# Fence over water questions



## cpollema (Mar 9, 2009)

I recently found out about a new fence constructed over the Big Thompson river near Loveland. This is certainly not an area for rafts or kayaks, but is popular with tubers during the summer. Once the water levels come up, this fence will likely be an entrapment hazard. I have researched threads on the forum and found reference to: 


C.R.S. 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...
(2) For purposes of this section, "obstruct" means to render impassable or to render passage unreasonably inconvenient or hazardous.
(3) An offense under this section is a class 3 misdemeanor.

Are there additional laws, statutes, or regulations that apply? Have any of you dealt with landowners over this issue? I'm looking for ideas on how best to approach this potential hazard and looking for ideas. Thanks.


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## pinemnky13 (Jun 4, 2007)

With a pair of wire fence cutters at night


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## Theophilus (Mar 11, 2008)

That fence would not be legal. Now you have to find a LEO willing to enforce the law. Good luck.


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## cpollema (Mar 9, 2009)

Theophilus said:


> That fence would not be legal. Now you have to find a LEO willing to enforce the law. Good luck.


Is the statute mentioned above the most relevant? I've heard intent even makes a difference. Is the fence there to keep cattle in or people out? I don't understand why that makes a difference. To me it offers a life safety hazard to someone floating down the river, so shouldn't it be straightforward to say 'remove it'? I guess laws are never that simple...


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## Ole Rivers (Jul 7, 2005)

A related law concerning *gated fences*, enacted in 2009 in Montana, is the Public Bridge Access law, found at http://data.opi.mt.gov/bills/2009/billpdf/HB0190.pdf

As for the Big Thompson fence obstruction:

Identify the exact property by going to Assessor Property Records Search

Then go to Larimer County - Sheriff to send an email to Larimer County Sheriff Justin Smith (upper right, under Sheriff Smith's image) for resolution about your concern.

Here's my email suggestion:


(Insert picture of the fence obstruction, if possible)

Sheriff Smith , 

There's a newly built fence located across and over the Big Thompson at or near *(provide property info here)* which may represent an immediate health and safety concern to tubers, bathers and other public water users. Because runoff will begin shortly, will you please contact the owner at your earliest convenience to either remove or gate the fence barrier to provide safe and sufficient passageway, control livestock and/or manage the property as provided for in C.R.S. 18-9-107 and/or other related Colorado statutes, regulations and/or rules?

Would you also please reply with the resolution to this matter?

Thank you for your attention.

Regards,

Your Name
Your Address (optional)


********************************

PS If you post the public record property location and/or ownership info to this thread, betcha $.37 cash money Sheriff Smith receives a few more emails.... nothin' like the light of day...


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## lmyers (Jun 10, 2008)

The issue has to do with Colorado's "vague" water laws. What is a "navigable water way" is the law in question.... There are lots of fences over rivers that run high enough to boat around here (south fork arkansas, chalk creek, etc). Is it commercially used at all? Are there pasture or ranch lands nearby? I would suggest you contact Colorado Whitewater if you really feel it's going to be an issue.

Oh, and I wouldn't suggest going at it with wire cutters...you might just end up being the criminal....


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## Ole Rivers (Jul 7, 2005)

cpollema said:


> Is the statute mentioned above the most relevant? I've heard intent even makes a difference. Is the fence there to keep cattle in or people out? I don't understand why that makes a difference. To me it offers a life safety hazard to someone floating down the river, so shouldn't it be straightforward to say 'remove it'? I guess laws are never that simple...


Just as private land titleholders have a right of ownership to fence their lands in order to control livestock and manage property so do public water users have a right of access to passage to, from, around (portage), through or over natural streams for their use and enjoyment.

A simple, cost effective and reasonable solution to these concurrent rights is to *gate the fence* barrier, whether over and across the natural stream or on the land at the public county bridge, park or road right-of-way as has been legislated and is now the law in Montana.

A waterway, just as a roadway, is a highway.

Common highways forever free.


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## lmyers (Jun 10, 2008)

Montana is not Colorado....plain and simple. It would be nice if that was the water law here, but it's not. There are lots of navigable waterways in Co that have fences over them and your not going to change anyone's mind by saying that it's different in Montana. This has been a constant issue here, and it needs to be worked on...but through the proper channels.

A river...or better said a creek is not a highway, and just because it has a couple hundred cfs flowing through it for a couple months a year doesn't make it a navigable waterway. I am not a lawyer, but I have engaged in enough of these conversations to know that you have to involve Colorado Whitewater if you want to have any luck with the local law enforcement.

I don't want to see a fence on any stretch of water enjoyed recreationally, but I doubt you have any "right of way" in this particular area.


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## pinemnky13 (Jun 4, 2007)

I say Hayduke it, but the again it is blocking walking access right now and that is o.k by the law because you can float thru the river but if you touch the river bed then you are trespassing on the land(see other threads regarding the taylor) but We all see the leftovers and have gotten our rafts torn on something like this but do what you think is right and be willing to accept the responsability if you get caught. And remember if you are caught keep your mouth shut, ask for your bail amount, and keep your mouth shut. The D.A.'s will use anything you say to a L.E.O. against you


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## Ole Rivers (Jul 7, 2005)

lmyers said:


> The issue has to do with Colorado's "vague" water laws. What is a "navigable water way" is the law in question.... There are lots of fences over rivers that run high enough to boat around here (south fork arkansas, chalk creek, etc). Is it commercially used at all? Are there pasture or ranch lands nearby? I would suggest you contact Colorado Whitewater if you really feel it's going to be an issue.
> 
> Oh, and I wouldn't suggest going at it with wire cutters...you might just end up being the criminal....


This thread has to do with a fence that appears to obstruct safe and sufficient passage of a waterway. For that obstruction issue, for this fence on this Big Thompson River in this Larimer County, the most relevant law is likely CRS 18-9-107 "Obstruction of Highways" and the most reasonable authority to handle this situation civilly, peacefully and responsibly is the Larimer County Sheriff Department. I'm quite confident that Leslie, Patrick, Nathan, Jay and etc of CW and AW would agree that the Sheriff Dept is best equipped to deal with it as the first, and probably last, step to resolution.

If resolution is not achieved through the Sheriff Dept. and a citation or complaint is filed and brought in a court procedure for a judicial resolution, then other statutes may be asserted. In this instance, no way it gets even remotely close to court, therefore, the Sheriff route.


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## BrianK (Feb 3, 2005)

*some law clarification*

According to the colorado supreme court there are *no* navigable rivers in colorado. we are not talking about little creeks - the supreme court decision in question held that the colorado river west of glenwood was not navigable for title purposes. This is important because if waters are navigable then the land up to the normal high water line is owned by the public, however if the waters are not navigable the land in the river bed is owned by the owner of the adjacent land. So in Colorado whoever owns the land next to the river owns the river bed. 

This is complicated because in Colorado no one can own water, you can just own rights to use water. This is the reason it is illegal to capture rain in rain barrels in Colorado. So the owner of land next to a river owns the river bed but they don't own the water. This means (probably-it is unclear) that you cant be guilty of criminal trespass if you stay on the water. 

The problem is what happens if you have to portage an obstruction - like a barbed wire fence. 

The criminal law has a lesser of two evils defense. So if you portage to avoid drowning in the barbed wire you are not guilty of criminal trespass. I don't think civil trespass has the same defense, so you could probably be liable in a civil suit. Also I don't think there is a law against putting a fence across a river (so long as you own the land). Further, if you cut down the fence I am pretty sure thats going to be a crime of some sort - a few come to mind. 

Ultimately, the law is unclear and confusing. That is why there was the big push last year to get a statute passed that would clarify all these rules. Unfortunately, the law was killed by a variety of interests. Hopefully, Colorado can get something passed to clear this up.


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## Ole Rivers (Jul 7, 2005)

lmyers said:


> Montana is not Colorado....plain and simple. It would be nice if that was the water law here, but it's not. There are lots of navigable waterways in Co that have fences over them and your not going to change anyone's mind by saying that it's different in Montana. This has been a constant issue here, and it needs to be worked on...but through the proper channels.
> 
> A river...or better said a creek is not a highway, and just because it has a couple hundred cfs flowing through it for a couple months a year doesn't make it a navigable waterway. I am not a lawyer, but I have engaged in enough of these conversations to know that you have to involve Colorado Whitewater if you want to have any luck with the local law enforcement.
> 
> I don't want to see a fence on any stretch of water enjoyed recreationally, but I doubt you have any "right of way" in this particular area.


Well, if you're referring to my mention of Montana's Public Bridge Access law, then it's not plain and simple that Montana and Colorado's public access laws are different. Access gained by public bridge rights of way is confirmed both here in Colorado and in Montana. The difference lies in the clarity in Montana and confusion in Colorado of this law. Montana's Public Bridge Access law simply *clarified* the right of public access via public county bridges. Colorado has yet to *clarify* that right. It is indeed one of the issues I have and will continue to actively work on through the proper channels both here in Colorado and in Utah for the last couple of years with many government, private and public interest folks, including AW and CW.

So as to *clarify*, a river, creek, natural stream or etc is a navigable water... and is a highway... to use and enjoy for commerce, fisheries, navigation, recreation, etc, activities as found in settled ancient, Common, Federal laws and the Public Trust Doctrine, whether privately or publlcly owned bed lands *even if* it is a shallow, intermittent or seasonally flowing water. Read Illinois Central, the Daniel Ball, Atlanta Kayak, etc.

The difference between Montana and Colorado is, once again, *clarity*. And good law vis a vis bad law. Emmert and the trespass law, if challenged in court by competent attorneys, would, imo, be overturned and repealed big time. They just need to be tested and challenged. Easy to say, hard to do.

Lastly, as far as having a confirmed right of way through, over, to, from and around a fence obstruction, yes, there is a ROW, it simply needs to be *clarified* (not proven, *clarified*) here in Colorado.


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## slamkal (Apr 8, 2009)

Your are all taking the wrong approach. Just convince Exxon that they need this to get their big rigs through to Canada. The fence will be gone overnight ...


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## Ole Rivers (Jul 7, 2005)

BrianK said:


> According to the colorado supreme court there are *no* navigable rivers in colorado. we are not talking about little creeks - the supreme court decision in question held that the colorado river west of glenwood was not navigable for title purposes. This is important because if waters are navigable then the land up to the normal high water line is owned by the public, however if the waters are not navigable the land in the river bed is owned by the owner of the adjacent land. So in Colorado whoever owns the land next to the river owns the river bed.
> 
> This is complicated because in Colorado no one can own water, you can just own rights to use water. This is the reason it is illegal to capture rain in rain barrels in Colorado. So the owner of land next to a river owns the river bed but they don't own the water. This means (probably-it is unclear) that you cant be guilty of criminal trespass if you stay on the water.
> 
> ...


Yes, BrianK, I sorta agree about the navigable waters thing here in Colorado. I believe only a couple miles around GJ have been determined to be navigable rather than non navigable and that there are only a few other short stretches that are determined to be "navigable waters". The natural streams in Colorado are obviously navigable via historical (use of streams for, say, commerce, at the time of Colorado statehood-1876) and modern (kayaking, etc) use and can be *confirmed* (not proven, confirmed) as such through judicial, legislative and/or initiative procedures.

That said, it is my contention that, upon test and challenge in judicial proceedings, natural streams in Colorado would ultimately be determined and confirmed to be navigable waters and, in the wake of the process, the Emmert ruling would be found in error and would be overturned because of dicta and standards used in Emmert to get to its decision... of course, with competent attorneys doing their thing.

Judicially, there needs to be a citation, say, trespass, or a complaint to get the question into court and up to the Supremes. Otherwise, all this talk is just that... talk. Don't mean a thang if it ain't got that swang...

Rather than "normal high water line", it's "ordinary high water mark". Just sayin' 

And, no, "if waters are navigable then the land up to the normal high water line is owned by the public" is not correct. Waters are navigable whether or not the bed lands within the ordinary lines of high water are publicly or privately owned. Under the Daniel Ball, etc, *"if the waters are navigable in fact, they are navigable in law"*, regardless of bed land ownership and are held in the Public Trust ( Champions of the Public Trust, Water Use in Wisconsin Video ) by the state to manage and steward for the public common good. Thus, because of this distinction between the adjacent up lands *above the ordinary high water mark* and the bed lands *below the ohwm*, the public interest has the dominant right-of-way to *use and enjoy the waters below the ordinary high water mark* ("waters" is "natural streams" in Colorado statutory lingo) while the adjacent up land owner has the *servient burden* to provide that use.

BrianK states: "you cant be guilty of criminal trespass if you stay on the water."

Rather, *you're innocent of trespass if you use any or all of the water and have contact or touch the bed land incidental to that use.* Yes, it is unclear (confusing) and, therefore, needs to be *clarified* judicially, legislatively and/or initiatively. And, yes, I am actively pursuing the issues to Use and Access Natural Streams in all 3 procedures...

As for portaging an obstruction, such as the fence in question in this thread, there's legislative, judicial and initiative language that *clarifies* the right to portage for safety and emergency purposes along or reasonably near a natural stream while taking into account the private title holder interests' right to private property and liability limitations. This is where All Win, compromise, good faith language is needed in any of the procedures. There is such language, however.

Yes, you're correct about the lesser of evils defense for criminal trespass and I believe a Supreme Court wouldn't ultimately find for civil or criminal trespass on a bed land, again, if there's competent attorneys on the case. However, if you're outside a reasonable distance from the natural stream, thus, "roaming at will", then, yeh, you're nailed and don't let the door hit ya...

Lastly, yep, the present law in Colorado is confusing so legislation, judicial action or ballot initiative is needed to *clarify*. The HB 1188 was confusing and a bad bill to *clarify* the rights to Use and Access Natural Streams. I believe that, legislatively, the frameworks of Montana's 2009 Public Bridge Access HB 190, now law, and Oregon's 2010 SB 1060 (Google them for their language) have the best language for All Win compromise to Use and Access Natural Streams while respecting the private title holder ownership interest so that's why I mentioned Montana Public Bridge Access law in my comments above.


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## lhowemt (Apr 5, 2007)

slamkal said:


> Your are all taking the wrong approach. Just convince Exxon that they need this to get their big rigs through to Canada. The fence will be gone overnight ...


Good one, we do need a "like" button for posts!


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## CUBuffskier (Jul 7, 2005)

So... Can I walk around number 5 on the Ark?


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## cpollema (Mar 9, 2009)

Thank you for all the information. If I am understanding all of this correctly, it seems that floating on the water is allowed since that is public. The confusing portion is whether the river meets the definition of the waterway mentioned in the statute that refers to obstructing a waterway? So if the landowner indicates that the fence is there to keep cattle (no cattle seen anywhere around), he can keep it? If he indicates it is there to keep the tubers from traveling through his property does that make a difference? It seems that takes the argument down the same path as the Taylor. If the fence does injure someone floating down the river, does that change the argument?


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## Theophilus (Mar 11, 2008)

Print a map to send with your complaint. I think the fact that it is a named river would be compelling.


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## SALRVRRT (Mar 24, 2011)

It might pay to approach the land owner with the concern for public safety and see if there is a solution where everybody wins, without getting into a big legal battle. That may do more damage than good, from a PR perspective. 
If the fence is there to control livestock, then they may be open to suggestions, if it's there to keep tubers out, then maybe not. In that case, pick the fight, because that's not cool.
Here is a simple fix we have used here in ID that seems to work. Might be a little obnoxious, but nobody gets hurt.
It's just a thought. I don't pretend to know anything about the local law, or the motives of the landowner, but sometimes mutual respect goes a long way further than a sheriff knocking on the door.


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## cpollema (Mar 9, 2009)

SALRVRRT said:


> It might pay to approach the land owner with the concern for public safety and see if there is a solution where everybody wins, without getting into a big legal battle. That may do more damage than good, from a PR perspective.
> If the fence is there to control livestock, then they may be open to suggestions, if it's there to keep tubers out, then maybe not. In that case, pick the fight, because that's not cool.
> Here is a simple fix we have used here in ID that seems to work. Might be a little obnoxious, but nobody gets hurt.
> It's just a thought. I don't pretend to know anything about the local law, or the motives of the landowner, but sometimes mutual respect goes a long way further than a sheriff knocking on the door.


What a great idea! Do you by chance have any information about who or how that type of fence is made? I think taking that approach will also determine if he really is planning to keep cattle or stop people from using his stretch of river...Thanks.


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## Ole Rivers (Jul 7, 2005)

cpollema said:


> Thank you for all the information. If I am understanding all of this correctly, it seems that floating on the water is allowed since that is public. The confusing portion is whether the river meets the definition of the waterway mentioned in the statute that refers to obstructing a waterway? So if the landowner indicates that the fence is there to keep cattle (no cattle seen anywhere around), he can keep it? If he indicates it is there to keep the tubers from traveling through his property does that make a difference? It seems that takes the argument down the same path as the Taylor. If the fence does injure someone floating down the river, does that change the argument?


Definitions are the stickiest part of every issue. That's why definitions are usually the first item of business in, for example, a legislative bill. The definition for "waterway" is linked to the definition of "navigable waters" and its definition is a function of prosecution rather than enforcement. A sheriff's deputy's role is to keep the peace so all he'd likely be interested in doing would be to contact, if the dept would contact them at all (may need a complaint by the user or request by the owner to get involved) and shoot the breeze with the owner w/o getting into detail like that. I'd say the most important words in your request for resolution would be "health and safety". Those words are in a lot of laws and probably press a lot of hot buttons...

If the owner uses "livestock control" as a reason for the fence, then the deputy would likely defer to court action to decide its validity. If there's no livestock around, you may want to document that in images, along with very up close and clear images of the wire to show if it's barbed, learn how to file a complaint along with standing necessary to file it and which court it needs to be filed to and the costs to file, etc.

imo, if the owner says the fence is there because of the tubers, the guy's hung himself. No canna du. By the image and you saying there's no cattle around to control, if you can get the deputy out there by request or by complaint, he'll git'r done via talking sense or a citation to the owner under 18-9-107, etc. By the image, it appears pretty obvious that the owner simply doesn't want the public riff raff water user tubers around. The deputy is around to enforce the law. Think positively, deputies aren't automatically on the side of the private owner.

Lastly, if the fence is the proximate cause of injury and, especially, if it has barbs, In My Very Humble Opinion... the owner's in a worlda hurt. Throw in a 12 year old kid and figure 25-life and/or Mom gets 10 minutes of Up Close and Personal Time in a locked room with the owner.


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## SALRVRRT (Mar 24, 2011)

The BLM put them up last year on the Blackfoot river, out of the Pocatello field office. 
They are a pretty simple design. Just stretch a cable over the water, attatched to a deadman anchor on both sides, and it's just PVC hanging down. Pretty easy, and it works to keep the livestock where they belong. 
Should make everybody happy.


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## Canada (Oct 24, 2006)

*It's complicated.*

So often the fences are erected in the winter when low water is present and the landowner needs to keep livestock in the property lines. Then the water starts cranking and we all go out and run into the fence. Bad situation if some boater cuts back the fence and a herd of cattle or horses are on a highway. Most western land owners are pretty understanding if you approach them properly. A great example is the work arounds on Bailey. Approach the land owner and let them know they are going to hurt a kid, and can a solution be found. If you do it in a non confrontational way, I bet it works out well. If it goes bad you can just walk away and let them know the sheriff will be out to talk to them. 

Good Luck


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## Ole Rivers (Jul 7, 2005)

SALRVRRT said:


> It might pay to approach the land owner with the concern for public safety and see if there is a solution where everybody wins, without getting into a big legal battle. That may do more damage than good, from a PR perspective.
> If the fence is there to control livestock, then they may be open to suggestions, if it's there to keep tubers out, then maybe not. In that case, pick the fight, because that's not cool.
> Here is a simple fix we have used here in ID that seems to work. Might be a little obnoxious, but nobody gets hurt.
> It's just a thought. I don't pretend to know anything about the local law, or the motives of the landowner, but sometimes mutual respect goes a long way further than a sheriff knocking on the door.


Yes, talking first with the owner could prove useful to resolving the issue.

SALRVRRT, that type of "gated fence" is exactly the end product for the legislative public access bill I've been advocating and is similar to the Montana public access gated fences, only it's across and over the water rather than on the land abutting public bridges.

Could you please send me those images in full resolution with a description of their exact location (Google Maps, maybe?)? I don't have good images of passageway fences across streams, just some mediocre ones so not useful. Yours are very clear and the clearer the better. See my Profile for the email address. Thanks!


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## Ole Rivers (Jul 7, 2005)

SALRVRRT said:


> The BLM put them up last year on the Blackfoot river, out of the Pocatello field office.
> They are a pretty simple design. Just stretch a cable over the water, attatched to a deadman anchor on both sides, and it's just PVC hanging down. Pretty easy, and it works to keep the livestock where they belong.
> Should make everybody happy.


Montana's gated fence solutions are also very simple in design for the bridge abutments on land. Couple of posts, maybe some brush clearing, and/or some half diameter PVC on top of the barbed wire so the boats can get up and over and, violins!, private owners get to control their livestock/manage their property and public water users, be it boaters, wading anglers or other public water users, get access to, from, over, through or around the gated (stiles, passthroughs, etc) fence. 

Everbody's Hap Pee! Cost effective, too!

Gated Fence Ruby River in Montana


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## Ole Rivers (Jul 7, 2005)

Canada said:


> So often the fences are erected in the winter when low water is present and the landowner needs to keep livestock in the property lines. Then the water starts cranking and we all go out and run into the fence. Bad situation if some boater cuts back the fence and a herd of cattle or horses are on a highway. Most western land owners are pretty understanding if you approach them properly. A great example is the work arounds on Bailey. Approach the land owner and let them know they are going to hurt a kid, and can a solution be found. If you do it in a non confrontational way, I bet it works out well. If it goes bad you can just walk away and let them know the sheriff will be out to talk to them.
> 
> Good Luck


Canada, do you have any contact info, exact location and/or images of the fence workaround in Bailey or similar? Same question to all. If so, please email. Thanks!


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## Canada (Oct 24, 2006)

*There are no fences.*

Just agreements on where to portage, not to hang out and trash the place. Not to pee in what people percieve as their yard, etc. Basically evryone has agreed to some standards that if we all comply, the thing works.


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## Ole Rivers (Jul 7, 2005)

Canada said:


> Just agreements on where to portage, not to hang out and trash the place. Not to pee in what people percieve as their yard, etc. Basically evryone has agreed to some standards that if we all comply, the thing works.


Any limited liability language in the agreements? If so, please send. Thanks!


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## robanna (Apr 20, 2004)

> Any limited liability language in the agreements?


I think it's more of a handshake agreement than a written agreement.


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## lmyers (Jun 10, 2008)

CUBuffskier said:


> So... Can I walk around number 5 on the Ark?


I'm not sure if your serious or being sarcastic, but for the record the property adjacent to #5 has changed hands and the new owners are boaters. I haven't spoke with them directly, but I have boated with people who said they were cool. There are still "No Tresspassing" signs up, but I doubt portaging the rapid will cause an issue now.


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## cpollema (Mar 9, 2009)

Wanted to post an update on the fence over the Thompson....




Fence across river lands rancher in hot water

By Pamela Dickman | © 2011 Loveland Reporter-Herald 








Reporter-Herald/JENNY SPARKS​ Paul Ehrlich points at the spot on his property west of Loveland where he had strung a barbed-wire fence across the Big Thompson River. Fearing the danger the fence posed to rafters on the river, the Larimer County Sheriff’s Office made him take it down. 
 LOVELAND -- Paul Ehrlich considers his 60 acres a gift.
He cherishes the view, the trees, the chirping birds and the bubbling Big Thompson River that splits his property on Namaqua Road west of Loveland.
But he does not cherish the rafters and tubers who, he says, frequently trespass on his yard and have gone so far as to shove him when confronted.
And he wants to buy 25 head of cattle to graze his land — something he said he cannot do unless he can string a fence through the river to keep his livestock from escaping.
Last month, he installed a four-strand barbed-wire fence across the river just east of Namaqua Park and found himself in hot water.
“That’s an absolute death trap,” said Battalion Chief Tim Smith of the Loveland Fire and Rescue Department. “We understand what his concerns are.
“We were more concerned about rafters in the water. If the water is high, and they come around the corner and don’t get out, it will kill them.”
The water will go through the fence, but the person will not, a situation that rescuers call “a strainer” that can be damaging and deadly, explained Larimer County Undersheriff Bill Nelson.
“A four-strand barbed-wire fence across the river that’s full of tubers is extremely dangerous,” he said.
“That’s something that will catch people in a heartbeat.”
*Fence Removed*
After learning about Ehrlich’s fence, a sheriff’s deputy consulted with the county attorney, who provided him with a 1983 decision by the Colorado attorney general that prohibits fences across rivers. The deputy visited Ehrlich and told him he had to take down the fence.
The rancher did so, removing it after just over a week.
But he still believes the law is unfair and unenforceable.
Plenty of ranchers in the state have fences across a river, Ehrlich said.
County officials agree but say different situations require different solutions.
Gary Buffington, director of the county’s Department of Natural Resources, said he knows of others in Larimer County.
“Not all those areas are accessed by recreationists,” Buffington said.
The fence law is enforced on a complaint-only basis, which Ehrlich said is not fair.
But much of the law is enforced that way, and the Sheriff’s Office does not have the resources to patrol the river for fences or trespassers, according to Nelson.
“Unless somebody complains about it, we might not know,” Nelson said. “We don’t know about people’s burglaries at their houses unless they complain.
“An awful lot of our calls for assistance are complaint-oriented. It’s someone calling us to report a problem.”
By Colorado law, fences are not allowed to block rafters in the river, and residents are allowed to ride the rivers on tubes and rafts.
They are not, however, allowed to trespass.
*Trespassing a Problem*
On Ehrlich’s property, he said, tubers trespass all the time. His land is the last place to leave the river before a dangerous diversion structure just east of Namaqua Park.
He said he has had family picnics interrupted by tubers and even found people hanging out in his yard.
But when he calls the sheriff, the culprits take off before deputies arrive, he said.
“Can I come have a picnic in their front yard?” asked Ehrlich. “I’d like to know what their address is.”
Buffington hopes to help alleviate that problem with signs.
His department is working to find a place for rafters to get out of the river on public property before they reach Ehrlich’s land. 
Then, the county will place signs and a map at Glade Park, where many start their river adventure.
But most of the land between there and Ehrlich’s property is private.
*State Law a Mixed Bag*
The dispute between property owners and rafters along rivers is not new nor is it uniform. Situations and official responses vary across the state.
“The way it is written, the law as it stands is that you are trespassing if you are in a waterway and you step out and touch the riverbed,” said Loveland-area state Rep. B.J. Nikkel. “That’s where you get into ‘deep water’ with the issue.
“The law is so different. In some places you can and some places you can’t. I favor them being able to use it while not trespassing.”
In 2010, some Colorado legislators tried to change the law to favor rafters over ranchers, but the bill failed.
Now, Ehrlich would like to gather a group and try to change state law in the other direction, to allow his fence.
He does not want to hurt rafters and had installed a large red wooden sign to warn them of the impending fence. 
He is also willing to find another type of fence that would keep his cattle in but not hurt rafters.
But, he said, he is not sure what he can legally do.
“I can’t contain my cattle without it,” he said. “There’s just no way. ... I just want to make a living.”


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## lmyers (Jun 10, 2008)

Interesting update. Glad he had to take the fence down. Thanks for sharing.


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## openboat (Jul 13, 2004)

I don't blame the "rancher" for being angry at folks who walk across his yard and disturb his peace. Those kinds of folks make it hard for the rest of us.

On the other hand, 60 acres hardly makes him a "rancher", and he is certainly not "making a living" off of 25 head of cattle. This had become his convenient excuse for the fence.


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## acetomato (May 6, 2006)

openboat said:


> On the other hand, 60 acres hardly makes him a "rancher", and he is certainly not "making a living" off of 25 head of cattle. This had become his convenient excuse for the fence.


Exactly.


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## Canada (Oct 24, 2006)

*Amazed that ranchers across the west are making it!*

Without the need to string multiple strands of wire over the river.
That fence is all about drunk kids on tubes. I have to admit, if I had drunk college kids running tubes through my property all day, it probably would get on my nerves too. Glad the sheriff did the right thing.


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## badswimmer (Jul 13, 2006)

Canada- no fences on Bailey?? I can think of 2 donwnstream of F.U./Rawhide FF, one at the bottom of F.U. property, before the 1st low bridge-john woodward used orange plastic construction fencing hung from a cable with a gate cut out for yakers, not the most litter free method. There's another where estabrook ranch and rivercliffe property lines meet-there they hung garden hose sections cut to 3' off a wire-note wire is low when river is 700-owners are the fullerton's-(lawyer family) quietly portage right side if too low...Either fence works great for cattle, and boaters. Watch your head on those bridges!!! We have worked very hard over the years with all the landowners on the NFSP to keep it simple safe and clean, the owners of rivercliffe like us and consider our recreation a wonderful novelty to watch, pee in the river, Pack it in, pack it out, pick it up, pass it on. It is just as bad to pass by trash as to put it there yourself- pick up all MOOP- marerial out of place.
Ehrlich very definately wants to keep tubers out, he should buy a gun so's he can hold dem picnakers for the deputy!

And don't even get me started on fences in or above Bailey........


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## Canada (Oct 24, 2006)

*My bailey example was an attempt to show how cooperation can work.*

Not a comment on the presence or lack of presence of fences. I haven't been down there in 6 years, and would not be equiped to comment on anything that is or is not there.


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## badswimmer (Jul 13, 2006)

No worries, it is a great example of handshake type, old west honor. Come on out and get some-almost 700, mostly natural. Sick, but, still a little low for some......


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## Jensjustduckie (Jun 29, 2007)

Loveland doesn't have a college, most likely the tubers are teenagers or kids. 

There are so many appropriate ways to handle situations such as this, it always amazes me when people choose the solution that could end in death.

It is not hard to write down a license plate number or follow them down the road if the sheriff is too slow to show up.


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## Dave Frank (Oct 14, 2003)

Maybe we can use this to get fences out of lower SSV?


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