Rep. Curry, House Judiciary Committee Sell Property Rights Down the River


Rep. Kathleen Curry (D-Gunnison)

Rep. Kathleen Curry (D-Gunnison) and a group of legislators on the Colorado House Judiciary Committee have launched a multi-pronged attack on private property rights in Colorado. HB 1188 introduced by Rep. Curry and passed by the House Judiciary Committee on Monday constitutes a statutory right to trespass on private property and overturns decades of Colorado case-law and state statute.

Currently, HB 1188 would grant commercial river outfitters the right to enter private property without first getting the permission of the landowner, if they choose to portage on stream banks while river rafting. This goes far beyond the ‘incidental touch’ of a raft/boat or a rafter on the bed or banks of a stream. Further, proponents of HB 1188 made it clear in their testimony that they would be supportive of the proposed legislation being expanded to include all types of boaters and fishermen.

“We have not seen such a blatant attack on private property rights in this state for some time,” explained Dr. Alan Foutz, President of Colorado Farm Bureau, the states largest agriculture organization. “Representative Curry’s bill effectively takes private property rights out of the hands of private landowners and grants them to commercial entities.”

With hundreds of miles of boatable water in Colorado, the $142 million per year floating industry has prospered in Colorado under current statute. HB 1188 was written to help alleviate one incident involving one small stretch of river and one river outfitter.

“We are made to think that the floating industry and private landowners are in a constant battle over the floating issue. This is not true. This bill exempts rafters and river outfitters from trespass statutes all over Colorado for the benefit of one operator on one small stretch of river, continued Foutz.

“I frankly see very little difference between what HB 1188 (if passed) would do to property rights and the terrible precedent set a few years back by the Kelo vs. New London, CT case in the US Supreme Court. I’m very disappointed to see just how little some legislators seem to think of the rights afforded to private property owners by the US and Colorado Constitution.”

The Colorado Farm Bureau vigorously opposes HB 1188. The bill passed out of the Colorado House Judiciary Committee on Monday, February 8th on a 7-3 vote and is now eligible for consideration by the full House. Reps. Levy (D- Boulder), McCann (D- Denver), Court (D- Denver), Miklosi (D- Denver), Kagan (D- Denver), Pace (D- Pueblo), and Nikkel (R- Loveland) voted for the measure. Reps. Gardner (R- Colorado Spr.), King (R- Grand Junction) and Waller (R- Colorado Spr.) voted against.

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11 responses to this post.

  1. Dear members of the Farm Bureau,

    Thanks for the chance to comment on my bill, HB1188. This bill is a limited approach to a conflict that exists in areas where whitewater rafting is being conducted, i.e. the West Slope. If you read the bill you will find that the bill applies only to commercial outfitters, using historically run reaches of river. The bill allows for incidental contact, i.e. if you hit a rock with a commercial raft you wouldn’t be subject to civil or criminal trespass. Similarly, if there is a hazardous blockage of the river, the commercial boaters would be allowed to use the bed and banks of the river to portage around a blockage. There was testimony that such a need to portage is very undesirable from the boaters perspective and that it RARELY is needed.

    Ag and boaters have long co-existed. It is too bad that even though this bill has no impact on ag operations, the Farm Bureau has decided to oppose it. It is also too bad that Farm Bureau did not offer any alternatives to resolving this problem to allow local small businesses to stay in existence. I was asked by two businesses in my community to run this bill to keep them from being shut down. As their representative, I agreed to try and address their situation in the most narrow way possible.

    This bill does not allow for fishing, does not open up small non-commercially run creeks (where most real ag diversions occur), and does not change the status quo for private boaters. The rafting community has started writing a ballot question for next fall in the event this bill fails. I thought my approach would be better than the broad reaching nature of their proposed measure.

    The people that are most worried about the portage and incidental contact components of the bill are the folks that have bought ranch land on the West Slope and want to develop homes.

    Reply

    • Posted by CFB President Alan Foutz on February 10, 2010 at 10:09 pm

      While I appreciate Rep. Curry’s response to our opposition to HB 1188, I completely disagree with her assessment of what her bill actually does.

      HB 1188 overturns over 130 years of statutory and case law regarding private property rights. It will also diminish the rights of private property owners to deny access to their property. And that is a “taking” of said rights, plain and simple, and Rep. Curry, of all people, should understand this.

      Rep. Curry also failed to explain how HB 1188 allows for the condemnation of private property for the commercial benefit of another without any concern for the due process or the payment of just compensation to the landowner, and this to me sounds eerily similar to the Kelo vs. New London U.S. Supreme Court case. It is clear to CFB that by creating a right to “navigate” on rivers and streams and granting permission to trespass upon private property, the State will be voiding a long recognized right of private ownership.

      If the real problem that led to this particular legislation being introduced in the first place is between a few small businesses and a few landowners and seldom exists elsewhere, then why can’t it be worked out with a mutual agreement between the effected parties rather than setting a precedent that reduces private property rights state-wide?

      Further, Colorado Farm Bureau is not contesting anyone’s right to float, but we do oppose granting anyone the right to trespass, over the objection of the effected property owners It is the right to “portage” onto private property where this bill crosses the line.

      Rep. Curry contends that her bill is only meant to apply to commercial outfitters yet the proponents of her bill testified that they would support the allowance to trespass to be expanded to the general public and even sportsmen such as fishermen.

      Proponents of HB 1188 are touting it as a “jobs and tourism” bill. If the bill’s intent is the resolve a single problem at a single location, then either the proponents are lying about jobs and tourism OR they anticipate expanding the use of private property for recreational purposes far beyond this singular instance.

      I would ask those who are confused about this bill to replace the word “stream” with “sidewalk” and the word “portage onto private land” with “picnic on a private yard or private porch”. Granting a person or persons the right to trespass on private land adjacent to a stream is akin to granting a person the right to trespass onto a private residential yard or porch for the purposes of picnicking”. No homeowner that I know would like to have the state of Colorado grant access to any citizen for the use of one’s yard or private porch. Why would you then support a similar activity to occur on private land near a stream?

      Lastly, Colorado Farm Bureau opposes this particular bill because our policy, which has been developed over the years by producer members like Rep. Curry states:

      CFB Policy #103 Property

      We oppose any legislation that would allow public access to or through private property, including access through waterways, without permission of the property owner or authorized agent.

      We oppose any state, federal, county or municipal regulations that encroach on the rights of private property owners.

      We believe that any action by government that diminishes an owner’s right to use his property constitutes a taking of that owner’s property.

      The Colorado Farm Bureau takes private property rights very seriously. If there were anyone trying to infringe upon the private property rights of Rep. Curry and her ranching operation, we would be there opposing that action as vigorously as we are opposing her bill.

      Reply

  2. […] HB 1188 – “Clarify River Outfitter Navigation Right”, Introduced by Rep. Kathleen Curry, (I – Gunnison), passed the House Judiciary Committee on Monday, Feb. 8, after a solid six hour hearing. The Colorado Farm Bureau is vigorously opposed to HB 1188. This bill is not a “Right to Float” but indeed a “Right to Trespass”. This bill will be heard on the House Floor tomorrow morning for its 2nd reading. All CFB members are encouraged to contact their Representative and ask for a NO vote to help us in this fight to protect our property rights. […]

    Reply

  3. Dear Representative Curry, as a rural legislator the house bill 1188 is a direct attack on peoples private property rights . You should know most of all how this bill or if it were to become law just how harmful it would be to ranchers, farmers and other riverside property owners that will be adversley affected by this taking of our rights . Tom Verquer landowner Trinidad ,Colo. also CFB board member.

    h.b.1188

    Reply

  4. Posted by Robert Tracy on February 13, 2010 at 6:34 am

    As a farm & ranch owner with “most of the time dry” waterways through my property and a mountain home owner with a small stream through my property, I would find it very hard to accept the idea that some politician could write a law and get it passed, that would allow any one to trespass on my land without my permission. I would not be happy if any friendly, considerate person was allowed to do that without any way for me to object to it. I certainly would not want any commercial enterprise to be able to do it on a regular or even a one time occasion, without first explaining to me why they thought it was necessary. They should then be required to get permission from me and I should be free to not give it to them. I think that Representative Kathleen Curry is certainly stepping on other peoples rights by proposing this type of legislation.

    Reply

    • Posted by Deirdre on March 21, 2010 at 8:21 pm

      Dear Representative Curry, thank you for thoughtfully coming up with a solution to the conflicts that we are facing regarding commercial recreation and the public’s right to float versus private property owners rights. No matter how hard you try, you cannot always make everyone happy.
      As a rafter, I want to assure private land owners that we do not want to portage on your property. Unfortunately, rivers become impassable as a result of debris or other river altering (such as land owners putting rocks or low bridges) objects in/over the river. As the wife of a commercial rafter and fishing guide, I can assure you once again that people take rafting trips to go rafting, not to sneak around your property. If there is something obstructing the flow of water and we cannot get through, our choices are to briefly step foot on your property to get around it or to drowned. We have been commercially and privately rafting these rivers long before much of this land has been private and long before land development. Private home owners buy into river properties knowing that we are sharing the rivers.
      I do agree that mandatory registration for private boaters could be a solution to land owners that are concerned with unknown people trespassing. That way, if private parties seem to be taking unnecessary advantage of their safety right to portage, their registration number will be visible for owners to report to authorities.

      Reply

  5. Posted by Betty Shahan on February 13, 2010 at 8:29 pm

    Dear Representative Curry, I am a full fledged ranch owner on the Western Slope. I get out and get my hands and feet dirty in the mud and manure. I am a Farm Bureau member and a Colorado Cattleman’s member. I was born and raise in Colorado. My family came to Colorado and homesteaded 7generations ago. What an insult to us that you want to take our Private Property Rights from us!!
    I have a question for you? You were elected to represent Colorado. Agriculture is a year around business in our state. Why? would you want to give the rafting business our Private Property Rights?. You should work in the general area of the problem and leave the rest of us alone. Anyone that has a river running through their land-ag or not has the same Property Rights as you or anyone else that owns property. We all paid for our land and we all paid taxes on that land. Why give what is ours to someone else?
    I want you to let me know why you would favor one over the other, please?
    I am Betty Shahan from Archuleta County

    Reply

  6. […] on HB 1188 can be found here on the Pulse and here, at Coyote Gulch a most excellent blog on Colorado water […]

    Reply

  7. Posted by pete on March 24, 2010 at 8:36 pm

    Ms Curry,

    You’re on the right track. Don’t listen to these folks with the dollar signs in their eyes. Thank you for your representation.

    As for this:
    “I would ask those who are confused about this bill to replace the word “stream” with “sidewalk” and the word “portage onto private land” with “picnic on a private yard or private porch”. Granting a person or persons the right to trespass on private land adjacent to a stream is akin to granting a person the right to trespass onto a private residential yard or porch for the purposes of picnicking”.”

    -aaaahhhhhh, that’s ridiculous. You should be confined to a rubber room.

    Reply

    • Posted by Shawn Martini on March 25, 2010 at 4:52 pm

      Dollar signs?? Landowners are not the ones seeking legislation allowing them to make money off of others property!!

      Reply

    • Posted by Nick Colglazier on April 14, 2010 at 4:14 pm

      So I guess Pete would have no problem with a few of us throwing a big ole’ BBQ in his backyard some weekend?

      Reply

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