River-Running Rights Are Adrift in Colorado

There is perhaps no more polarizing issue among Westerners than water: who uses it, how much and when.

Even here, where the mighty Colorado River delivers plenty of the precious commodity, squabbling over water is a time-honored tradition. But restrictive and confusing state laws regarding public access to rivers and streams have spawned a new wrinkle in the debate: Who may float where along Colorado’s waterways?

Elsewhere in the West, states have written laws that allow recreational use of private stretches of rivers and streams as long as boaters or rafters enter from public land. In Utah, Wyoming and New Mexico, boaters may get out in shallow waters crossing through private property and tow their craft. Montana, like California, allows boaters to walk riverbanks up to the high water mark. Colorado, in fact, is the last state in the country to legislatively resolve such recreational water use issues.

And confrontations between landowners and river runners during the high-use summer season are on the increase.

During the last few months, four kayakers on the South Platte River were intercepted by property owners and eventually cited for criminal trespass. The charges were dropped. Another landowner strung barbed wire across the South Platte as it flows through his property--a not-so-subtle message to rafters.

Relations along Colorado’s rivers have deteriorated to the point where last year, a landowner pointed a rifle and threatened kayakers paddling through. He recently pleaded guilty to misdemeanor charges.

There might be legal resolution on the horizon, however, thanks to a suit filed in June that challenges the gentlemen’s agreement that has allowed fishermen and boaters to pass through private property as long as they don’t leave their craft.

Yosi Lutwak of Gunnison, Colo., who could not be reached for comment, filed a civil lawsuit against a white-water rafting company that runs trips through less than a mile of his cattle ranch along the Lake Fork of the Gunnison River.

“He’s concerned for his resource and his privacy,” said John Hill, Lutwak’s lawyer. “The right to exclude others is one of the most important aspects of private property rights. It’s true, Colorado is different regarding public access. Case in point: California loves a public trust, Colorado despises them. This is going to be settled in the courts.”

Part of the problem is that no one seems to be able to clearly say what the law is. A 1977 statute made it illegal to touch a river bottom or its banks on private land. The Colorado Supreme Court upheld the rights of private property owners in a decision two years later. But in 1983, the state attorney general issued a decision that said there was no trespass if the recreational user did not touch the bottom or banks.

Asked once again to rule on the issue in 1999, a different attorney general concluded: “The current legal framework is confusing and deficient in providing clear guidance to those affected. If the matter is not addressed, I believe that the issues will ultimately be addressed through the courts or through proposed ballot initiatives.” Such an initiative is in fact being considered.

But no matter how it is arrived at, those on both sides of the water-use issue are eager for a resolution.

“Colorado is very much out of step with the other states in the region,” said Jay Kenney, president of two white-water associations and an attorney who has represented kayakers in trespass cases. His kayaking groups are seeking to join the current lawsuit on the side of the river outfitter.

“Pick your inter-mountain state and none of them has this [restrictive] view of public access,” Kenney said. “In this bizarre framework that we have, if the owners own the bed and the banks of the river, the landowner has the right to exclude the world.”

There has been little political interest here in better defining the law, since it pits the burgeoning water recreation industry against the state’s once all-powerful ranchers and agricultural interests.

But with the decline of ranching and farming over the past decades, the river recreation industry finally has matched its opponent’s clout. River rafting outfitters are now a $122-million-a-year business in the state, and a recent study of tourism found that white-water rafting is the No. 2 sport, behind skiing.

“Rafting is synonymous with the state of Colorado,” said Andy Neinas, president of the Colorado River Outfitters Assn. “Let’s say you are a flatlander. You close your eyes and envision what Colorado is all about. This is it.”

Most of the state’s rafting takes place near Salida, where the headwaters of the Arkansas River tumble south, then turn east and pick up speed through narrow canyons. This stretch of the Arkansas is the staging point for more than 250,000 visitors a year, making it the busiest recreational river in the country.

The rubber boats float past both public and private land, and through some of the state’s best trout fishing areas. As ranchers have branched into the lucrative trout fishing business, opponents say, they are less tolerant of anyone else being on their section of the river.

So, after years of meetings brokered by state agencies and handshake agreements, the fragile peace has broken. According to a study conducted by American Whitewater, a national rafting organization, 37% of the disputes between floaters and private property owners across the country during last summer’s white-water season occurred in Colorado.

This summer has been equally busy and contentious. Outfitters organized a “float-in” along the Gunnison in defiance of the lawsuit. A flotilla of about 60 craft bobbed along the South Fork, with participants waving at a handful of friendly ranchers and scowling at others. Lutwak, who is suing the trespassers, caught it all on videotape.

John Nichols, whose Cannibal Outdoors company is named in the suit, is resigned that his business will be the guinea pig for the law.

“We are one of the smallest river outfitters in the state; ultimately the litigation costs are going to put us out of business,” he said. “I would hope that this could be resolved in the Legislature. But a politician is not going to pick up a thorny issue like this.”

Nichols is at a loss to understand what broke down in his long-standing verbal agreements with the rancher. His boats spend only about 10 minutes on the property, and no one stops or gets out. It’s something that Lutwak knows firsthand.

“I even took his entire family on a trip along that part of the river, through his property,” Nichols said. “If [the legal action] wasn’t so expensive, it would be funny.”