CO Public Access to Navigable Streambeds - New Court Case

[waygoner]

There is a big ranch on the Taylor upstream from me. It was sold and subdivided into multi-million $$ home sites. The place is called Wilder. They put up a fence across the Taylor to block access, preventing commercial rafting operations from floating through. They came to some kind of compromise that allows access with restrictions. http://crestedbuttenews.com/2010/05/wilder-opens-window-for-rafters-to-float-taylor-river/ There is another exclusive resort farther upstream called Eleven that caters to the ultra-wealthy. http://elevenexperience.com/experiences/hideouts/taylor-river-lodge/step-inside/ This case is a major threat to these operations and these people have deep pockets. It might turn out in favor of who has the most money and the best lawyers.

 

[Flatland Crusoe]

Would you trade exclusive access to 100' of river for thousands of miles public access in your state or across the country?

 

[Fire_9]

Would you trade exclusive access to 100' of river for thousands of miles public access in your state or across the country?

And that’s what it boils down to. I love the mentality of “screw everyone else. I’m only worried about me.” People need to realize that these issues are bigger than they are.

 

[BrentD]

In Iowa, we have the right to hunt or fish or even hike along navigable streams. Navigable has a very precise definition in the law too. When I first came here, I checked this out carefully and then promptly got in a fight while wood duck hunting with an old codger that said otherwise. In general, I really liked this rule of course.

Then, years later, I bought a big junk of the same river bottom, and, of course, people walk, fish, and canoe through it. The land starts less than a hundred yards downstream from a canoe access, so we get a lot of attention in the spring and at some other times. In general, this is really not too much of a problem and most folks stick to the stream, but some do not and I have to remind them in person, with trespass signs, etc. Mushroom hunters are the worst.

All that really bothers me about it are the snowmobiles that howl along at 70 mph on the ice at 2 in the morning (really common) or the 4 wheelers that think it is is a dirt track in the late summer if the water is low. The latter is supposed to be illegal, not so sure about the snow machines. However, stopping it appears to be impossible.

In this world of 330 million American's more or less, some level of tolerance is required, although this seems to be a lost concept in today's world. I am fortunate to have this land, and I think it is not too much to share a little bit of it.

 

[Uvaldehunter]

Nice contrasting perspectives/opinions/attitudes. Very nice. More importantly - INFORMATIVE. I, for one, value paying very close attention to those who I really see differ from me on issues.
The above two posts are golden.
A grateful Montanan.................
View attachment 79884

Amen!

 

[mtguy]

There is a big ranch on the Taylor upstream from me. It was sold and subdivided into multi-million $$ home sites. The place is called Wilder. They put up a fence across the Taylor to block access, preventing commercial rafting operations from floating through. They came to some kind of compromise that allows access with restrictions. http://crestedbuttenews.com/2010/05/wilder-opens-window-for-rafters-to-float-taylor-river/ There is another exclusive resort farther upstream called Eleven that caters to the ultra-wealthy. http://elevenexperience.com/experiences/hideouts/taylor-river-lodge/step-inside/ This case is a major threat to these operations and these people have deep pockets. It might turn out in favor of who has the most money and the best lawyers.

It would be a shame that these guys would have to fish along side lowly commoner's.

 

[mplane72]

In Iowa, we have the right to hunt or fish or even hike along navigable streams. Navigable has a very precise definition in the law too. When I first came here, I checked this out carefully and then promptly got in a fight while wood duck hunting with an old codger that said otherwise. In general, I really liked this rule of course.

Then, years later, I bought a big junk of the same river bottom, and, of course, people walk, fish, and canoe through it. The land starts less than a hundred yards downstream from a canoe access, so we get a lot of attention in the spring and at some other times. In general, this is really not too much of a problem and most folks stick to the stream, but some do not and I have to remind them in person, with trespass signs, etc. Mushroom hunters are the worst.

All that really bothers me about it are the snowmobiles that howl along at 70 mph on the ice at 2 in the morning (really common) or the 4 wheelers that think it is is a dirt track in the late summer if the water is low. The latter is supposed to be illegal, not so sure about the snow machines. However, stopping it appears to be impossible.

In this world of 330 million American's more or less, some level of tolerance is required, although this seems to be a lost concept in today's world. I am fortunate to have this land, and I think it is not too much to share a little bit of it.

Hey Brent, pretty sure that snow mobiles are fine on frozen waterways as I have never heard anyone get ticketed for it on the Mississippi, Wapsi, Cedar or Iowa. I do know for a fact that four wheeling the sand bars or river bed is illegal and have seen tickets issued for it. Next time you see it call you local CO.

As for the OP I wish the old man the best and thank him for pushing the issue.

 

[Frenchy]

.......

 

[Frenchy]

I am sorry that it affects you this way. We live on a place not much larger than yours, but with over 900 ft of Gallatin River frontage. We also have a firepit, picnic area, and a grandkid's tree house overlooking the river, but far enough back that there is a buffer space. There is a bench at the river's edge where I often sit in the summer enjoying a beverage and visiting with fishermen and women from all over the world. As a lifelong hunter and fisherman who has enjoyed and appreciated access, I have built my fence back from the riverbank so that fishermen can have an access trail where the streambed travel is problematic. I enjoy seeing people recreating and valuing the blessing of that river, so my attitude is somewhat different from yours. I understand if your patio is next to the river, then recreationists may be intrusive. If the stream access law becomes what it is in Montana, then you may have the tough decision of whether or not to move the patio. Anyhow, 'just another perspective.

If I'm ever fortunate enough to have property such as this, I hope to have the same perspective. My in-laws do have along the Missouri north of Craig and it is a pretty constant flow of drift boats all summer long. Its kind of nice to watch the various people float by and tip your hat or wave. I just don't quite understand the exclusionary attitude.

But again. I don't actually have any stake in the game as far as private property along public waterways. Not yet anyway.

 

[elkduds]

In the 1970s people I knew would "poach" the private sections of the Taylor River, which they said was unbelievably good fishing. I mention it because this conflict has been happening in CO for decades. It has parallels to corner-crossing, in that changing the law will increase public access and reduce private control, which you would consider a "taking, (financial loss)" if you own riverfront property and have deed to the riverbed, but not the water. I hope it will be clarified, the current uncertainty promotes conflicts. Personally I think wading and anchoring access should be public on rivers and streams.

Also, who decides if streambeds need improvement for fishing, flood mitigation, etc, and who pays for it, if the streambed is privately owned? To me the streambed is part of the public waterway for this reason as well.

 

[Carnage2011]

"....conversation with a landowner regarding stream access". May not be your most reliable source......................

I wouldn't lump this guy in with the average landowner. He's very pro access and pro public land. Our conversation about it was after the river rerouted and took a fair chunk of his land. His comment was something along the lines of "there's another piece of the river that I'm paying taxes on." So I assumed (yes i know that's not the best idea) that he was responsible for the taxes on a portion of the river bottom. In hindsight I believe he was just referring to the amount of land he has lost to high water and the changing of the river.

Hopefully this Colorado lawsuit goes to the top and we get a favorable ruling for stream access!

 

[RobG]

There is a big ranch on the Taylor upstream from me. It was sold and subdivided into multi-million $$ home sites. The place is called Wilder. They put up a fence across the Taylor to block access, preventing commercial rafting operations from floating through. They came to some kind of compromise that allows access with restrictions. http://crestedbuttenews.com/2010/05/wilder-opens-window-for-rafters-to-float-taylor-river/ There is another exclusive resort farther upstream called Eleven that caters to the ultra-wealthy. http://elevenexperience.com/experiences/hideouts/taylor-river-lodge/step-inside/ This case is a major threat to these operations and these people have deep pockets. It might turn out in favor of who has the most money and the best lawyers.

There's always deep pockets. PLWA took on James Cox Kennedy and won. What you really need are the facts on your side.

Briefly looking at the article is it seems Mr. Hill is trying to show that the Arkansas River was used for commercial purposes at the time of statehood. If this is true the state owns the river bottom and always did. I'm sure someone can explain the federal doctrine better than me.

The decision won't affect the status of the other rivers. Each one of them will require a similar lawsuit to prove that they were also used commercially at the time of statehood. Montana was unique in that they didn't want to have a lawsuit for each river so that created a law that gave access "without regard to the ownership of the land underlying the waters."

 

[Southern Elk]

There's always deep pockets. PLWA took on James Cox Kennedy and won. What you really need are the facts on your side.

This is the first thing that came to my mind too. One could also say James Cox Kennedy took on Montana and lost. Pockets don't get much deeper than his.

 

[Bambistew]

Interesting case. There is a similar case in Alaska that has worked its way to the SCOUS. The difference is ownership between the feds and the State.

The latest...
http://www.ktuu.com/content/news/Ho...Alaskan-case-of-States-rights--472993343.html

 

[onpoint]

My realtor friend agrees with you.

May not be your most reliable source......................

 

[LuketheDog]

It would be a shame that these guys would have to fish along side lowly commoner's.

A lot of those guys would catch less fish than the commoners if they did have to fish side by side. Can't be having that now, can we?

 

[BluegrassBilly]

I'd caution anyone to ever assume the state of the law of stream bed access rights are established or universal. Everyone assumes that the law is settled here in Kentucky (if you can legally access the watercourse, you can legally float it, including temporary anchoring), but having researched this thoroughly I can assure you this standard could be attacked easily. And the result might not be good for public access. Neighboring states have different standards based on when they were admitted to the union and even who granted the property (crown versus state).

We also had a recent dust-up over a district wildlife commissioner who allegedly spread corn next to his stream boundary to establish a baited area to prevent waterfowlers from hunting behind his house. (And then there were allegations of cover-up within the agency.) If true, neither the hunters nor the landowner were in the right.

 

[Straight Arrow]

We in Montana are blessed in that individuals, groups, and one extremely good law firm have taken this issue to the courts and prevailed in several instances. Not that the issue won't raise its ugly head again ... but most of any potentially valid arguments have been settled and the legal precedents established.

 

[squirrel]

This will be interesting, pitting the many dollars vs the many votes. If you actually know the CO precedent the key is the legal definition of Navigable. Ol' Con set it, we will see if now that he's dead it will change.

And anyone who has walked the public areas of the major rivers and thinks the public doesn't trash them has a different definition of "trash"than I do.

Ever sit on the bank of the upper CO's or AR's brown's runs and try to cast across the river between 10am-4pm during August?? It's about 50-50 you will hit a raft, if you knew that going into your purchase that is one thing, but after closing would be quite another. I agree with big Fin on the nervousness of title co's as the state will protect itself from being liable for "takings", they always do...
Would I benefit, yep, but I hope this sleeping dog gets put back to sleep. Better yet would just be a half-assed fix of letting "navigable" be defined as "if it can be navigated" instead of "if it can be fenced so as to not be navigated"

No matter what it is a mess, and most likely will be no matter the outcome. Waygoner I hope you win your solitude.


Question for you "high water mark states" guys If a plain floods every year for a month or so is that walk-able for the entire year?

 

[COEngineer]

And anyone who has walked the public areas of the major rivers and thinks the public doesn't trash them has a different definition of "trash"than I do.

Ever sit on the bank of the upper CO's or AR's brown's runs and try to cast across the river between 10am-4pm during August?? It's about 50-50 you will hit a raft...

Question for you "high water mark states" guys If a plain floods every year for a month or so is that walk-able for the entire year?

So rafts are "trash"? Or am I misreading that?

I believe the high water mark is not annual but in perpetuity. Basically the highest point that you can recognize the river ever ran or was ever recorded to have run. Maybe someone can provide a more strict legal definition?