Trouble on the Taylor
Curry tackling rafting dispute with proposed legistlation
Times Staff Writer
Originally published 2010-01-14



It’s not the first time that the proponents of the public’s right to float rivers in Colorado have been pitted against private property owners in the Gunnison Basin.

The question of whether such a right actually exists has been around for as long as people in Colorado have been floating the state’s waterways for recreational purposes.

But a bill that Rep. Kathleen Curry plans to carry this session would bar a landowner from attempting to control access to a river by commercial outfitters. It wouldn’t speak, however, to all rivers, nor would it extend to all boaters.

Instead, what’s being called the “River Rafting Jobs Protection Act” would allow for licensed, commercial rafting companies that have historically operated on a river to be protected from civil suit in the event “incidental contact” with the river bed occurs, or where they need to portage around a structure blocking the waterway.

The draft legislation would also give landowners protection from liability, in the event someone were hurt while attempting to portage, for example.

It would provide no legal protection for private boaters.

The bill stems from a situation on the Taylor River in Gunnison County, where a landowner is attempting to control the river where it flows through his property.

Opponents of the bill say it would violate private property rights, and argue that it speaks only to one specific instance in Colorado.

 

Clear as muddy water?

The debate over whether there’s actually a “right to float” in Colorado played out locally before. In a high-profile case a few years ago, an outfitter who had historically boated the Lake Fork of the Gunnison River was sued for civil trespass, for floating through private land. The company, Cannibal Outdoors, ultimately went out of business amidst the litigation.

The case was settled out of court, so the matter never became part of case law. The question of whether landowners have grounds for such civil suits has lingered in the minds of proponents of the state’s $142 million river running industry ever since.

It’s widely recognized that current law protects boaters from a criminal charge if they don’t touch bottom while floating through private property. Likewise, it’s long been held that property owners of parcels through which rivers and streams flow own the underlying stream bed.

“Both sides definitely have enough information to create their own philosophies about what these laws say,” said Bob Hamel, chairman of the Colorado River Outfitters Association and owner of Arkansas River Tours in Cotopaxi.

Local water attorney John Hill represented the landowners in the case on the Lake Fork, and has staunchly argued that there is no right to float in Colorado.

He believes that landowners have the legal right to control access to waterways because they own the underlying streambed.

“We don’t think that’s the way it is or should be,” countered Hamel. “We’re trying to protect an industry. We’re being pushed.”

Hill, whose firm is currently representing the landowner on the Taylor River who is attempting to bar access by commercial outfitters, said that Curry’s bill is unconstitutional. Allowing commercial boaters to portage, he argued, is a “taking” with no prospect for just compensation.

“This is a physical invasion taking,” he explained. “It’s authorizing people to go on private property.”

 

Taylor River Wrangle

Jackson Shaw, a Texas-based real estate development company, purchased what has historically been called the Wapiti Ranch, six miles up the Taylor Canyon from Almont, for $20.5 million in late summer 2007.

The approximately 2,000-acre hay meadow down-river of Harmel’s Resort is now the site of a subdivision development called Wilder on the Taylor.

Company CEO Lewis Shaw II is a part-time resident of the nearby Crystal Creek community along the Taylor River.

Historically, Scenic River Tours and Three Rivers Outfitting have guided float trips through the section of river that flows through the new development, without cause for alarm from the previous owner.

That’s changed since Jackson Shaw became the new owners. Lewis Shaw has informed the two local outfitters that they won’t be allowed to continue floating the section of river that flows through the development, threatening legal action if they don’t abide.

Wilder on the Taylor is what Hill’s partner and longtime local water attorney Dick Bratton called a “recreational fishing subdivision.” Jackson Shaw has conducted improvements on the property, and in the river, to improve the fishing, he said.

Similarly, the Cannibal case was over the same competing interests. The landowners maintained a fishing lease on the section of water in question, with which they believed the frequent commercial raft trips interfered.

“If this guy had owned this river in his family for the last hundred years I would feel somewhat differently,” Mark Schumacher, owner of Three Rivers, said of Lewis Shaw. “But he bought the property to make it a fishing (subdivision) and he knew that people floated through it. We just don’t want anything taken away that we’ve been doing for 20 years.”

 

A solution in sight?

Curry plans to introduce the bill — which, she said, she agreed to carry for the two local outfitters — in coming weeks.

She expects a constitutional challenge of the bill, should it be written into law, but views it as necessary for protecting commercial rafting in Colorado.

Bratton, on the other hand, calls the proposal a “special interest” bill, because it would only protect two companies on a two-mile stretch of one river.

But how long until the issue floats to the surface again, elsewhere in the state?

“What we’re trying to do is protect places where people are in business right now,” Hamel explained.

Bratton is quick to point out the irony of the local situation.

He is the former attorney for the Upper Gunnison River Water Conservancy District, and helped secure the stable flows which allow viable commercial rafting to take place on the Taylor.

Curry is a former manager of the district.

Shaw, and other members of the Crystal Creek subdivision, gave money to the effort that helped keep a reservoir from landing in Union Park — which many feared would have, among other things, reduced flows in the Taylor River.

“Rafting is a big industry and we need to help it anyway we can, but you don’t do it on the backs of (others),” Bratton opined. “It’s not a water issue. It’s a private property rights issue.”

He said that allowing portaging and incidental contact has the potential to damage bridges, fences, head gates and other private structures.

Hill believes that property values would be impacted by the easements which would be created, which would result in less property tax revenue.

Still, others disagree, and believe that legislation is in order.

“In Colorado, it’s almost impossible to float a river without touching something,” said Curry. “The statute does not realistically address normal boating conditions in this state.”

 

(Will Shoemaker can be contacted at 970.641.1414 or will@gunnisontimes.com)