Questions of liability and concerns over trespassing
By Aimee Eaton
Public lands are currently a hot button issue. Colorado celebrated the first ever Public Lands Day last week. President Donald Trump is calling for the reconsideration of the designation of 27 national monuments and hundreds of thousands of acres of public lands. Locally, people are flooding out onto trails and across the landscape in celebration of spring and the seasonal transition.
Public water, however, is receiving markedly less attention. This could be due in part to the complexity and variability of laws governing access to rivers and streams across the United States.
For example, in some states any navigable river is public up to the high water mark. In other states, like Colorado, an individual can own the banks of the river, the river channel and all the surrounding lands but not the water itself. That’s currently an issue for property owners along the East River wishing to limit access to the river.
At a Crested Butte South Metro District Board of Directors meeting on Tuesday, John Mahoney, the manager of the Reserve on the East River, speaking on behalf of the Board of Directors, asked what could be done to limit the number of people launching boats from the CB South Waste Water Treatment Plant.
It’s a common put-in during early summer high water levels and it allows boaters to float the stretch of the East River from CB South to the confluence with the Taylor River at Almont. The only other potential public launch site on the lower East River is at the Roaring Judy fish hatchery. And while all the water that boaters float upon is public the land though which they travel is not.
“The major concern is with people trespassing,” said Mahoney. “But it’s also a safety concern. There’s no maintenance on the river down there, and there are a bunch of snags. It’s pretty technical in certain areas and a lot of people go down completely unprepared. They end up portaging or stopping and getting out to walk on the banks. A couple of our homeowners want to call and have these people prosecuted, but I was hoping to come here and be proactive.”
The East River originates at Emerald Lake beyond the town of Gothic. It’s largely fed by snowmelt, and is only floatable during small windows of water levels. If the level is too high, boaters risk being pinned underneath one of the river’s many bridges or low trees. Too low and boats will scrape the bottom of the river channel, hang up on rocks and require portaging, which often results in trespassing.
When the East hits its goldilocks level, recreational boaters and float fishermen often flock to the Waste Water Treatment Plant. They park their cars along the guard rail on Cement Creek Road, launch their crafts off the grassy area and come back a few hours later with sunburns and stories.
“It’s the district’s property, but we can control access,” said Jack Dietrich, district manager for the Crested Butte South Metropolitan District. “I like that people can go down there and have a picnic or swim their dog. Once the water gets too low we put up signs letting people know.”
Those signs don’t say “No Trespassing,” however.
“They say something like ‘No Watercraft after June 15,’” said Dietrich. “But people still go, and the signs get torn down. I don’t like standing down there policing things.”
Mahoney told the metro board that he had posted several no trespassing signs at the start of the property that comprises the Reserve, but it seemed that many people had little trouble disregarding the message.
“Last summer I was down by the lodge and watched a girl jump out of her boat and come up on the bank right by the lodge to pee,” he said. “We don’t want to shut all these other people down, but if it becomes more and more floaters coming through the Reserve it may effect some of the value that the property has. That’s where some of the concern comes from.”
Several of the metro board members wanted to know if the metro district could be held liable, should a boater injure themselves or commit a crime after launching from the district owned water treatment plant.
“I called our insurance last year about having people on the property, and she said that most districts fence off their treatment plants to avoid issues, but I like that people can go down there,” said Dietrich. “Our approach has been to keep it organized then put up the signs.”
That approach may no longer be working if the goal is to prevent trespassing downstream, said board member Tom Dill.
“People don’t know the law,” he said. “People own all the water down there. They own the banks and the land underneath. That gets ignored.”
Board member Alan Gruber countered by explaining maybe it wasn’t an intentional disregard of the law but rather a cultural misunderstanding.
“The flip side is that this valley is adventure oriented and extreme everything,” he said. “I think we’re looking at maybe a couple months where people are looking to float at high water then it’s done.”
Dill replied that he liked Mahoney’s approach of being proactive and again brought up the question of whether the metro district could be held liable should something go wrong on the river. The metro district board agreed to send that question to its legal counsel for further investigation and to revisit the issue of river access once they had a reply.