Court Deals Minor Setback in Lake Fork CO Suit

Posted: 12/12/2001
by Jason Robertson


Contacts: December 11, 2001
Lisa Jones
Johnson Communications
720-890-8400 x-208
Kevin Schneider
CROA Chairman
Jason Robertson
AW Access Director

Gunnison, CO - In a legal battle defending the "right to float" in Gunnison County District Court, defendant Cannibal Outdoor Network Inc. dba 'Cannibal Outdoors' and organizations involved in the case share concern over the potential misrepresentation of their position regarding private property rights. Colorado River Outfitters Association Chairperson, Kevin Schneider explains, "We want the public to be perfectly clear that this case is about floating on the surface of the water, not about trespassing on private land. Many CROA members themselves own property adjacent to rivers and strongly support private property rights. We see this as an attempt to close the states rivers."

Although a ruling in the case last week disallowed the boater's attempt to use criminal trespass law to determine civil trespass, little has changed outside of the courtroom. Jay Kenney, a practicing attorney, president of American Whitewater and Colorado White Water Association (AW and CWWA are interveners or co-defendants) observed "A win on this issue would have been nice, but was not central to our defense. Boaters continue to defend the public's rights and privileges to float Colorado rivers without touching the bed, banks or land of private property owners."

In 1977, the General Assembly amended Article 4 of Title 18, "Offenses Against Property," by defining the term "premises" so that boating on a nonnavigable stream is not a trespass. "The main distinction between criminal and civil trespass is in the nature of the penalty and enforcement, not the underlying property interest upon which a trespass may even occur," comments Jason Robertson, Access Director for American Whitewater, Robertson continues "the legislature could not have been more clear that boater's transient movement through the air above floating waters was not the kind of intrusion that amounts to a criminal trespass in the state of Colorado. It is unfortunate, but not dispositive, that the court declined to apply that clear legislative intent to the pending civil case"

Over the years, commercial outfitters and private boaters on the Lake Fork and rivers throughout the state have made many attempts at resolving these issues educating the public about their rights and privileges. The River Runner's Etiquette and Responsibilities brochure was created and distributed in cooperation with the Department of Natural Resources, Colorado State Parks, the Colorado River Outfitters Association, the Arkansas River Outfitters Association, American Whitewater, the Colorado White Water Association and the Rocky Mountain Canoe Club. The brochure educates boaters by promoting safety, respect for private property and other river users, natural resource and wildlife protection and low impact "leave no trace" practices.

Over the past two years, CROA representatives, private boaters and private land owners, including the plaintiff and defendants, have participated in a River Surface Recreation Forum sponsored by the Department of Natural Resources seeking ways to accommodate conflicts between landowners and floaters. Signage programs distinguishing public and private lands along river corridors are in place as a result of the River Surface Recreation Forum. Schneider adds "Most importantly, we need the public to know that the status quo exists and Colorado rivers are still open to the public - Colorado outfitters are taking reservations for the 2002 season." Commercial river rafting in Colorado represented an economic impact of more than $122 million in 2000, according to an annual report released by CROA.

More information on the "Right to Float" issue. A River Access Legal Defense Fund to support the law suit has been set up at Colorado Rivers Access Fund. The case is scheduled for mid-October 2002 in Gunnison County District Court.

Jason D. Robertson
635 Joseph Cir
Golden, CO 80403-2349