# The Right to Float Questioned - Your thoughts please.



## Idaho_ski_bum (Jun 22, 2018)

In ID navigable water ways are public land from high water mark down. I know laws are different in CO with land under the water still private. Not sure of the way things stand with laws and current litigation, but with this one:








What the Wyoming Corner Crossing Verdict Means for Hunters


Public land hunters across the country celebrated Friday as a jury quickly delivered a not-guilty verdict in the high-profile case of four Missourians charged with trespassing in Wyoming last fall. That means those four men in their particular situation did not commit a crime. It does not mean...




www.themeateater.com




it sounds like a win (for now) for public access to public lands.
I have been chased off a river while wade fishing by a rancher. Even though I was within legal my rights to be there his dog and shotgun told me otherwise. Best to ask first!


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## wack (Jul 7, 2015)

I am friends with the county manager in Grand County. Shoot me a PM. He likely knows the landowner and it might help.


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## Randaddy (Jun 8, 2007)

If there are fences across a navigable waterway, it is legal to cut those fences, shoot the land owner, and run off with his daughter. I'm not an attorney, but I'm pretty sure you can take his truck too.


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## Mikec (Mar 8, 2019)

Randaddy said:


> If there are fences across a navigable waterway, it is legal to cut those fences, shoot the land owner, and run off with his daughter. I'm not an attorney, but I'm pretty sure you can take his truck too.


I’d like the dog…, and his tractor. Still good?


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## PDX Duck (Mar 17, 2015)

If daughter in question has lost teeth perhaps a gummer is on the table?!?!


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## jamesthomas (Sep 12, 2010)

My understanding is that if a Colorado river was used for commerce at the time of statehood (and I think that if a trapper floated a load of pelts down in a canoe or someone floated logs down it that counts) you can float it now as long as you don’t touch the river bed. A current lawsuit on the Ark may clarify this.


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## MNichols (Nov 20, 2015)

And the lawsuit is still in the courts, and it's all still clear as mud.


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## MoabRyan (Feb 24, 2021)

Buy a drone and run recon sorties over his land at regular 1 hour intervals.


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## Granite (Dec 2, 2012)

I used to live in Fraser and came across this same problem. My understanding is there are multiple fences across the river as the Fraser is not a 'navigable waterway'. Consider floating from below Windy Gap to Hot Sulphur instead. Tons of private land there and a fishing weir or two to navigate but a better section to run.


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## jgrebe (Jan 16, 2010)

A couple of thoughts. First of all, anything anybody tells you about river access is probably wrong (including this). But I have gone through the experience of being confronted and arrested for trespass for floating a river ( White) so this is what I learned. The problem is that there is a myriad of contradictory laws, rules, court decisions so it's impossible to be "right" with any degree of confidence. The concept of river navigability is also a wormhole. Who decides that? The courts? The Corps of Engineers? The local Sheriff? But if it comes down to that, navigability will apply to trespass on the river bed not the right to float. There is pretty clear case law that there is a right to float regardless of the waterway being navigable. The rub becomes when you inadvertently touch the bottom - which becomes likely on smaller rivers. There is also at least one court decision that ruled you have the right to remove or portage obstructions a landowner installs to prevent legal river access. Again all of this is tentative and not settled case law. Having said all that, at the end of the day it's the local Sheriff who will decide if he thinks you broke the law - and arrest you or not. My experience is in these rural ranching communities they will side with the landowner. Especially if you damage private property while you are trespassing. Yes you would have an opportunity to fight it in court but you should be prepared to be arrested. I would also film any encounters with the landowners and LE - they are not above lying about what happened. In my case, I was charged with 3rd degree trespass, issued a citation, and charges were dropped after I plead not guilty.


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## craven_morhead (Feb 20, 2007)

CO law is unsettled at the moment. American Whitewater is probably your best resource for current guidance.


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## Treswright3 (May 20, 2013)

The laws in Colorado are not clear, and it differs between areas. Also, navigable waterway is not very defined. Its all pretty murky and at this point, its best to avoid any area that the landowners threatening you. Chances are the Sheriff is going to take the landowners side. Colorado has really shitty laws.


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## TonyMancuso (Jun 27, 2016)

I know a cartoon character that works for a Navigable waterways agency in another State. The easy answer for Colorado folks is: no one really knows. If I were you, I'd read some of the following books, easier to find on Kindle than they are in print, unfortunately:

"Putting the Public Trust Doctrine to Work", by David C. Slade FIND IT HERE: https://shoreline.noaa.gov/docs/8d5885.pdf
"The Public Trust Doctrine in Motion", by David C. Slade
"Public Rights on Navigable Rivers", by The Nat'l Organization for Rivers

I'm not a lawyer and this is horrible legal advice, but I strongly encourage you to consider the "Doctrine of Adverse Possession"


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## Village Lightsmith (Jul 14, 2021)

I've found it easier (more likely, but not assured) to gain permission if you actually respect and are willing to defend rights of ownership as being absolute, and if you sympathize with the owner whose rights of ownership are under continual and increasing attack from all sides. That ownership has often been the hard labor of generations, and if you are willing to take their use of it, may the devil go with you! As long as you respect his rightful ownership and the effort it takes to obtain, maintain, possibly even his stewardship (believe it!) / efforts taken to improve the property for some personal or future use that is unknown to you, many people are happy to demonstrate the joy they have in the land by sharing it, to the enhancement of your own pleasure. (How many of us post our dreams on a billboard in front of our driveway?) 
The instant you begin thinking of managing (restricting) somebody else's stuff, usurping their (rights of) actual ownership, all friendship and sharing will likely vanish, with prejudice, forever.
I advise anyone to play with their own toys and respect the other kids around you. If you don't, the generosity of the neighbors can vanish for long generations.
If that stream wasn't there, where would you think of paddling? You and I might do well to enjoy paddling where we are welcome, wherever that may be.


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## Nanko (Oct 20, 2020)

Colorado river people have my sympathy. How shitty. When I hit the megabucks, I’ll put 10 lawyers on retainer and come paddle that section with ya.


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## rtsideup (Mar 29, 2009)

"If I'm skiing out of a drainage in CO, am I on a navigable waterway"
Jack Handy


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## Randaddy (Jun 8, 2007)

jgrebe said:


> A couple of thoughts. First of all, anything anybody tells you about river access is probably wrong (including this). But I have gone through the experience of being confronted and arrested for trespass for floating a river ( White) so this is what I learned. The problem is that there is a myriad of contradictory laws, rules, court decisions so it's impossible to be "right" with any degree of confidence. The concept of river navigability is also a wormhole. Who decides that? The courts? The Corps of Engineers? The local Sheriff? But if it comes down to that, navigability will apply to trespass on the river bed not the right to float. There is pretty clear case law that there is a right to float regardless of the waterway being navigable. The rub becomes when you inadvertently touch the bottom - which becomes likely on smaller rivers. There is also at least one court decision that ruled you have the right to remove or portage obstructions a landowner installs to prevent legal river access. Again all of this is tentative and not settled case law. Having said all that, at the end of the day it's the local Sheriff who will decide if he thinks you broke the law - and arrest you or not. My experience is in these rural ranching communities they will side with the landowner. Especially if you damage private property while you are trespassing. Yes you would have an opportunity to fight it in court but you should be prepared to be arrested. I would also film any encounters with the landowners and LE - they are not above lying about what happened. In my case, I was charged with 3rd degree trespass, issued a citation, and charges were dropped after I plead not guilty.


Spot on. The judge is the landowners cousin. There could be a jury. His cousin's neighbors. Appeal until you get to the city and you may have a chance, if you want that to be your hobby for the next two years. 

That said, the "lesser of two evils" defense in Colorado is backed by a long-standing letter from a former Colorado Attorney General who mentions portage and emergency situations as times when trespass charges COULD BE reasonably dismissed. I'd lean on this when necessary, but only because safety is on the line in the moment and that trumps all legal problems. I would not enter private property with the intent to portage and rely on that defense. Imagine seized equipment, travel for court, etc. even on the right side of the law.


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## kayak bunny (Jul 14, 2015)

Thank you for everyone's feedback (even you jokesters). As a result of your replies, I was able to do a few searches.
Here is what I have found out. 
1) I have been told that the section of the Fraser River that I am interested in, is too low to float without hitting bottom in places. If Colorado ever enacted the high water mark rule, and/or this section of river had a good flow sometime, then a float might be a possibility through here. Until then, trespassing by hitting bottom is not appealing. I don't look good in an orange jump-suit.
2) The way I understand it, under 18-9-107 of the Colorado Revised Statutes it is illegal to obstruct a waterway with a fence and if there is a fence, trespass is permitted to portage around it. This document explains it a little better The right to float in Colorado - Obstructions
You have all helped me answer my query and it looks like I'll have to look elsewhere for a new float.
Thank you!


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## Andy H. (Oct 13, 2003)

jamesthomas said:


> My understanding is that if a Colorado river was used for commerce at the time of statehood (and I think that if a trapper floated a load of pelts down in a canoe or someone floated logs down it that counts) you can float it now as long as you don’t touch the river bed. A current lawsuit on the Ark may clarify this.


Close but not quite. My understanding is:

The navigable water thing is what's in court. If decided in the boating community's favor this will give boaters and fisher dudes the right to touch the bottom of the river without being charged with trespassing. This will apply only to waters that had documented commerce at the time of statehood. 

The rest of the waters in the State can be floated through private land, as long as you don't touch the bottom. 

If anyone's got better info, please correct me.


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## Idaho_ski_bum (Jun 22, 2018)

So if I'm floating down a section of navigable river through private property I'm all good, but the second my raft touches a rock I'm trespassing? That's a bunch of BS.


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## jamesthomas (Sep 12, 2010)

That’s the law in the state of Colorado. Throw in the navigable at statehood thing and is any small river/stream legally floatable in Colorado. Who decides if there was commerce at statehood on what river? The legislature? It is friggin BS.


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## Droboat (May 12, 2008)

THIS is never the answer: "respect and are willing to defend rights of ownership as being absolute." Property rights are not, and have not ever been, absolute to the individual. Modern property rights were created by - and are designed/limited/adjusted to serve the interests of - the nation state.

The absolutist ultra-conservative ideology invokes a willingness to enforce the Fugitive Slave Act, and by extension, to enslave everything (including human rights and public trust resources) as lesser than the rights of ownership bestowed on individuals by what my indigenous friends call a "settler's government." In the United States, private ownership is evidence of genocide, and deserves careful consideration and limitation.

Engage, question authority, study history, defend constitutional democracy, and raise hell, lest the _private property uber alles_ ideology becomes absolutely as vile and deadly as it has shown itself to be over the history of the United States. This may be one of the best ways to enjoy rivers and bestow honor on this Memorial Day weekend.


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## Ole Rivers (Jul 7, 2005)

kayak bunny said:


> Greetings All! I would like your thoughts on this issue.
> 
> There is a section of the Fraser River in Grand County that I'd like to explore. A potential put-in would be at Kaibab Park (public access) to somewhere slightly downstream of Windy Gap Reservoir (again, public access, I believe through CPW land). Plans are in process to add a connector around the reservoir to allow for a better environment for the fish where the Colorado and the Fraser Rivers meet. When this is complete, this could allow for a nice float trip, but it is in need of being explored for hazards, difficulty, fences, moose habitat, etc.. A large section above Windy Gap Reservoir is on private land. Today I approached one of the private land-owners to ask him some questions. One of my questions, which I never got around to asking was if I could have permission to scout his property along the river by foot to see if there were any hazards that I may not be able to negotiate in a kayak or if there were any fences. My reason for this request was I thought it might be better to ask permission ahead of time, rather than run into a problem while in my kayak on the river and have to trespass and ask forgiveness later. When I introduced myself, I started by telling him that I'd like to kayak the river behind his house. He immediately told me he would not allow me to trespass. I calmly explained to him that I was allowed to travel on the water as long as I did not touch bottom. When he realized I wasn't quite as stupid as he might have thought, he told me he had fences across the river. I'm not really sure if that was just a scare tactic or not. Since I have now officially been told by the private landowner that I may not trespass and the potential exists that there are hazards or fencing, which could require trespass, it's probably not worth the risk to explore it vs. the risk of getting a ticket (or jail).
> 
> ...


-->amazon.com-->_*"Public Rights On Rivers"*_. Search "fences", "obstructions", "The Daniel Ball", "navigable in fact", "commerce", "easement", "access", "use", "recreational", "kayaking", "fishing", "navigable for recreation", "navigable for commerce clause purposes", "walk along", "small, shallow, rocky rivers" and other Searches of interest.

Since the area around Windy Gap is being developed for, in part, recreational water use, you and/or *Wack* (and others) may want to contact the *Grand County Manager, Commissioners*, etc., to ask them to review this ebook also and then hold public discussions and/or form a *balanced* public, private and government stakeholder advisory group using the comprehensive _*"Public Rights On Rivers"*_ as a focus to recommend actions.


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## Wallrat (Jan 19, 2021)

jamesthomas said:


> My understanding is that if a Colorado river was used for commerce at the time of statehood (and I think that if a trapper floated a load of pelts down in a canoe or someone floated logs down it that counts) you can float it now as long as you don’t touch the river bed. A current lawsuit on the Ark may clarify this.


It’s even better than that. Revised Statute 2477, gives us the right to use it. Especially since the Grand was run multiple times before it became a park. No lottery, no permit. I’ve been tempted to give it a go.



https://en.m.wikipedia.org/wiki/Revised_statute_2477


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