River users, landowners and lawmakers revive decades-long debate over river access in Colorado

Colorado’s rivers are bouncing with boats. Anglers are casting everywhere. 

“We are getting into places that have never been paddled before and the increase in demand since COVID is a huge explosion of people getting in the outdoors learning more about our state,” said Nik White, who teaches whitewater paddling skills on the Arkansas River, Clear Creek and the South Platte with nearly a third of his classes focused on packrafting, up from zero five years ago.

And White — who has been teaching paddling for 15 years and owns a company called Whitewater Workshop — has seen a recent uptick in angry landowners. He’s got stories of property owners waving guns, chasing boaters and threatening paddlers as they walk around dangerous rapids. 

“Landowners are getting more aggressive. It’s having a chilling effect that makes it difficult to go paddling in some areas,” White said. 

Conflicts between river uses and property owners date back decades in Colorado, a state that has the murkiest access laws in the country. Courts have handed down rulings in contentious lawsuits involving access on the Arkansas River and Colorado River. Attorneys general have written opinions. Lawmakers have tried twice to clear the waters around floating and wading through private lands. And now, there’s even a split in a newly formed stream access coalition with paddling groups leaving a not-quite-unified effort to craft legislation that would open all of Colorado waterways to the public. 

For years, those conflicts have been settled on a case-by-case basis, with landowners, boaters and anglers sitting at a table and finding some sort of agreement. 

But those negotiations, “often leave the recreator powerless,” said Hattie Johnson with American Whitewater, which a week ago joined other paddling groups in breaking from the new Colorado Stream Access Coalition to forge their own legislation. 

Outfitters are stressed that a landowner could shut down their business. Recreation industry advocates fret river conflicts could paint their carefully manicured, good-times portrait of Colorado in an unflattering light. Property owners point to a 1979 Supreme Court decision and a 1983 Colorado attorney general memo and say passing paddlers are trespassing if they touch a rock in the riverbed.  

“At some point, it’s all going to come to a head,” said Jenifer Freeman, a lobbyist working with paddling groups on possible legislation that would allow river users to pass through private property without trespassing, even if they touch a rock. “So it’s better to try to find a joint solution.”

The camps are forming for a renewed fight. The new Colorado Stream Access Coalition is courting lawmakers for stream access legislation that will open public access through private property. That coalition is splintering though as river users argue over whether legislation should allow floating or wading through private property. Landowners are unifying, arguing that legislation allowing the public to pass through private land will be akin to the government seizing property and they are promising lawsuits “that will bankrupt that state,” said a landowner lawyer. 

The legislation is not yet written. A new movie, “Common Waters,” is landing in Colorado theaters next month, detailing the prickly access challenges in the state’s waterways. A new study is urging advocates and lawmakers to back away from a legislative fix, arguing that the spot-fire negotiations in the last two decades is the best approach to settling river conflicts. 

“We are in this situation where we are recognizing that outdoor recreation is losing. I think that’s bad for our image and it’s bad for our economy,” Freeman said. “These are amazing places, and I get wanting to own your own little piece of it, but I don’t see how it’s in the public interest to allow private property owners to gobble it all up so no one gets to use it.”

A third try for legislation

This would mark at least the third time Colorado lawmakers have considered a law to allow boaters to pass through private property. The Colorado Stream Safety Act was scripted in 1996 to allow kayakers safe passage through private property — allowing them to scout or portage obstacles and hazards. The legislation turned out to be one of the most contentious issues of the 1996 session. It passed the Colorado House but stalled in the state Senate.

The failed legislation prodded the creation of the River Surface Recreation Forum, which formed to study river access conflicts and find solutions. Boating advocates created a national database of river conflicts that showed conflicts on Colorado rivers accounted for nearly 40% of the 82 nationwide issues over 18 months from 1998 to 2000. Most of those were along the South Platte, but the list included incidents on the Taylor, the Elk, Lake Fork of the Gunnison, the Yampa, the Colorado River near Granby, the Dolores, the Roaring Fork, the Poudre, the Eagle, the Arkansas, Clear Creek, Bear Creek, South Boulder Creek and the North St. Vrain. 

The 1996 legislation would have allowed paddlers to scout or portage river obstacles, eliminated the liability of landowners should anyone be hurt paddling through their property and prevented paddlers from fishing, hunting, camping, picnicking or loitering on private property. 

“Access problems in Colorado appear worse in number and severity despite the efforts of your committee and it only seems to be a matter of time before a landowner-boater conflict results in personal injury (or) the boater is injured by running a drop which the boater would have portaged had there been no penalty for doing so,” reads a memo from Ken Ransford, an attorney from the Roaring Fork Valley who worked as American Whitewater’s access director in the 1990s and wrote a “kayaker perceptive” memo in January 2001 for the newly formed River Surface Recreation Forum. 

That forum was unable to fully settle access disputes, so Colorado lawmakers in 2010 — spurred by renewed splashing over access on the Taylor River — again considered a law that would allow rafters to pass through private land so long as they made only “incidental contact” with the riverbed.

House Bill 1188, sponsored by a Gunnison lawmaker and called the Commercial Rafting Viability Act, protected the right of commercial rafting companies to float through private land. The bill passed the state House but stalled in the Senate. 

In 2011, then-Gov. Bill Ritter formed the River Access Dispute Resolution Task Force to help resolve access conflicts on Colorado rivers and streams. That committee, which has not met since 2015, laid out guidelines for how access issues could be solved without courts or legislation. The committee was not tasked with solving the policy quagmire over access, but created “a framework for landowners and boaters to efficiently and fairly resolve disputes over the use of rivers as they arise.”

The Taylor River hotspot

The 2010 legislation, like the 1996 proposal, followed an eruption of conflicts. In 2010 it was around the Taylor River, where developers were peddling high-dollar land with the promise of private river access. Following the death of the bill, the Taylor River flare-up was doused after developers, landowners and outfitters agreed on some limited commercial access on several miles of river below Taylor Park Reservoir. 

Owners along an upper stretch of the Taylor River have closed access to about 4 miles of the river. They’ve stretched a wire over the river with a sign that says “no boating” and the reach below the sign “is not passable by any watercraft.” The sign cites the 1979 Colorado Supreme Court case People v. Emmert.

Jason Hopfer, an attorney representing several owners along the Taylor River, said his clients invested in riparian habitat improvements on the river assuming their work was protected by laws that prevent float-in or wade-in access. Some of those riverside parcels sell for $2.5 million with the guarantee of private river access.

Any effort to change the law and allow public access to this private property would not only be an unconstitutional taking, Hopfer said, but could harm stream improvements paid for by landowners. 

Those investments and improvements along — and in — the Taylor River “were made in reliance on the long-settled Colorado law that protects riparian lands against trespass,” reads a memo Hopfer wrote – and shared with The Colorado Sun – for his clients who will oppose legislation that could open their properties to the public. 

“Any effort to change the law and allow public access to this private property would not only be an unconstitutional taking, but would also bring harm to the existing stream improvements and habitat benefits that extend to the Taylor River … and would disincentivize further investments towards such stewardship,” reads Hopfer’s memo.

Why are the waters so turbid?

“Lack of clarity.” “Unclear.” “Murky.” Those are three ways river users describe Colorado’s river access laws. All of that stems from a 1979 Colorado Supreme Court decision — People v. Emmert — which held that while water may be public, the public did not have the right to float on “non-navigable” water rolling through private property. That decision said that anyone who owned dirt owned everything above it. 

(Sidenote: That position is embraced by landowners seeking to block hikers from stepping over fencing separating private property from public lands arrayed like a checkerboard. The U.S. Court of Appeals in Denver this year ruled that landowners could not block hunters or hikers from stepping from one corner of public land to another even if they were passing through the air above privately owned land. The U.S. Supreme Court recently refused to hear a wealthy rancher’s appeal of that ruling.)

A formal legal opinion offered by the Colorado attorney general in 1983 contended that rafters and kayakers could float through private property but if they touch a rock, the bank or the river bed, they were committing criminal trespass.

So for more than 40 years, conflicts over river access have been negotiated between landowners and river users. That strategy has largely worked to settle issues on the Arkansas, the Lake Fork of the Gunnison, the Taylor, the north and south forks of the South Platte and the North Fork of the Poudre as landowners fought to block rafters and kayakers from passing through water bisecting their property. 

Navigability and the right to wade

In 2018, Colorado Springs angler Roger Hill was wading through the Arkansas River near Texas Creek when a landowner started hurling rocks. That event triggered the latest legal fight to bring some level of clarity to access.

The octogenarian’s 2018 lawsuit against the landowner argued that if a stretch of water used for commerce when Colorado became a state in 1876 — like, say, floating beaver pelts or railroad ties — then the Emmert decision did not matter because the river was navigable by federal definition. That definition, settled in the late 1800s by the U.S. Supreme Court says that a river is navigable if it was used for commerce and all navigable rivers are public property. 

Hill lost in district court. The Colorado Court of Appeals revived his case in 2022 and ultimately his case landed at the Colorado Supreme Court, which ruled in June 2023 that Hill actually had no standing to argue for what amounts to an overhaul of private property laws in Colorado.

Underlying the right to wade and right to float arguments are private property rights. If riverbeds were suddenly shifted from private ownership to public land, landowners could credibly argue the federal government was seizing their land and they are entitled to compensation in “takings” claims. 

Attorney General Phil Weiser in 2022 argued against dabbling with property rights in stream access issues. In a brief filed with the Colorado Supreme Court in the Hill case, Weiser said a court ruling that declared a river navigable and changed private land beneath a river to public land “could have monumental consequences for water rights in Colorado and could lead to significant litigation challenging existing property rights.”

Maintaining the status quo

The free-market research group Common Sense Institute in Greenwood Village last month issued a report on the right to float through private property arguing that the case-by-case approach to resolving access issues is working and trying to establish a one-size-fits-all solution through legislation or ballot initiatives “may not be the best approach.”

The report, co-authored by the one-time director of the Colorado Department of Natural Resources Greg Walcher, said the occasional flare-up of access issues did not appear to be hindering the explosive growth in river recreation in Colorado. The report suggested that the current use of conflict resolution — typically agreements between rafting outfitters, paddlers and landowners that address user numbers — “is likely the best resolution for landowners and recreationists in the state.”

The Common Sense Institute report said upsetting 150 years of water law and property rights in Colorado with a decision that Colorado’s river and streams were navigable at statehood “would be devastating for Colorado” that could spur “thousands” of lawsuits and put the state on the hook for “incalculable damages” to reimburse landowners. 

The report argued that using legislation to allow “incidental contact” would challenge police tasked with interpreting trespass on rivers that have constantly changing flows. For example, if legislation allows a paddler to portage a dangerous obstacle to protect human safety, how can police differentiate between a necessary portage in high flows and trespass at lower flows when a feature is not dangerous? 

“While it would generally be preferable to resolve the issue definitively and with absolute clarity, Colorado finds itself in a situation where the current status is preferable to any legislative solution,” reads the Common Sense Institute report. “Somewhat paradoxically, a statute, initiative or referendum designed to provide clarity could result in far more ambiguity than the current situation.”

Right to float

The legislation proposed by paddling groups will not touch property rights, navigability or the right to wade, Freeman said. 

The legislation will mirror shifts in recent decades that have leaned toward access in other Western states. The New Mexico Supreme Court in 2023 upheld public access on rivers rolling through private property. The Utah Supreme Court in 2019 upheld a 2010 access law that allows floating through private property, but the court agreed that landowners could limit recreational traffic on some rivers. California and Montana allow access up to the high-water mark. Oregon owns the beds of rivers and allows public access. Idaho says any stream that can be floated is open to the public. Wyoming allows public access but does not allow river users to touch privately owned riverbeds.

In 2023, several recreational river groups filed a friend of the court brief in the Colorado Supreme Court case of angler Hill. American Whitewater, the Colorado River Outfitters Association and Backcountry Hunters and Anglers argued the status quo was “much closer to the Wild West form of dispute resolution than to civil and orderly proceedings one might expect in modern-day Colorado.”

The groups urged the state Supreme Court to give Hill his day in court and find resolution of decades of ambiguity around river access. 

American Whitewater, the American Canoe Association and Colorado Whitewater recently broke from the Colorado Stream Access Coalition as the group argued over the timing and extent of possible legislation. Some members of the group are pushing for a law that would allow anglers to walk through rivers and streams, as they are allowed to do in places like Montana.

American Whitewater, after several months of outreach, “heard in no uncertain terms that approaching stream access for any and all public uses — including walking and wading on the bed of a navigable river — was a nonstarter for the legislature,” said Johnson, American Whitewater’s stewardship director for the Southern Rockies. 

“But we think there is a way forward for floating,” she said. 

For the first 20 years of this century, boating advocates have largely supported the spot-fire approach, working with riverside landowners to negotiate limited access for passing paddlers. In the last decade or so, the number of conflicts have declined and the occasional flare-up usually was quickly and quietly doused. Boaters said repeatedly that the negotiation strategy prevented the creation of winners and losers in an argument that would be costly for losers.

But river use has soared since the pandemic. Other states have hammered out access regulations that support recreational access, leaving Colorado an outlier in the West. The time is right for “broad conversations that try not to create a winner and loser,” Johnson said. 

Allowing contact with the riverbed, protecting landowners

The legislation proposed by paddling groups for the coming year would mirror the 2010 bill that allowed “incidental contact” and would permit paddlers to get out and scout or portage dangerous obstacles — like waterfalls, diversion dams, low bridges or barbed-wire fences. It would prevent access on irrigation ditches. It would also offer landowners liability protection from lawsuits should a paddler be injured on their property.

That liability protection has momentum after a diverse group of recreation advocates last year pushed legislation that amended the Colorado Recreational Use Statute — or CRUS — to better protect mountain landowners from lawsuits. The 50-member Fix CRUS Coalition supported a law that limited lawsuits if landowners erected signs on privately owned 14ers warning of hazards on the property. Like the stream access proposal, it was the third time lawmakers tried to amend the 50-year-old law.  

“We would want that same protection for riparian owners. Our hope is that we can clarify this issue for people on all sides,” said Johnson, noting that no bill has been drafted and precise wording is still being considered. 

New legislation won’t touch property rights. It won’t wade into the prickly arguments around whether a stretch of river could be federally defined as navigable, a standard that would essentially open riverbeds that were used for commerce at statehood to all forms of public access.   

One idea that is floating about is to create a fund that would provide resources for landowners who need to contain roaming livestock with paddler-friendly barriers. That fund also could support education and signage for boaters to not be jerks when passing by private property.

Freeman, the lobbyist, said the floating access group has commitment from two senior Democrats willing to sponsor right-to-float legislation next year. 

A rift within the stream access coalition

Mark Squillace is a professor of natural resources law at the University of Colorado Law School who represented Hill in his push to prove the Arkansas River was navigable at statehood in 1876 and therefore public property. Squillace is not happy with a right-to-float bill. 

He wants a “recreational access” bill that would give people the right to wade or float through any Colorado waterway that is open for recreational use. His proposal mirrors access laws in New Mexico, Idaho and Montana. 

His bill suggestion stops short of deeming rivers navigable at statehood, which is determined for sections of rivers and he admits would require lengthy and contentious legal and administrative review.  

He worries that lawmakers will only want to take up the controversial stream access issue once. So a right-to-float bill could end chances for a broader bill that would allow wading through private property like other states, he said. This conflict is why boaters left the stream access coalition they originally helped create. It is unclear where the stream access coalition stands without those groups. 

Like Johnson, Squillace does not agree that stream access legislation will spur a deluge of lawsuits. That did not happen when other states like New Mexico and Montana opened riverbeds to public access. 

Read the Colorado Constitution, Squillace said. It says “the water of every natural stream” is public property “and dedicated to the use of the people of the state.”

“If it is dedicated to the use of people, that is the right to recreate not just in a boat,” Squillace said. “Our argument is the Colorado Constitution promotes recreational access to all waterways in the state.”

Rapids ahead 

A group of landowners and property rights advocates have formed the Colorado Water Conservation Alliance to block any legislation that might allow boaters or anglers to pass through rivers bisecting private land. 

“Should someone’s hobby be more important than someone’s home?” asks an Oct. 4 post on the group’s Facebook page that warned of a coming “radical proposal” that “could be one of the largest government takings of private property in U.S. history.” 

The group’s opposition to potential right-to-float legislation is more nuanced. There are many landowners who point to the Emmert decision and say they own the land and everything above it. They see floating as trespassing.

And should a bill pass that would put the right to float into state law, those landowners would likely push river access into court to prove their point, said Trey Rogers, an attorney who represents the Colorado Water Conservation Alliance. 

“If there is a bill, there are going to be people who feel they have no choice but to litigate this issue,” said Rogers, an angler and boater who owns property on the Arkansas River above Browns Canyon. “Do we really want this issue to come to a head? What is wrong with the status quo? We ought to live with it as it is. And the way to get there is no bill.”

Back in 1996 and 2010, lawmakers expressed surprise at the vehement opposition and ardent support for stream access legislation. That same passion will surely roil anew with an updated proposal. 

Johnson said she’s not sure boating advocates are ready for a deflating fight at the Capitol.

In the past, stream access conflicts and legislation have immediately divided people into opposing camps, which has prevented open dialogue or a search for common ground, Johnson said. 

“We are focusing on those conversations. We recognize this is contentious and we are not trying to do anything behind closed doors. We think both sides of this issue have an opportunity for improved clarity,” she said. “I mean every 10 years we can go to our corners and fight about this or we can sit down and talk about areas of agreement that we think are there. We think there are a lot of people in the middle who think there are reasonable changes to be made to better protect landowners and better protect recreators.”

But come January, if a bill looks like it will simply devolve into that yelling, Johnson said, “we likely will make the call to not have that fight under the golden dome.”