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Discussion: River floating and the Attorney General’s Opinion
February 24th, 2010, 10:31 am · 13 Comments · posted by Seth Richardson
A closer look at the issue of whitewater rafting in Colorado
By Seth Richardson
In the comments on the Our View editorial “Rafting is not a basic human right” there has been an extensive discussion of the legal technicalities of the laws of navigation in Colorado. One element of this debate is an opinion written by former Attorney General Duane Woodard in 1983 regarding a change in the statutes made by the legislature in 1977. This opinion has been the subject of much debate because it purports to authorize floating through private property.
Below is the discussion I’ve been having in the comments section. I’ve moved it over here at the request of the opinion Editor, Wayne Laugesen, so that we can have a more orderly debate. Please feel free to comment and discuss.
thinkitovermore wrote:
“Again, if you’ve done the research you claim, you should also be familiar with the 1983 opinion of then attorney general Duane Woodard that a 1977 clarification of the law makes it clear that simply floating on the water that flows over private property is not trespassing.”
I’m intimately familiar with the Woodard decision, which is factually and legally erroneous. Woodard “analyzed” the 1977 change to the definition of “premises” in the criminal trespass laws, but his analysis is not only incomplete, it’s legally faulty.
He failed to even address the fact that if the legislature did what it wanted to do, and which he said it did, which is decriminalize floating through the airspace above private property on a non-navigable river, which was explicitly held to be unlawful by the Emmert court 2 years after the legislature acted, that this would produce an unconstitutional result. He simply did not consider the constitutional implications, and that was quite deliberate on his part.
Here’s the reason that Woodards interpretation is unconstitutional: First, the premises definition, in its very language, is limited to “non-navigable” rivers and streams, and does not apply to any navigable streams, if any such streams exist in Colorado (which they don’t).
This means that the legislature attempted to authorize public trespass on private property by immunizing floaters from criminal charges. It removed the right to exclude others from the very airspace that the Emmert court explicitly stated was protected from exactly the activity it ruled on.
This is unconstitutional under any circumstances. The SCOTUS has repeatedly ruled that authorizing public use of private property is a “taking” under the Fifth Amendment. The best case illuminating this tenet of law is Kaiser Aetna v. United States, out of Hawaii. See also, Nollan v. California Coastal Commission.
The tenet involved is one of the most important “sticks in the bundle of rights” owned by private property owners; the right to exclude others. The SCOTUS has ruled that removing this right, by, for example, authorizing public trespass, is automatically a taking, with no further factual inquiry required.
Therefore, if the legislature intended to open private waterways to public use, as is the case and as Woodard claims, then the state was committing a constitutional violation, which it cannot do. That makes his interpretation of the statute unconstitutional as well.
His second error was in saying that the language of the statute, “As used in sections 18-4-503 and 18-4-504, “premises” means real property, buildings, and other improvements thereon, and the stream banks and beds of any nonnavigable fresh water streams flowing through such real property” removed the airspace over the bed of the stream from the criminal trespass laws.
This is what the legislature intended, but it’s not what it achieved, because doing so produces an unconstitutional result, as I explain above. Because this occurs if the legislature tries to authorize trespass to private property, the statute is therefore ambiguous and may be interpreted in two ways, for more than one reason.
What Woodard claimed used a canon of statutory construction that says if there is a list of things in a law, one cannot assume that other things not in the list are included. In other words, he claimed that because the legislature use the words “real property, building, and other improvements thereon, and the stream banks and beds…” that this EXCLUDES the airspace above the bed of a stream because it’s not expressly INCLUDED. This would be true if by interpreting it that way the law produced a constitutional result, but it doesn’t. Because it doesn’t, another canon of statutory construction says that where there are two possible interpretations of a statute, the one that must be used is that which renders the statute to be constitutional.
And the only constitutional interpretation of the statute is as expressly including the “banks and bed” of non-navigable streams, and therefore the airspace over them, within the definition of “premises,” not excluding that airspace as Woodard wrongly implies. And even if this is not the case, there is another maxim of statutory construction that makes his interpretation invalid.
Woodard ignores the legal fact that the Aeronautics Act and Condominium Act completely codified the “ad coelum” airspace doctrine into statutes that expressly define airspace rights as “real property” and order that such estates in space SHALL be treated EXACTLY as if it were a brick-and-mortar building or a plot of land. Exactly the same. You can find that citation back in the thread.
What this means is that the airspace over the land, explicitly including above the “banks and beds” of a non-navigable stream, is “real property” in every legal sense of the term, by law, and therefore is included in the term “real property” in the statute to the same extent that the surface estate is.
This is what the Emmert court implied in its ruling when it said, “Finally, we note that in 1977, after the incident here in controversy had occurred, the legislature clarified the meaning of the word “premises” by the enactment of section 18-4-504.5″ By “clarified” they meant that the statute SUPPORTED the Court’s conclusion and ruling that floating trespass is a crime.
Woodard simply ignored this plain meaning of the airspaces statutes because he wanted to reach a pre-determined conclusion. And his opinion is just a lawyer’s opinion, and does NOT constitute the law. The only thing it DOES do is immunize floaters who rely upon his opinion from criminal charges, because the laws of equity state that when a public official charged with “interpreting” a statute do so, the public has a right to rely upon that interpretation.
So, what Woodard did was worse than legislating from the bench, he created a legal black hole by officially opining that it’s not illegal to float through. It is illegal, as the Emmert court clearly stated, but because of his opinion, boaters who KNOW ABOUT the opinion and rely upon it when floating, cannot be charged with criminal trespass. In essence, he nullified Emmert illegally and without a shred of authority to do so. But in doing so, he also placed the state in jeopardy for inverse condemnation claims.
But immunity from criminal trespass is not immunity from civil trespass, and that is an immunity that this bill attempts to provide, but doing so is just as unconstitutional as what the legislature attempted in 1977.
Emmert is still the ruling law in Colorado.
“You can rant on that this constitutes a taking, but until a court rules it so, it’s not.”
This is true. But it would be a disaster for the state if someone filed an inverse condemnation claim, or a hundred of them in a class-action suit, and wins, which is highly likely, because this would cost the state potentially hundreds of millions of dollars. And if this bill passes, I can guarantee you that such suits will start flying pretty quickly. I’m trying to find a way to prevent that from happening while finding a way for people to get legal access to important recreational waterways.
“The 1977 law simply clarified what the “premises” are and didn’t change the rights of the landowner or the public.”
You are absolutely, completely wrong. By authorizing trespass, and by removing the right to exclude, the state has committed an unconstitutional taking.
“The current bill further clarifies the issue, including taking note of Colorado’s adoption of English common law, including the right to navigation.”
The English common law of 1607 as regards navigation has no force or power in Colorado or anywhere in the United States. The SCOTUS explicitly threw out the English common law regarding navigation in 1804, in The Daniel Ball. Moreover, even the English common law does not extend rights of navigation beyond waters subject to the ebb and flow of the tide, and there are no such waters in Colorado.
“Since the state can’t take what the landowner never actually had, there is no taking that needs to be compensated.”
Except that the people of the state surrendered to Congress all rights to the lands of Colorado as a condition of statehood, and Congress disposed of the public lands (some of them) by Congressional land grants that severed that land from the public domain, making it private. Many such land grants were crossed by streams, and Congress, and the President, in signing the bill to create the State, knew of the topographic and hydrological conditions here and DID NOT reserve any navigational rights on Colorado’s waterways, as they had in other states with truly navigable river highways. Therefore, those lands crossed by non-navigable rivers and streams (all of them) that were granted to private individuals became private lands and private rivers.
Your argument is based in incomplete and inaccurate understanding of the law.
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did I mention that Emmert was a case that did not even address boats or boating. They were wade fishing for Christ sake. How does this heve anything to do with whitewater?
No, they were float-fishing. If you actually bother to read the case, you’ll find the salient issue, which is that of the airspace above the surface and the right of the public to use it, is clearly addressed.
Seth Richardson is an idiot! Let me explain. Emmert is an unconstitutional state ruling on MANY grounds. FEDERAL COURTS have numerous time reiterated that ALL American waters are open and public INCLUDING shallow waters only navigable by small craft and that the STATE can’t take that right away.
They are very clear about this many times. None of the land owner arguments in Colorado would ever hold up in Federal court.
NONE, NEVER, END OF STORY
This is a link to a very clear explanation as to why (not mine)
http://adventuresports.com/river/nors/states/co-law-boat-rights.htm
This is simply untrue, and your assertions are not supported by the facts. The issue of navigability is a complex one, and no federal court anywhere has ever ruled that the public has a right to navigate on all waterways.
“Actually, you’re quite right in the legal sense, the state could choose to prevent trophy trout from entering a private stretch of river. There’s no right to have wildlife on your property, and the DOW often provides fencing materials to keep big game OUT of private agricultural lands to prevent crop damage.
“Would they choose to do so merely because the resort owner excludes the public? I doubt it.”
RICHARDSON !!! – do YOU have any proof behind that doubt ?????
Actually, you are quite wrong: CDOW’s clients are those who buy licenses, not elite landowners. CDOW constantly meets with and polls sportsmen, occasionally ranchers. Very seldom do they listen to corporate dude ranchers (‘agricultural land’, as you quote above, has no connection to resort operations. It only shows how petty and naive your property rights premise is). Outfitters DO police each other, quite effectively, and there is honor even among thieves as long as individual transgressions are exposed by the majority.
CDOW policies are directly driven by their customers, the ratepayers. Sure they compensate landowners (ranchers, not resorts) but mostly by buying crops (at market price, no discount, big whoop) and agreeing to damage-control hunter access. Fencing is limited to haystack and silage containment- It’s impossible to fence off open fields- sorry to expose your naive city background. Resorts, on the other hand, don’t have cash crops or livestock to protect. It’s worthless anyway because the crops are already harvested before game deplete wildland food sources (mule deer physically cannot digest standing hay/alfalfa; their rumen-browse systems require 2 months’ enzyme transition, and by then the fields are stubble. Farmers prefer deer (browsers) over elk (grazers) on their land because they trim brush back away from cultivated crops. NO mere fence works against a dozen 700-pond ELK and predators simply burrow under to get at livestock.
But it’s easy for responsible hunters on neighboring public land to see what’s happening across the landowner’s 3-strand barbed wire. You have a history of conveniently denying any proof others cite – and then calling those you don’t even know liars. Instead what I cite is public record: most poachers and illegal forest activities are reported by private- citizen hunters and campers, not wardens or rangers. It’s a fact that the IRS, DEA, state and local law enforcement relies on citizen complaints to obtain warrants and convictions. You can’t hide from reality by name-calling and you cannot deny the effectiveness of Operation Game Thief versus a knock on the front door that gives time to burn, flush or conceal evidence.
You & your twin Laugesen hate it when private persons can peer over a “beautiful” fence wall, equating responsible citizen reporting is the same as coveting his property. You twins call it nanyism when city codes are broken, saying “the police have every right to enter through the gate (provided there’s a warrant), and you say it’s morally wrong for neighbors to interfere. You praise Laugesen’s Boulder Kristallnacht jihad as if property ownership is the magic potion that transforms mortals into saints – don’t tread on me, live free or die, my home ownership trumps every other person’s right, I’ll shoot all who comes near and ask questions later, let God sort ‘em out, John Wayne Laugesen lives, his avatar, Shirtless Stallone is the only hero left, frontier justice and Soldier of Fortune are the American Way, blah, blah.
The San Luis clans set up huge wind screens to prevent detection by the responsible hunters you call busybodies. When confronted with such reality before, you & wayne closed ranks, casting it off as irrelevant. Law abiding neighbors in that vally asked “Where’s a cop when you need one?”, knowing that CDOW cannot be behind every tree. Sounds like you prefer the sportsmen and neighbors form posses and dispense with Operation Game Thief.
“Entitled” Private resorts don’t allow river access, INCLUDING CDOW game wardens in kayaks. This way they hide the many non-licensed guest fish-poachers, catch&release violators and nonresidents who have illegallyobtained in-state licenses – long enough for them to hide from wardens entering through the front gate, and conceal their actions from responsible sportsmen who would report to Operation Game Thief.
The only way to effectively patrol Texans’ summer homes along the Rio Grande at Creede was kayak float passes by wardens (they posted lookouts facing the road). Families in Costilla County around San Luis tried to claim immunity from illegally taking Colorado’s deer and elk (and selling bear gall bladders hides, and antlers), based on Spanish Land Grants. They lost, primarily because even the land grants did not specify wildlife rights. CDOW flyovers, aerial surveillance and reports from citizens on foot in roadless areas adjacent to the properties aided in their arrests and convictions.
Fish and game belong to the state, not the property owner. If they choose to grate rivers, CDOW can drape restrictive nets from those grates to prevent trophy fish from entering resort property (quid pro quo).
“”Entitled” Private resorts don’t allow river access, INCLUDING CDOW game wardens in kayaks. This way they hide the many non-licensed guest fish-poachers, catch&release violators and nonresidents who have illegallyobtained in-state licenses – long enough for them to hide from wardens entering through the front gate, and conceal their actions from responsible sportsmen who would report to Operation Game Thief.”
Do you have any actual proof that this is occurring?
I’d like to point out that the issue of poaching by private landowners is ubiquitous everywhere, not just in Colorado. It’s a conundrum for law-enforcement, but the fact is that under the “open fields” exception to the search warrant requirement, government agents, including game wardens, have the authority to enter private lands (but not homes or enclosed buildings) if they have a reasonable suspicion or probable cause to believe a crime is, is about to be, or has been committed.
Game wardens in Colorado are law enforcement officers and have the same powers that police do. But, they are constitutionally restricted from barging in to any private property without legal justification by our Constitution.
That’s one of the compromises that we face when it comes to public ownership of wildlife that makes use of private property for sustenance and shelter.
We therefore have to depend on other investigative methods to establish that poaching is going on, such as reports by honest hunters and fishermen, stimulated by, for example, Operation Game Thief, which offers rewards for information on poachers.
Poaching is a felony, and a resort owner would be an idiot to violate game laws by suborning perjury in assisting his clients to buy resident fishing licenses, because his entire operation would be destroyed if even one of those clients reported him to the DOW.
Yes, it does happen, but it’s a money and enforcement problem, and to try to tar all private resort owners with this broad brush is intellectually bankrupt.
“The only way to effectively patrol Texans’ summer homes along the Rio Grande at Creede was kayak float passes by wardens (they posted lookouts facing the road).”
The difficulties of enforcing the law do not justify abrogating basic civil rights of innocent landowners. As I said, game wardens, if they have probable cause, can float a kayak, drive a car, ride a horse or enter on foot any open lands that are privately owned in order to investigate a crime, and ALL hunters and fishermen are compelled by law to produce their license and identification on demand, whether they are on private property or not.
“Families in Costilla County around San Luis tried to claim immunity from illegally taking Colorado’s deer and elk (and selling bear gall bladders hides, and antlers), based on Spanish Land Grants. They lost, primarily because even the land grants did not specify wildlife rights.”
So, they claimed a right through a Spanish land grant, it went to court, they lost, and presumably they aren’t doing it anymore. So what?
” CDOW flyovers, aerial surveillance and reports from citizens on foot in roadless areas adjacent to the properties aided in their arrests and convictions.”
Well, there you go, that’s how its done. Feel free to sign up as a client on some private resort and try to persuade the owner to participate in a criminal act if you like. That way you can “sting” them yourself.
“Fish and game belong to the state, not the property owner. If they choose to grate rivers, CDOW can drape restrictive nets from those grates to prevent trophy fish from entering resort property (quid pro quo).”
Actually, you’re quite right in the legal sense, the state could choose to prevent trophy trout from entering a private stretch of river. There’s no right to have wildlife on your property, and the DOW often provides fencing materials to keep big game OUT of private agricultural lands to prevent crop damage.
Would they choose to do so merely because the resort owner excludes the public? I doubt it.
Please address the illegal taking of fish and game (Property of the State of Colorado by the same resort owners.
How are resort owners illegally taking wildlife? In order for anyone to fish in Colorado, unless they are fishing in a privately stocked pond, they must buy a fishing license. The same is true for hunting.
The definition of a “navigable stream” initially a “great river” has been changing since the Daniel Ball case. New terms like “Float able”, “traditional navigable waters”, and “waters OF the United States” have all perverted the intent of defining the boundaries between private and public lands.
This all ties back to the Clean Water Act which recognized that in order to protect public waters (navigable), upstream waters need consideration under “proximity” laws. Somehow, this initiated a debate over the “ownership” of surface water, instead of water quality (similar to the clean air act).
Once Congress acknowledges to the paddling lobbyists and landowners that the Public Trust Doctrine does not expand access rights with the expansion of the Clean Water Act jurisdiction, much of the debate regarding this issue goes away.
“The definition of a “navigable stream” initially a “great river” has been changing since the Daniel Ball case. New terms like “Float able”, “traditional navigable waters”, and “waters OF the United States” have all perverted the intent of defining the boundaries between private and public lands. “
True. But not at the SCOTUS level. Some lower courts have ignored the “commerce of a substantial and permanent character” part of the federal tests and have improperly extended the navigational servitude to waters used for recreation, but the SCOTUS has never held that mere pleasure boating meets either the bed title or Commerce Clause tests.
This all ties back to the Clean Water Act which recognized that in order to protect public waters (navigable), upstream waters need consideration under “proximity” laws. Somehow, this initiated a debate over the “ownership” of surface water, instead of water quality (similar to the clean air act).
Correct. Most people conflate Clean Water Act regulation with a navigational servitude, but the SCOTUS has authoritatively refuted this proposition, most recently in Kaiser Aetna v. United States.
” Once Congress acknowledges to the paddling lobbyists and landowners that the Public Trust Doctrine does not expand access rights with the expansion of the Clean Water Act jurisdiction, much of the debate regarding this issue goes away.”
Well, Congress isn’t likely to do it, because the SCOTUS has already done so, in more than one ruling, going back to the time the Clean Water Act was passed.
All that’s necessary is for paddlers to understand and accept the law. They already understand it, at least collectively, because they’ve got lots of attorneys working with them who may be presumed to understand the issue. The simple fact is that they simply reject outright the notion that they are not allowed to boat anywhere they can float an inner tube or kayak.
They are intent on forwarding the socialist/progressive notion that constitutional rights mean nothing if the public has a desire to acquire private property for public recreational use.
We cannot expect that boaters will give up on this quest to float every stream, creek and freshet “capable of floating a fishing skiff or gunning canoe at high water” into a “navigable water of the United States.”
We have to simply address the issue in court and obtain rulings that make it clear what the law actually is, and then sue the living daylights out of anyone who can be identified, like commercial outfitters, and put them out of business wholesale until they come around and decide to act like adults and respect the law.
The ignorance spread by these “entitled paddlers” needs to stop, the consequences of trespassing needs to become more sever, not “decriminalized”.
We can only hope the Senate are not as gullible as Ms Curry and those that voted for the house bill.
I agree. Please contact your state Senator and write a letter of objection. The bill has not yet been assigned to a committee in the Senate, so I don’t know when the next hearing will be, but I’ll post it when I know.