Johann Wyss’s 1812 classic, Swiss Family Robinson, describes an incident in which the narrator’s son Ernest is scolded for fearing wet feet. As a result, he is denied the pleasure of eating the day’s catch, a giant lobster, because he didn’t help catch it. His father admonishes him never again to be afraid of getting his feet wet.
In Colorado the more likely catch is trout, but a long-simmering debate, resurfacing again this year, questions whether one has to get one’s feet wet to catch them. More specifically, are anglers are allowed to fish in a stream that runs through private property? In many other states, the answer has always been yes, so long as one remains in the stream – as long as one’s feet are wet. Legally, Colorado has always treated this issue differently, partly because in this state the land under the water – the streambed – belongs to the adjacent landowner. Water belongs to the public, but not the land under it. Wading, on private property, is trespassing.
That distinction raises the yet-unsettled issue of whether people can float, rather than wade, through private property. The “right to float” is well established, including in Colorado, where the unappropriated waters of the state belong to the public, including the right to use those waters recreationally. Rafting, kayaking, and canoeing are multi-billion-dollar businesses in Colorado, especially in places like the Upper Arkansas, the most rafted river in America, or in popular runs like Glenwood Canyon. Most such rivers are surrounded by public land, so there is no challenge to the public’s right.
The issue came to a head a few years ago, though, over a stretch of the Taylor River above Gunnison that passes through private property – including guest ranches that make their living selling access to that gold medal fishery. That doesn’t seem complicated, because the public clearly owns the water, and the right to access it by boat. But in that area, there was no gold medal fishery until those landowners built it. At tremendous private expense, they installed rocks to slow the water and create spawning pools, paid to stock trophy trout, and financed numerous improvements to transform the waterway into a world-class trout stream. Guests pay well to stay in the lodges and to fish one of America’s best spots.
The issue was further complicated because that is cattle country, where many ranches rely on fencing to keep cattle in. In some places, fences had to cross streams, because cattle can, and do, wade up and down the creek, escaping their owner’s property. Even so, fences across streams create obvious barriers to the public’s “right to float,” and are illegal in most states, but not Colorado.
In the Gunnison cases, a few ranchers put up fences and posted “no trespassing” signs, solely to assert property rights and discourage rafting. Conversely, several rafting companies organized floats through such properties, not because there was a great public demand, but because they wanted to force the State to change its law and guarantee the right to float, private property notwithstanding. No such explicit right exists in Colorado law, so at best, the entire issue is said to be “complicated.”
During my tenure heading the Department of Natural Resources, the state tried to mediate these disputes, with occasional success. We found some areas where rafters could acknowledge the need for fences, or the economic investments of guest ranch owners. Similarly, there were areas where ranchers could acknowledge that rafters weren’t hurting anything, where floaters’ activities did not adversely affect property rights. That case-by-case approach worked, better than any one-size-fits-all solution.
The state legislature came close to changing the law in 2010, to conform to other western states that consider the public right to float absolute. But the Colorado Constitution also includes a strong prohibition against taking private property for public use without compensation. Legislators feared the potentially high costs of such compensation, so the bill died. The case-by-case mediated approach was formalized, creating an uneasy “truce” that has stood the test of time. There have been no more ballot initiatives, lawsuits, or legislation. Until now.
Both sides agreed to that approach, but both also maintained their right to go back to court in the future, should the situation worsen. Advocates of the “right to float” have never given up, though, and are once again seeking legislation, or perhaps ballot initiatives, which would inevitably reopen old wounds. Just as we were getting our feet wet, trying something new that seemed to be working.
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