HB 1188 is a fundamental attack on private property rights and if passed, will severely compromise a landowner’s ability to restrict access to his/her private property. In short, this bill is a license to “trespass” and a clear “taking” of one’s property right by nearly every legal mind who has assessed this bill.
Specifically, HB 1188 states that commercial river outfitters will be able to enter private property without first getting the permission of the landowner, if they are portaging 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, HB1188 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. 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.
HB 1188 recently passed out of the House (40-25) and will now go before the Senate. Please take a minute to let your senators know how you feel about this destructive legislation!! Even if you did an Alert before, please take the time do to another for the Senate’s consideration. Click below!!!
Shawn Martini
Brent Boydston
Troy B
Chad Vorthmann
Crystal Frank
El Sagehorn
Garin Vorthmann
Rachel Gabel
The Pulse- of Colorado Farm Bureau 
Posted by Christian Campton on February 10, 2010 at 7:51 pm
I don’t find this altert to be true. Floating has been going on for over 50 years. The only time that an outfitter would be able to cross private land would be in a portage situation. When a boater is forced into a portage situation it means that there is risk of serious injury or death. Portage situations from my knowledge are few and far between.
Posted by Shawn Martini on February 10, 2010 at 10:03 pm
Christian,
I appreciate you comment but lets be clear, this ALERT is most certainly true. Nothing is being misrepresented. You simply dont see a problem with taking private property rights from a landowner and giving them to a commercial operation.
You are correct in stating that the only time that an outfitter would be able to cross private land would be in a portage situation. This is clearly a ‘taking’ of property rights, no matter how small or innocuous it may seem.
You are also correct in stating that rafting has been going on for over 50 years. Why then do we need the state to intervene and grant legal trespass rights to rafters when portage situations are so “few and far between”? It would seem that the current system of local solutions to local problems would be preferable to a taking of property rights state-wide. No?
Posted by Troy Bredenkamp on February 10, 2010 at 10:07 pm
Christian-
I can understand your support of HB 1188 since by your Facebook page you appear to be quite the whitewater rafting enthusiast.
I enjoy whitewater rafting as well. I just don’t support rafting at all costs…including at the cost of diminishing anyone’s private property rights. I have the right to walk down the sidewalk in front of your house. Should that then grant me the right to picnic or “recreate” on your front lawn, on your front porch…against your will?
And if portage issues are “few are far between”, then why the need to pass legislation that GREATLY diminishes private property rights state-wide??
Posted by Dorothy Nepa on February 13, 2010 at 12:02 am
I can see where this kind of relief for rafters could lead to hunters walking on land,WITHOUT PERMISSION . This then leads to potential hazards of and from stock.
I enjoyed rafting in a lot of areas when younger and can agree with the current float rule, but if portages are few and far between, there is no cause for rafters to get this relief. They can arrange for use by contacxting owners and working with them.
Posted by marcus on February 14, 2010 at 4:06 pm
I disagree with the premise that boating through an area on a river is a “taking” and a civil trespass. The state constitution dedicates Colorado’s natural streams “to the use of the people of the state.” This bill allows contact with private property only within strict guidelines and by legally establishing a state easement protects the landowner from any and all liability. This law only codifies the the historically accepted practice of the use of navigable water rights, to deny this is a “taking” of Coloradan citizens’ rights to the legal use of the natural resources that belong to them.
Posted by Shawn Martini on February 15, 2010 at 6:50 pm
Mark,
No one is attempting to limit or deny citizens the right to float that they currently enjoy. However by granting the ‘right to portage’, the bill goes far beyond the simple codification of the existing right to float and constitutes the taking of the private property rights of landowners, and grants those rights to a narrow special interest. Moreover, the floating industry is in no eminent danger of losing the floating rights it currently enjoys. Rep. Curry’s own testimony acknowledges the fact that rafters and landowners have been coming up with common sense solutions to these conflicts at the local level for years. there is no reason to think that this process would stop if the legislature simply refuses to grant trespass rights to an entire industry for the benefit of one operator.
Clearly there is a better way to clarify statute and case law in this situation that that provided by HB 1188.
Posted by Mark on February 16, 2010 at 9:04 pm
Shawn, Thank you for you considered and thoughtful reply. However, I think that the landowner in the current civil case is trying to do just that (limit the right of the public to float).. The paddling community’s worry is that if Shaw is successful in limiting the right to float through his property on the Taylor then other landowners will attempt to do the same. I would be happier with this bill if it guaranteed the right to navigate Colorado rivers for private and commercial boaters and allowed the state to negotiate with individual landowners for the right to portage when and if it was necessary. No “right to trespass” required”. The issue of incidental contact with rocks, river bottom and other features would also need to be addressed. I do believe that some sort of legal codification is needed so that the rights of both sides are protected.
Posted by Scott on February 16, 2010 at 5:29 pm
I’m a kayaker and in many instances while running Colorado rivers I have been confronted by river wide barbed wire fences that due to their hazard to navigation and the potential of loss of life, limb or eyesight, force me to exit my craft and portage. I don’t want to portage and don’t have to in all western rivers except those in Colorado. In other western states the practice of fencing our rivers is prohibited. Imagine the private property owners on the Mississppi doing such a thing?
Posted by Shawn Martini on February 16, 2010 at 6:22 pm
Scott,
River-wide fences are in many instances necessary to contain cattle, horses and other livestock when a landowner owns both sides of a given stretch of river. I appreciate you concern over the potential fencing of the Mississippi but I’m sure you can see the analogy really doesn’t fit.
Posted by Jeff Smith on February 17, 2010 at 3:48 am
Swawn,
It’s easy to understand your point of view because you have a limited view of actual issues surrounding access to public waters in Colorado. Landowners have cut down trees across rivers and erected fences and bridges that are too low to pass under on Colorado rivers that have not only created hazards to public water users but required these users to portage for safety reasons. This portage then becomes a trespass issue where one didn’t exist before. In addition some landowners have stated that river runners can no longer float through their property anymore, so clearly floaters are in imminent danger of losing rights that they have had and in some of these situations no common sense local solution was possible since the landowner had achieved his own type of solution that successfully denied public use of public water by forcing such users to trespass. Keep in mind that river users don’t want access to the land, just the water and don’t want landowners to be able to deny them of that use.
Posted by Scott on February 17, 2010 at 6:09 pm
Shawn, why doesn’t the analogy fit? How small of a river/stream or large is not the question is it? I happen to own property on both sides of my county road and I am not allowed to fence across the road to contain my stock. How do all the other Ranchers in western states manage to keep stock without fencing our rivers? What does Colorado law say about the destruction of riparian zones by livestock and what about livestock fecal pollution into the waters that you don’t own or have rights to?
What I have seen here time and time again are fences deliberately put in place by landowners to force a portage for the sole purpose of creating a trespass on the part of the floater. What’s sadly ironic is that this matter between the people of Colorado is being forced by a Texan over on the Taylor who doesn’t care about any of our interests. Some think that ownership of the riverbed means they can restrict or prohibit use of the river.
It’s high time that this matter becomes settled law as it was last year in Utah.
Posted by Follow Up: Vote NO on HB 1188 « The Pulse- of Colorado Farm Bureau on February 17, 2010 at 10:19 pm
[…] Read about the bill and it’s potential impact on private landowners and commercial rafting companies here. […]
Posted by Phyllis Snyder on February 18, 2010 at 4:53 am
If you are concerned about water quality, then you should want to protect every bit of the stream banks from erosion, trampling, loss of forage, and loss of habitat. Now we want to add more places where human trampling will occur on stream banks without regard to how many humans or how many times the trampling will occur. Private lands stream banks would tend to be more protected now because of the control available to the landowner to protect his stream banks as opposed to public lands stream banks where any and all can portage or trail the stream banks without regard for the impacts.
Usually if a landowner gives someone permission to use his lands, there is a contract, an agreement as to fees, some compensation for the right to use the private lands, and agreements as to damage repairs since the landowner has paid for the lands and pays the taxes on the lands. This bill is a taking of that right by the government. When you buy a piece of property you have certain rights that go with the land and the state is trying to change the rights after the fact. If you bought a house and a few years later, the city came by and said we need to use just a small corner of your front lawn for the school children ( and of course any one else who goes this way) to walk on since the sidewalk is cracked . It will only be a small trail but is necessary since the sidewalk is cracked and rough. Do you have a choice? Not if the city issues a new regulation and says school children can walk on anyone’s yard if there is a crack in the sidewalk. This is how private landowners see this legislation. It is a taking without compensation. It is condemnation of your private property rights.
Posted by marcus on February 19, 2010 at 12:23 am
We were perfectly happy boating on our water in our rivers. It is because of selfish people like Shaw that it has become necessary to protect our right to navigate. Sorry if this offends you. (Note: There is only a right to portage if portage is needed.)
Posted by Doug Koehn on February 21, 2010 at 3:11 am
It is very interesting to listen and read comments from those that don’t own the PRIVATE PROPERTY that could be encroached upon if 1188 passes. Why would legislators think that they need to legislate the taking of private property rights. As we have all seen in the past, there are very often unintended consequences for actions that are taken with seemingly good intentions. I believe this is only the beginning of the taking of riverfront property, and other property, for the benefit of all. I wonder how these folks would feel if paths were worn in their well lanscaped yards because there was a tricycle on the sidewalk in front of their house. Just by chance the person taking the detour into the yard and around the tricycle fell and broke their leg. What a chance for possible litigation. It is a real shame that once again provate property owners have to fight for what is theirs. Don’t pass state wide legislation for what seems to be a local situation.
Posted by marcus on February 22, 2010 at 8:24 pm
Doug, What you’re doing is called fear-mongering. I and many of my friends own riverfront PRIVATE PROPERTY and we are really not worried about the state trying to take our property (and I doubt if you are either) nor are we so selfish that we would deny the rights of fisherman and boaters fair use of the riverbed. As for the liability issue that is just BS and I’m fairly sure you know that. The law is very clear, if the state establishes a right-of-way or easement, then the landowner is absolved from liability judgments for that easement. There are many real reasons that a landowner might be against approving allowing a public right to pass on their property, however you have not presented any. Mark
Posted by tom verquer on February 22, 2010 at 3:17 am
To Scott ,Mark and Marcus , Rafting is a fun pastime . However there has to be responsibilities on the rafting community ,just as the stewardship of the land and our rivers are undertaken by the landowners who own land on both sides of ariver as well as the land under the river. Please keep that in mind , Fences and water gaps are an essential management tool used by Colorado Landowners for many years. Obtaining permission to use lands or rivers through private property is a courteou and acceptable practice that should be followed by ALL of those who may use a river for recreation. Those forms of recreation include Rafting,Hiking, Hunting, Fishing and any or all other uses of a river. H.B. 1188 is a taking of a constitutional right of landowners by a commercial enterprise.
Posted by marcus on February 22, 2010 at 8:41 pm
Tom, We believe, and I realize that you don’t, that the rivers themselves belong to the people of the state of Colorado and that there is an historic right to navigate those rivers. I understand that use of the riverbank is a different issue and respect your desire to protect your property rights. I personally believe it is time to codify the right to navigate the floatable waters of the state and believe that there is room for compromise on the portage issue, perhaps negotiating a right to portage with landowners in those ares where it is truly necessary, which should be relatively few. Mark
Posted by Alison on February 24, 2010 at 7:41 pm
There seems to be a lot of misinformation floating around about how this bill affects private property rights. Here is some clarity, directly from the Colorado River Outfitters Association.
“HB 1188 Does Not Take Property Rights. The right to navigate America’s and Colorado’s rivers existed before statehood in 1876 and before private property rights were acknowledged by the territorial government or the state. It has been long established that you could use a river like a highway. If you needed to walk around an object to continue your downstream travel, you could. This is called an easement or servitude. When land was sold along a stream, the right of easement went with the sale of the property. Everyone who has bought property along a river has bought the property with this easement attached (conveniently forgotten by some). It is not a taking of property rights to assert the public’s right. It is a taking of the public’s right to prevent their legal privilege to float.
To be more technical, this right of navigation is referred to as an easement or servitude on the property underlying or adjacent to a river; the property owner – sometimes referred to as the “riparian owner” — holds title, but holds title subject to that servitude or easement. Many states have already examined the takings argument and have decided that the right of navigation does not cause a taking of adjacent or underlying property.”
Posted by Shawn Martini on February 24, 2010 at 8:28 pm
I’m glad the River Outfitters Association thinks it is the end-all be-all when it comes to interpretations of private property rights but I beg to differ with their characterization of the issue. Through their elementary argument you listed above, the CROA chooses to ignore the 5th amendment, the Colorado Constitution and subsequent State Supreme Court rulings on the subject, in favor of some antiquated precedent set in colonial British common law.
They also choose an interesting analogy when bringing up highways. The fact that a road is blocked does not somehow entitle a motorist to drive over someones front lawn in order to get around the obstruction. Normal people would simply not take that route. But alas, the Oufitters are not satisfied with this principle and now wish to change current law and legal precedent in order to give themselves the right to trespass and make money using land that they don’t own. Irregardless of some fanciful notion of easement the bill sets up a clear taking of private property rights and will incite even more legal opposition to the bill than rafters assume they will face if it fails to pass.
Posted by bill on March 1, 2010 at 5:47 am
Shawn,
If you care about the truth you really need to read the bill objectively to see what it really says, and then do a bit of research on existing law and rights to navigation. The bill simply clarifies an existing right to navigation, but only on those rivers where rafting trips have already been happening, and it applies only to the commercial outfitters. That the outfitters have been able to profitably and successfully run trips is because those rivers have enough flow to be navigable, and the law (though not the general public) is already clear on the right to do so. The bill refers to the existing Colorado law (including the legislature’s specific adoption of that antiquated precedent of English common law ) , and is only intended to clarify that such navigation doesn’t expose the rafters to criminal or civil liability.
Existing federal law is much clearer than Colorado law, and you can easily verify that for yourself with a modest effort and access to Google. Under the equal footing doctrine all states after the original 13 were admitted to the union with exactly the same conditions as the original 13. One of those conditions was that title to all navigable waterways (to the highwater mark) was vested in the state, to be held as a public trust for the benefit, including navigation, of the public. The law is also clear about what constitutes a navigable river. Since the title is held as a public trust for the people the state can’t give it away. The state can allow individuals to own the bed and banks, but the public still retains the rights of navigation over those waterways. That right includes incidental rights, such as touching the bed and banks as necessary to safe navigation. Since that right has been held by the public since statehood, there is no taking under the 5th amendment. Rather than taking private property for public use what you are advocating is taking a right of the public and transferring it to a few private individuals.
I’m not unsympathetic to those who own riverfront property. I understand that most of them honestly believe they have exclusive right to the rivers. I certainly understand that some of the people who will use the river are inconsiderate idiots. I own property with a sidewalk, which is not entirely unlike a public river, and and sometimes plagued by similar individuals. I wish there were a simple solution to the problem of public accommodation to those people, but I’m afraid there isn’t one.