Protection for rafting companies stalls in Colorado Senate

Amendment to Curry bill calls for a report by October 31

Colorado rafting companies will have to wait on legal protection against charges of trespass for floating through private property after passage of House Bill 1188, the Commercial Rafting Viability Act, was stalled in the state Senate last week.






The rapid ride to pass the legislation this year, to cover rafting companies in the upcoming season, essentially came to a stop Friday, March 19 when Sen. Al White (R-Hayden) introduced an amendment to the already heavily amended bill that would pass the question of river rights-of-way on to the Colorado Water Congress (CWC).
The amendment came on second reading of the bill before the Senate and passed the following Monday, calling for a report to be completed by October 31 that looks at “the legal, economic, environmental and law enforcement issues related to boating through private property,” and also asks the CWC to include “recommended legislative changes.”
Any changes, however, could only come after the legislature takes up the bill again next year, which is too late for local rafting companies that plan to take clients down stretches of river running through private property this year.
While none of the four companies or groups with permits to operate on the upper Taylor River were available for comment this week, Monica Piergrossi of Wesetern Voices Public Affairs and media says, “We are working hard to keep moving forward and keep Colorado’s public rivers open for business and fun.”
Rafting companies around the state have been floating through private land on the ruling of a Colorado Supreme Court case that left the impression that a river’s banks and bottom can be personal property, while the water is in the public domain.
But that is coming to an end this year, after Texas based real estate developer notified local rafting companies that they would no longer be able to float through the private development on the Wapiti Ranch, known as Wilder on the Taylor, that is being billed as an exclusive fishing community.
Gunnison attorney Dick Bratton, who is representing Jackson–Shaw in their push to protect private fishing water from the disruptions of passing boaters, says the issue isn’t as clear-cut as people would like to believe.
“This thing is way too complex to have a simple solution, and the complexities are what’s driving this thing,” Bratton says. “The problem we’ve had with it all along is that it’s extremely difficult to find one solution that fits all.”
He mentioned solutions that have been found around the state where similar conflicts have taken place. Along parts of the Arkansas River, time slots were given to rafters and anglers so the two rarely would come into conflict.
Bratton says his clients and local rafting companies tried to find a solution that would give both what they wanted, but that solution remains elusive.
“The fact is, there isn’t a right to float if it’s a non-navigable stream. The fact is, that’s the case. We’ve never been able to reach an agreement over what the law is,” Bratton says. “I’m cautious but [the report is] certainly the right first step.”
The confusion has allowed Jackson-Shaw to threaten local rafting companies with legal action if they float through private property. Companies like Three Rivers Resort and Scenic River Tours say they don’t have the resources to see a challenge like that through to the end and called upon Gunnison Rep. Kathleen Curry to help.
The bill, which passed through the House on an almost party-line vote, 40-25, would have allowed commercial boaters incidental contact with riverbanks and bottoms as well as the right to portage around hazards in the river if necessary.
Even under current law, a landowner can file a civil trespass complaint against boaters for passing through private property, but no criminal charges can be pressed.
Just last week, the Gunnison County Sheriff’s Department was called concerning a trespassing boater on the Taylor, but no information was available about from where the call originated. But the battle has begun.
And Bratton doesn’t see a lot of conflict coming from his clients this summer.
“All of these people are friends of mine, so it’s difficult for me. We haven’t decided what they’re going to do, but hopefully they’ll work something out if they can. They’re not going crazy on this,” Bratton says. “But we need to get a resolution. Rafting is a significant industry and so are resorts.”
Frustrated by the amendment, Curry says, “This issue has already been the subject of two major stakeholder processes, one initiated by the Colorado Department of Natural Resources, and one run by Western Slope lobbying group Club20. Both efforts were discontinued without reaching agreement on the issues surrounding floating and the rights of landowners.”
White’s amendment also stipulates that the study be funded only with private grants and donations, which could open the CWC report up to charges of tampering, considering groups like Club20 that have been active in the right to float discussion have since come out against legislation like HB1188.
The Senate amendment only had one Republican opponent in Greg Brophy of Wray, who joined Curry in believing that adding another layer of bureaucracy was not the answer. State Sen. Gail Schwartz, who represents Gunnison County was not present and was excused from the vote.
Now that the bill has cleared the Senate, it will return to the House, which will decide if the bill should continue with the Senate’s amendments, stay as it was originally written or go to a conference committee for more discussion. Although Curry has said that she doesn’t agree with the Senate amendment calling for the report, she hasn’t decided if pushing for a conference committee is a wise use of time and resources.

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