CO Public Access to Navigable Streambeds - New Court Case

[BrentD]

squirrel, a flood, by definition is out of the banks. In Iowa, floods do not determine the river banks and quibbling about what is between the banks and what's not has not been a very big issue for me or anyone else around here.

 

[squirrel]

No I'm meaning walk the public sections of river's where bank fishing is currently allowed and check out all the Salmon egg jars, beer bottles, wads of fishing line, etc. (even while being flies and lures only) Specifically the Blue north of Silverthorne (Eagles nest access) or the Co between Pumphouse and twin bridges put in's take outs.

Now if you were looking off your deck and saw a flotilla of 120 paid guests followed by and intermingled with 5-10 rafts of privateers followed by another group of 10-15 rafts of commercial users and during all this you had waders flyfishing every thirty or forty yards, the above comment of "hand them a beer"??? You're gonna need a BIG cooler. And this is an everyday occurrence on the AR or CO during the peak 2 months.

Then Amtrack goes by and they all drop drawers and start hooting and hollering obscenities.

THIS is reality, not the scene that will be portrayed of one hardy fisherman in the predawn light just wanting to hook one of those elite millionaire fishies.

If you do not think this is real go sit above the Radium hot springs for an entire day in mid August and ask yourself would you want those people in your "backyard"... and yes you own the streambed in CO... with some exceptions.

If you think you understand water law in CO you haven't read enough yet...

 

[marksjeep]

Montana defines it as:
Ordinary high-water mark means the line that water impresses
on land by covering it for sufficient time to cause different
characteristics below the line, such as deprivation of the soil of
substantially all its terrestrial vegetation and destruction of its
value for agricultural vegetation. Flood plains next to streams are
considered to be above the ordinary high-water mark, and are not
open for recreation without permission.

Other states may vary.

 

[squirrel]

squirrel, a flood, by definition is out of the banks. In Iowa, floods do not determine the river banks and quibbling about what is between the banks and what's not has not been a very big issue for me or anyone else around here.

So the vertical cut is the enforced "line"?? That would be workable in most cases. For 6 weeks it is the edge of the "Valley" meaning all those flooded hay meadows would be fair game, a millionaires' nightmare... the fishing public's wet dream with all those landlocked "Ox bow" ponds full of huge fish.

 

[Straight Arrow]

From a brochure describing Montana's Stream Access:

Ordinary high-water mark means the line that water impresses
on land by covering it for sufficient time to cause different
characteristics below the line, such as deprivation of the soil of
substantially all its terrestrial vegetation and destruction of its
value for agricultural vegetation. Flood plains next to streams are
considered to be above the ordinary high-water mark, and are not
open for recreation without permission.

 

[Sytes]

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

Interesting read! The politics within the SCOTUS may also play within the drop back to the 9th Circuit... and the 9th Circuit basically bumped it back. Sounds very complex considering the State, Tribal, and Federal aspects wrapped up in one Federal "protection" of such.

An excerpt for one scenario why SCOTUS may have bumped it back to the 9th instead of finding a ruling themselves...

One possible explanation is that the issues are simply too complex and difficult for the Supreme Court to address without a better record created by the district court – the clever (too clever it turns out) way to resolve the case cut short the lawyerly work that needed to be done by the lower court. The Supreme Court either didn’t want to or couldn’t do this work on its own. Another possibility is that the necessary tie-breaking vote for the Court was missing in the wake of the death of Justice Antonin Scalia last month. This is not entirely implausible. As the argument preview and oral argument review made clear, the stakes in this case are potentially huge, and the issues of federal power of land in the West cleave pretty clearly along ideological lines. It would not be surprising if the four more conservative Justices prefer to read the statute to limit federal power over the lands in question in this case, or, at least, do not feel the need to defer to the interpretation of the NPS over the reach of its authority. And, it would not be surprising if the four more liberal Justices read the statute to permit just this. If this is the case, then the narrowness of the Court’s opinion is not explained by the lack of a proper record or by judicial modesty, but rather by a deadlock that the Court preferred not to air at this time. Better, perhaps, to decide what it could easily (and unanimously decide) – that the Ninth Circuit was wrong – and leave for another day the tough questions about federal power over lands in Alaska and perhaps elsewhere throughout the West.

http://www.scotusblog.com/2016/03/opinion-analysis-a-rebuke-of-the-ninth-circuit-and-nothing-more/

 

[COEngineer]

No I'm meaning walk the public sections of river's where bank fishing is currently allowed and check out all the Salmon egg jars, beer bottles, wads of fishing line, etc. (even while being flies and lures only) Specifically the Blue north of Silverthorne (Eagles nest access) or the Co between Pumphouse and twin bridges put in's take outs.

Now if you were looking off your deck and saw a flotilla of 120 paid guests followed by and intermingled with 5-10 rafts of privateers followed by another group of 10-15 rafts of commercial users and during all this you had waders flyfishing every thirty or forty yards, the above comment of "hand them a beer"??? You're gonna need a BIG cooler. And this is an everyday occurrence on the AR or CO during the peak 2 months.

Then Amtrack goes by and they all drop drawers and start hooting and hollering obscenities.

THIS is reality, not the scene that will be portrayed of one hardy fisherman in the predawn light just wanting to hook one of those elite millionaire fishies.

If you do not think this is real go sit above the Radium hot springs for an entire day in mid August and ask yourself would you want those people in your "backyard"... and yes you own the streambed in CO... with some exceptions.

Is some of this bad behavior due to the fact that all this activity is concentrated in the few rivers that are actually open to the public? If all the rivers in the State were open to public access, I would assume this kind of behavior would at least be diluted. Also, not all the rivers in the State are big enough for rafting and have hot springs (like Radium). You make a valid point, but I think you are exaggerating if you are saying every river that is opened to public access is going to look like the Arkansas and CO Rivers.

 

[BuzzH]

So the vertical cut is the enforced "line"?? That would be workable in most cases. For 6 weeks it is the edge of the "Valley" meaning all those flooded hay meadows would be fair game, a millionaires' nightmare... the fishing public's wet dream with all those landlocked "Ox bow" ponds full of huge fish.

Nope, flooded hay meadows are NOT part of the ordinary high water mark because they are not free of fine substrates. Plus, they are beyond what is considered bank full events (ordinary high water mark).

Any event where water goes over bank full is considered a flood event and those lands would NOT be accessible to recreation use via a stream access law. You're confusing flood events with ordinary high water mark.

The oxbow issue, again pretty easy to define that the same way. If during a bank full event, the river is flowing into the oxbow, then you're within the ordinary high water mark. If the river does not flow into the oxbow during a bank full event, then the public has no legal access to it.

Finally, the crowding issues you're explaining would be lessened if the public had more public access to the States waterways. The reason that the areas you're describing are "trashed up" is because you're concentrating use to small areas. Still no reason for it, but it would seem to me that those areas, because they're so limited in nature, would also be very easy to enforce, provide trash cans to, and maybe even someone like you could schedule a yearly clean up.

For the record, I experienced the same thing in Idaho at popular steelhead fishing areas. I made recommendations to the city of Orifino to provide a dumpster, which they did, at these areas. I also made it a point to pick up a plastic Wal-Mart bag of trash every time I left the area. Pretty quick, it caught on and I noticed several other people doing the same thing. I also wasn't one bit afraid to tell people to clean up after themselves. It works.

It's just lame to use the trash idea as a crutch to stop the public from using their public waterways. There are lots of ways to mitigate all these issues if you care to take the lead...not so much if you're a follower and just like to bitch.

 

[Deleted member 28227]

Is some of this bad behavior due to the fact that all this activity is concentrated in the few rivers that are actually open to the public? If all the rivers in the State were open to public access, I would assume this kind of behavior would at least be diluted. Also, not all the rivers in the State are big enough for rafting and have hot springs (like Radium). You make a valid point, but I think you are exaggerating if you are saying every river that is opened to public access is going to look like the Arkansas and CO Rivers.

Couldn't agree more... the Blue is a perfect example of limited access concentrating people.

Now if you were looking off your deck and saw a flotilla of 120 paid guests followed by and intermingled with 5-10 rafts of privateers followed by another group of 10-15 rafts of commercial users and during all this you had waders fly fishing every thirty or forty yards, the above comment of "hand them a beer"??? You're gonna need a BIG cooler. And this is an everyday occurrence on the AR or CO during the peak 2 months.

Not sure what this has to do with the topic at hand. The popular stretches of the CO and the AR are going to stay popular, no rafting company is going to have it's clients hike up a river to raft down. I can't see a ruling in favor of the public effecting anyone other than a "hardy fisherman in the predawn light", unless all of a sudden those rafts decide to... anchor in front of your house and have a party, just to spite you? and because that is the only fun 100 yards of water?? Who else is going to be hiking in waders in the river other than fisherman.

 

[BrentD]

So the vertical cut is the enforced "line"?? That would be workable in most cases. For 6 weeks it is the edge of the "Valley" meaning all those flooded hay meadows would be fair game, a millionaires' nightmare... the fishing public's wet dream with all those landlocked "Ox bow" ponds full of huge fish.

I have three oxbows on my property that flood from time to time. They are not available to the public, nor has anyone claimed them to be. If I caught someone fishing in one of them, I probably wouldn't get too upset simply because I'd be laughing at them too hard and they would just slink away, "ponds full of huge fish" - only in your dreams. Full of huge algae blooms is about all. No, the stream banks are pretty well defined and understood by everyone.

 

[squirrel]

Is some of this bad behavior due to the fact that all this activity is concentrated in the few rivers that are actually open to the public? If all the rivers in the State were open to public access, I would assume this kind of behavior would at least be diluted. Also, not all the rivers in the State are big enough for rafting and have hot springs (like Radium). You make a valid point, but I think you are exaggerating if you are saying every river that is opened to public access is going to look like the Arkansas and CO Rivers.

Yes I always prefer to fill my canteen ten yards downriver from the feed lot rather than from a hoof print inside the fence...

Is there any provision to provide for the 'takings" of value? No of course not. Convincing those that have not, to take from those that have, is and has always been an easy sales argument.

See Russia twentieth century...

 

[squirrel]

I have three oxbows on my property that flood from time to time. They are not available to the public, nor has anyone claimed them to be. If I caught someone fishing in one of them, I probably wouldn't get too upset simply because I'd be laughing at them too hard and they would just slink away, "ponds full of huge fish" - only in your dreams. Full of huge algae blooms is about all. No, the stream banks are pretty well defined and understood by everyone.

Paint with a broad brush lately?? I've seen the laughing when Orvis clad anglers pull in and start complimenting me on my beautiful river ranch. I chuckle and say i only get to look at the river myself but they are welcome to fish my ditch, never had one do anything but laugh and get back in their SUV topped with bamboo rods and drive off.

Then a month later I net fish nudging the 30" mark and "dispose " of them before they turn into dog wallowing perfume, what a waste.

I'm guessing you do not ditch irrigate? It keeps the ox bows clean and healthy, depending on specifics of course.

Hell I'd even let Buzzard breath fish it, if I didn't know who he was.

 

[RobG]

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).

I know the situation is different in the eastern U.S., based on the history of how it became part of the U.S. There is a state over there that, many years ago, determined anglers didn't have a right to fish the rivers without permission. I don't remember the details. Also, even if the river in a western state is proved navigable according to the federal test, it just means the state has ownership of the riverbed. I don't see why states would necessarily have to declare it was open to the public.

It's been 20 years since I was really involved in stream access, but nobody else addressed the question and that is how I remember how it played out.

 

[BrentD]

Paint with a broad brush lately??

Nope, Just painting on my property. You are welcome to all the 30" fish in my oxbows. You are welcome to the 3" ones as well. Good luck!

 

[onpoint]

Paint with a broad brush lately?? I've seen the laughing when Orvis clad anglers pull in and start complimenting me on my beautiful river ranch. I chuckle and say i only get to look at the river myself but they are welcome to fish my ditch, never had one do anything but laugh and get back in their SUV topped with bamboo rods and drive off.

Then a month later I net fish nudging the 30" mark and "dispose " of them before they turn into dog wallowing perfume, what a waste.



I'm guessing you do not ditch irrigate? It keeps the ox bows clean and healthy, depending on specifics of course.

Hell I'd even let Buzzard breath fish it, if I didn't know who he was.

Orvis guys with "bamboo" rods. 30" fish. Ditch irrigating keeping the oxbows clean and healthy.
Plenty there for your dog to roll in.................... Good stuff.

 

[BrentD]

Why would anyone irrigate a ditch? Not sure what it has to do with stream access anyway.

 

[JoMo]

Juicy topic! As a former float and wade fishing guide here in CO, I definitely see the benefit of opening up the access as it is in Montana. This would potentially open up much more area for wade fisherman to enjoy and also help alleviate some of the congestion that we would experience while wade fishing. As a float fisherman and rafter, I really hope that whatever the result is, does not impact our ability to currently float through private property. Finally, as a landowner on a mostly private stretch of river in Southern CO, I would welcome this access through my property. I was deeply impacted when fishing in Montana after college where a friend and I simply pulled over at bridges and hiked in along river beds. Needless to say I was floored when property owners would get off their farm equipment, head over and ask how things are going with a smile and a handshake. This really illustrated to me what a "shared resource" actually means, and I can only hope that I would be as welcoming to folks trying to co-enjoy my slice of heaven.

 

[squirrel]

Orvis guys with "bamboo" rods. 30" fish. Ditch irrigating keeping the oxbows clean and healthy.
Plenty there for your dog to roll in.................... Good stuff.

Thanks for making my point, that's EXACTLY what the Orvis guys say before driving off in their Caddy SUV up to fish elbow -to-elbow on the public. and yes I exaggerated for effect (hence the use of the word nudging) the best brown I've had to dispose of went 29.25", but lots of 25-26"

I did a little reading on the title end of it and it will get interesting if the owner has OEC on the policy (Owner's Extended Coverage) specifically the "unrecorded easement" wording. If Oliver Frascona hadn't crashed his plane I would have loved to hear him expound on the possibilities... (better lawyer than pilot)

Waygoner check your policy and hope your realtor checked the right box on your contract.