# Scary!



## restrac2000 (Mar 6, 2008)

Holy crap! I haven't kept up with Colorado law in a few years so I am not sure how this all panned out on other rivers but hopefully some good will come from this situation in the form of boater protection if its not already in place. Good on the Sheriff for investigating this and being so open about its danger as well as the fire department for stepping up to remove the hazard.

If this was intentionally placed as a weapon than I sincerely hope the criminal is charged.

Best of luck in recovery to the boaters, both physically and emotionally. That is a serious event to unpackage.

Phillip


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## grumper13 (Jan 14, 2008)

restrac2000 said:


> Holy crap! I haven't kept up with Colorado law in a few years so I am not sure how this all panned out on other rivers but hopefully some good will come from this situation in the form of boater protection if its not already in place. Good on the Sheriff for investigating this and being so open about its danger as well as the fire department for stepping up to remove the hazard.
> 
> If this was intentionally placed as a weapon than I sincerely hope the criminal is charged.
> 
> ...



Yes. We'll see what the investigation reveals. At best, it was a terribly ignorant and thoughtless thing to do, which is possible (possible that some landowner was trying to get across the river or something). And at worst, a malicious and criminal act. The owner of the boat is a close friend and I know most of the others. And in recent times, we (in this area) have had some contentious interactions around river access, water use and property owner rights. We'll see what shakes out.


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## rebar (Aug 20, 2013)

grumper13 said:


> And in recent times, we (in this area) have had some contentious interactions around river access, water use and property owner rights. We'll see what shakes out.


The owner trying to cross the river, that low?? not

Id bet it was the psychotic owner after the colorado interactions Iv had.


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## Don (Oct 16, 2003)

*Wire*

I've seen this on Willow Creek in Steamboat before. Check to see if the wire happens to fall on a property line.


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## mattman (Jan 30, 2015)

Think assault charges are to light if the person is caught, that cable could have killed someone. That is attempted murder in my opinion.


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## Junk Show Tours (Mar 11, 2008)

mattman said:


> Think assault charges are to light if the person is caught, that cable could have killed someone. That is attempted murder in my opinion.


Agreed. I hope the party responsible is charged with a significant crime.


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## rebar (Aug 20, 2013)

Paddle Iraq said:


> Agreed. I hope the party responsible is charged with a significant crime.


What ever happened? I see another case..

What doesn't the land owner realize when he does that? 

I know exactly where that wire would be if it harmed a friend or relative of mine..


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## ob1coby (Jul 25, 2013)

Has anyone ever had problems with that owner complaining about the traffic on his river/property? If so, that would say a lot.


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## mattoak (Apr 29, 2013)

The Cortez Journal 06/11/2015 | No charges in river cable incident

_“Their goal was to take measures to ensure this was not a problem for rafters,” said Hancock, explaining that the cable was lowered into the water when not in use._

Because that isn't just as, if not more dangerous? 

_According to Hancock, local authorities remain unsure whether boaters are legally allowed to navigate the Dolores River when passing through private property, telling KSJD officials that additional research on the topic was required._

Here we go again. Why do they never know the law? Someone have AW contact them sooner than later so they can be informed.


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## gunnerman (Jun 6, 2013)

Come on AW here is your chance to finally get some sound legislation passed on this matter. The stretch of the Dolores where this happened is highly paddled especially in June. I realize funds are always tight but surely somebody with deep pockets could help us in this matter. Like I've always said we need some strong backing from just one big name politician on this matter. Let's not let this opportunity be squandered. Please somebody follow thru on this case.


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## rebar (Aug 20, 2013)

mattoak said:


> The Cortez Journal 06/11/2015 | No charges in river cable incident
> 
> _“Their goal was to take measures to ensure this was not a problem for rafters,” said Hancock, explaining that the cable was lowered into the water when not in use._
> 
> _According to Hancock, local authorities remain unsure whether boaters are legally allowed to navigate the Dolores River when passing through private property, telling KSJD officials that additional research on the topic was required._


What a bunch of crap! 

Someone gets hurt and could have died and they say "_additional research on the topic was required."_


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## nathanfey (Jun 7, 2006)

gunnerman said:


> Come on AW here is your chance to finally get some sound legislation passed on this matter. The stretch of the Dolores where this happened is highly paddled especially in June. I realize funds are always tight but surely somebody with deep pockets could help us in this matter. Like I've always said we need some strong backing from just one big name politician on this matter. Let's not let this opportunity be squandered. Please somebody follow thru on this case.


AW worked directly with the trip leader on this issue, along with our local club the Dolores River Boating Advocates to document the incident, explore the legal and political options arising from this conflict, and advise the local law enforcement officers. This is not cool, but nor is it a good opportunity to bring up the "right to Float" debate in the legislature!

While we agree that the cable was placed intentionally and recklessly and certainly caused Josh and the crew injury, local LEOs responded to our argument by finding the obstruction of the river was not reason to press charges. 

CRS 18-9-107. Obstructing highway or other passageway


> (1) An individual or corporation commits an offense if without legal privilege such individual or corporation intentionally, knowingly, or recklessly:
> 
> (a) Obstructs a highway, street, sidewalk, railway, waterway, building entrance, elevator, aisle, stairway, or hallway to which the public or a substantial group of the public has access or any other place used for the passage of persons, vehicles, or conveyances, whether the obstruction arises from his acts alone or from his acts and the acts of others; or
> 
> ...


The cable has been removed, and the landowner has indicated that he is also a boater and never meant to do harm. More information on the incident, including a radio interview with the Trip Leader and the Sheriffs department can be found on THE RIVER TRIP website, at KSJD in Cortez.

As for pursuing a ruling...please keep in mind that legislation is not going to fix this, or any river acccess issue in Colorado. Even if we succeed in passing an initiative, like we tried with HB 1188, the new law will get challenged in court. Its not about having one big politicians support, its about legal strategy. It will be an expensive and lengthy court process, and regardless of how the lower court rules - the ruling will be appealed to the Supreme Court - by either side. Then this issue gets REALLY expensive. The last thing we need is to rush into a court battle and lose because we go off half-cocked, are underfunded or under-prepared, and end up with a court ruling that further strips away our right to navigate. Please dont go there - we have too much at risk!

The opportunity to decide this issue will rely on having more resources, involve landowners that support the RTF, commercial outfitters, and a clear conflict that hopefully results in no serious injuries.

This is not that opportunity, and I hope the community understands the risk involved with pushing this issue in an uncoordinated way.

If you want to discuss this in more detail, give a call.


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## Phil U. (Feb 7, 2009)

Thank you for that, Nathan.


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## DoStep (Jun 26, 2012)

Sucks to have to say it, but Nathan has it right, gotta go through the system. There'd be a whole lotta support to get the river flowing below McPhee, just need the right entity(ies) with good resources to lead and I'd support that entity when it presents itself.


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## lmyers (Jun 10, 2008)

Thanks for that clarification Nathan. Be sure and let the boating community know if there is any way we can assist in American Whitewater's campaigns. The majority of us are members, but some of us would like to contribute more.


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## ob1coby (Jul 25, 2013)

nathanfey said:


> The cable has been removed, and the landowner has indicated that he is also a boater and never meant to do harm. More information on the incident, including a radio interview with the Trip Leader and the Sheriffs department can be found on THE RIVER TRIP website, at KSJD in Cortez.


I have a difficult time believing that. If he really is a boater, he would know how dangerous that is. If he knows how dangerous that is then it was intentional.


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## SteamboatBORN (Sep 22, 2012)

lmyers said:


> Thanks for that clarification Nathan. Be sure and let the boating community know if there is any way we can assist in American Whitewater's campaigns. The majority of us are members, but some of us would like to contribute more.


Definitely a lot of AW members on the Buzz that would love to help.


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## shredder-scott (May 21, 2013)

How typical....what the land owner did was criminal. ...the sheriff is a wimp.....but that land owner is still vulnerable to a civil suit for injuries he caused due to his reckless behavior. ...it my experience that liability sharks are not as timid and wimpy as cops and their DA pals


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## Andy H. (Oct 13, 2003)

SteamboatBORN said:


> Definitely a lot of AW members on the Buzz that would love to help.


Thanks for pointing that out.

Click this text and you can donate to AW here.

Or go you can always go to the MountainBuzz Flows Page and go to an AW donation link there.

Thanks,

-AH


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## Roguelawyer (Apr 2, 2015)

shredder-scott said:


> How typical....what the land owner did was criminal. ...the sheriff is a wimp.....but that land owner is still vulnerable to a civil suit for injuries he caused due to his reckless behavior. ...it my experience that liability sharks are not as timid and wimpy as cops and their DA pals


Exactly! This sounds like a great negligence/premises liability case. It sounds strange that there appeared to be a number of groups that went through unobstructed. Did the river rise? Was the cable just installed?


I would be surprised if the Dolores is not classified as a navigable waterway which would totally preclude anything like the cable strung that low. 

It also seems that there is likely a great case for a prescriptive easement. I am guessing this part of the Dolores has been navigated by rafts, kayaks, canoes, etc. for decades.

The Colorado Supreme Court found two forms of prescriptive easements holding that the easement can be established when the prescriptive use is: 1)open or notorious, 2) continued without effective interruption for eighteen years, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant. 

Using an easement for more than eighteen years entitles the claimant to a
presumption that his use was "adverse." 

To be "open and notorious"—the use of the easement must be sufficiently obvious to the owner of the servient estate, although actual knowledge by the servient owner is unnecessary. The claimant's use does not have to be continuous, but must be as frequently as he desires. Intermittent use on a long term basis is sufficient to establish a prescriptive easement. 

In Oregon, prescriptive easements for public benefit, are not usually created until a situation arises where it is feasible to fund such an endeavor. A lawsuit establishing a prescriptive easement of this type would be expensive. It appears that this near tragedy provides just such circumstances.


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## Andy H. (Oct 13, 2003)

Roguelawyer,

Welcome to MountainBuzz.

That all sounds great and may be applicable where you practice in Oregon, but isn't likely to work in Colorado. My understanding is that there's more to "navigable waterway" and "prescriptive easements" here than the apparent open and shut case you're describing. There are some pretty sharp lawyers in Colorado that have been working on river access issues for decades here - I think if it were as easy as you state, they'd have done it by now. For the time being, I'll take our the AW Colorado Stewardship Director's word for it (see his post above) when he says:



> This is not that opportunity, and I hope the community understands the risk involved with pushing this issue in an uncoordinated way.


Thanks,

-AH


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## Roguelawyer (Apr 2, 2015)

Andy H. said:


> Roguelawyer,
> 
> Welcome to MountainBuzz.
> 
> ...


I certainly did not mean to suggest this was a simple or easy issue nor did I mean to suggest that those working on the issue were not competent or dedicated. Please forgive me for that inference.

What I meant to suggest is that even when there are circumstances that constitute a prescriptive easement it isn't acquired due to the cost. . . . and most of the time, in my limited experience, there is only one or just a few property owners involved.

Clearly it is complex and would be very expensive to attempt to create a prescriptive easement running through what likely is dozens,scores or possibly a hundred privately held parcels. Each would be a separate party, possibly a separate case (although consolidation would seem likely). I would predict the filing fees, and service costs to be quite large. The defendants would likely be united both in purpose and finances.

So, while in my estimation, the answer is likely fairly straight forward. It is getting the correct question in front of the proper court by someone with "standing" that would be difficult, and very expensive. 

The other issue is that the plaintiff or plaintiffs to actually be successful in gaining a prescriptive easement would need to completely run the table. They would need to prevail against each and every property owner along the river's course. If there was even one property owner who prevailed then what good would that do? There would be a roadblock at that property.

My earlier thoughts were more summed up in expressing confusion and empathy to those frustrated with this issue. Especially regarding the navigable waterway issue.


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