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.
“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.