, 2005)

BrianK said:


> The amendment didn't pass.
> 
> This is a real gray area in Colorado. Real soon a user named National Rivers is probably going to get on here and tell you that you have a right to float and access any river in the country, and he may be right. However, when the Colorado Supreme Court looked at this issue they disagreed. See People v. Emmert. Many people, myself included, think Emmert is wrong according to various holdings of the US supreme court, but the problem is that we don't currently have a Colorado court holding that agrees.
> 
> ...


Courts interpret, Legislature makes and Executive, well, executes laws. Legislated statute creations or amendments and Constitutional amendments trump. See "Utah Stream Access Coalition"'s website for their Public Trust litigation, Utah Supreme Court and legislation battles concerning stream access and use. Emmert err'd and can and should be placed in its subservient position to your rights by educational awareness raising and learning (first), litigation, legislation and/or Constitutional amendment.


BrianK, the amendment you refer to is the "2010 HB 1188" "rafting bill". The commercial, private business boating outfitters bill language benefitted only their private interest and provided no language to benefit the public's trust interest to use, access and enjoy public water and make incidental contact with land, whether public or private, in doing so. 


The bill was killed and rightly so.


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## ~Bank (Jul 31, 2010)

*Fedral law vs. State law*

Marijuana is illegal according to the Federal Government. Navigating a navigable waterway below the high water water line is legal according to the United States of America. Colorado has no respect for Federal law...Don't even think about touching the private riverbed/shore property unless you have to avoid a hazard here in Colorado...


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## Ole Rivers (Jul 7, 2005)

BrianK said:


> Either way, when it comes to portaging, Colorado criminal law has a lesser of two evils defense. Basically you are not guilty of criminal trespass if you take the lesser of two evils (i.e. trespassing while portaging a barbed wire fence or Class V rapid). This defense should protect you in most criminal trespass situations. This defense doesn't protect you from civil liability - so if you damage property, etc while portaging you could still be sued.


Google "CRS 18-4-504.5 Colorado Criminal Trespass" for the relevant statute language. Read the exact language. This 1977 statute, Emmert and the CO Attorney General's 1983 Opinion are the access and use precedents referred to for these issues. Emmert is in error, IMO, 1977 SB 360 that amended 18-4-504.5 to accommodate the Emmert ruling was mindnumbingly misinformed (I have the Committee hearings' audio cd's) and the AG's Opinion is, well, just an opinion.


"Lesser of evils" is indeed a confirmed basis but its language is not found in 18-4-504.5. If it is in CRS, I'd like to know its citation...


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## Ole Rivers (Jul 7, 2005)

~Bank said:


> Marijuana is illegal according to the Federal Government. Navigating a navigable waterway below the high water water line is legal according to the United States of America. Colorado has no respect for Federal law...Don't even think about touching the private riverbed/shore property unless you have to avoid a hazard here in Colorado...


Bank, it's "ORDINARY high water mark" rather than "high water mark". Big difference.


If you touch bottom and go to court with a competent attorney with, of course, the bucks to pay for it, you'll eventually win, IMO, based on Ancient, Common and Fed law. If pressed, my dough would also be on the case being dropped. Nationalrivers states, accurately, that it's already been confirmed.


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## rpludwig (Feb 28, 2011)

*Culture Change*

I fished as a kid around Westcliffe, along narrow creeks without fences, nobody thought of fencing. We are getting a concentration of self righteous folks that are pissing off ( land owners or boaters) and causing conflict. I don't think fences should ever cross rivers. Who fences the river anyway! If the rivers not checking your ego your in to big of a boat.


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## ~Bank (Jul 31, 2010)

What High actually means is still up for debate? I have always believed the wet foot law. As long as you are navigating the federal waterway you are good to go anywhere you want? The uplands will always be up for debate, they will wash away and become the river again.


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## Ole Rivers (Jul 7, 2005)

~Bank said:


> Marijuana is illegal according to the Federal Government. Navigating a navigable waterway below the high water water line is legal according to the United States of America. Colorado has no respect for Federal law...Don't even think about touching the private riverbed/shore property unless you have to avoid a hazard here in Colorado...


Bank, in reading your post again, I think my reply may have missed the sarcasm. If so, my apologies.


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## NationalRivers (Oct 3, 2013)

*Keep Emmert decision in perspective*

In the _Emmert _case, the defendant (David Emmert) claimed a right to fish on a non-navigable stream, based solely on the passage in the Colorado constitution saying that the state owns the water flowing in streams. The Colorado Supreme Court ruled against him on that point. He did not claim a right to canoe, kayak, or raft on rivers under federal law, and the Colorado Supreme Court did not deny that right (nor could it have lawfully done so). Of course certain landowners and their lawyers try to create the impression that the decision denies the public easement on physically navigable rivers in Colorado, but it does not do that. It only denies the public easement on waterways that are not physically navigable, such as ankle-deep creeks. River users can help improve the situation by educating landowners and law enforcement officers about the difference between these two types of waterways, and about public rights, under federal law, to walk along the beds and banks of rivers that are physically navigable.


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## soggy_tortillas (Jul 22, 2014)

So.... this brings me back to my original question. I read the Emmert case, and though it was a while back when I first started this thread, I do remember why I was so confused in the first place. 
How is navigable/non-navigable defined? Navigable by whose standards and by what type of craft? What's navigable in a kayak may or may not be navigable in a raft or fishing boat or whatnot. What's navigable in early Spring may or may not be navigable in late Fall.... You may be able to navigate through a creek that with my set of skill I cannot. So how is this actually defined and how can we make it applicable to our access argument, if indeed we are confronted by an aggressive landowner or law enforcement?
Is there a database of navigable/non-navigable waterways, or is it just something simpleton, non-law-knowing folk like me have to guess on? 

The river user that National Rivers cites as being shot in Missouri was shot because he was doing just what you are suggesting we do... pushing the limits. I, for one, do not want to be a dead guinea pig in this experiment.


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## swimteam101 (Jul 1, 2008)

*I'm glad some choose freedom over life.*

" Many will call me an adventurer-and that I am, only one of a different sort: one that risks his skin to prove his platitudes. Whenever death may surprise us, let it be welcome if our battle cry has reached even one receptive ear and another hand reaches out to take up our arms. I know you are here to kill me. Shoot, coward, you are only going to kill a man. "


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## soggy_tortillas (Jul 22, 2014)

Good quote. Who said it?

Martyrdom is great and all, but if we all die for what we believe in, who will be left to paddle the rivers?
I'm all for fighting for what I believe in.... I just have a hard time fighting when I don't even understand what it is I'm truly fighting for. Hence, my original question. I'd like to know the real access laws, but I understand now how much of a grey area this actually is, and that it will probably remain grey for quite some time....

I wonder if the river user who was shot in Missouri for trespassing even had a real chance to explain himself/herself. I wonder how the situation progressed... there's always two sides to the story.

This summer we were on the Elk River, and there were a bunch of tubers doing the section just above Mad Creek. A bunch of em got out in somebody's back yard and walked through the front so they could get back to their car... They weren't very respectful about it, and it didn't seem like it was a designated take-out. Can't help but wonder how the people who own the house feel, not so much about them getting out of the river there, but trekking across the entire yard, yelling and drinkin beer, taking their sweet time.... It certainly made me appreciate the kayaker take-out for the Lower Blue, and understand the delicate balance of land-use and preservation. 
There's a fine line between fighting for what you believe in and being arrogant and ignorant about what you believe you have the right to. All I want is the basic knowledge of what my rights are so that I can carry on a responsible argument, rather than spewing bullshit out of my mouth that has no real backing. 
Do I believe we should all have fair access to the river? Of course. Does that mean I'm going to march up to every North Routt landowners' land, piss on it, and let them know that they can't own the water?? Ha. I'm certainly not going to do that without knowing what I'm talking about first. I'd rather live to paddle another day.


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## soggy_tortillas (Jul 22, 2014)

NationalRivers said:


> In the Emmert case, the defendant (David Emmert) claimed a right to fish on a non-navigable stream, based solely on the passage in the Colorado constitution saying that the state owns the water flowing in streams. The Colorado Supreme Court ruled against him on that point. He did not claim a right to canoe, kayak, or raft on rivers under federal law, and the Colorado Supreme Court did not deny that right (nor could it have lawfully done so). Of course certain landowners and their lawyers try to create the impression that the decision denies the public easement on physically navigable rivers in Colorado, but it does not do that. It only denies the public easement on waterways that are not physically navigable, such as ankle-deep creeks. River users can help improve the situation by educating landowners and law enforcement officers about the difference between these two types of waterways, and about public rights, under federal law, to walk along the beds and banks of rivers that are physically navigable.


I know you're probably already getting enough shit for this, but your statements about the Emmert case don't seem valid. Not only did this case occur on the Colorado River (which by most standards would be considered "navigable"), in this situation the river was considered "non-navigable" and Emmert and company were indeed in a raft. 

This is an excerpt from the Colorado Bar Association's assessment of the case along with the link to download and read.

[1] The validity of the conviction depends upon our determination of the following question: Did the defendants have a right under section 5 of Article XVI of the Constitution of Colorado to float and fish on a non-navigable natural stream as it flows through, across and within the boundaries of privately owned property without first obtaining the consent of the property owner? We answer this question in the negative and therefore affirm the conviction.

Trial was to the court. The evidence was not in dispute. The facts were stipulated. Some testimony was presented in explanation of the stipulated facts. The record shows that on July 3, 1976, the defendants entered the Colorado River from public land for a float-trip downstream. The Colorado River flows westerly and bisects the ranch of the Ritschard Cattle Company. As it passes through the Ritschard ranch, it varies in depth from twelve inches to several feet. The rafts on which the defendants floated were designed to draw five to six inches of water, and had leg-holes through which the occupants could extend their legs into the water below the rafts. This enabled the defendants as they floated down the river to touch the bed of the river from time to time to control the rafts, avoid rocks and overhangs, and to stay in the main channel of the river. They touched the riverbed as it crossed the Ritschard ranch. The defendants did not, however, leave their rafts or encroach upon the shoreline or the banks of the river or islands owned by the Ritschard Cattle Company.

The defendants had not asked for nor received permission to float on the river through the Ritschard ranch, and the defendants Taylor and Wilson had previously been warned that they had no permission to float through the ranch.

Upon being notified that a party of floaters was approaching, Con Ritschard and his foreman extended a single strand of barbed wire across the river at the location of the Ritschard private bridge. The strand of barbed wire was from eight to ten inches above the surface of the water and was placed in this position specifically to impede the defendants. Ritschard and his foreman remained on the bridge to tell defendants they *140 were trespassing on private property. Defendants Taylor and Wilson were stopped at the bridge and told they were trespassing. They denied this and floated their rafts under the barbed wire and remained under the bridge for a period of time until defendant Emmert, and others in the rafting party caught up with them. Shortly, a deputy sheriff arrived and placed the defendants under arrest, and they were subsequently charged with third-degree criminal trespass.

The parties stipulated that the river is non-navigable and had not historically been used for commercial or trade purposes of any kind. Accord, Stockman v. Leddy, 55 Colo. 24, 129 P. 220 (1912). However, the river had been used in the past by recreational floaters using rafts, tubes, kayaks and flat-bottom boats, despite the express objection of the Ritschards. At the time of this incident, the river had been posted with no-trespassing signs.

Also, it was agreed that substantially all of the Ritschard ranch land was deeded land with no exclusion of the bed of the river, and that the area where the defendants were stopped was such an area, with the land on both sides of the river owned by the Ritschard ranch.
[....]
It is clear, therefore, that since the section of the Colorado River here involved is non-navigable the title to the stream bed is owned by the riparian landowner, the Ritschard Cattle Company. Defendants do not dispute the ownership by the Ritschard Cattle Company of the riverbed in question.


Turns out I actually can do a little bit of my own research...

So that being said, if the Colorado River wasn't considered to be navigable in this case, then I would assume many other rivers commonly floated are also deemed unnavigable.


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## soggy_tortillas (Jul 22, 2014)

whoops, here's the link to download the document:

http://www.google.com/url?sa=t&rct=...=P4OwO6gRhqnE1A5tZsvbLQ&bvm=bv.81449611,d.aWw


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## NationalRivers (Oct 3, 2013)

The issues that you raise about the Emmert decision are answered in the segment of the decision that you included. As you can see, the court did not _decide _whether the river was navigable or not; it simply noted that both sides _agreed _that it was not. (“The parties stipulated that the river is non-navigable and had not historically been used for commercial or trade purposes of any kind.”) As you can tell from the wording of the decision, Emmert and the others were wearing fishing waders that included flotation around the wearer’s waist (which the court called “rafts”), but they did not claim to be navigating the river, and did not claim that the river was navigable under any definition (which was a big mistake on their part).

Be careful about your assumption that many rivers that are commonly floated are "deemed unnavigable" by some government entity. No entity has officially deemed most rivers either way. Regarding the rivers in Colorado (and other states) that are navigable for Commerce Clause purposes, that is defined by federal law, not state law, and it includes rivers that are usable in canoes or kayaks, or for transporting shingle bolts. Rivers that are physically navigable in these ways are legally navigable for Commerce Clause purposes under federal law, without any official designation or "deeming." The U.S. Supreme Court has confirmed that state governments can _regulate _navigation on rivers, but they cannot _close _navigable rivers to the public (except in emergencies).


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## soggy_tortillas (Jul 22, 2014)

*The title of this thread is "COLORADO private property access laws"*

Just stop trying to dig yourself out of this hole. You obviously don't know how to use a shovel.

Sorry, Eric, but as I've said, I don't want to be a dead guinea pig in this experiment. 

I won't argue this anymore.

You don't even cite sources. The sources and court decisions you do cite, even with the minimal amount of research I've done, have either been irrelevant or incorrect. 
This is Colorado. It's not Missouri and it's not Georgia (some of the others you cite are Alaska, Montana, and Illinois), and each state clearly has it's own constitutions and policies. As somebody already pointed out, pot's legal here, and yet, is illegal according to the federal government. Sure, the feds could come in and bust us all, but they're not going to waste their time and money on little cases. If something is going to move from the Colorado Supreme Court to the US Supreme Court, it's likely going to be a very big case with a heavily weighed decision that costs a lot of money and time (that the majority of paddlers do not have) to come to. 

I'm really not trying to be a bitch, but for fuck's sake, stop trying to twist the truth and omit key facts.

I understand what you're trying to do. I think it's awesome. But you're going about it in completely the wrong way, and misinforming the general population about a subject that is already confusing enough is just the lamest thing you could do, along with essentially throwing our favorite river-saving organization under the bus in an effort to up your sales. 

The thing is, people give their money to AW because they are tried and true. They have shown time and time again that they are using the money donated to them to benefit the river community.

What do you use the money for? Offer free legal consultation when the libelous material you've published has resulted in a lawsuit for us? Gee, thanks.

You want to prove your methods work? Then prove it by testing it yourself. Don't set us up, and then offer up your sweet "free legal consultation" once we've been thrown in jail, or worse, shot. 
I think I've already represented my thoughts on the person in Missouri who was shot........ Gee, I wonder if they even had time to explain the situation... I wonder if he was trespassing respectfully or indignantly... I wonder how long the situation had been stretched out, how many incidents leading up to the climactic end... I wonder what kind of misinformation the poor river user had been fed. And you're right, now that person's dead and the landowner is in jail... and it probably cost a lot of money and time to get to that decision.

Perhaps if a different approach had been taken.

Also, I'm not assuming that most of the rivers floated on are deemed unnavigable. Upon researching, that is the information I came up with on COLORADO'S navigability report.


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## twmartin (Apr 3, 2007)

Here's the best answer to your question. I am a lawyer and a boater. but I am not your lawyer. Don't take legal advice from anybody in jail or on the "Buzz. Trespass can be a felony on some agricultural property an such a fleony conviction would be permanent. While Buzzers all have opinions, few of them are going to hand over the thousands of dollars it will take to post bond and retain a lawyer if you are charged with a felony. Winning doesn't always feel so good if it costs you $8k. Don't trespass and if you do, either don't get caught or be bleeding severely.


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## soggy_tortillas (Jul 22, 2014)

Hey, thanks for an actual, legitimate answer.

That's kind of what I was trying to get at with my thoughts on taking something like this to the US Supreme Court. 

Go lawyers!!!


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## NationalRivers (Oct 3, 2013)

soggy_tortillas said:


> This is Colorado. It's not Missouri and it's not Georgia (some of the others you cite are Alaska, Montana, and Illinois), and each state clearly has it's own constitutions and policies. .... Upon researching, that is the information I came up with on COLORADO'S navigability report.


Dear Soggy:

You have indeed identified the issue: Whether the state government of Colorado has to heed federal court decisions that involved rivers in other states, or whether it is free to close the rivers in Colorado if it so chooses.

To summarize the issue in a nutshell, American Whitewater says “most whitewater streams” do not meet the federal test for navigability, (without citing anything,) and that there is a “possibility that a Colorado court might find a particular stream navigable under some sort of standard,” although “the prevailing presumption is that all of the state’s streams are non-navigable.” Marko likewise says public rights are determined by states, citing a decision about dam building (not river running) that said, “States retain residual power to determine the scope of the public trust over waters within their borders.” NOR materials cite federal decisions about whitewater rivers in West Virginia, Georgia, Wisconsin, Montana, Oregon, Alaska, and other states, confirming that whitewater rivers, navigable only by canoes or kayaks or shingle bolts, are navigable for Commerce Clause purposes under federal law, which includes an easement “for the benefit of the public, regardless of who owns the riverbed.” NOR says those federal decisions apply in all fifty states (including Colorado, of course,) so that state governments are not free to close the rivers within their borders after all.

That's the issue, in brief. Regarding what to do about it, river users should not use themselves as guinea pigs on rivers where their rights are denied by sheriffs or landowners. Instead, they should dialog with sheriffs and landowners about public rights on rivers, and run the river again when they will not get cited, arrested, or shot at.


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## SteamboatBORN (Sep 22, 2012)

rpludwig said:


> I fished as a kid around Westcliffe, along narrow creeks without fences, nobody thought of fencing. We are getting a concentration of self righteous folks that are pissing off ( land owners or boaters) and causing conflict. I don't think fences should ever cross rivers. Who fences the river anyway! If the rivers not checking your ego your in to big of a boat.




Ranchers fence across the river to keep cattle from getting out of pastures. Case in point is my family who care takes a ranch and all the pastures along creek are open to allow cattle to drink. It's a mellow creek/River and cattle could easily walk up or down stream and get it of fenced in area. I am a river user (raft, fish, sup) but I understand a ranchers point of view too. The crossing my family uses are not barb wire but wooden planks hung vertically on high wire to allow water to rise and anything moving down stream to just push planks up. 


Sent from my iPhone using Mountain Buzz


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## rpludwig (Feb 28, 2011)

We all need to work together to avoid conflict and keep access open to all user groups. Ranchers are slowly changing and respecting the riparian zone often means keeping livestock at a trough instead of beating down the rivers edge. 


Sent from my iPhone using Mountain Buzz


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## SteamboatBORN (Sep 22, 2012)

rpludwig said:


> We all need to work together to avoid conflict and keep access open to all user groups. Ranchers are slowly changing and respecting the riparian zone often means keeping livestock at a trough instead of beating down the rivers edge.
> 
> 
> Sent from my iPhone using Mountain Buzz


I hope that happens more and more, but coming from a ranching community, its going to take a LONG time! Ranchers are stubborn.


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