by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
John B. Finch, a 19th century prohibition activist, originated the expression, “your right to swing your arm ends just where my nose begins.” Justice Oliver Wendell Holmes often used similar analogies to argue that personal freedoms do not extend to injuring the safety or property of others. Yet he also upheld limitations on property rights when their exercise would harm the community.
That legal dichotomy is at the heart of a long-simmering Colorado dispute, whether one has the right to float on streams that cross private property. It is the subject of “Public Resources on Private Property: Why the right to float is complicated and how Colorado addresses it,” a new report from the Common Sense Institute, which I co-authored with one of my successors as head of the Colorado Department of Natural Resources. I served in that role under Gov. Bill Owens, and Mike King under Governors Bill Ritter and John Hickenlooper. We both faced this “right to float” issue, pitting outdoor recreation against private property rights.
It is controversial partly because Colorado treats the issue differently than many other states. In some, rivers and streambeds are considered public land, but in Colorado and several others, the waters belong to the people but streambeds belong to adjacent landowners. That was determined at the time of statehood in 1876, when all the state’s rivers were considered too small to be commercially “navigable.” So, in Colorado the water is public, but not the land under it. Thus, wading, anchoring, and portaging around obstructions on private land may be trespassing.
Public access for floating is well established in Colorado, and today rafting, kayaking, and canoeing are multibillion-dollar businesses, creating an uneasy balance between that right and the rights of private property owners that can only be addressed through a case-by-case mediated process, which was formalized in 2010. Every situation is different; no one-size-fits-all solution will work.
