Cheesman Gorge Access Agreement Reached by AW! (CO)
Despite AW's Success… access to Colorado Rivers is still filled with Fear and Loathing.
By Tim Kelley, AW Board Member
After six years that saw paddlers being threatened, intimidated, assaulted, and ticketed for trespassing; the fishing club "Sportsmen's Paradise" (SP) informed American Whitewater (AW) that they lifted the "trash rack" that created a river wide strainer on the Upper South Platte River in Colorado. The strainer prevented ready access to one of Colorado's best creek runs, necessitating a two-mile portage at elevations over 8500'.
AW and Colorado White Water Association (CWWA) have encouraged and continue to encourage paddlers to follow the guidelines listed below in connection with paddling sections of creeks and rivers that are frequently fished or that pass through private property to help solidify these kinds of arrangements.
Sportsmen's Paradise (SP) and many Colorado landowners still assert that the public doesn't have the right to "float" through private property, and individuals that do "float" through private property are committing civil trespassing.
SP prefers that boaters not paddle the section of the South Platte that passes through their property (preferring instead that paddlers take the 2 mile "Paradise Portage" around SP); however, they will not seek to harass or interfere with a boater's downstream passage as they have in the past. SP has made clear that they believe they could pursue civil trespassing charges against a paddler or group of paddlers just like the landowner on the Lake Fork of the Gunnison is doing.
Cannibal Outdoors, the outfitter that was the original defendant in the Lake Fork lawsuit, was forced to sell its rafting and other equipment to keep from going under financially. AW and CWWA are involved in the lawsuit as co-defendants, in an attempt to protect boater's rights to use the surface waters of Colorado for recreational purposes without threat of civil trespassing. The exact status of the case is uncertain as this article goes to print. Visit AW's web site, www.americanwhitewater.org/archive/article/304/, for the latest on the Lake Fork case.
Sportsmen's Paradise will seek prosecution of those committing criminal trespassing, "paddlers touching the riverbed or banks," which they assert constitutes SP property. SP has marked its property line across the river with numerous "no trespassing" signs hanging from a cable. There can be no doubt when you are paddling through SP, so stay in your boat on the SP's 2-mile section of the river before the Cheeseman Gorge.
The Park County DA has confirmed that touching the diversion dam and streambed just below the dam is not criminal trespassing. The 6-8 foot dam is located less than 100 yards below the "no trespassing" signs and just upstream of the bridge from which the trash rack hangs. Downriver, a fence across the downstream property line marks the end of SP land and is about a mile above the first rapid, Club Dues. You can paddle under the fence safely on river left. The section of river that runs through SP is approximately two miles.
Public and commercial river users are protected from criminal trespassing by a 1977 amendment to the criminal trespass statute (C.R.S. 18-40-504.5). The 1983 interpretation of this statute by then Attorney General Duane Woodard states that if a craft floats on the surface of the river and does not touch the bed or the banks, then the floaters are not trespassing. No paddler has been convicted of trespassing under this statute, largely because of the extensive legal support AW and CWWA have provided paddlers that have been ticketed.
River access in Colorado remains American Whitewater's number one Access priority in 2002. To that end, we have an opportunity to show landowners how responsible paddlers are and how low our impacts are. We can only accomplish this through our actions and language. We need to remember that while it's not fair (or legal) for landowners to close the river, it's not cool for boaters to mess up anyone's "fishing holes".
Guidelines for paddling past fishermen:
1. Stay in the main flow. Feeding fish congregate on eddy lines and seams. A kayak passing downstream usually won't "put down" feeding fish, but catch that eddy, or squirt that seam and you may spook those fish for an hour or more. Just because nobody's fishing that drift right now, doesn't mean they aren't planning on fishing that area soon. Fishermen generally work upstream, so as a courtesy avoid squirting around as soon as you realize that a fisherman is downstream of you.
2. Paddle Quietly. Fish are disturbed by noise and surface activity. Voices carry well over water. Kayaking is the most exhilarating of sports, but fishing is by its nature a solitary and contemplative activity. Save your socializing until after you pass fishermen and save your paddling yahoos for places like Slap you're Mama Falls, the 15' class IV+ waterfall in the heart of Cheesman Canyon.
3. Be Observant. Fly fishermen wear clothing that deliberately blends with surrounding bank vegetation, and are frequently difficult to spot until you are right on top of them. Furthermore, a fisherman is generally watching the drift of his or her fly and not looking upstream for approaching kayakers. Be sure not to startle a fisherman. One of Sportsmen's Paradise's real concerns is the safety of older fishermen that could be startled by a boater. While it seems highly unlikely that this poses a real safety concern, do your best to help prevent this. Act as if a fisherman is around every bend in waters that are heavily fished.
4. Don't approach casting fishermen. This should be obvious, but if you want to say hi or do a little "public relations" for boaters, smile and nod. In the fisherman's language you have spoken volumes. If the fisherman wants to talk he will initiate the conversation.
5. Move thru. There are plenty of eddy's and little play spots that are not prime fishing spots, so paddle through fishing areas at a good pace, but calmly and quietly keeping in mind the above considerations. Definitely don't get out of your boat on private property in Colorado; it's criminal trespassing. The likely exception to this is "imminent danger" when you need to scout or portage a rapid. This has not been tested in Colorado courts so beware, you could be ticketed for criminal trespassing and required to appear in court.
How often do we tell ourselves, what a better place the world would be if we all kayaked. Let's show landowners and all river users how true this is. Help remind your friends. If you do choose to paddle through Sportsmen's Paradise, then please do so between 9-11 AM . This is part of our effort to again reduce paddler impact on fishing. If you start any later than 11 AM you risk finishing in the dark, especially if you're not familiar with the run or have a problem, which happens quit often on Cheesman.
Our actions and language will cement or nullify these kinds of solutions. I have met dozens of SP members over the last year and find almost all to be very reasonable. There are a few, however, that may try to provoke you or your group. Please "turn the other cheek" and report the problem to AW or CWWA if you feel you are being razzed.
River access in Colorado remains very unstable "week to week". Down river from Cheesman Canyon on the "Deckers" section of the South Platte, a lawsuit involving CWWA and a private landowner was settled this past winter allowing boaters to paddle through private land. But on the first run of the season another landowner, a bit farther down river, intimidated paddlers with his dog as they paddled through his property. The landowner then met the paddlers at the takeout swinging an axe handle. CWWA lawyers are working with the sheriff and DA to solve this problem.
This year's drought has funneled paddlers onto just a handful of Colorado's runs stressing many access agreements with private landowners, like those on the Bailey Canyon section of the South Platte's North Fork. AW and CWWA ask paddlers to be on their best behavior when paddling through any private property and please follow the guidelines above.
Equally important, we need your donations to the Colorado Access fund so AW can continue to win the access battles for all who paddle in Colorado. Get your dead-beat friends to cough up some dues and join AW as well.
Remember if you're charged with trespassing, civil or criminal, AW will assist in trying to find you a pro bono lawyer if you're an AW member and have acted in a reasonable manner in accordance with state laws. (Thanks Pete for being there for me!)
One final thought, "Cheesman Canyon" is a CL V+ run with a CL VI- rapid. You can walk the big drops, but many of the CL III/IV slots have tree strainers and sieves w/ CL VI consequences. This run is far less forgiving than most runs in the state. It is remote and it would be very difficult to evacuate an injured person from the heart of the run. Be safe, be humble, and don't attempt this run before you're ready
Thanks to Jay Kenney, Charlie Ebel, Gordon Banks, Dave Eckhardt, Landis Arnold, Andrew Shoemaker, and Pete Thomas for all their help in dealing with the access problems in Cheesman Canyon. Please do your part and donate to AW's Colorado Access Fund www.americanwhitewater.org/donate.
Summary of Courtesy Rules1. Boaters may float down to the Cheesman Gorge. Sportsman's Paradise will not seek to harass or interfere with a boater's downstream passage.
2. Sportsman's Paradise will pursue trespass charges against boaters who stray on to their land. So stay in your boat on the SP's 2-mile section bordering the river.
3. Boaters are asked to float through between 9 and 11 AM (0900-1100).
4. If necessary, boaters may touch the dam near the upstream edge of Sportsman's Paradise property.
5. Boaters are asked to float through the left side of the fence at the downstream end of Sportsman's Paradise property.
6. Boaters are asked to be courteous to fishermen:
A. Stay in the main flow.
B. Paddle quietly.
C. Be observant.
D. Don't approach casting fishermen.
E. Move thru quickly.
F. Do not fish the waters within the Sportsman's Paradise boundaries.