Rafters and landowners tussle over rivers

Jarett Duty relishes the evergreens, the rush of white water, and the protruding rocks on the Elk River in northwest Colorado, where his rafting company floats clients for a brief but exhilarating time each summer.

But these days the co-owner of Bucking Rainbow Outfitters has to navigate more than frothy haystacks when he runs the river: He has to deal with politics, too.

A number of landowners just outside Steamboat Springs don't like the intrusion of streaming rafters interrupting their tranquil life along the banks of the Elk.

They are considering legal action that would pursue anyone who floats through their private land as being in violation of "civil trespassing" laws.

It is setting up a classic Western confrontation: Who owns the river, anyway?

For generations, Coloradoans and other Westerners have fought over water rights. Agriculturalists have wanted their piece of rivers to water crops. Municipalities want their share for residents' faucets. In between is a welter of interest groups - from environmentalists to the ever-present lawyers with their briefs.

Now, as an increasing number of people buy second homes with river frontage, a new water battle is gathering momentum in Colorado and other states: aesthetics versus adventure. The homeowners want their privacy, while outfitters want the opportunity to take tourists and thrill seekers through a class III set of rapids.

"Is it going to take someone getting shot and killed to clarify the law?" says Mr. Duty. "You still have a lot of hard-core old-school people who are saying, 'This land is mine.' "

In theory, the issue probably should have been clarified a long time ago. Colorado was among the first states to pioneer white-water rafting. After World War II, many veterans took the rubber boats they had used to storm the beaches of Europe for runs on local rivers, according to Jason Roberston of American Whitewater, who works out of Maryland for the national group.

Yet most observers agree that Colorado is among the last to reconcile its murky water laws. And the fight over privacy versus recreation is particularly intense here: the state has some of the country's most sought-after white water and the influx of people buying waterfront property is growing as well.

In Routt County, home to the Elk River, no one has come to blows yet, Duty says. But he tells stories of guns pointed and shots fired over the heads of boaters in other parts of the state.

"Bottom line, I think rafters have some good arguments to make, but the law in this state is unclear," says Fritz Holleman, a lawyer in Boulder who has represented the American Whitewater organization that promotes recreational use.

Most do agree on one point of law: Boaters are subject to "criminal trespass" while riding a river through private property if they touch the river bed or bank - which are considered the landowner's.

The rub is what - if any - rights rafters, kayakers, and others have to ride the water itself. James Horner, a lawyer in Steamboat Springs who represents a group of landowners, refers to the oft-cited 1979 Colorado Supreme Court case of People vs. Emmert. "If you simply float across a person's property, you're essentially creating a civil trespass," he says.

Civil trespass arguably comes, for example, when a river rafter breaks landowners' "quiet enjoyment" of their property, Mr. Horner explains. But enforcement is problematic. The landowners would have to pursue the untested matter in court, and Horner says a jury would then have to weigh the loss of access to a river against the loss of "quiet enjoyment."

David Moss, a member of the Seedhouse Road Coalition, a landowner group along the Elk, says he doesn't have a problem with lone kayakers. But "I have a real problem with the commercial guy creating civil trespass and making money off it," he notes. Mr. Moss doesn't think the Seedhouse coalition will file any lawsuits as a group, but individual landowners may pursue their own legal action.

For now, Bucking Rainbow Outfitters has won a permit request for a new put-in on the Elk River. And the recreational community in general has a defense ready in case all this does end up in court. River Runners believe they have legal footing in a 1983 opinion by the Colorado attorney general indicating that property owners may not control the water that runs over their land.

They also point to federal law, which says that rivers declared "navigable" must allow public access. One problem: Lawyers say no rivers in Colorado have yet been defined as navigable. But Duty believes that designation already exists in practice on the Elk. "If you can float down it," he says, "you can float."