OUR VIEW: Rafting is not a basic human right (vote in poll)
Bill threatens Colorado property rights to favor recreation
Politically, it’s a no-brainer to take from the few and give to the many. The many can easily outvote the few, which rewards politicians for redistribution policies.
Nowhere is this phenomenon more in play than with Colorado House Bill 1188, which would take private property rights from a few and give them to the public. The bill ignores state Supreme Court precedent, established property rights and defies state and federal constitutional provisions while rewarding recreationists and profiteers who float and vote.
Using an argument that laws of 1607 England overrule 234 years of American jurisprudence and law on the subject of navigation, the bill eliminates all legal relief that property owners have against commercial river outfitters who float through private property without permission. It creates a direct subsidy to the rafting industry at a cost in both money and privacy to those whose lives they disrupt when rafting parties float through their land on waterways that fall short of the federal guidelines for “navigable.”
The rafting industry has thrived in Colorado based on a long-standing legislative fraud perpetrated on landowners in 1977 that attempted to define away long-recognized property rights and decriminalize public floating through private property by changing the criminal trespass laws. But the Colorado Supreme Court ruled unequivocally in 1979, in People v. Emmert: “The public has no right to use the waters overlying private lands for recreational purposes without the consent of the owner.” It doesn’t get any clearer than that.
Private and commercial boaters, along with state officials and county law enforcement officers have been ignoring this ruling. The last vestige of legal protection landowners have to protect their property rights are civil trespass laws.
That’s what commercial outfitters fear. In at least one case, a commercial outfitter guiding trips through private lands was put out of business by the District Court, which ruled in obedience to the state Supreme Court.
The purpose of this bill is to remove the right of landowners to seek civil redress of grievances and leave commercial outfitters immune from any legal restraints.
(Please vote in poll to the right, in red letters. Must vote to see results. Thanks!)
Responsible commercial outfitters, understanding the truth about floating in Colorado, have negotiated arrangements with landowners. Some contracts have involved compensation, and others have merely involved good faith agreements enforced with neighborly handshakes. That system works just fine, and it respects all parties involved. But that’s not enough for boaters, commercial and private. They demand nothing less than absolute freedom to boat down any creek that will float a kayak or inner tube, regardless of whether they have any legal right to do so.
If House Bill 1188 becomes law, it will wash all neighborliness downstream. A flood of lawsuits by landowners will ensue. They will claim the state has, by authorizing trespass through their property in defiance of the state Supreme Court’s ruling and both the state and federal Constitutions, illegally taken private property for public use. They will demand just compensation from the state, and will very likely get it. This could result in tens or hundreds of millions of dollars in compensation claims that would drain the state treasury.
Drafters of the special-interest bill designed it specifically to favor commercial rafters in a dispute with landowners along the Taylor River near Gunnison, but the law will apply statewide. The Taylor River landowners have invested in establishing a private fishing resort, making decisions based on Colorado law.
Rafting companies, who seek to change the law, have rendered fishing a nearly futile endeavor. This bill would prevent the landowners from seeking compensation for lost business and opportunity, freeing rafting companies to profit off land they don’t own without paying reasonable overhead for the commotion they cause and without so much as having to work out a reasonable arrangement with the landowners.
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As a law, HB 1188 will trash the rights of private property owners and cause some tremendous hardship for some. Aggrieved landowners will seek just compensation from state government, which will cost taxpayers millions in legal fees even in the event state government somehow wins. Legislators should kill this ill-conceived bill, which negates private property rights, in favor of a collaborative attempt to resolve the conflict fairly. — Wayne Laugesen, editorial page editor, for the editorial board
