COLORADO BOATERS!
awa
The 1996 Colorado Stream Safety Act is now being heard by the
Legislature. They need to hear your voice too!
Bailey Canyon. Ark. Animas. Gore. Yampa. Colorado has some of
the best whitewater in the country. Unfortunately, there is
confusion in Colorado law with respect to boating past private
property.
Can you imagine getting arrested for criminal trespass because your
boat has touched the banks of a stream or because your paddle has
brushed against a midstream rock? Sound ridiculous? Implausible?
Perhaps, but this is an interpretation of Colorado law.
The Colorado White Water Association (CWWA) and the American
Whitewater Affiliation (AWA) have spent 4 months crafting a bill
with kayaker and House Majority Leader Tim Foster (R-Grand Junction)
to protect our right of passage on Colorado rivers. The bill is
titled The Colorado Stream Safety Act, and it does the following:
· The core provision of this bill clarifies that rafts, kayaks and
canoes ("boaters") may briefly touch stream beds or banks--no more
than the minimum necessary to continue safely downstream.
· The bill will not apply to commercial whitewater crafts, inner
tubes, or boats with engines.
· This bill does not permit hunting, fishing, or picnicking on
private land and does not allow a boater to cross private land in
order to reach a river. No bill could realistically pass with
these provisions.
· The bill will protect landowners from liability for certain
injuries sustained by boaters.
Here’s what you can do:
Immediately call or write your state Representative and Senator
to sponsor this bill.
Ask your state Representative and Senator today to vote for it.
Contact other boaters and landowners with river frontage to call
and support this bill.
Be brief and clear when speaking to legislators, and emphasize
the title (Foster and Kerns’ Colorado Stream Safety Act). Emphasize
that the “Stream Safety Act” is a common sense solution that will
reduce conflict and litigation. It protects boaters from injury by
allowing them to get out and walk around dangerous obstacles (only
to the minimum extent necessary!) rather than boating around blind
corners or over horizon lines. This bill bring Colorado law into
step with the laws of New Mexico, Wyoming, Montana, Idaho, and
California. This bill is about safety and fairness.
To find the name and phone numbers of your local Representative and
Senator:
· Call your local county or city election commission or clerk
(usually located in the “blue pages” in the front of the phone
book), or call AWA (Rich Hoffman: 301-589-9453 or email:
7643...@compuserve.com) or CWWA (Ric Alesch: 303-985-8620,
73624...@compuserve.com) for this information.
· Call the State Capitol: (303) 866-2904 for the House of
Representatives, (303) 866-2316 for the Senate.
***********
Below are members of the House and Senate Agriculture Committees.
They can kill the bill in committee, so it’s crucial that we gain
their support (especially in the House, where the bill will first
be heard). In addition to calling you own Representative and
Senator, please contact members of these committees, especially
the ones with asterisks, since they are from districts with few
CWWA or AWA members.
Colorado House and Senate Agriculture, Livestock & Natural Resources
Committee Members:
*HOUSE Office Home
*Entz, Lewis H. 303-866-2963 719-754-3750
*Acquafresca, Steve 303-866-2955 970-856-6358
*Armstrong, Don 303-866-2912 303-366-7074
*Chlouber, Ken 303-866-2952 719-486-0008
*Dyer, Jim 303-866-2914 970-259-1942
*George, Russell 303-866-2945 970-625-3778
*Gordon, Ken 303-866-2967 303-753-1383
*Jerke, Bill 303-866-2907 970-284-6061
*Lamm, Peggy 303-866-2938 303-494-5912
*Musgrave, Marilyn 303-866-3706 970-867-3245
*Reeser, Jeannie 303-866-2964 303-452-1838
*Salaz, Mike 303-866-2948 970-846-9527
*Taylor, Jack 303-866-2949 970-879-1880
SENATE Office Home
Ament, Don 303-866-4866 970-522-8205
Bishop, Tilman 866-3077 970-242-9230
Dennis, Ginette 866-4866 719-547-9330
Hernandez, Robert 866-4865 303-458-1011
Johnson, Joan 866-4863 303-288-9237
Powers, Linda 866-4865 303-349-1337
Wattenberg, Dave 866-4866 970-723-4577
Thank you!
Ric Alesch Rich Hoffman
CWWA / AWA Board Member AWA
14262 West Warren Place 1430 Fenwick Lane
Lakewood, CO 80228 Silver Spring, MD 20910
Many thanks go to Paul Zirkelbach for creating the CWWA-legislator
database, Ric Alesch for fund raising (the CWWA and AWA have
budgeted over $10,000 to support this bill!) and Jay Kenney,
John Marshall, Jim Martin, Ken Ransford for working
on the bill.
awa
Scott Weiser
>Can you imagine getting arrested for criminal trespass because your
>boat has touched the banks of a stream or because your paddle has
>brushed against a midstream rock? Sound ridiculous? Implausible?
>Perhaps, but this is an interpretation of Colorado law.
Indeed, it IS the law in Colorado. See: People v. EMMERT, 597 P.2d,
1025.
"Applying this rule, which was implicitly adopted by the court in
Hartman, supra, the ownership of the bed of a non-navigable
stream vests in the owner the exclusive right of control of
everything above the stream bed, subject only to constitutional and
statutory limitations, restrictions and regulations. Thus, in
Hartman, supra, ownership of the stream bed was held to include the
exclusive right of fishery in the waters flowing over it. It follows
^^^^^^^^^^
that whoever "breaks the close" -- intrudes upon the space
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
above the surface of the land -- without the permission of the owner,
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
whether it be for fishing or for other recreational
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
purposes, such as floating, as in this case, commits a trespass. See
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Restatement (Second) of Torts 159." (emphasis added)
"We have not been cited to any Colorado decisions interpreting
constitutional or statutory provisions which may have modified
the common law rule of property law upon which we predicate this
decision. And we do not feel constrained to follow the
trend away from the coupling of bed title with the right of public
recreational use of surface waters as urged by defendants. We
recognize the various rationales employed by courts to allow public
recreational use of water overlying privately owned beds,
i.e., (1) practical considerations employed in water rich states such
as Florida, Minnesota and Washington; (2) a public
easement in recreation as an incident of navigation; (3) the creation
of a public trust based on usability, thereby establishing only
a limited private usufructary (sic) right; and (4) state
constitutional basis for state ownership. We consider the common law
rule of more force and effect, especially given its longstanding
recognition in this state. Sterling National Bank v. Francis, 78
Colo. 204, 240 P. 945 (1925). As noted in Smith v. People, 120 Colo.
39, 206 P.2d 826 (1949):"
...
"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, which
provides:
'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 non-navigable
fresh water streams flowing through such real
property.'
We hold that the public has no right to the use of waters overlying
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
private lands for recreational purposes without the consent of
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
the owner." (emphasis added)
^^^^^^^^^^^
>The Colorado White Water Association (CWWA) and the American
>Whitewater Affiliation (AWA) have spent 4 months crafting a bill
>with kayaker and House Majority Leader Tim Foster (R-Grand Junction)
>to protect our right of passage on Colorado rivers. The bill is
>titled The Colorado Stream Safety Act, and it does the following:
You have no "right of passage" on Colorado rivers where such rivers
pass through private lands. You never have.
>· The core provision of this bill clarifies that rafts, kayaks and
>canoes ("boaters") may briefly touch stream beds or banks--no more
>than the minimum necessary to continue safely downstream.
>· The bill will not apply to commercial whitewater crafts, inner
>tubes, or boats with engines.
>· This bill does not permit hunting, fishing, or picnicking on
>private land and does not allow a boater to cross private land in
>order to reach a river. No bill could realistically pass with
>these provisions.
>· The bill will protect landowners from liability for certain
>injuries sustained by boaters.
The bill will also subject the State of Colorado and it's taxpayers
to enormous monetary damage claims for violating the U.S. and
Colorado Constitutions prohibitions against the unlawful taking of
private property for public use without just compensation.
According to the information given here, (as the Bill itself has not
yet been posted), it purports to legalize trespass upon private lands
not just by floating on non-navigable Colorado waterways, but
including actual trespass upon the ground and airspace of the private
landowner. This is illegal unless the state acquires either the
title to the land through action in eminent domain or by purchasing
an easment for such trespasses from the landowner.
And you are indeed subject to arrest for criminal trespass for doing
so, and always have been. This Bill will change nothing, because the
underlying presumptions upon which it is based, ie: that there is a
"navigational servitude" upon the waterways of Colorado, is
erroneous, and the proposed Bill is thus unconstitutional on it's
face.
A more complete analysis of this question is available at my
homepage:
http://spot.colorado.edu/~weisers/Home.html
Persons interested in this issue are invited to review the materials,
which includes the full text of the EMMERT decision, the Colorado
Attorney General's opinion, full footnotes, and a paper on the
subject.
I trust that the AWA will post the full text of the Bill here as soon
as practicable so that we may all review it.
--
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a laywer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
Scott....@colorado.edu
> Scott,
> My feeling is that the following statement is bunk!
>
> "The bill will also subject the State of Colorado and it's taxpayers
> to enormous monetary damage claims for violating the U.S. and
> Colorado Constitutions prohibitions against the unlawful taking of
> private property for public use without just compensation."
Then you need to do some more research into the issue. May I suggest that you
read the materials available on my Web page?
http://spot.colorado.edu/~weisers/Home.html
You might find the information educational.
> Do the airplanes flying over your property need an easement?
They have one. Please see the sections of my paper regarding rights in airspace.
> What if one were
> out of control due to mechanical failure? Would it be trespassing if the
> plane landed on your property in order to save lives?
Yes, it would be a trespass, but in a true emergency, the pilot can plead "choice of
evils" as a defense to such a trespassing charge.
> Is our ability to fly over
> your house a "taking"?
In the strict sense, yes, it is, but the pragmatic necessity of permitting flight
through "private" airspace, coupled with the remoteness of the intrusion on the
personal privacy of the owner outweighs that privacy, so the government has
pre-empted such takings claims in the interests of interstate commerce.
> I realize that there are clear legal distinctions between
> water and air access, but from a pragmatic standpoint I don't think there's
> much difference between a boater that swamps and has to touch your property
and
> a plane that is forced to land on your property.
Indeed there is. There is an entire body of case and statutory law regarding
navigation, navigability, navigational servitudes, riparian landowners, reservation
of bed-titles, etc.. The issue of what waters are open to public use was one of the
first issues decided in the courts, and it has been refined since then. You might
want to look up the case "The Daniel Ball", which is probably the most essential
statement of navigability, and is the basis for almost all of the current
interpretation of navigability issues.
> One might argue that there is
> much greater risk associated with boating than flying. But, by the same token
> there is a much greater availability of airspace than there are fun rivers.
It has nothing whatsoever to do with risk. It has to do with privacy.
> According to your argument, your legal babble-eze not withstanding, we should
> require all airplanes to just fly over public land.
That was indeed one argument when aviation was invented. The government
decided that there was a compelling public need to permit free air navigation. No
such corollary exists for boating. There has been an enormous amount of legal
precedent about navigation built up, and there is a very clear distinction between
what rights the public has to navigate on non-navigable and navigable
waterways.
And since it is going to be the "best" "legal babble-eze" which wins the case, it is
in your best interests to become educated in the legal issues and interpretations if
you hope to be and effective supporter for your position. Fortunately, I reply to
posts such as yours because I believe in debate, and I hope our discussion will
educate you about the realities of the law.
> Nobody is asking to "take"
> your land. Boater's just want to be allowed to empty their boat while
> standing on the shore if they happen to capsize or to be able to stand in
> shallow water above a big drop in order to scout it or other similar, quite
> non-intrusive actions, if absolutely necessary. Nobody wants to "take"
> anything
> of yours.
Of course they do. They want to take away from me one of the most essential
aspects of private property, the right to exclude others. Try this arrangement of
your argument; I just want to be able to come in any time I please and enjoy my
beer in front of your TV, I don't want to "take" your house, or your TV, I just want
to be able to empty my bladder in your toilet if I happen to drink too much beer.
Do you begin to see the issue more clearly? Is my "right to privacy" any less
important than yours? If so, why?
> According to your post the law doesn't support my position, but from
> a practical, pragmatic standpoint, I believe that it should.
True.
So do many people who do not own property, as well as some who do. It is my
experience that those who argue the loudest for access to private property are
those who don't have any, and consequently don't understand how offensive it is
to buy, maintain and be required pay taxes on property, on the presumption that it
is indeed private, only to have some strangers who have never provided a dime of
the costs demand that your property be opened to them for recreation.
However, this is the United States of America, and one of the essential precepts is
that private property ownership is a protected, Constitutional right. Implicit in that
right is the right for private property to be *private*.
> P.S. Perhaps the airplane analogy is a bit abstract, but consider this one:
> There is a very busy street. A person becomes ill or has an accident.
>Apparently,
> according to you, it would be a "taking" if that person were allowed by law to
> step off the street and stand or lay down on your property in order to save their
> lives
No, not at all. It would be a trespass, with an emergency exception. A taking
occurrs when the *government*, through legislative or administrative acts, "takes
private property for public use without just compensation". So, the proposed Bill,
which (as I understand it from the inadequate information provided) proposes to
codify the "right" of boaters to not only float through private lands, which is a
trespass to the private space of the owner, but to actually get out and trespass on
the land itself if they "need" to for "safety reasons". Which "safety reason" would
not be necessary if they weren't illegally trespassing in the first place.
This authorization of trespass is a governmental act, and the government is
acting in it's "redistributive" role by attempting to provide additional public
recreational resources without having to pay for them, which is an
unconstitutional taking. The analogy is if the government passed a law which
gave me the legal right to come into your house and drink beer in front of your TV
and pee in your toilet whenever I wanted to.
Again, you are trying to equate an emergency with voluntary recreation. The two
arguments are not comparable. Exemptions for emergencies exist in the law.
Exemptions for pleasure boating do not.
Regards,
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a laywer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
PGP 2.62 public key fingerprint:
A6 BD 79 21 A4 24 7B 10 F1 4C 2E BF D1 40 2A 0A
Scott....@colorado.edu
Mark Zen
:> > pe...@essc.psu.edu (Peter Schultz) writes:
:> > Scott,
:> > My feeling is that the following statement is bunk!
:> >
:> > "The bill will also subject the State of Colorado and it's taxpayers
:> > to enormous monetary damage claims for violating the U.S. and
:> > Colorado Constitutions prohibitions against the unlawful taking of
:> > private property for public use without just compensation."
:> Then you need to do some more research into the issue.
:> May I suggest that you
:> read the materials available on my Web page?
:> http://spot.colorado.edu/~weisers/Home.html
:> You might find the information educational.
:>
[snip]
scott, you're double posting again... check your settings!! :-)
good analogies, peeing in someone elses toilet, ROTFL!!
mark
--
-------...@netcom.com------------------------------------------------
mark zen o, o__ o_/| o_.
po box 6091 </ [\/ [\_| [\_\
longmont, co 80501-2077 (`-/-------/----') (`----|-------\-')
~~~~~~~~~~~~~~~~~~~~~~~~~~~~@~~~~~~~@~~~~~~~~~~~~~~~~~~~@~~~~~~~~@~~~~~~~~
Mike Zulauf
lawyer (though I play one on TV). However it seems asinine that in
Colorado, property owners have 'rights' that are denied to most of the
rest of the country.
The real purpose of these 'rights' are not to stop trespassing or to
secure privacy for property owners, but rather to keep boaters and others
off of 'their river'. For example, I've been places where you would have
no problem floating trough without touching their precious land, except
that they've strung a fence across the river. While legally (or not, I'm
not sure) they may be within their rights to do this, I can see no
reasonable justification for this being permissible.
I support any laws or actions necessary to rectify this idiotic state of
affairs, even if it tramples on the questionable 'rights' of some selfish
people.
Mike
--
Mike Zulauf
mazu...@atmos.met.utah.edu
Mark Zen
:> I'm not going to argue the technical merits of this issue, I'm not a
:> lawyer (though I play one on TV). However it seems asinine that in
:> Colorado, property owners have 'rights' that are denied to most of the
:> rest of the country.
:> The real purpose of these 'rights' are not to stop trespassing or to
:> secure privacy for property owners, but rather to keep boaters and others
:> off of 'their river'. For example, I've been places where you would have
:> no problem floating trough without touching their precious land, except
:> that they've strung a fence across the river. While legally (or not, I'm
:> not sure) they may be within their rights to do this, I can see no
:> reasonable justification for this being permissible.
how about keeping livestock within your property boundry. i don't
necessarily agree with the way some fences are constructed, but
given many of the rivers in colorado only flow hard in the spring
a fence that is at waterline during the run off may be feet above
the surface 9 months out of the year. one local river [for me] is
only runnable 3 - 4 weeks out of the year, and there is a fence
you come up on around a blind corner. my brother in law got "strung"
up on it, still has quite a nasty scar. i think it was put up
to intentionally hurt boaters ... and now we don't run that
stretch of river .... and from what i saw, there really wasn't
any good way for this rancher to put up a fence to keep his stock
on his land the rest of the year, as the water drops three+ feet
after the run off. he is more than within his rights to protect
his expensive beef. i think a few streamers hanging from the
barbed wire as a warning would have been nice. we NEVER had to
touch his land, and that time we did just to get the boats under
the wire. we have never run it since.
:> I support any laws or actions necessary to rectify this idiotic state of
:> affairs, even if it tramples on the questionable 'rights' of some selfish
:> people.
while i don't like the laws, what do YOU propose?? TAKE the land away
from the owner?? how about if someone decides your yard makes a great
picnic spot, and everyone starts coming there everyday. finally the
city takes your front yard from you and makes it into a park, so everyone
can enjoy that wonderful park. ... would this be fair?? would you
still support that?? i didn't think so.
on the other hand i DO support laws that would allow you to
paddle down any river, and allow you ONLY to get out of your
boat to portage an obstical. i stated last year that i envision
it to be like this: if you have to get out, you may only do it
with the objective to get around the obstical [god i must be spelling that
wrong]. if you stop to enjoy the view, you are trespassing. this
is similar to montana [as i understand it], you would not have the
right to put in or take out on private party, only the right to
pass through.
:> Mike
:> --
:> Mike Zulauf
:> mazu...@atmos.met.utah.edu
mark
Peter Schultz
There is so little difference between boating on a creek and not touching
the bottom and boating on a creek and touching the bottom. I really don't think
that it's worth it to get so worked up about it. I know that's offensive to you -
you apparently have devoted so much of your time to this issue and you have
turned what should be a non-issue into something huge and with a mind of its own.
The difference between touching the bottom and not is almost just a
matter of semantics. For instance, how do you define touching the bottom? Is scraping
the bottom with your boat trespassing? How about with your paddle? What if you
touch the weeds that are growing up into the water? What if the weeds are
floating?
But saying that boating on a stream above someone's property is comparable
to peeing in someone's toilet is ridiculous!
I think that comparing aviation to boating is a fair comparison in that
aviation can be purely recreational and the current law allows purely recreational
flyers access to much of the airspace over private land.
BTW, I'm a little offended at your statement that people who don't own
property tend to be less sensitive to your rights as a streamside owner. I happen to
be a proud property owner in Tyrone, Pennsylvania.
Cheers,
Pete
P.S. I still think that a lasting solution to the concerns of private land owners
with regards to boating lies in cooperation, face to face discourse, and thereby
more empathic understanding of each side's needs. I don't think a lasting solution
will ever be achieved if it has to come down with the 'iron hand' of the law.
Mike Zulauf
wrote:
:> Previously Mike Zulauf [mazu...@atmos.met.utah.edu] wrote this:
:> ::> The real purpose of these 'rights' are not to stop trespassing or to
:> ::> secure privacy for property owners, but rather to keep boaters and others
:> ::> off of 'their river'. For example, I've been places where you would have
:> ::> no problem floating trough without touching their precious land, except
:> ::> that they've strung a fence across the river. While legally (or not, I'm
:> ::> not sure) they may be within their rights to do this, I can see no
:> ::> reasonable justification for this being permissible.
:>
:> how about keeping livestock within your property boundry. i don't
:> necessarily agree with the way some fences are constructed, but
:> given many of the rivers in colorado only flow hard in the spring
:> a fence that is at waterline during the run off may be feet above
:> the surface 9 months out of the year.
I'll agree that at times it may be necessary to construct a fence that
does interfere with boating, but often it is not, and they string one up
in such a way anyhow.
:> while i don't like the laws, what do YOU propose?? TAKE the land away
:> from the owner?? how about if someone decides your yard makes a great
:> picnic spot, and everyone starts coming there everyday. finally the
:> city takes your front yard from you and makes it into a park, so everyone
:> can enjoy that wonderful park. ... would this be fair?? would you
:> still support that?? i didn't think so.
I'm not proposing anything radical, merely a change to the way things are
handled in most other states.
:> on the other hand i DO support laws that would allow you to
:> paddle down any river, and allow you ONLY to get out of your
:> boat to portage an obstical. i stated last year that i envision
:> it to be like this: if you have to get out, you may only do it
:> with the objective to get around the obstical [god i must be spelling that
:> wrong]. if you stop to enjoy the view, you are trespassing. this
:> is similar to montana [as i understand it], you would not have the
:> right to put in or take out on private party, only the right to
:> pass through.
I agree with everything you write here. I think our stances are pretty
compatible; I'm just not very good at stating mine sometimes. . . ;-)
Scott Weiser
>I'm not going to argue the technical merits of this issue, I'm not a
>lawyer (though I play one on TV). However it seems asinine that in
>Colorado, property owners have 'rights' that are denied to most of the
>rest of the country.
This is not at all true. In fact, many states have rivers and streams
which are non-navigable and which are therefore closed to public use.
Although it may seem "asinine" to you, it doesn't to me, or others who have
bought, paid for, paid taxes upon and expected to be able to enjoy our
property in peace and solitude.
>The real purpose of these 'rights' are not to stop trespassing or to
>secure privacy for property owners, but rather to keep boaters and others
>off of 'their river'. For example, I've been places where you would have
>no problem floating trough without touching their precious land, except
>that they've strung a fence across the river. While legally (or not, I'm
>not sure) they may be within their rights to do this, I can see no
>reasonable justification for this being permissible.
How do you know this? Are you a rural landowner? How much have you spent
in maintenance, mortgage and tax payments on riparian areas in the last 35
years? I suspect you aren't, and are simply jealous that others have
something which you covet and can't have.
The reasonable justification is that the right to exclude others from
private property is perhaps the most essential aspect of property
ownership.
My question to you is why do you feel that you have a right to trespass on
"someone else's stream" in the first place? Where is your legal or
moral justification? What other forms of recreation would you impose on
private landowners to satisfy your "needs"?
>I support any laws or actions necessary to rectify this idiotic state of
>affairs, even if it tramples on the questionable 'rights' of some selfish
>people.
And this is why the Constitution of the United States, and the Colorado
Constitution protects my rights in private property with such vigor;
because some selfish, self-indulgent recreationists can't be satisfied with
boating on the thousands and thousands of miles of public waterways in the
nation, but must intrude upon the rights of others for their recreation.
I would say that *you* are the selfish one in this sceneario.
--
Scott Weiser
--
Keith Beck
1) Scott, you are still double-posting. Check your configuration,
please (and while you are at it, your lines are again too long for most
screens).
2) While I was out-of-town and away from NEWS, it seems that this thread
has come back to life. It also looks (unfortunately) as if we will have
to re-invent this particular wheel again. Perhaps this topic should be
summarized in a FAQ format. The discussion last time covered an amazing
array of considerations, facts, fantasies, opinions, anger, and even
understanding and reconciliation. Maybe this time around an interested
person (Scott? Chris?) would like to keep a summary record?
Chris Webster
> 2) While I was out-of-town and away from NEWS, it seems that this thread
> has come back to life. It also looks (unfortunately) as if we will have
> to re-invent this particular wheel again. Perhaps this topic should be
> summarized in a FAQ format. The discussion last time covered an amazing
> array of considerations, facts, fantasies, opinions, anger, and even
> understanding and reconciliation. Maybe this time around an interested
> person (Scott? Chris?) would like to keep a summary record?
I'm staying out of the fray this time. Scott has done a lot of research,
and I'm assuming he has most of the facts correct. In this case
"constitutionaly" he is fairly accurate (I'm sure we could debate some of
his interpretations ad nausium), even though most people in this forum
disagree philosophically. It boils down to being the same (or similar)
to the gun debate. Constitution says we can have them, but many people
disagree. I am putting my energy into passing the legislation proposed.
It passed the House Agriculture committee yesterday, 1 down 3 to go.
COLORADO BOATERS, CALL YOUR REPRESENTATIVES!
--Chris
Scott Weiser
>Scott,
> There is so little difference between boating on a creek and not touching
>the bottom and boating on a creek and touching the bottom. I really don't think
>that it's worth it to get so worked up about it. I know that's offensive to you -
>you apparently have devoted so much of your time to this issue and you have
>turned what should be a non-issue into something huge and with a mind of its own.
> The difference between touching the bottom and not is almost just a
>matter of semantics. For instance, how do you define touching the bottom? Is scraping
>the bottom with your boat trespassing? How about with your paddle? What if you
>touch the weeds that are growing up into the water? What if the weeds are
>floating?
You are absolutely correct in your analysis, but for all the wrong reasons.
The objection is not to the "touching bottom" at all, it is to the *trespass*
itself. You make the assumption that it is legal for you to float through private
property on a stream if you *don't* touch the bottom, and that doing so is just a
minor problem. You are wrong. The law says that you commit a trespass when you
"break the close", which is to say that you break the invisible plane of the
property line which, according to Colorado law, extends from the center of the
earth to the outer limits of space. This is the common-law "Ad Coelum", or "heaven
to hell" doctrine of property ownership which Colorado has codified into statute.
This doctrine has been modified by the federal courts with the interpretation being
that the right to airspace actually only extends to that airspace above the surface
which one could reasonably use. The courts have usually denied trespass claims
above this "grey" limit, and air navigation is one of the elements they consider.
For example, "useable" airspace might extend to as much as 2000 or more feet if the
owner chooses to erect a television tower or skyscraper of such height, but
probably doesn't extend to 5 or 10 thousand feet, since it's not "reasonably
useable".
However, the areas close to the ground, specifically below any zoning limits, which
in the case of my property is 50 feet, is well-protected. The law says that it is
"real property" in every sense of the word, just like the land, and is to be
treated as such in *every way*. This is why, when one buys a condo, one is buying
an "airspace" right, which is to say a "block of air" above the ground, usually
bounded by the physical structure of the building, right up to the paint film,
which remains the property of the association or building owner.
So, in law, the airspace above the "banks and beds" of streams, through which the
water flows, and the airspace above the surface of the water, is indeed private
property, and must be treated as such in law.
So, when you "break the close" by passing over the property line in a boat, you are
*still* trespassing on the "space" of the landowner. This is what the Colorado
Supreme Court said in the Emmert decision, which is the law of the land, the AG's
opinion and the Legislature's revision of the trespass statutes notwithstanding.
> But saying that boating on a stream above someone's property is comparable
>to peeing in someone's toilet is ridiculous!
Why? Is my right to privacy any less important than yours? Am I to be denied such
privacy rights simply because a non-navigable stream passes through my land? Am I
not entitled to the same, equal protection of the law that you are in your living
room, or on you property PA? Who are you to say that I am not disturbed by such
trespasses? I pay the taxes, I work the land, and I have title to it from the
Congress of the United States, which includes the "banks and beds", according to
statute, and which includes the airspace above them as well. Why should I be
required to be an "Involuntary Good Samaritan" and provide you with free
recreational resources at my expense? Why is my analogy any less pertinent?
> I think that comparing aviation to boating is a fair comparison in that
>aviation can be purely recreational and the current law allows purely recreational
>flyers access to much of the airspace over private land.
As we discussed, airspace rights are different than navigation rights. Modern
commerce and travel would be impossible if such overflights were trespasses, and
there is a compelling public need and purpose involved. Recreational boating on
non-navigable waterways is not nearly of the same caliber. The Congress and the
Courts have recognized that it is not appropriate to extend the right of free
public navigation to every stream and creek "which can be made to float a fishing
skiff or gunning canoe". Rivers that are navigable are public highways, but not
every river or stream meets the tests for being navigable, and those that don't are
private. This is true in *all* states. The difference between states is primarily
one of state Constitutional language. In Wyoming, the reservation of the waters
"for the use and enjoyment of the public" has been held to include boating rights
on rivers and streams suitable for public navigation. But even there, the right to
boat does not extend to every creek or stream in the state. In Colorado, the
specific language of the Constitution has been interpreted *not* to extend such
rights of navigation to the public. This may have been short-sighted of the
authors, but it is a fact nonetheless which cannot be glossed over or discarded. I
have a protected property-right interest in the real estate, and you have no right
to simply take it from me without compensating me.
> BTW, I'm a little offended at your statement that people who don't own
>property tend to be less sensitive to your rights as a streamside owner. I happen to
>be a proud property owner in Tyrone, Pennsylvania.
You may be offended if you choose, but I find it to be largely true. Perhaps you
are a happy exception. Does your land have a stream running through it? If so, do
you object to boaters? How about pretty trees and pastures? Do you object to
people walking through your property to enjoy the view and solitude? What about
hunting? Do you mind if hunters trespass on your land without asking permission?
What if instead of one or two boaters a week, it was 40 or 50 per day, or a like
number of people from the gritty city popping over each day to picnic on your lawn?
Would you still feel so altrustic after having to pick up after them, put out the
fires they start, fix the fences they cut, etc.?
>
>Cheers,
>Pete
>
>P.S. I still think that a lasting solution to the concerns of private land owners
>with regards to boating lies in cooperation, face to face discourse, and thereby
>more empathic understanding of each side's needs. I don't think a lasting solution
>will ever be achieved if it has to come down with the 'iron hand' of the law.
I think the lasting solution is to determine which streams and rivers are best
suited for such activities, and to use public funds to purchase the right of
navigation for the public in those places where it is highly desireable to boat, in
order to protect the rights of the landowners by compensating them for the
intrusions and their trouble. I agree as well that cooperation goes a long way,
unlike the previous poster who simply wants to make use of my land whether I like
it or not, without so much as a by-your-leave. People like him are the very reason
that this issue is coming to a head.
>
>
Regards,
--
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a lawyer, you'd be
Scott Weiser
>
>
Regards,
--
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a lawyer, you'd be
Mark Zen
:> If there is anybody out there that thinks
:> that walking into somebody's house
:> and peeing in their toilet is in any way
:> comparable to inobtrusively boating on a
:> river that runs through somebody's property, please let me know!
the hard part here is the definition of unobtrusive, what may be ok for one
is NOT ok for another, hence the reason for "blanket" laws.
:> I think that I (and probably the majority of
:> people on this news group) will just
:> have to agree to disagree with you, Scott,
:> that boating on a river that runs across
:> your land qualifies as a full-blown trespass -
:> I am speaking in a practical and
:> pragmatic sense, not in the sense of
:> what I see is an ill-founded ruling.
:> The difference between being able to
:> boat on a stream that runs through your
:> property and being able to fly over your
:> property is just a matter of degrees.
:> It does seem, though, that a legal distinction has been made.
[snip]
here we go again!!
pete, you must use the same software scott does, most of your lines are
over 80 characters long, and the majority of us have a hard time reading
them!!
anyway, while i do agree with you more than scott [we've discussed this!!]
your analogy is a bit off. a property owner isn't disturbed as much by a
plane flying over his property as he would be by a group of 20 kayakers
playing in an eddy 20 feet from his/her bedroom. --- and since scott is
a pilot, he can shed more insight to that as well [i'm sure!!].
now on the other hand, scott lives inbetween my house and my work.
he has had several "bad" [read gunpoint] encounters with trespassers.
i won't knowingly paddle through his property, because i know
of his personal issues [or at least the overview], but i will ask him
in this public forum to answer a couple questions:
1) if i were to have paddled through, being "net illiturate"
[ie not know about you and your stand] and you found me
traveling _through_ your land, not knowing if there are
culverts/diversions/etc. how would you approach me??
[i don't mean cautiously etc, i think you know what i mean].
2) would it make a difference to _you_ if i hadn't touched
the river bank [say there are no obstructions that cause me to
HAVE to get out of my boat]??
ok, a third, and you can mail me the answer if you like. since i _do_
know who you are and CAN do this, what if i approached you personally
and said i wanted to take my family down the river that flows through
your property and came and asked you for permission.
the basis for this is [and i said this last year, but never expounded
further] we regularly paddle the south platte, from brighton to as far
north as greeley [ok, the bridge at evans]. i wouldn't even know who
to contact to get permission, so we float it. again [for the new
guys/gals] i have told my kids that ALL the land is private property
on either side of the river, so NO we can't stop _ANYWHERE_ except
at the [few!!] public right of ways, ie within 5 ft either side of
the bridges. on one particular piece of river we HAVE gone and knocked
on the door of the house on the property that has access to the river,
and asked their permission, as it is obvious to anyone, with an IQ of 10
or more, who the owner is.
we are not talking about whitewater here folks. all of these rivers are
class I [unless you have a rapid on your land scott!! ;-) ]. my
understanding of the interpetation of colorado law is - IF i don't
touch the land, fences, etc, i am NOT trespassing. if i bump a rock, i am.
i am [restatement of previous post] all for a law that says --
if i pass through [with the right to portage an obstruction], i am ok.
if i stop to admire, i am trespassing.
this is the interpetation of the montana laws, as i have been lead to
understand them.
sorry so long winded [again!!!]
Mike Zulauf
<Scott....@colorado.edu> wrote:
> mazu...@atmos.met.utah.edu (Mike Zulauf) wrote:
> >I'm not going to argue the technical merits of this issue, I'm not a
> >lawyer (though I play one on TV). However it seems asinine that in
> >Colorado, property owners have 'rights' that are denied to most of the
> >rest of the country.
>
> This is not at all true. In fact, many states have rivers and streams
> which are non-navigable and which are therefore closed to public use.
First off, why are you posting everything twice? It's not like you have
to repeat yourself for us to know your opinion. . . ;-)
Besides, who's to say that a river is non-navigable? The owner of the
land surrounding it? Kind of a conflict of interest there, isn't it?
From what I've seen, many (most?, I'm not sure) states reserve the stream
and the bed to the public.
> The reasonable justification is that the right to exclude others from
> private property is perhaps the most essential aspect of property
> ownership.
I had the understanding that even in Colorado the stream itself is not
owned, but rather that streambed, rocks protruding above the surface, the
banks, and so on. If this is wrong, then I will concede the point
technically, though I don't agree that it is right. . .
> My question to you is why do you feel that you have a right to trespass on
> "someone else's stream" in the first place? Where is your legal or
> moral justification?
I guess my main point is that I don't believe the stream to belong to
someone else. Technically they may own the bed and the banks (though I
disagree with the 'morality' of this), but the stream and the water don't
belong to them.
> And this is why the Constitution of the United States, and the Colorado
> Constitution protects my rights in private property with such vigor;
Again, I'd rather not get into technicalities. I would just rather that
Colorado handled things the same way that many other states did. . .
> I would say that *you* are the selfish one in this sceneario.
Why? I'm not trying to deny anyone anything. Except perhaps certain
peoples' 'right' to deny others access to what they should rightfully have
access to.
David Rosky
>
>while i don't like the laws, what do YOU propose?? TAKE the land away
>from the owner?? how about if someone decides your yard makes a great
>picnic spot, and everyone starts coming there everyday. finally the
>city takes your front yard from you and makes it into a park, so everyone
>can enjoy that wonderful park. ... would this be fair?? would you
>still support that?? i didn't think so.
>
>paddle down any river, and allow you ONLY to get out of your
>boat to portage an obstical. i stated last year that i envision
>it to be like this: if you have to get out, you may only do it
>with the objective to get around the obstical [god i must be spelling that
>wrong]. if you stop to enjoy the view, you are trespassing. this
>is similar to montana [as i understand it], you would not have the
>pass through.
>
I can hardly believe my eyes, a voice of compromise from someone
who can see the issue from both sides. I'm sure that this is
ultimately the best way to solve the problem. Boaters have to realize
that they are passing through someone else's property and property
owners have to realize that in most cases, a boater passing through
isn't exactly the same thing as someone "drinking their beer in front
of your TV set and peeing in your toilet". If attitudes like this
were predominant on both sides, we wouldn't have to deal with
legal struggles. Just my $.02. (I know, I'm such an idealist.)
--DR
P.S. I believe the word is spelled "obstacle".
P.P.S For the record, I own land which many people hike through
(as oppsed to boat through), and It doesn't bother me as long
as they respect the land and are well behaved. (99.9% of them
are.)
----------------------- gro...@gv.ssi1.com -----------------------
Peter Schultz
and peeing in their toilet is in any way comparable to inobtrusively boating on a
river that runs through somebody's property, please let me know!
I think that I (and probably the majority of people on this news group) will just
have to agree to disagree with you, Scott, that boating on a river that runs across
your land qualifies as a full-blown trespass - I am speaking in a practical and
pragmatic sense, not in the sense of what I see is an ill-founded ruling.
The difference between being able to boat on a stream that runs through your
property and being able to fly over your property is just a matter of degrees.
It does seem, though, that a legal distinction has been made. I, however, don't
see much difference between recreationally flying over your property (people can
litter out of aircraft, BTW) and boating over your property. I anticipate hearing
about good old Emmert again from you. But, just because a ruling exists doesn't
mean that it is infallible and just and pragmatic and practical...
I have school kids and others walk through my yard every day. I see it as a practical
thing. Them cutting through my yard represents a net savings of human time. They
might inconvenience me now and then, but all-in-all it's worth it, because they save
so much time by cutting through. Furthermore, I reject the idea that walking across
someone's property is a "trespass" of the same severity of boating across someone's
property. Primarily because the landowner didn't buy the water that is running
across their property. They bought the land. The water is always new. In addition,
the land owner doesn't have the right to just suck up all the water so that the
downstream land owners don't have any left. They don't "own" the water in the same
way that they own the land. For these reasons, walking across someone's property is
different than flying or boating across someone's property.
I realize that there is a limit to altruism, but I wish that people would
ask themselves more frequently: "How can a do the most good?". I'm not saying that
people should shoot themselves in the foot. But, I am saying that one of the
greatest joys in life is helping and loving others.
Cheers,
Pete Schultz
JDD RIO
I'm staying out of this discussion this time around. However, I don't
think Scott is right on Colorado law (the Colorado AG thinks not anyway).
The US Constitution does not guarantee private citizens the right to
bear arms (the US Supreme Court has consistantly refused to interpret the
second amendment as a right of private citizen to bear arms). Anyway,
enough said.
JDDRio (Dan Dunlap)
David Rosky
>
>That was indeed one argument when aviation was invented. The government
>decided that there was a compelling public need to permit free air navigation. No
>such corollary exists for boating.
>
>
>No, not at all. It would be a trespass, with an emergency exception. A taking
>occurrs when the *government*, through legislative or administrative acts, "takes
>
Did the government pay just compensation to every landowner in the country when
it "took" the airspace for public use? Remember, people fly for pleasure as
well as interstate commerce. This analogy may be more applicable than it looks
on the surface. In theroy, I could legally fly over your house day
after day as long as I maintain the required altitude and you would not have
been compensated for the intrusion, even though it would probably be more of
an annoyance than a rafter quitely gliding down the river. If airspace was
indeed considered part of private property at the time of the invention of
aviation, and if it was indeed explicitly taken for eminent domain, then it may
be the biggest such un-compensated taking in history! (And I suppose a dangerous
precedent as such.)
--DR
------------------------- gro...@gv.ssi1.com -------------------------
Jimisnyder
I've just stumbled across this thread for my first time and must
confess my chain's been yanked. A hundred some years ago we raped women
and killed the children of the previous owners so we could pour our
concrete and enjoy their view. Now we've advanced to pen and paper to
determine who gets to look at what. This is very civilized indeed. For
the record I'm a taxpaying landowner for many years next to the Cheat
River with a loud campground full of gritty city people hootin next door.
While I don't wish this on others I've come to understand they need their
fun too and they are not really hurting me (except for an occasional
firewood theft). I'm glad I don't feel the need to threaten their health
with flesh perforating devises. While I know the weis guy will never see
this way could someone post exactly why he is so peevish about what is
regarded as a benign issue in these parts? I need to understand. Don't
go throwin' law bullshit- just a real reason will do. Around here we go
for legal access points, passive passing and we respect the barb wire..
We have very few conflicts of this nature. Can't we all just get along?
Just passin' thru, Jim Snyder
opinions expressed are not just my own and are less dangerous than
whitewater
Roger W. Lynn
>opinions expressed are not just my own and are less dangerous than
>whitewater
Jim,
Out here in the wild, shoot anything that moves anywhere near my
property, west your opinions are probably much, much more dangerous
than whitewater. ;-)
////////////////////////////////////////////////////////////////
* Roger W. Lynn - Roger...@aol.com *
* 75603...@compuserve.com *
///////////////////////////////////////////////////////////////
Landis Arnold
hope that democracy is working!
Scott Weiser
>Hey Ya'll,
(snip)
>I need to understand. Don't
>go throwin' law bullshit- just a real reason will do. Around here we go
>for legal access points, passive passing and we respect the barb wire..
>We have very few conflicts of this nature. Can't we all just get along?
Several reasons. First, I have indeed been the subject of annoying, costly and
dangerous behaviors by boaters/floaters. I have had fences repeatedly cut, I have
been sworn at, I have had to clean up the trash and put out the grass fires caused
by boaters, and I have had guns pointed at me by canoists.
I have, in fact *never* experienced a polite, concerned and reasonable interaction
with a boater, even when I'm quite polite in informing them that they are
trespassing and asking them to leave. I usually get attitude, argument, threats
and foul language, if not always attempts at physical violence. I would bring your
attention to the attitude shown by a particular boater on the Potomac in another
thread. While the Park Police may or may not have had juridiction, and may or may
not have had probable cause to arrest him, his actions in resisting arrest were
unlawful and wrong. He could have simply submitted to arrest peaceably, as the law
requires, and then sued the crap out of the Park Police for unlawful arrest.
His attitude is very typical, in my experience, of boaters who are interrupted in
their play.
Second, it is indeed an issue of fairness. As a private landowner, I have a right
to my privacy, and I do not appreciate having it interrupted at the whim of some
recreational boater. I bought the land, I pay the taxes on it, I maintain and
protect it, and I have the absolute right to exclude *anyone* from it.
The idea that any creek which will float a kayak is automatically a "navigable
waterway" and therefore a public highway is simply *wrong*, both in fairness,
reasonableness and law. If you can make a claim upon my private land for purposes
of your private pleasure over my objection, where do such intrusions then stop?
What about the hikers who want to see my place, why shouldn't they "condemn" a
trail across my land? After all, they are "just walking" and they promise to stay
on the trail and not bother anything.
My analogy of wanting to come to your house whenever I want and use your TV and
piss in your toilet is *exactly the same* as your desire to float through my land.
Just because I have a large tract of rural land does not mean that I am not
entitled to the same protection of the law that you are.
The other issue is politeness. If you wonder why hunters and fishermen seem to get
access to good places, it's because they are *polite*, and they stop and ask
permission before barging onto private lands. I have yet to have a boater ask me
for permission to float through. (Don't bother though, because the area is closed
to the public for environmental reasons.) Boaters just assume that they can go
wherever they damn please, in spite of the law, and the pure arrogance nettles me.
I don't believe I am being unreasonable in asking that if the state wants to
provide boaters with recreational opportunities (which are worth significant money
in this State) by giving them access to my private lands, that somebody should pay
me for my troubles, which are not inconsiderable. There are thousands of miles of
public waters on public streams over public lands, why is my land so necessary that
you must take it from me by force and over my objections, and not even offer to pay
me for it, or even offer to pay the taxes on the land I lose the right to control?
--
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a lawyer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
Copyright 1996 All Rights Reserved
cora...@tde.com
Interesting thread - Scott you are a champion of individuals rights!! How
much are you paying the state of CO - and taxpayers like me for your use of
state owned equipment for your personal and political use? Sounds like you
are using state owned capital equipment to try to turn a buck! Do I have
equal rights to the equipment you are using - or do I just get to provide it
for your personal use?
Jerry Trottmann
>I don't believe I am being unreasonable in asking that if the state wants to
>provide boaters with recreational opportunities (which are worth significant money
>in this State) by giving them access to my private lands, that somebody should pay
>me for my troubles, which are not inconsiderable.
>The opinions expressed are my own. If I was a lawyer, you'd be
>paying big bucks for this.
own the land but it is very unlikely you own the water. Maybe the water companys that
really own the water will send you a bill to let their water flow across your land.
In either case the land and the water will be there long after your gone. You don't own
the land you just exist on it for a time.
It is sad you have never learned to enjoy the reality of a river and flowing water.
If your the land owner on the Yampa that is trying to close that section of river, I
truly hope to meet you on the river and not touch your personal God given piece of
property.
Chip Mefford
>jimis...@aol.com (Jimisnyder) wrote:
>>Hey Ya'll,
>(snip)
>>I need to understand. Don't
>>go throwin' law bullshit- just a real reason will do. Around here we go
>>for legal access points, passive passing and we respect the barb wire..
>>We have very few conflicts of this nature. Can't we all just get along?
Go Jim! GO!
>Several reasons. First, I have indeed been the subject of annoying,
>have had guns pointed at me by canoists.
I paddled in and around Colorado a little bit a little over 10 years
ago, and unless a new species of paddler (rafters notwithstanding,
they are a different sort) has sprouted up -not altogether unlikely- I
am quite suprised at this report. The folks I encountered were much
like those I have usually encountered, the lot of which wouldn't even
know which end of a gun to hold.
>I have, in fact *never* experienced a polite, concerned and reasonable interaction
>with a boater,
>snip<
> a particular boater on the Potomac in another
>thread. While the Park Police may or may not have had juridiction, and may or may
>not have had probable cause to arrest him, his actions in resisting arrest were
>unlawful and wrong.
>snip<
>His attitude is very typical, in my experience, of boaters who are interrupted in
>their play.
Mr. Hearn, the subject of that episode, from my experiences of having
met him from time to time, is a mellow, relaxed, and gentle sort of
fellow. His being yanked from the river, bodily tossed from his boat
in a most brutish manner, sustaining injury at the hands of those who
are supposedly sworn to "protect and serve" is indeed as you say very
typical, "in my experience, of boaters who are interrupted in
their play."
>Second, it is indeed an issue of fairness. As a private landowner, I have a right
>to my privacy, and I do not appreciate having it interrupted at the whim of some
>recreational boater. I bought the land, I pay the taxes on it, I maintain and
>protect it, and I have the absolute right to exclude *anyone* from it.
If indeed your right to exclusion was absolute, Then the local
constabulary would be unable to serve writs and warrents, The local
postal carrier would be unable to complete their rounds. I dare say
that the dutifully sworn game warden can -without your permission-
access your property if there is state managed game on it. In short,
my point is that your right to exclusion is hardy absolute.
>The idea that any creek which will float a kayak is automatically a "navigable
>waterway" and therefore a public highway is simply *wrong*, both in fairness,
>reasonableness and law.
Whether or not it is *wrong*, the issue of navigability is indeed at
question here. You may feel that it is *wrong*, But it has happened
often enough to be made an issue, that navigability has been some
times judged to be anything that can be navigated.
> If you can make a claim upon my private land for purposes
>of your private pleasure over my objection, where do such intrusions then stop?
>What about the hikers who want to see my place, why shouldn't they "condemn" a
>trail across my land?
It could happen, it has happened before.
>My analogy of wanting to come to your house whenever I want and use your TV and
>piss in your toilet is *exactly the same* as your desire to float through my land.
>Just because I have a large tract of rural land does not mean that I am not
>entitled to the same protection of the law that you are.
I can see your point. But I disagree, it is NOT *exactly the same*. In
the cases stated above, a postal carrier cannot enter your home, they
may cross your land, a game warden cannot enter your home without
warrent, they may cross your land, a constable may not enter your home
without warrent, they may cross your land. Any person in dire need, if
your posted land is the shortest path to sanctuary, may cross
unhindered unless they are evading lawful apprehension. While the last
may be contested, it has been shown by courts that have heard such
cases, that a de-facto easement exists in practice if not exactly in
law. To wit, If a snowblind, frostbitten and hypothermic hunter shows
up at your door, you will be hard pressed to make a charge of
tresspass stick. And in fact, you could be held liable if you attempt
to hinder their progression to safety.
This is hardly the same as you comming into my house to watch TV,
though I am pretty sure you would be welcome.
>The other issue is politeness. If you wonder why hunters and fishermen seem to get
>access to good places, it's because they are *polite*, and they stop and ask
>permission before barging onto private lands.
This is a point that would be well taken by many, and I agree
completely. There is another side to it however. I know of a few
cases where "come-ons" (folk not native to the area who drive saabs
and volvos) buying rural land that others have hunted and fished for
years. When the hunters and fisherman come to politely knock and
inquire they are met with attitudes to the effect of "you can't hunt
here, this is private property, it is mine mine mine, i have absolute
right to disallow all access." This is real, this happens. I suppose
you can guess how these folk get treated when the saab breaks down.
Not to mention how long it takes the snow plows to get past their
roads. Lost mail, and other such things.
Not all hunters are the paragons of virtue you describe. If so, than
why the game wardens? Gut piles, piles of beer cans around the fire
rings, Poaching, Land owners shot at, and in a few cases killed.
Speaking of which, Has a land owner ever been killed by a canoeist? I
am aware of at least 2 cases of canoests being killed by land owners.
I am much more aware of the practice which I have experienced first
hand, of barbed wire being strung low on the water on blind rapids
with the sole purpose of trapping and causing serious injury or death
to paddlers. The practice of felling trees into streams to hinder safe
passage. These things taking place on National Forest land where
cattle are grazed at the expense of tax payers. By the way, the
setting of "man traps" while at one time permissable for controlling
poachers in England, has NEVER been allowed in this country regardless
of situation. Private land or not.
I'm not young, and I have been around a little bit. I am aware from
all the discussion and such that SOMEONE leaves gates open, cuts
fences, trashes other peoples land and so forth. I dare say that this
sort of activity is no small part limited to the hardware store canoe,
no vest, no helmet, beer cooler flotation crowd.
A case that I like to bring up in discussions of this nature, Back
home in the seventies we used to have this neat gathering called "The
Petersburg Whitewater Weekend." Folks on both sides of this fence
point to this as an example to set their repective points. Lotta folk
used to come out to the North Fork of the South Branch of the Potomac
for this get together. For the most part the locals loved it. However
eventually it was canned. Reasons given are that the paddlers trashed
the lands, left gates open, stomped down fences, etc ad nausium.
During this festival in '75 a buddy of mine from California and myself
were walking back down the road from Harry's Place at Mouth of Seneca
and were set opon by 5 fellars from Elkins, We got beaten pretty
badly. Later that night folks had their tents run over by pickup
trucks and a few other people were beaten up. From what I understand,
in the later years things of this nature became more and more common
and eventually the event was cancelled. In 85 the flood scowered the
river bed and the attraction dropped off.
I've talked to a lot of the locals, and in someways I call myself a
local. While some, including a character some of us know, a town
carries his family name, limits his comments to "those damned boat
riders". While others will state pretty clearly that it wasn't the
boaters, "Hell, some of those young people were as nice a folk as you
could ever meet." But rather the folks that came from miles around,
other land owners, who had no respect for other folks land, who drank
in folks front yards, cut boughs from peoples orchards for their
campfires, stomped down others fences to get to the river sit on the
banks and drink beer and crap in the stream.
In short, it was not the sojourning boaters, but rather the visiting
landowners, -who by virtue of possesing a state honored title to
property, elevated above their common fellow citizens in respect due,
the true keepers of the "American Way" who were the ones through
flagrant disregard for their fellow land owners property that caused
the general ruination of an event that was not merely a source of some
amusement and entertainment on behalf of the local peoples, but a not
inconsiderable point of positive financial impact and exposure as
well.
> I have yet to have a boater ask me for permission to float through.
This is a shame, and I don't understand it. I hate to conjecture, but
the scope of your recurring problem sounds unusuall, so I will. Are
you fairly recently come into possestion of this land, and the
previous land owner gave passage to the point that people think that
access is implied?
> (Don't bother though, because the area is closed to the public for environmental reasons.)
Indeed
> Boaters just assume that they can go
>wherever they damn please, in spite of the law, and the pure arrogance nettles me.
Again, this confounds me. I have only occasionally been turned down
when I ask permission to float or fish a waterway that can only be
accessed from private land. And in those cases the refusal was polite
to the point of being apologetic, if not embarassing.
>I don't believe I am being unreasonable in asking that if the state wants to
>provide boaters with recreational opportunities (which are worth significant money
>in this State) by giving them access to my private lands, that somebody should pay
>me for my troubles, which are not inconsiderable. There are thousands of miles of
>public waters on public streams over public lands, why is my land so necessary that
>you must take it from me by force and over my objections, and not even offer to pay
>me for it, or even offer to pay the taxes on the land I lose the right to control?
"By force" is generally meant to imply armed involvement. Has some
radical canoe terrorist group forced you to sign a non-posessory
right-in-land access agreement at gun point? I am shocked indeed!
I'm sorry, I am making light of your obvious and otherwise well stated
aggrievment. But it makes me laugh and I won't strike it. I apologise,
but I don't withdraw.
By your statement of "offer to pay the taxes on the land I lose the
right to control." I think that maybe you are not completly founded in
the extent of your rights as a land owner. A land owner in these here
United States is probably more accuately called a land holder. If you
review your history, you'll see that this is a very touchy subject and
one that the various (local, state, and federal) governments like to
hedge on. While courts are given to side with the tax payer in most
disputes, The actuall ownership of the "land" is held by the State,
and to some exension, the Federal Government. While once the land
under law was granted use rights by the King, After independence, the
state, haveing aquired this not-insignificant right to grant, kept it.
A citizen may purchase a title of use of a surveyed property from the
state for purpose of use. Use is defined pretty broadly and is outside
the scope of this post. That citizen may then pass title to his (and
now, though not always, her) heir (or inheritor), or sell it as they
see fit, to whom has been through some changes over the years, but it
can for most purposes be almost anyone. If a sale or heir is not
provided for, opon death of the title holder, the title of use reverts
to, guess whom? The State. If lawfully levied taxes on the land are
not payed, guess what? The title of use reverts to the state. If a
lawful debt is incurred by the title holder and defaulted, and the
amount of the debt is great enough and a judgment is sought and
granted by the state, guess what? The title of use reverts to the
state. If the land is not used according to the states direction,
guess what? The title of use reverts to the state. This is why such
apparently criminal concepts such as adverse possesion and immenent
domain (however the heck its spelled) come into play from time to
time.
My point is, You may very well, as the law currently stands be well
within your right to prosecute virtually every instance of paddle
touching and bottom scraping that comes your way.
I suggest that for one thing, the law is going under review and you
very well may not like the outcome, and also that you must have one
heckuva a creek crossing your land, so keeping people off it may turn
into more heart and head ache than you really want.
So, I would suggest that maybe you could contact the local AWA
chapter, get directly involved, express your concerns and ask the
boaters themselves for assistance in resolving these issues. This is
not capitulation. Others in your place have done it, and I believe has
nearly always resulted in a much, much better situation for all
involved. In the end, you may very well find, that not only are the
gates and fences kept in fine shape, the areas of past use kept clean
and tidy, the access ferociously defended against those who would
defile it without your even knowing, much less getting involved. But
you might also come across a few folk that you may be more than happy
to allow to piss in your toilet or spend some time watching the TV
with.
>--
>Scott Weiser
>******
>"I love the Internet, I no longer have to depend upon my
>friends, family and co-workers, I can annoy people WORLDWIDE!"
>******
>The opinions expressed are my own. If I was a lawyer, you'd be
>paying big bucks for this. All complaints should be
>delivered in person to: Gatek...@hell.org
>Copyright 1996 All Rights Reserved
Sorry Boss, this is a usenet newsgroup, your copyright don't matter.
Jimisnyder
I appreciate Mr. Weiser taking the time to air his grievences
again(probably). It sounds like an extreme situation with a fair amount
of history and established bad blood. I wouldn't want people messin' with
me like that either but I would probably let the fools pass by and
grumble. I appreciate Mr. Weiser serving up real reasons and not legal b.
I wish I could suggest something but I am at a loss. I guess I'll just
shut up. I still feel boaters should pass through without harm or harming
anything. But I also feel this is a privilege and am reluctant to call it
a right even tho in my heart I feel it is. I'm sorry Bozos have pissed
him off- wish they hadn't. Sounds like a lot of "Me First" goin on so I'm
leavin. Again, in WV we are pretty much at peace but want things to keep
working. Suggestions? JIM S
Christian Cope
: This is a repost - typo in the subject!
Can we please stick to the topic ? I don't agree with a lot Scott has to
say. But assuming he does this during his free time and his personal
use of the account don't cost extra, this "use of state owned equipment"
costs the taxpayers extra.
If all you can do is attack him personally or attack his method of
accessing this discussion, don't bother.
My opinion is that the real problem here is that Colorado actually gave
away the stream beds. In many states, those too are public. I hope
the bill passes. Scott will still have legal recourse if people use his land
for anything other than emergencies.
And Scott, I am sorry that your only experiences with paddlers have been bad
ones. My group of paddlers is always conscientious of private property.
We've always gotten permission to scout from the shore and we've never
landed unless it was an emergency. And if we were confronted, we
would certainly be polite and leave ASAP.
--
********************************************************************
* Christian Cope *
* Adaptec Boulder Technology Center *
* Boulder, Colorado *
* 303-516-4787 chr...@btc.adaptec.com *
********************************************************************
Chris Webster
> >Several reasons. First, I have indeed been the subject of annoying,
> >have had guns pointed at me by canoists.
>
> ........ I
> am quite suprised at this report. The folks I encountered were much
> like those I have usually encountered, the lot of which wouldn't even
> know which end of a gun to hold.
I've also had a problem with Scott's claim. To me it seems so far fetched
that it belongs in a movie. Of the 100 or so paddlers I know, 2 own guns.
They have NEVER brought them on the river with them. And most paddlers I
know are anti-gun.
--Chris
Chris Webster
> My opinion is that the real problem here is that Colorado actually gave
> away the stream beds. In many states, those too are public. I hope
> the bill passes.
Here is my current understanding of the problem/issue:
1) Colorado, Wyoming, New Mexico & Montana (and possibly other states) all
have the same wording in their constitutions about navigibilty and/or
stream ownership.
2) The other 3 states interpreted their constitutions to mean that the
state owns the riverbed.
3) In Emmeret vs who_ever, Colorado interpreted the constitution to mean that
the landowner owns the stream bed.
Scott and other landowners would like Emmeret to prevail, paddlers would like
Colorado to follow the same precedent set by the other states.
The bill (HB 1079), was supposed to be heard last Monday, but has been
delayed to this Friday, because of a death in the legislature. If you
haven't called your House Rep. yet, please do so. If you don't know who
your Rep is, call the Elections Office in your County and ask. If you know
who, but not the phone number, Email me and I'll send it to you. If it
passes the House, it then moves onto the Senate about 1-2 weeks afterwards.
--Chris
Scott Weiser
>If all you can do is attack him personally or attack his method of
>accessing this discussion, don't bother.
Thank you.
>My opinion is that the real problem here is that Colorado actually gave
>away the stream beds.
Imprecisely correct. Actually, the Congress "gave" the streambeds away in titles
of land grants after they recognized that the rivers and streams of Colorado
are nonnavigable.
> In many states, those too are public.
Indeed. Anywhere intrastate that a river or stream is "navigable" under the
federal tests, the title to the bed is retained by the state, held in trust for
the people. (Utah v United States; Great Salt Lake found to be navigable under
federal tests even though no *interstate* commerce was found) There are two
places in Colorado where this is true, and has been adjudicated; the Grand
(Colorado) river from it's confluence with the Green river to the Utah state
line, and the Navajo Reservoir within Colorado.
The principal question is what constitutes "navigable". Kayakers would argue
that anything which can float a canoe or kayak is navigable, but the larger body
of case law requires "commerce of a substantial and permanent character", not
simple recreational floating. Some states, in their Constitutions (Wyoming and
California for example) reserved the use of the waters to the public without
reservation or exception, and the state courts have ruled (as in CA) that this
means that any stream which can be floated by a kayak is "navigable" and
therefore open to the public. However, you must note that even in CA and WY,
there are substantial numbers of streams and creeks which are *not* navigable,
and the title to the banks and beds passed to the private owners, just as they
did in CO.
The difference is that in CO, the Constitution states that the waters are
reserved to the public *for the purposes of appropriation (diversion & use)*,
not for recreation.
As short-sighted as this may appear today, it is nonetheless the law. If
changes are to be made, they must be made by Constitutional amendment, and must
overcome the significant hurdle of the US Constitution as well, since the
property right in stream banks, beds and airspace has been well and firmly
established, and cannot simply be legislated away.
> I hope
>the bill passes.
You might not feel that way if you are a resident and the state is forced by the
courts to pay out hundreds of millions of dollars in settlements to landowners
who make eminent domain takings claims. (Which they will almost certainly win)
This is the real danger of the Bill, and of the previous Bill which became CRS
18-4-504.5. The state simply *cannot* take away private property and give it to
the public without paying compensation, and if they enact a law purporting to do
so, the public treasury is in immediate peril. The law is also
unconstitutional, and will ultimately be struck down, but in the meantime,
claims can be made and paid.
> Scott will still have legal recourse if people use his land
>for anything other than emergencies.
Of course, you don't mention that I now have to constantly patrol the creek to
ensure that no damage is done, or trash is left. I have to fix the damaged
fences, put out the fires and clean up the excrement, and that I am helpless to
identify intruders, since I cannot arrest them for trespass.
Most importantly, I can no longer sit idly by the creek enjoying the quiet
solitude, watching the flowing water, listening to the geese and ducks and
watching the deer and elk browse in peace, I have to be prepared to see
strangers, in whatever numbers THEY choose, passing through the very heart of
what I have worked my whole life to protect and preserve, at great emotional,
physical and financial expense, without so much as a by-your-leave.
My analogy about watching your TV and using your toilet is a pretty close
duplicate of how I feel when someone intrudes on my privacy in this manner.
>And Scott, I am sorry that your only experiences with paddlers have been bad
>ones. My group of paddlers is always conscientious of private property.
>We've always gotten permission to scout from the shore and we've never
>landed unless it was an emergency. And if we were confronted, we
>would certainly be polite and leave ASAP.
I am too. Would that everyone were as responsible and polite as you.
Keith Beck
legislation posted. If I missed it, I apologize and would thank anyone
who could email it to me:
Thanks.
Scott Weiser
>Fortunite for you Scott, Colorado has the most twisted water Laws in the USA.
That's rather the whole point of the argument. Colorado was perfectly entitled to define
water law and navigation in whatever manner the founders found desireable at the time of
the formation of the state, and under the Equal Footing Doctrine, it is entitled to
defend that interpretation in the face of conflicting interpretations of other states.
>You may
>own the land but it is very unlikely you own the water.
Indeed. But this has no effect on the right of public navigation through my *space*.
>Maybe the water companys that
>really own the water will send you a bill to let their water flow across your land.
Or equally as likely, I will send them a bill for 'transporting' their water across my
land.
>In either case the land and the water will be there long after your gone. You don't own
>the land you just exist on it for a time.
No, I own it. And when I die, I have the right to devise it to whomever I choose, and
they will own it then, and so on ad infinitum. That's the way our system works.
>It is sad you have never learned to enjoy the reality of a river and flowing water.
>If your the land owner on the Yampa that is trying to close that section of river, I
>truly hope to meet you on the river and not touch your personal God given piece of
>property.
It's the very reality of the river and flowing water that I *do* enjoy, and would like to
continue to enjoy in peace and solitude, without the intrusion of members of the public
recreating whenever they please. I do not own land on the Yampa, but I sympathize even
more with them, because they are subjected to hundreds of boats on a commercial basis.
If you float the Yampa, and you pass over their property line, you are indeed "touch(ing)
(their) personal God given piece of property." That's the whole point.
I would like to meet you too. Sadly, many boaters who respond here simply vent their
spleen at the idea that there is a single foot of stream which they are not allowed to
paddle, and never get around to the social interaction aspects. Even more sadly, it is
these kinds of boaters that I routinely meet on the creek, usually to the detriment of
understanding and cooperation.
I'm afraid I respond poorly to threats, vilification, insults and obscene gestures.
Elizabeth Purrington
> I need to understand. Don't
go throwin' law bullshit- just a real reason will do. Around here we go
for legal access points, passive passing and we respect the barb wire..
We have very few conflicts of this nature. Can't we all just get along?
Jim - I've been trying to come up with the right words to say exactly
what you did. I know I speak for at least a few when I say THANKS!!!
E--- :)
Chris Webster
> know what stretch of river we're discussing here? I've been known to wet
> my hull in Colorado and this seems like a piece of ground I might want to
> be aware of as I float past.
Boulder Creek East of Boulder. It's flat water, and if it's before the
confluence of South Boulder Creek, then it only has enough water to float
about two weeks a year (with the exception of last year, where it ran much
longer).
--Chris
Jimisnyder
life!!!!
Your desires are illegal!!!! Boatin' ain't fun it's rude!!! You're
busted!!!!!.
I'm tellin!!!!! Go away!!!!!
Jim (soon extinct)(vanishing breed)(endangered
wild life)
BillDall
know what stretch of river we're discussing here? I've been known to wet
my hull in Colorado and this seems like a piece of ground I might want to
be aware of as I float past.
Still Creekin & hardly Leakin
Bill Dallam
Rick Hudson
analysis check out the page 1 story at "http://www.awa.org/". It includes
a good analysis of the history of the issue and information for what
you can do to make your point of view heard. Toss the URL into your
bookmarks, the issues get updated on a regular basis and provides
more persistant discussion of the issues than the usenet group.
- Rick
Harry Crockett
I have a question. You mentioned a few posts back that your property
is closed "for environmental reasons." Could you please tell us
exactly what those reasons are? What are the environmental impacts of
recreational floating through your property? Upon what basis have you
determined the importance and severity of those impacts? Sorry if I
missed this, but I've silently followed this thread for several months
and not seen this aspect covered before.
If you care to elaborate, I'd be interested also to hear what
ecosystems/habitat characterize your property; what species it
supports and how critical that habitat is to them; how the rest of the
property (away from the streambanks) is used, and whether it is closed
to other kinds of recreational use such as hiking, fishing and
hunting.
BTW, I support the closure of rivers wherever recreational
use is demonstrably detrimental to ecosystem integrity or
biodiversity.
Thanks,
Harry
Opinions expressed probably are those of my employer, but I haven't
asked her to make sure.
Jerry Trottmann
>analysis check out the page 1 story at "http://www.awa.org/". It
includes
>a good analysis of the history
EXCELLENT IDEA RICK ----- I'm off to the Web and the AWA, Scott Weiser
is much too myopic to learn, so let's change the subject.
BYE.
Pope Barrow
Pope Barrow
Brad Whitehurst
Chip Mefford <cmef...@icanect.net> wrote:
>Scott Weiser <Scott....@colorado.edu> wrote:
>
>>Several reasons. First, I have indeed been the subject of annoying,
>>have had guns pointed at me by canoists.
>
>I paddled in and around Colorado a little bit a little over 10 years
>ago, and unless a new species of paddler (rafters notwithstanding,
>they are a different sort) has sprouted up -not altogether unlikely- I
>am quite suprised at this report. The folks I encountered were much
>like those I have usually encountered, the lot of which wouldn't even
>know which end of a gun to hold.
>
>>The other issue is politeness. If you wonder why hunters and fishermen seem to get
>>access to good places, it's because they are *polite*, and they stop and ask
>>permission before barging onto private lands.
>
>This is a point that would be well taken by many, and I agree
>completely. There is another side to it however. I know of a few
>cases where "come-ons" (folk not native to the area who drive saabs
>and volvos) buying rural land that others have hunted and fished for
>years. When the hunters and fisherman come to politely knock and
>inquire they are met with attitudes to the effect of "you can't hunt
>here, this is private property, it is mine mine mine, i have absolute
>right to disallow all access." This is real, this happens. I suppose
>you can guess how these folk get treated when the saab breaks down.
>Not to mention how long it takes the snow plows to get past their
>roads. Lost mail, and other such things.
Heh. Of course, Scott is also to be found periodically in
rec.autos.4x4 braggin' on his studly customized HUMMV (which he now
tells us he uses to plow his irrigation ditches, hmmm...) so, mebbe he
knows about the snow plows already! ;-) Not exactly your basic rusted
out Ford farm truck, eh? Now, what I wanna know is, has he gotten the
.50 cal mount finished yet!?!
>
>Not all hunters are the paragons of virtue you describe. If so, than
>why the game wardens? Gut piles, piles of beer cans around the fire
>rings, Poaching, Land owners shot at, and in a few cases killed.
>Speaking of which, Has a land owner ever been killed by a canoeist? I
>am aware of at least 2 cases of canoests being killed by land owners.
>I am much more aware of the practice which I have experienced first
>hand, of barbed wire being strung low on the water on blind rapids
>with the sole purpose of trapping and causing serious injury or death
>to paddlers. The practice of felling trees into streams to hinder safe
Some of the biggest messes I've ever found in PUBLIC
backcountry (NOT private...so there, Scott!) were left by
hunters...piles of booze bottles, spent shells, guts, etc. Of course,
some of my most informative and polite encounters in the backcountry
were with hunters, face to face, so it takes all sorts.
My only bad encounter with a landowner while canoeing was
after dumping on a small stream and trying to find footing to empty
the canoe and hop back in. The rather patrician and snooty looking
guy standing near the river (no house in sight) asked if we intended
to stop and don't think of doing it here. We said fine and floated
downstream until we could find a spot out of sight...thank heaven for
wet suits. It was March on the Moorman's here in VA. A designated
scenic river, it is mostly surrounded by wealthy gentleman farmer
types, most of whom are fine folks cooperating w/ gov't. and citizen
groups to protect the river for people and wildlife. There's always a
sour apple, I guess. Course good ol' Scott woulda just plugged us w/
the .50 cal and let someone downstream clean up the mess. Never know
what sinister things those evil boaters can do with a sharp knife and
a paddle! [sarcasm, m' boy, sarcasm!!!]
--
Brad Whitehurst | Aerospace Research Lab
rb...@Virginia.EDU | We like it hot...and fast.
Tom Moye
>I have, in fact *never* experienced a polite, concerned and reasonable interaction with a boater,
May I suggest that Mr. Weiser look at most of the recent responses to his
comments in this group. Chip Mefford's post (among others) was polite,
concerned and reasonable, and I might add, well thought out and
thoroughly based on fact rather than emotional overreaction.
Tom Moye
Seattle
Scott Weiser
>Hi, Scott Weiser:
>I have a question. You mentioned a few posts back that your property
>is closed "for environmental reasons."
There are several threatened/endangered species on the property,
including the mining bee, rare lichens and an endangered fern which
occurs nowhere else in the United States. There are several other
species of plants which are rare, but not endangered. There are large
areas of wetlands which support varied wildlife. On the whole, the area
is not suited for public access because of the negative impacts. Much of
the wildlife exists there because it has been protected from public use,
and is therefore a sanctuary for them. These species include coyote,
fox, badger, skunk, raccoon, deer, elk (1), mountain lion, bear
(unconfirmed), golden eagle, numerous species of raptors, bobcat, snakes
of several varieties, and many other species.
Recreational floating, in addition to being an unreasonable intrusion on
my privacy, has the potential for great harm, as has been amply
demonstrated in the past by cutting of fences, leaving of trash, and most
significantly, the danger of fires, which have been started both
accidentally and deliberately by trespassers.
The impacts of numerous floaters is the same as it is elsewhere, in
places such as the Grand Canyon and other heavily-used rivers, but on a
smaller scale but larger impact.
The main problem is that it is impossible to police the conduct of
boaters if they are allowed to enter the property. To do so would
require full-time security guards who would have to follow the boaters to
ensure that they did not stop or do damage. This impact in itself is
unacceptable. As it stands now, boaters can be spotted from the house
well before they trespass, and can be met at the upstream property line
and warned before they enter.
In addition, efforts are underway to re-habilitate the stream channel
with the hope of eventually rebuilding native fish populations which were
destroyed by the installation of the city of Boulder sewer plant about
3/4 mile upstream in the 70's, combined with the topography of the stream
channel when we bought the place, which was devoid of trees and badly
overgrazed, which raised water temperatures beyond the fish's limits.
There are also safety and liability considerations, as there is a bridge
with in-stream pilings as well as significant amounts of submerged and
semi-buried barbed wire which has been washed down in the various floods.
The property is used for limited cattle an horse pasturage commensurate
with quality long-term pasture management, and is closed to all
recreational activities of the public. Only bona-fide researchers
affiliated with recognized educational institutions are permitted access.
For example, we recently had a graduate researcher who studied a
particualr plant, and another archeological group who studied and
recorded all of the graffiti which has been carved in the sandstone
cliffs over the centuries, which includes inscriptions by William
(Buffalo Bill) Cody and some indian pictographs.
Access to the most sensitive area near the cliffs and stream is limited
to foot traffic whenever possible to avoid damage to plants.
No hunting is allowed, except for control of pest species, and even then
shooting is strictly limited to small-caliber weapons due to population
densities in the surrounding area. Bows and arrows have been used with
limited success for praire dog control to avoid possible lead posioning
of eagles and other raptors, as well as other carrion-eaters, for whom
the dead prarie dogs are left.
No other recreational activities, other than personal access by our
family and a limited number of guests are permitted in the Natural Area,
although there is a field reserved in the non-restricted area away from
the cliffs for gatherings of the Society for Creative Anacronism, of
which my mother is a member. These gatherings only happen 2 - 3 times a
year.
I hope this is instructive.
Regards,
Scott Weiser
>
>
>> >Several reasons. First, I have indeed been the subject of annoying,
>> >have had guns pointed at me by canoists.
>>
>> am quite suprised at this report. The folks I encountered were much
>> like those I have usually encountered, the lot of which wouldn't even
>> know which end of a gun to hold.
>
>that it belongs in a movie. Of the 100 or so paddlers I know, 2 own guns.
>They have NEVER brought them on the river with them. And most paddlers I
>know are anti-gun.
>
>--Chris
Ok, just to make this absolutely clear, the event occurred in the 70's
and was perpetrated by two duck hunters in a canoe. While I realize that
you all don't consider them part of your "community", I do. You are
suffering from the bad conduct of some criminals, but it had a pretty
severe impact on a 19 year old. Those barrels were REALLY big.
The incident was repeated by pheasant hunters some years later to my
mother.
I now go armed whenever I approach trespassers.
Can you blame me?
Crockett
>Harry Crockett <har...@lodestone.com> wrote:
>>I have a question. You mentioned a few posts back that your property
>>is closed "for environmental reasons."
>
>There are several threatened/endangered species on the property,
>including the mining bee, rare lichens and an endangered fern which
>occurs nowhere else in the United States. There are several other
>species of plants which are rare, but not endangered. There are large
>areas of wetlands which support varied wildlife. On the whole, the area
>is not suited for public access because of the negative impacts. Much of
>the wildlife exists there because it has been protected from public use,
>and is therefore a sanctuary for them. These species include coyote,
>fox, badger, skunk, raccoon, deer, elk (1), mountain lion, bear
>(unconfirmed), golden eagle, numerous species of raptors, bobcat, snakes
>of several varieties, and many other species.
>
Before I go on, thanks for a complete and polite answer to my
question. I'm still a little confused, though. The species you
list above are all (with the exception of the
threatened/endangered ones) quite able to coexist not only with
heavy recreational use but a variety of commercial uses that
are much more intrusive than yours. You can't tell me that any
number of recreational floaters are going to chase the deer
away. The eagles, maybe, but probably not; I see eagles
regularly along some of the busiest roads around Ft Collins and
Loveland.
As for the mining bee, lichens and fern, it's obvious that
recreational floaters can have no impact upon them, *provided*
they stay in their boats. There, of course, lies the rub. Have
you tried erecting a polite but firm sign at the upstream end
of your property to the effect that "you may float through but
not get out, because endangered plants live here"? I, and
virtually every boater I know, would respect such a sign. Of
course, that is an xpense of time and maintenance in itself;
maybe one of the paddlers groups would consider paying for it?
I don't want to get off into endless back-and-forth about what
does or does not constitute a significant impact, so let me
just say where I'm coming from. I've been a boater and
fisherman in this state for a long time, and those interests
have drawn me increasingly into what I guess you'd call
environmental activism on behalf of rivers. I now spend a lot
of the time I used to spend boating and fishing trying to
protect and restore rivers. I feel that blanket prohibitions
based on questionable assumptions about impacts are a
self-destructive tactic; they can't be upheld when challenged
and they generate horrible PR. Remember, Scott, the shoe is
more often on the other foot: when a landowner is in a dispute
over environmental impacts, most often *he's* the one who wants
to *cause* the damage. If others want to change his (or her)
activities, they'd better be able to say exactly what they're
trying to protect and how it will be impacted.
>Recreational floating, in addition to being an unreasonable intrusion on
>my privacy, has the potential for great harm, as has been amply
>demonstrated in the past by cutting of fences, leaving of trash, and most
>significantly, the danger of fires, which have been started both
>accidentally and deliberately by trespassers.
>
But not by boaters, I presume, or you certainly would have said
so. Cutting fences is utterly inexcusable, but does no
*environmental* harm, and the same is true of litter in the
quantity that could possibly be left by recreational boaters.
My point is, again, I asked for specific environmental impacts
of recreational boating that would justify closing the land to
that specific use "for environmental purposes," as you said it
was.
>The impacts of numerous floaters is the same as it is elsewhere, in
>places such as the Grand Canyon and other heavily-used rivers, but on a
>smaller scale but larger impact.
This is laughable. In the Grand Canyon, on a trip of two to
three weeks, people have to camp, take dumps, eat, and so
forth. There are very heavily used rivers in this country where
the run is only a few hours long and stopping is prohibited or
impractical, where there are essentially no environmental
impacts, despite many times the number of people floating
through that you have on your property.
>
>The main problem is that it is impossible to police the conduct of
>boaters if they are allowed to enter the property.
<snip>
I agree with you there. I ask again, have you ever tried
telling the boaters they can pass through in exchange for quiet
comportment, courtesy, no dawdling and *no* stopping? Or have
you always just declared the stream closed?
>In addition, efforts are underway to re-habilitate the stream channel
>with the hope of eventually rebuilding native fish populations which were
>destroyed by the installation of the city of Boulder sewer plant about
>3/4 mile upstream in the 70's, combined with the topography of the stream
>channel when we bought the place, which was devoid of trees and badly
>overgrazed, which raised water temperatures beyond the fish's limits.
This sounds great, I congratulate you and thank you for your
efforts.
>I hope this is instructive.
Well, I didn't think I needed *instruction*, precisely, but I
do thank you again for taking the time to respond completely
and politely.
Best,
Harry
Scott Weiser
>>Several reasons. First, I have indeed been the subject of annoying,
>>have had guns pointed at me by canoists.
>
>I paddled in and around Colorado a little bit a little over 10 years
>ago, and unless a new species of paddler (rafters notwithstanding,
>they are a different sort) has sprouted up -not altogether unlikely- I
>am quite suprised at this report.
Well, perhaps you hang with a better class of people. However, the incident I
mention took place in 1973 and involved two duck hunters in a canoe. I
concede that I have not been menaced with firearms since, but perhaps that's
attributable to the fact that I now go armed when approaching trespassers of
any sort.
>Mr. Hearn, the subject of that episode, from my experiences of having
>met him from time to time, is a mellow, relaxed, and gentle sort of
>fellow. His being yanked from the river, bodily tossed from his boat
>in a most brutish manner, sustaining injury at the hands of those who
>are supposedly sworn to "protect and serve" is indeed as you say very
>typical, "in my experience, of boaters who are interrupted in
>their play."
Conceded, after further review of the facts of the case I retract my
statement.
However, I must still state that most people I contact are rude, offensive and
anything but polite when told they can't boat through my land.
>>Second, it is indeed an issue of fairness. As a private landowner, I have a right
>>to my privacy, and I do not appreciate having it interrupted at the whim of some
>>recreational boater. I bought the land, I pay the taxes on it, I maintain and
>>protect it, and I have the absolute right to exclude *anyone* from it.
>
>If indeed your right to exclusion was absolute, Then the local
>constabulary would be unable to serve writs and warrents, The local
>postal carrier would be unable to complete their rounds. I dare say
>that the dutifully sworn game warden can -without your permission-
>access your property if there is state managed game on it. In short,
>my point is that your right to exclusion is hardy absolute.
This is amphigory and a straw-man argument. You cannot equate the right of
entry for offical purposes, as provided for under law, by officials of the
government, with public trespass, they are not comparable. I *do* have, under
Federal and State law, an *absolute right* to prohibit the public from
entering upon my land.
>>The idea that any creek which will float a kayak is automatically a "navigable
>>waterway" and therefore a public highway is simply *wrong*, both in fairness,
>>reasonableness and law.
>
>Whether or not it is *wrong*, the issue of navigability is indeed at
>question here. You may feel that it is *wrong*, But it has happened
>often enough to be made an issue, that navigability has been some
>times judged to be anything that can be navigated.
Not often under federal tests has the use of canoes and kayaks been deemed to
be "navigation", but it is indeed a matter for adjudication. And state tests
don't apply in Colorado, since the waters are reserved to the public for
appropriation, not navigation.
>> If you can make a claim upon my private land for purposes
>>of your private pleasure over my objection, where do such intrusions then stop?
>>What about the hikers who want to see my place, why shouldn't they "condemn" a
>>trail across my land?
>
>It could happen, it has happened before.
But they must *purchase* the right-of-way under eminent domain, not simply
take it for public use.
>>My analogy of wanting to come to your house whenever I want and use your TV and
>>piss in your toilet is *exactly the same* as your desire to float through my land.
>>Just because I have a large tract of rural land does not mean that I am not
>>entitled to the same protection of the law that you are.
>
>I can see your point. But I disagree, it is NOT *exactly the same*. (snip) >Any person in dire need, if
>your posted land is the shortest path to sanctuary, may cross
>unhindered unless they are evading lawful apprehension. While the last
>may be contested, it has been shown by courts that have heard such
>cases, that a de-facto easement exists in practice if not exactly in
>law. To wit, If a snowblind, frostbitten and hypothermic hunter shows
>up at your door, you will be hard pressed to make a charge of
>tresspass stick. And in fact, you could be held liable if you attempt
>to hinder their progression to safety.
Not in Colorado. There is *no* exception in the trespass statutes such as you
describe. There is, however an *affirmative defense* called the "choice of
evils" defense, but it *only* applies at trial, and it's use is severely
restricted. The judge must rule on your motion to present the choice of evils
defense before you can present it. One of the factors which will prevent you
from using the choice of evils defense is whether or not you "manufactured"
the "emergency" in order to take advantage of the law. If you are trespassing
on my land, and you get lost in a snowstorm and come to my house, you will not
be allowed to argue choice of evils, since you were committing a crime in the
first place. You will be charged and likely convicted of criminal trespass.
If you broke into a summer cabin in order to survive, you *might* skate on a
burglary charge.
I can indeed make such a charge stick, and I can have the person summonsed if
I choose. The DA may well decline to prosecute, as is his right, and I would
not object if it were a circumstance of *genuine need* based upon accident or
weather, unless the person came into difficulty while illegally upon my land
in the first place, in which case the choice of evils defense does not apply.
Official visits are *completely* different from the routine trespass by the
public for recreational purposes, and your argument is irrelevant.
>This is hardly the same as you comming into my house to watch TV,
>though I am pretty sure you would be welcome.
That you don't see it as the same simply shows your bias against rural
landowners who have something that you want and can't have.
>>The other issue is politeness. If you wonder why hunters and fishermen seem to get
>>access to good places, it's because they are *polite*, and they stop and ask
>>permission before barging onto private lands.
>
>This is a point that would be well taken by many, and I agree
>completely. There is another side to it however. I know of a few
>cases where "come-ons" (folk not native to the area who drive saabs
>and volvos) buying rural land that others have hunted and fished for
>years. When the hunters and fisherman come to politely knock and
>inquire they are met with attitudes to the effect of "you can't hunt
>here, this is private property, it is mine mine mine, i have absolute
>right to disallow all access." This is real, this happens. I suppose
>you can guess how these folk get treated when the saab breaks down.
>Not to mention how long it takes the snow plows to get past their
>roads. Lost mail, and other such things.
Of course. But the fact remains that if it is their land, they have a perfect
right to disallow "traditional" uses if they so choose. It then becomes the
obligation of those who would use the land to build trust and a relationship
with the newcomers and convince them, through kindness, charity and polite
pursuasion, that it's in their best interests to become a part of the
community. The locals, however, have no right to *demand* such. That such
people are subject to such petty revenges speaks poorly of the locals more
than it does the newcomers.
>> I have yet to have a boater ask me for permission to float through.
>
>This is a shame, and I don't understand it. I hate to conjecture, but
>the scope of your recurring problem sounds unusuall, so I will. Are
>you fairly recently come into possestion of this land, and the
>previous land owner gave passage to the point that people think that
>access is implied?
Hardly. We have owned the land for 35 years. When we bought it, there was no
"recreational boating" to speak of on Boulder creek. The yuppies hadn't come
to Boulder, and hadn't discovered poly kayaks. We did get the occasional duck
hunter in a canoe, and the odd run of inner-tubers, which increased
*significantly* as subdivisions sprung up around us. I spent much of my young
life chasing trespassing kids (and their parents) from the suburbs.
When we moved in, Boulder creek was not *worth* floating on, as it was a very
shallow, very wide flatwater stream through a cow pasture devoid of trees and
shade (except for one venerable cottonwood). Most times you could walk across
the stream in gum-boots and not get your feet wet.
Since then, it has become a premier wildlife preserve and natural area,
teeming with wildlife, shaded by willows and cottonwoods *because* we kept the
public off the area. We have many, many varieties of wildlife, including
beaver, fox, skunk, bobcat, mountain lion, bear (unconfirmed), elk, deer by
the dozen, hawks, eagles, geese and ducks by the thousands and others too
numerous to mention.
I have no desire to have this area impacted by large numbers of recreationists
floating through. It's not a class V whitewater, it's not even class III, its
a tiny flatwater creek, and the *only* reason anyone wants to float through it
is because of the beauty which *I* (among others) have worked my *whole life*
to preserve.
>> (Don't bother though, because the area is closed to the public for environmental reasons.)
>
>Indeed
>
>> Boaters just assume that they can go
>>wherever they damn please, in spite of the law, and the pure arrogance nettles me.
>
>Again, this confounds me. I have only occasionally been turned down
>when I ask permission to float or fish a waterway that can only be
>accessed from private land. And in those cases the refusal was polite
>to the point of being apologetic, if not embarassing.
Then you are the exception to my experience. All you need do is read some of
the very numerous posts on this specific issue which have been made in the
last year, or some of the more virulent posts about the Potomac situation to
see just how arrogant, rude and nasty kayakers can be when someone even
*suggests* that they can't have access to every foot of every stream and creek
in the nation.
>>I don't believe I am being unreasonable in asking that if the state wants to
>>provide boaters with recreational opportunities (which are worth significant money
>>in this State) by giving them access to my private lands, that somebody should pay
>>me for my troubles, which are not inconsiderable. There are thousands of miles of
>>public waters on public streams over public lands, why is my land so necessary that
>>you must take it from me by force and over my objections, and not even offer to pay
>>me for it, or even offer to pay the taxes on the land I lose the right to control?
>
>"By force" is generally meant to imply armed involvement. Has some
>radical canoe terrorist group forced you to sign a non-posessory
>right-in-land access agreement at gun point? I am shocked indeed!
Let that read "force of law", which is every bit as much force as armed
attack. Furthermore, if I am wrong in my analysis of the state of the law,
then I could indeed be subjected to physical force by the government if I
attempt to stop or prevent what I believe to be an illegal trespass.
>I'm sorry, I am making light of your obvious and otherwise well stated
>aggrievment. But it makes me laugh and I won't strike it. I apologise,
>but I don't withdraw.
I'm glad you find it amusing. Would you find it as amusing if I pushed my way
into your backyard bar-b-que with 10 of my biker buddies because of my need to
"recreate"?
>By your statement of "offer to pay the taxes on the land I lose the
>right to control." I think that maybe you are not completly founded in
>the extent of your rights as a land owner. A land owner in these here
>United States is probably more accuately called a land holder.
(snip much inaccuracy)
>This is why such
>apparently criminal concepts such as adverse possesion and immenent
>domain (however the heck its spelled) come into play from time to
>time.
Oh please. I mean really. Go read a land grant from Congress.
All property is held subject to the reasonable exercise of the police power of
the state, but that *in no way* means that the state holds some kind of
"shadow title" to private property. This is the most absurd analysis I have
ever heard. Title means exactly that, utter, irrevocable title to the real
property. The reversion circumstances you cite are incorrect. As to tax
default, it occurs as a result of a government lien on the land, which must be
sold at auction to satisfy the debt. Only if no one purchase the land at
auction does it "revert to the state". Private property is private, period.
Adverse possession is a recognition that an individual may gain fee title to a
piece of real property if they use it in "open and notorious posession",
without permission, for a set number of years, which in Colorado is 18 years.
This concept is used to resolve property disputes where boundaries are in
question.
Eminent Domain is a recognition of the rights of the state, in the public
interest, to acquire fee-title (or other easement) of private property where
it is necessary for a "reasonable public purpose". The key is that "just
compensation" *must* be paid, under both the Federal and State Constitution
when such a taking occurs. This is in large part the result of abuses by the
Crown prior to the revolution, and is why the Constitution states in no
uncertain terms that private property cannot be taken for public use without
just compensation.
Read the Bill of Rights.
>My point is, You may very well, as the law currently stands be well
>within your right to prosecute virtually every instance of paddle
>touching and bottom scraping that comes your way.
More than that, the very fact that a boater "breaks the close", which is to
say that they intrude on the private "space" of a landowner is a trespass.
You should imagine an invisible plane along the property line which extends
from the center of the earth to the outer limits of the universe.
Everything within that "block", from the surface down and up, is private
property in every legal sense.
(In reality, airspace ownership is limited to that which one can "reasonably
use", and does not extend into the tropopause, but for our purposes here,
let's use say, 2000 feet AGL as a good standard)
> I suggest that for one thing, the law is going under review and you
>very well may not like the outcome, and also that you must have one
>heckuva a creek crossing your land, so keeping people off it may turn
>into more heart and head ache than you really want.
Well, neither might you. You see, in order for your faction to prevail, one
of two things must occur; (1) repeal of the "eminent domain" sections of
*both* the Colorado and U.S. Constitutions, or (2) adjudication in either a
state or federal court that the particular, specific reach which passes
through my land is a "navigable waterway" under federal test.
Both of these are highly unlikely. But we will have to see, I suppose.
> So, I would suggest that maybe you could contact the local AWA
>chapter, get directly involved, express your concerns and ask the
>boaters themselves for assistance in resolving these issues. This is
>not capitulation. Others in your place have done it, and I believe has
>nearly always resulted in a much, much better situation for all
>involved. In the end, you may very well find, that not only are the
>gates and fences kept in fine shape, the areas of past use kept clean
>and tidy, the access ferociously defended against those who would
>defile it without your even knowing, much less getting involved. But
>you might also come across a few folk that you may be more than happy
>to allow to piss in your toilet or spend some time watching the TV
>with.
I did exactly that. Who do you think started this discussion in the first
place, about, oh, 8 months ago or more? I started this colliquy with
*exactly* that plan in mind. I posted a scholarly paper and relevant
supporting documents on my web page, which you might want to read;
http://spot.colorado.edu/~weisers/Home.html
I spent many long and sometimes acrimonious hours responding to posts here,
trying to build a common ground which would be acceptable to everyone. I even
began drafting proposed legislation to solve the problem in an equitable
fashion. I corresponded with many people, some polite, some not so polite,
and I corresponded with Rich Hoffman and others at the AWA with the specific
intent of working together to build a workable alternative.
Ask anyone who remembers what it was like.
Sadly, while I thought the AWA was working on getting together with me to form
a working committee to hammer something out, I found instead that they were
being dishonest and duplicitious and had "stolen a march" by going to the
Legislature with *their* proposed legislation, which they did not even have
the courtesy to post, much less send me a copy of so I could participate with
them as they lobbied for the Bill. I was "notified" by the AWA that they were
going to go their own way mere weeks before their completed bill was
sponsored. I consider this despicable conduct.
I have been utterly forthright and honest about my plans and desires, and have
provided much information, and endless commentary to members of this group in
hopes of building trust and commonality, all of which has been destroyed by
the AWA and CWWA and their cheap political tactics.
I spoke with my representative last night, and expect the Bill to be killed on
second reading, since it violates the Colorado and US Constitutions.
Despite this duplicity on the part of your "representatives", I am *still*
willing to work with honest people towards a solution, but I will be much more
wary, and much less inclined to be charitable than I was before. I could
simply join with the Colorado Cattlemen's Association and others and make
*damned sure* that there is, and never will be, *any* access to private lands.
Believe me, this is the *most* likely sceneario, based upon political power,
court precedent and history.
That's not what I want. I recognize the value of the recreational boating
industry in Colorado, and I also recognize the desire of private persons to
boat, but you, in turn, must recognize that not every foot of creek or stream
in Colorado is suitable for, or must be open to private recreation. There has
to be a balance which can be struck which will ensure your access to important
recreational waters while protecting the very legitimate needs and desires of
landowners.
I am trying, desperately trying, to be reasonable, but it's very, very hard to
keep the faith in the face of hate, vilification and dishonesty.
>>Copyright 1996 All Rights Reserved
>
>Sorry Boss, this is a usenet newsgroup, your copyright don't matter.
Go read the copyright law.
Scott Weiser
>
>comments in this group. Chip Mefford's post (among others) was polite,
>concerned and reasonable, and I might add, well thought out and
>thoroughly based on fact rather than emotional overreaction.
>
>Tom Moye
>Seattle
I would refer the reader to the many nasty posts which I was subjected to
on this matter earlier. It's about a wash in my book. Some people have
been very nice, others have been very nasty.
I repeat, and clarify. I have never experienced a positive encounter
with a boater *on my property*.
Scott Weiser
>sp...@rainbow.rmii.com (Christian Cope) writes:
>> My opinion is that the real problem here is that Colorado actually gave
>> the bill passes.
>
>Here is my current understanding of the problem/issue:
>
>1) Colorado, Wyoming, New Mexico & Montana (and possibly other states) all
> have the same wording in their constitutions about navigibilty and/or
> stream ownership.
Incorrect.
ARTICLE XVI
Mining and Irrigation
Section 5. Water of streams public property. The water of every natural stream, not
heretofore appropriated, within the state of Colorado, is hereby declared to be the
property of the public, and the same is dedicated to the use of the people of the
state, subject to appropriation as hereinafter provided.
The words which are fatal to recreational floating are the last six; "subject to
appropriation as hereinafter provided". This wording is completely different from
the other states mentioned, and has been repeatedly interpreted by the State Supreme
Court as meaning *for the purpose of appropriation (diversion and use) only*, not
for public access.
Whatever your desires to the contrary, this wording exists in the State
Constitution, and it cannot simply be ignored, it must be dealt with. Our entire
system of water law, for better or for worse, and our entire system of riparian land
ownership is based upon these six words, and to remove them would cause chaos of
unimaginable proportions. Water is money, and the monied interests in Colorado are
*most certainly* not going to allow a bunch of kayakers to throw 100 years of water
law into a cocked hat just so they can go boating.
You see, if you establish that a kayak meets the federal test for "navigation in
fact", then you destroy the system of appropriation of water in Colorado. This is
because a waterway which is "navigable" in law, does indeed belong, bed, banks *and
water*, to the people, held in trust by the state.
Under federal law, *no riparian landowner*, or anyone else, can do anything which
would hinder public navigation, including bridges, fences, dams, weirs *or removing
the water from the stream*!
This means that if the kayak-as-navigation test is affirmed, water owners in
Colorado could *no longer divert or use their water*, because to do so would "hinder
navigation" unlawfully.
Water in Colorado is property, just like land or cars, and is owned by private
individuals and municipalities. Entire river basins have been all but dewatered by
trans mountain diversions of water. This is a valuable and protectible property
right, and the owners of this water *will not* allow you to take it back. I suspect
that if it were pushed, they would take up arms to prevent it.
It's an unrealistic expectation on your part, pure and simple, to believe that you
will succeed in getting a blanked definition of kayak-as-navigation past the courts
or legislature.
Some other method of ensuring recreational access must be developed, and I thought I
had a pretty good idea, which was evolving with the input of some here. I hope I am
not wrong.
>2) The other 3 states interpreted their constitutions to mean that the
> state owns the riverbed.
Not true. Some riverbeds and banks are owned by the state, others are privately
owned but subject to a navigational servitude.
In Montana, the law allowing use outside the high-water mark on Class 1 (A?) rivers
was struck down as an unconstitutional taking, as have "incidental touchings" in
New York. (According to the AWA)
>3) In Emmeret vs who_ever, Colorado interpreted the constitution to mean that
> the landowner owns the stream bed.
No, in Emmert, the Court *affirmed* that the banks, beds and airspace above the
waters of the state are the property of the owner of the surface, and may not be
trespassed upon absent consent.
>Scott and other landowners would like Emmeret to prevail, paddlers would like
>Colorado to follow the same precedent set by the other states.
This is true, except that I would like to see a reasonable alternative which would
preserve public access to important recreational waterways.
Scott Weiser
>Maybe I missed something at the beginning of this thread, but does anyone
>know what stretch of river we're discussing here? I've been known to wet
>my hull in Colorado and this seems like a piece of ground I might want to
>be aware of as I float past.
It really doesn't matter, because the law applies to *all* rivers and
streams in Colorado where they pass through private property, from the
Colorado River to the smallest creek. Wherever you go you are risking
arrest if you don't get permission from private landowners.
But, to answer your question, it's Boulder Creek about 8 miles east of
Boulder, south of Gunbarrel Hill.
Scott Weiser
Learn what? That boaters are intolerant and disrespectful of divergent
opinions?
That boaters believe that their need to recreate outweighs the
constitutional rights of landowners, and that they should be allowed to
take private property for their pleasure without compensation?
What is it you expect me to learn from such cavalier, arrogant attitudes?
--
Regards,
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a lawyer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
Copyright 1996 All Rights Reserved
PGP 2.62 public key fingerprint:
A6 BD 79 21 A4 24 7B 10 F1 4C 2E BF D1 40 2A 0A
Billy Herring
> I need to understand. Don't
> go throwin' law bullshit- just a real reason will do. Around here we go
> for legal access points, passive passing and we respect the barb wire..
> We have very few conflicts of this nature. Can't we all just get along?
I think the reason that Scott resorted to researching a bunch of "law
bullshit" is because we can't all get along. He has stated that he's had
some bad run-ins with paddlers in the past. Even one bad experience is
enough for most landowners to ban folks from their property, and
according to Colorado law (as Scott has presented it here) it would
appear that Scott's property includes the river (or the space above it -
close enough).
I treat landowners with respect and courtesy, and almost all boaters
reading this post probably do too. But a few boaters don't, and, as it
should, the law protects landowners from these kinds of folks (in most
states). I don't like creeks being "off limits" to boaters any more than
the next guy, but instead of trying to insist that "the law" should
protect our "right" to cross the property of others using a canoe or kayak
(something that doesn't extend to any other mode of transportation with
the possible exception of an airplane or the Space Shuttle), we should be
trying to come up with ways to protect the interrests of landowners _and_
paddlers at the same time. (This is not directed at those who have already
contributed constructive comments in this vein to this thread.) While
such a comprimise is not _always_ possible (as may very well be the case
with Scott's land), it is probably possible in the vast majority of
cases, providing that paddlers don't go around insisting on their "right"
to trespass!
- Bill Herring
GO HOGS!
Billy Herring
>I repeat, and clarify. I have never experienced a positive encounter
>with a boater *on my property*.
Scott,
Your first experiences with boaters (or hunters as the case may be) sound
like they were exceptionally unpleasant. But, if you have encountered
more than one or two boaters since then, my experience would indicate that
at least one of them should have been reasonable and courtious. If we're
not talking about just one or two encounters, I'd like to know how you
have responded to trespassers on the river. When you caught them
trespassing, did you immediately try to place them under arrest, require
them to carry their boats off of your property via a boat-dragging hike,
or allow them to exit your property on the river as quickly and quietly
as possible with the promise that they wouldn't return. I would hope that
you would calmly explain the situation and make a reasonable request of
the boaters in question (although in light of the fact that you have had a
shotgun pointed at you in the past, I can see where you would be inclined
to be a bit prejudiced against boaters). Let me add that I don't consider
the first two options (an invitation to go directly to jail or being
forced to drag a boat several miles) to be very reasonable requests.
- Bill Herring
GO HOGS!
Parenthetical Man strikes again!
Scott Weiser
>Jim Snyder wrote: (about Scott Weisser)
>> I need to understand. Don't
>> go throwin' law bullshit- just a real reason will do. Around here we go
>> for legal access points, passive passing and we respect the barb wire..
>> We have very few conflicts of this nature. Can't we all just get along?
>
>
>I think the reason that Scott resorted to researching a bunch of "law
>bullshit" is because we can't all get along. He has stated that he's had
>some bad run-ins with paddlers in the past. Even one bad experience is
>enough for most landowners to ban folks from their property, and
>according to Colorado law (as Scott has presented it here) it would
>appear that Scott's property includes the river (or the space above it -
>close enough).
Thank you for your reason and polite discussion.
One other very important aspect of this issue is, indeed, the law itself.
"Law bullshit" is anything but. Many here may not understand the
intracacies of the navigation issue, as it is pretty complex and not
crystal clear, but the essential thing to remember is that it is *the law*.
We may not simply ignore the law, nor may we simply ignore the rights of
property owners. I am not responsible for the state of the law, I didn't
make it, but it exists nonetheless. I am simply trying to bring to
everyone's attention that there is a significant problem which needs to be
solved, which is that floating across private property in Colorado is a
criminal offense, and that boaters are subject to arrest.
I recognize that boaters like to boat, I used to raft when I was young, so
I'm not immune to the charm and excitement, but this is a country of laws,
and they should not be ignored just to suit one's fancy.
My intent in starting this entire debate quite some time ago was to
spotlight the problem, which I seem to have done, and to suggest a way to
solve it which meets *everyone's* needs and desires, which I seem not to
have done.
>I treat landowners with respect and courtesy, and almost all boaters
>reading this post probably do too. But a few boaters don't, and, as it
>should, the law protects landowners from these kinds of folks (in most
>states). I don't like creeks being "off limits" to boaters any more than
>the next guy, but instead of trying to insist that "the law" should
>protect our "right" to cross the property of others using a canoe or kayak
>(something that doesn't extend to any other mode of transportation with
>the possible exception of an airplane or the Space Shuttle), we should be
>trying to come up with ways to protect the interrests of landowners _and_
>paddlers at the same time. (This is not directed at those who have already
>contributed constructive comments in this vein to this thread.) While
>such a comprimise is not _always_ possible (as may very well be the case
>with Scott's land), it is probably possible in the vast majority of
>cases, providing that paddlers don't go around insisting on their "right"
>to trespass!
Thank you for a most rational statement.
It is true that not every foot of every stream or creek in the US is
suitable for recreational boating, nor are they all open to such. The
aspect of "boater politics" which alarms me the most is the rather arrogant
assumption that you can go wherever you please if you can float a kayak on
it. It's simply not true in law, nor is it reasonable.
I continue to hope that we can work together to make a workable compromise.
House Bill 1079 is not a compromise, and is an extremely dangerous law,
since if enacted, immediately imperils the public treasury. Any riparian
landowner can file a "takings" claim, and, given the historical treatment
of such attempts at law previously (Hartman v Tresize), such claims are
very, very likely to succeed. The other alternative is for someone to file
an action for injunctive relief to prevent the law taking effect, which
would not cost the government as much in claims, but would stop the law
cold pending Supreme Court hearings where, again, it is very likely to be
found unconstitutional.
So, we are right back where we started from, with Emmert being the law in
Colorado.
Readers are referred to my homepage for information on the state of the law
from another perspective.
http://spot.colorado.edu/~weisers/Home.html
Scott Weiser
>Scott Weiser <Scott....@colorado.edu> writes:
>
>>I repeat, and clarify. I have never experienced a positive encounter
>>with a boater *on my property*.
>
>Scott,
>
>Your first experiences with boaters (or hunters as the case may be) sound
>like they were exceptionally unpleasant.
Well, since I usually contact boaters at the upstream line of our property,
which is 1/2 mile east of 75th street, a major road and sometimes put-in,
since it has public parking, and since the next take out is about 2 miles
further east through our and other private landowners property, I usually
try to politely advise them that they are trespassing, pointing to the
prominent signs on the bridge they are about to go under, and ask them to
exit the river.
I then explain the problem, and ask them to leave. Yes, they do have to
walk about 3/4 of a mile to exit the property via our lane, or they may
cross the fence onto city open-space and save a quarter mile by walking
across the field.
I have little sympathy for the tribulations of boaters who have to walk
out, since they shouldn't have been there in the first place. The last
time I tried to be nice and let one of the group go and get their car and
bring it in to pick up the boats, the idiot drove into a ditch and got
stuck and it took me a half hour to extract him.
Your options to avoid walking and arrest is to know what the law is, and
ask permission first to avoid such situations in the first place.
However, this sceneario is rare. The usual encounter runs something like
this; "Hi, I'm sorry, but you are trespassing on private property, please
stop where you are and come out of the stream." "Yeah? Fuck you asshole!
Come and catch us!" and away they paddle with mid-digit raised.
At this point I call the Sheriff to meet them at 95th St., and sometimes
they get there in time, and sometimes they don't. Usually they don't.
During the spring floods, a pair of boaters came down, were contacted by my
72 year old mother and asked politely to leave as they surfed on the
standing waves 10 feet downstream from the bridge. They gave her the above
salute and went their merry way. Useless to call the Sheriff,since they
were more concerned with saving lives at the time.
What the point of allowing people to go through is I don't know. I tried
for years to be reasonable to hunters who came on our land, advising them
it was closed and even letting them complete their hunt on occasion. All
this got me was a shotgun pointed at me.
Now, they must disarm themselves at my *first* request or be held at
gunpoint until they are disarmed.
Am I bitter? Perhaps, a bit. But I have cause to be bitter, and have seen
little here to pursuade me to change my mind, although your comments come
much closer than most others to being reasonable, and I appreciate them.
If you want to float through my land, then get the government to purchase
an easement of navigation for you. This way I will at least have some
money to compensate me for the extra time and money I have to spend
cleaning up and fixing up after you.
Chris Webster
> Sadly, while I thought the AWA was working on getting together with me to form
> a working committee to hammer something out, I found instead that they were
> being dishonest and duplicitious and had "stolen a march" by going to the
> Legislature with *their* proposed legislation, which they did not even have
> the courtesy to post, much less send me a copy of so I could participate with
> them as they lobbied for the Bill. I was "notified" by the AWA that they were
> going to go their own way mere weeks before their completed bill was
> sponsored. I consider this despicable conduct.
The legislation was not the AWA or CWWA idea, while my involvement
is limited, my giving a copy of your proposed legislation to my
lawyer friends initiated the legislation. The AWA & CWWA were brought
in [I believe] after they had already contacted you about your
legislation. The legislation was drafted with the Colorado Cattlemen's
input and approval. They later changed their minds, for fear it would
open the way for the Fair Fishing Initiative.
> Despite this duplicity on the part of your "representatives", I am *still*
> willing to work with honest people towards a solution, but I will be much more
> wary, and much less inclined to be charitable than I was before. I could
> simply join with the Colorado Cattlemen's Association and others and make
> *damned sure* that there is, and never will be, *any* access to private lands.
No you can't. We can always bargain for access just as the fisherman
currently do, you've said so yourself.
> Believe me, this is the *most* likely sceneario, based upon political power,
> court precedent and history.
I don't believe it.
> boat, but you, in turn, must recognize that not every foot of creek or stream
> in Colorado is suitable for, or must be open to private recreation.
We recognize this, but having 90% closed is unacceptable to us.
--Chris
Chris Webster
1) This issue is not about whether Scott's piece of land is environmentally
sensitive, or whether he is properly using computing facilities.
Even if the legislation passes, there is a higher law that can allow
environmentally sensitive property to be closed to the public. And I
think everybody in this group would support areas like this just as
climbers do when certain areas are closed for environmental reasons.
2) Scott, pretty lame to use the paddling community as a scapegoat for
damages and gunpoint encounters caused by hunters, you should have
qualified that months ago. Calling a hunter in a boat a member of
the paddling community is like calling me a "4wd offroader" because I
own 4wd vehicle.
3) Is the Hartman vs. Tresize case the one in Hawaii, where a company
had gone to great expense to make something navagible for their own
use? If so, I wouldn't consider that case to be setting any great
precedence.
--Chris
Scott....@colorado.edu
> Scott Weiser writes:
>
> > Sadly, while I thought the AWA was working on getting together with me
to form
> > a working committee to hammer something out, I found instead that they
were
> > being dishonest and duplicitious and had "stolen a march" by going to
the
> > Legislature with *their* proposed legislation, which they did not even
have
> > the courtesy to post, much less send me a copy of so I could participate
with
> > them as they lobbied for the Bill. I was "notified" by the AWA that they
were
> > going to go their own way mere weeks before their completed bill was
> > sponsored. I consider this despicable conduct.
>
> The legislation was not the AWA or CWWA idea, while my involvement
> is limited, my giving a copy of your proposed legislation to my
> lawyer friends initiated the legislation. The AWA & CWWA were brought
> in [I believe] after they had already contacted you about your
> legislation. The legislation was drafted with the Colorado Cattlemen's
> input and approval. They later changed their minds, for fear it would
> open the way for the Fair Fishing Initiative.
Indeed. However, I still consider it underhanded of those involved to
deliberately shut me out of the process of drafting this legislation by failing to
even notify me that it was being done. I have been completely fair and open
in my discussions here, and it only reinforces my bad opinion of your group
to know that your representatives have no foundation in ethical fairness.
I have also spoken with the CCA, and the FFI is only one reason they
declined to support it. The other is the recognition that it's a violation of the
US and Colorado Constitutions, and is an unconstitutional taking of private
property for public use even more egregious than the previous one.
>
>
> > Despite this duplicity on the part of your "representatives", I am *still*
> > willing to work with honest people towards a solution, but I will be much
more
> > wary, and much less inclined to be charitable than I was before. I could
> > simply join with the Colorado Cattlemen's Association and others and
make
> > *damned sure* that there is, and never will be, *any* access to private
lands.
>
> No you can't. We can always bargain for access just as the fisherman
> currently do, you've said so yourself.
I can sure try.
>
>
> > Believe me, this is the *most* likely sceneario, based upon political
power,
> > court precedent and history.
>
> I don't believe it.
Pity. But that's why this controversy exists, because some people have no
knowledge of the law, much less politics.
>
> > boat, but you, in turn, must recognize that not every foot of creek or
stream
> > in Colorado is suitable for, or must be open to private recreation.
>
> We recognize this, but having 90% closed is unacceptable to us.
Not according to my experience with your group.
If you really believe this, then I challenge you to work honestly and
openly with me to make more available in a lawful fashion.
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a laywer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
PGP 2.62 public key fingerprint:
Chris Webster
> Indeed. However, I still consider it underhanded of those involved to
> deliberately shut me out of the process of drafting this legislation by failing to
> even notify me that it was being done. I have been completely fair and open
> in my discussions here,
Last summer I posted basically the equivelant of the legislation, and asked
you what you thought, you said "Unacceptable to landowners". Would you have
had anything else to say if you were involved? If so, what input/modifications
to the legislation would you have proposed?
--Chris
Scott....@colorado.edu
I don't recall the post. Nor do I recall that you indicated that you were actively
lobbying the legislature. Nor do I recall that you ever indicated that such
legislation was being drafted. If you had, I would certainly have offered to
comment on your proposals.
Nor, for that matter, have you, or anyone else, posted the actual text of the
legislation on either this forum or on any website I am aware of, despite requests
that you do so. This is unconcionable, even for your members, whom you ask to
support legislation based upon *your* "marketing" of it rather than simply posting
the complete text of the legislation for everyone to see and review.
Political shenanigans which I though beneath you. Seems I was wrong.
I cannot comment on changes at this time, as I am focussing my efforts on
defeating the Bill.
Regards,
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my friends, family and
co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a laywer, you'd be paying big bucks
for this. All complaints should be
delivered in person to: Gatek...@hell.org
Copyright 1996 by Scott Weiser
This electronic mail message is private, confidential, copyrighted material
intended for the addressed recipient only, and may not be intercepted, divulged,
revealed, distributed, reproduced or copied in any manner or by any means
whatsoever without the express written consent of the author except for the
limited purposes of quoting text as a part of a personal, confidential reply to the
author. No part of this message may be copied, reproduced or published in any
public forum, computer newsgroup or newspaper without the express, prior
written consent of the author. All rights of reproduction or distribution are
retained by the author.
Scott....@colorado.edu
> Heh. Of course, Scott is also to be found periodically in
> rec.autos.4x4 braggin' on his studly customized HUMMV (which he now
> tells us he uses to plow his irrigation ditches, hmmm...) so, mebbe he
> knows about the snow plows already! ;-) Not exactly your basic rusted
> out Ford farm truck, eh? Now, what I wanna know is, has he gotten the
> .50 cal mount finished yet!?!
Not yet. Do I take it from your tone that you now presume to judge my
choice of automobiles? Do I detect a note of envy?
> Some of the biggest messes I've ever found in PUBLIC
> backcountry (NOT private...so there, Scott!) were left by
> hunters..
I never claimed they were the "biggest messes", only that they were
messes that I had to clean up.
> Course good ol' Scott woulda just plugged us w/
> the .50 cal and let someone downstream clean up the mess. Never
know
> what sinister things those evil boaters can do with a sharp knife and
> a paddle! [sarcasm, m' boy, sarcasm!!!]
Not amusing. You'll only get plugged if you pull a piece on me first. How
am I to know if you are one of those "pacifist" boaters or one of those
"nutburger" boaters? I'll be careful, thank you very much. Just don't try
to outdraw me and you'll be fine.
Regards,
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a laywer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
Copyright 1996 by Scott Weiser
All rights of reproduction or distribution are retained by the author.
Scott....@colorado.edu
post it.
I wonder why? Is there something in the language they don't want you to know?
Chris Webster
Scott Weiser writes:
> > Last summer I posted basically the equivelant of the legislation, and asked
> > you what you thought, you said "Unacceptable to landowners". Would you have
> > had anything else to say if you were involved? If so, what input/modifications
> > to the legislation would you have proposed?
> >
> > --Chris
>
> I don't recall the post. Nor do I recall that you indicated that you were actively
> lobbying the legislature. Nor do I recall that you ever indicated that such
> legislation was being drafted. If you had, I would certainly have offered to
> comment on your proposals.
I didn't indicate any of those things, because at the time none of those
things were happening.
> Nor, for that matter, have you, or anyone else, posted the actual text of the
> legislation on either .....
>
> Political shenanigans which I though beneath you. Seems I was wrong.
I personally haven't done it, because I don't have a copy and have never
had a copy, my involvment has been very limited. I will work on it.
--Chris
Chris Bell
>> rb...@rayleigh.mech.Virginia.EDU (Brad Whitehurst) writes:
>
>> Heh. Of course, Scott is also to be found periodically in
>> rec.autos.4x4 braggin' on his studly customized HUMMV (which he now
>> tells us he uses to plow his irrigation ditches, hmmm...) so, mebbe he
>> knows about the snow plows already! ;-) Not exactly your basic rusted
>> out Ford farm truck, eh? Now, what I wanna know is, has he gotten the
>> .50 cal mount finished yet!?!
>
>Not yet. Do I take it from your tone that you now presume to judge my
>choice of automobiles? Do I detect a note of envy?
My, am I ever impressed! I was curious about the HUMMV, so I did a did
a search on Scott using Alta Vista. Incredible. The guy is amazingly
prolific (something like 400 hits in the month of January, though some are
just responses to what Scott has said). And I thought I wasted a lot of time
on the internet...at least I limit myself to rec.boats.paddle! I am led to
conclude that HUMMV's must make awful quick work of plowing irrigation
ditches.
-- Chris
Brad Whitehurst
<Scott....@colorado.edu> wrote:
>> rb...@rayleigh.mech.Virginia.EDU (Brad Whitehurst) writes:
>
>> Heh. Of course, Scott is also to be found periodically in
>> rec.autos.4x4 braggin' on his studly customized HUMMV (which he now
>> tells us he uses to plow his irrigation ditches, hmmm...) so, mebbe he
>> knows about the snow plows already! ;-) Not exactly your basic rusted
>> out Ford farm truck, eh? Now, what I wanna know is, has he gotten the
>> .50 cal mount finished yet!?!
>
>Not yet. Do I take it from your tone that you now presume to judge my
>choice of automobiles? Do I detect a note of envy?
>
penis extension stage, and young enough not to've hit midlife crisis
yet. Which do you suffer from? Plus I don't have the $$ to burn.
>> Course good ol' Scott woulda just plugged us w/
>> the .50 cal and let someone downstream clean up the mess. Never
>know
>> what sinister things those evil boaters can do with a sharp knife and
>> a paddle! [sarcasm, m' boy, sarcasm!!!]
>
>Not amusing. You'll only get plugged if you pull a piece on me first. How
>am I to know if you are one of those "pacifist" boaters or one of those
>"nutburger" boaters? I'll be careful, thank you very much. Just don't try
>to outdraw me and you'll be fine.
>
"Nutburger." Like the routine sez, one of those things that
just makes ya go, "Hmmmm?" Paranoia. Such a wonderful motivator.
*heeheehee* [C'mon Vern, let's go see who else we can needle.....]
Lori Maxfield
>
> Harry Crockett <har...@lodestone.com> wrote:
> >Hi, Scott Weiser:
> >I have a question. You mentioned a few posts back that your property
> >is closed "for environmental reasons."
>
> There are several threatened/endangered species on the property,
> including the mining bee, rare lichens and an endangered fern which
> occurs nowhere else in the United States. There are several other
> species of plants which are rare, but not endangered. There are large
> areas of wetlands which support varied wildlife. On the whole, the area
> is not suited for public access because of the negative impacts. Much of
> the wildlife exists there because it has been protected from public use,
> and is therefore a sanctuary for them. These species include coyote,
> fox, badger, skunk, raccoon, deer, elk (1), mountain lion, bear
> (unconfirmed), golden eagle, numerous species of raptors, bobcat, snakes
> of several varieties, and many other species.
>
> Recreational floating, in addition to being an unreasonable intrusion on
> my privacy, has the potential for great harm, as has been amply
> demonstrated in the past by cutting of fences, leaving of trash, and most
> significantly, the danger of fires, which have been started both
> accidentally and deliberately by trespassers.
> The property is used for limited cattle an horse pasturage commensurate
> with quality long-term pasture management, and is closed to all
> recreational activities of the public. Only bona-fide researchers
> affiliated with recognized educational institutions are permitted access.
> For example, we recently had a graduate researcher who studied a
> particualr plant, and another archeological group who studied and
> recorded all of the graffiti which has been carved in the sandstone
> cliffs over the centuries, which includes inscriptions by William
> (Buffalo Bill) Cody and some indian pictographs.
<the rest deleted>
Scott,
I've resisted getting into this debate because I support the "navigability
definitions" that are in effect currently in California and not those legally in
effect in Colorado and don't want to rehash what has been said many times. I
appreciate that it annoys you to have strangers tromping around on your property
and I respect your right to have your property to yourself to use as you deem
appropriate. I do feel, however, that you have overexaggerated the inconviences
associated with having people float through your property under conditions where
your property is respected (not getting out of their boat on your property except
in cases of emergency, using other property further downstream for a lunch spot,
and other compremises dicussed at great length over the last several months).
I am in full support of the things you are doing to create a wildlife preserve and
agree that unnecessary traffic on your property is counter to that effort;
however, from skimming this thread both this time and the last time around several
months ago- I feel that you are using the environmental protection of your
property as an excuse to exclude boaters from the river. I am under the
impression that cattle and horse grazing is far more harmful to endangered plants
and rare lichens than paddlers that float by on the river. I understand that it
is your impression that paddlers are not a responsible lot, but it has been my
experience that when paddlers are asked to respect private property, they
generally do. There is evidence of that on high use rivers in many different
parts of the country. The best example is the South Fork of the American in
Northern California. It is the most rafted river in the country and there have
been many concessions made by rafters to respect the rights of the private
landowners along that river. Examples include: the implimentation of a quiet
zone (no waterfighting, screaming, etc in the stretches with private property),
rafters can not stop for lunch except on BLM land, and during necessary stops for
scouting or emergencies the boaters can not venture beyond the usual high water
mark. There are a few landowners along that river (I know of one anyway), that
like yourself, will only be satisfied with zero boating on that river; however,
for the most part everyone has learned to coexist peacefully and there have been
few violations of landowners rights.
I really hope that paddlers and private landowners can come up with legal
solutions that are satisfactory to both parties.
Regards,
Lori Maxfield
lmax...@cor-mail.biochem.hmc.psu.edu
Brad Whitehurst
<Scott....@colorado.edu> wrote:
,,,
>Copyright 1996 by Scott Weiser
>
>intended for the addressed recipient only, and may not be intercepted, divulged,
>revealed, distributed, reproduced or copied in any manner or by any means
>whatsoever without the express written consent of the author except for the
>limited purposes of quoting text as a part of a personal, confidential reply to the
>author. No part of this message may be copied, reproduced or published in any
>public forum, computer newsgroup or newspaper without the express, prior
>retained by the author.
Scott's really starting to fray at the seams a bit.
Scott....@colorado.edu
> Before I go on, thanks for a complete and polite answer to my
> question. I'm still a little confused, though. The species you
> list above are all (with the exception of the
> threatened/endangered ones) quite able to coexist not only with
> heavy recreational use but a variety of commercial uses that
> are much more intrusive than yours.
(snip)
> >I hope this is instructive.
>
> Well, I didn't think I needed *instruction*, precisely, but I
> do thank you again for taking the time to respond completely
> and politely.
Best enjoy it, because I'm through being nice.
The bill passed the House on 3rd reading by 1 vote.
The impacts on my property are up to me to analyze and decide upon, not you or
anyone else. I am the steward of the land and I will not permit anyone, particularly
not a bunch of boaters, to dictate to me what is best for my land. Without my
judgement and effort, none of those species would be present today, so I'll
continue to make the decisions.
None of you has any right to trespass on my land by boating, and that is that.
I intend to fight any such attempt to the bitter end, and I will win.
Colorado boaters have exactly one chance to get me back into a mode of
cooperation with them, and that is to call their state Senator *today* and demand
that HB 1079 be killed in committee. If it is not, and it passes to the floor of the
Senate, any offer I might have made to work with boaters to create legislation
which will ensure your access to important recreational waters will be withdrawn,
and I will instead expend every effort ensuring that the historical precedents in
Colorado are upheld and strengthened by the courts. I will also take action, even
at my own personal expense, to notify riparian landowners of the boating
community's attempts to take their land from them, and I will ensure that they ALL
know that they have the right to close their land to trespass by boaters, and to
have them arrested.
This is not an idle threat. Colorado boaters broke trust with me 4 months ago with
their duplicitious and underhanded actions, and I am very, very angry.
If they want my assistance, you will have to come to me with hat in hand and
apologize for the despicable actions of your representatives.
If they want to get huffy and flame me, let them, but understand that I can be
a formidable foe. I started this, and I will see it through to the end, and if
necessary, I will make sure that you can never boat over private lands with
impunity again.
None of this applies personally to you, Harry, you're just the vehicle for my anger.
>>>>
Regards,
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a laywer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
Copyright 1996 by Scott Weiser
All rights of reproduction or distribution are retained by the author.
PGP 2.62 public key fingerprint:
Scott....@colorado.edu
> Boy, Chris, you are right! Took a look with DejaNews. Here is an
> interesting example of a post on co.general:
(snip)
Pretty typical of your kind to post out-of-context. For the record, the discussion
was regarding application of the "make-my-day" law which permits the use of
deadly physical force on intruders in one's home.
Like I said to Chris, you like to paddle, I like to type. BFD.
Keith Beck
>
>The impacts on my property are up to me to analyze and decide upon, not you or
>anyone else. I am the steward of the land and I will not permit anyone, particularly
>not a bunch of boaters, to dictate to me what is best for my land. Without my
>judgement and effort, none of those species would be present today, so I'll
>continue to make the decisions.
>
>None of you has any right to trespass on my land by boating, and that is that.
>
>I intend to fight any such attempt to the bitter end, and I will win.
>
>Colorado boaters have exactly one chance to get me back into a mode of
>cooperation with them, and that is to call their state Senator *today* and demand
>that HB 1079 be killed in committee. If it is not, and it passes to the floor of the
>Senate, any offer I might have made to work with boaters to create legislation
>which will ensure your access to important recreational waters will be withdrawn,
>and I will instead expend every effort ensuring that the historical precedents in
>Colorado are upheld and strengthened by the courts. I will also take action, even
>at my own personal expense, to notify riparian landowners of the boating
>community's attempts to take their land from them, and I will ensure that they ALL
>know that they have the right to close their land to trespass by boaters, and to
>have them arrested.
>
>This is not an idle threat. Colorado boaters broke trust with me 4 months ago with
>their duplicitious and underhanded actions, and I am very, very angry.
Scott: I appreciate that you are very angry. Let me say clearly that I
am an out-of-stater (although I come to colorado frequently to bike and
kayak), and that I am not involved directly in the evolution of all this,
other than as an interested observer and lover of navigable streams
[whatever they are.....] So I am not arguing with you just asking for
clarification and continued dialog. An earlier response to you (sorry, I
didn't save it) suggested that this bill was essentially discussed with
you previously, and that it had the support of the Cattlemen. Is there
any substance to this? My understanding is that the Cattlemen are a
pretty tough group in terms of protecting their property interests, and
if they supported this legislation in principle that would say a lot.
It is clear that everyone can get pretty riled up over this, and I
believe that polarization is not helpful. The bill as I understand it
doesn't seem to bad--it certainly would help clarify a troublesome area.
It would make it clear that the important practical concerns you
repeatedly--and correctly--raise are addressed: namely, environmental
impact (no hunting, fishing, deterioration of fish habitat, picnicking,
littering, etc), and agricultural impact. Touching the land only to
maintain safety. No other contact.
I appreciate that your interpretation of existing law is that the
waterway is yours as is the land. There is, on the other hand,
tremendous pressure in favor of the concept that perhaps Colorado made a
mistake in not anticipating the change in navigability that changes in
boating would cause, and that we are now faced with the reality of our
present and future. There are many many parallels in the area of
technological/cultural changes colliding with old law. The constitution
is ill-equipt to deal with advances in genetics, medicine,
communications, etc., to say nothing of the impact of over-population.
It would seem that this proposed legislation is a bona fide attempt to
deal with advances in recreational technology and culture.
I appreciate that you feel it would deprive you of things belonging to
you without due process. If that is the case you would certainly be
entitled to seek redress for the "taking." On the other hand, the things
that you most vehemently identify as sacred seem to be acknowledged and
protected by this proposed law.
I hope the dialog can continue.
Scott....@colorado.edu
> Scott,
>(snip)
> I do feel, however, that you have overexaggerated the inconviences
> associated with having people float through your property under conditions where
> your property is respected (not getting out of their boat on your property except
> in cases of emergency, using other property further downstream for a lunch spot,
> and other compremises dicussed at great length over the last several months).
I appreciate your polite post, and you are correct, the laws here are significantly
different than they are in CA. However, I must ask why you would presume to tell me
how offended I have a right to be about "inconviences" caused by boaters.
I would not presume to tell you how offended to be if I and my friends chose to party
in your yard.
The essential aspect of this issue that none of you boaters seem to be able to
comprehend is that the stream IS my property, the land under it, the land on either
side, the space through which the water flows and the air above the ground. It
belongs to me. I paid for it with my sweat and my blood and my time, and, just like
your car, or your stereo, or your kayak, I have a right to keep you from using them
without my permission. It really doesn't matter if you never stop, never touch
anything and never even speak, your mere presence is offensive.
The sheer effrontery of most boaters who simply assume that if something has water
in it, they have a right to float on it absolutely outrages me. This bill that they have
put forward is a classic example, it is the worst kind of special interest legislation,
and doesn't even pretend to extend this right of "trespass" to either tuber, fishermen,
powerboaters or ANY commercial boater.
This, in itself, makes the law void on equal protection grounds. The only reason that
most legislators even considered this bill is because they recognize the value of the
commercial whitewater industry, which this bill completely disenfranchises. It's
absurd, and it's offensive, and it's wrong.
If the problem of navigation is to be solved in Colorado, then it has to be solved for
EVERYONE who enjoys such activities, commercial operators included, and it MUST
recognize the rights of private landowners. The state has the power to acquire a
right for the public to float over private lands as a "reasonable public purpose" under
the laws of eminent domain, even over the objections of a particular landowner, just
as they have the right to condemn a right-of-way for a road, or a park, or a power line.
The only thing that is required is MONEY. That's the issue. You can indeed take my
land from me, but you have to PAY me for it. That is what the 5th Amendment to the
US Constitution says.
The analogy I make with the current bill is that if I decide I want to take up kayaking, I
can come to your house, take your boat, paddle, wetsuit and everything else away
from you without even asking because I "need" to recreate.
Colorado is not California, nor is it Wyoming, or Utah, or Georgia or New York, it is
Colorado, with all it's peculiarities and it's climate and it's system of laws, which were
established over 100 years ago. Neither you, nor any person has a right to demand
that our Constitution and our laws be just like yours, or Wyomings, or Utahs. The
Equal Footing doctrine says that the people of the territory had a right to create a
state with laws unique to our needs, and we did so. Now we must abide by those
laws.
> I am in full support of the things you are doing to create a wildlife preserve and
> agree that unnecessary traffic on your property is counter to that effort;
> however, from skimming this thread both this time and the last time around several
> months ago- I feel that you are using the environmental protection of your
> property as an excuse to exclude boaters from the river
I don't need an excuse, I have the law to protect me from trespass. The fact that my
land is in the condition is the demonstration that my judgement on how to operate it
is sound, and I do not accept your assertions that such intrusions are harmless. You
don't know the property, I do. I have lived here and worked here for over 35 years,
and I watched EVERY SINGLE TREE grow up along the creek. I am the best judge of
what my land, and what I, need to survive, and I do not accept your, or any other
boater's judgement on the harmlessness of your excursions. I have evidence to the
contrary. I put out the grass fires, I pick up the trash and I fix the fences.
> I am under the
> impression that cattle and horse grazing is far more harmful to endangered plants
> and rare lichens than paddlers that float by on the river.
Your impression is mistaken. Proper grazing practices both preserve and enhance
the ecosystem. Ask the Nature Conservancy, which runs cattle on several of their
projects, with great success and vastly improved pasturage which supports much
wildlife in complete harmony with the cattle.
In fact, there is now substantial evidence that a particular rare flower which has been
disappearing from the county actually *requires* grazing activities for it's survival.
Research indicates that if the grasses are not cropped regularly in the particular
habitat where the flow grows, it dies out. This was demonstrated inadvertently by
the City and County open space department who, upon finding populations of the
flower on open space lands, immediately assumed that "hands off" was the solution,
and removed all cows from open space areas where the flower occurred. The flower
died out in these areas, while on our property, where the same intensity of grazing
activitiy has been in place for 29 years, the flower flourishes and it's range is
expanding.
> I understand that it
> is your impression that paddlers are not a responsible lot, but it has been my
> experience that when paddlers are asked to respect private property, they
> generally do
If I lived in CA, I probably wouldn't complain either, since the reservation of
navigation rights is a part of your Constitution, and I would therefore have purchased
my land in full knowledge of the rights of a riparian proprietor. This is Colorado,
where the rivers and streams are legally non-navigable, and my family purchased our
land knowing that there was no "right of navigation" along the stream. So did every
other landowner in Colorado, and we have Congressional land grants to prove it.
It's bootless to argue how "nice" boaters can be, which is, I am willing to admit,
largely true elsewhere, because THEY HAVE NO RIGHT TO BE ON MY LAND. Sadly, I
must get all the assholes down my creek, but that's the case. This is a matter of law,
and of principle, and I make no apologies for demanding that boaters, like everyone
else, respect the law and abide by it. That anyone should *demand* to cross my
property is a display of unconcionable arrogance. If you want to use my land, then
pay me for it.
> I really hope that paddlers and private landowners can come up with legal
> solutions that are satisfactory to both parties.
I do too. I have been trying and trying and trying, with only duplicity and dishonesty
in return. It does not raise the boating community in my esteem for them to
undertake such despicable tactics.
I do appreciate your civil tone and concerned response. Enjoy your rights in
California, you are very lucky.
Lakyak
(Jimisnyder) writes:
> could someone post exactly why he is so peevish about what is
>regarded as a benign issue in these parts? I need to understand. Don't
>go throwin' law bullshit- just a real reason will do. Around here we go
>for legal access points, passive passing and we respect the barb wire..
>We have very few conflicts of this nature.
Jimi, I'm not sure you ever really got your question answered, and as long
as everyone else is flailing around in this thread, I'd like to give it a
shot.
By now I suspect you know that Scott is torqued because a current bill in
the Colorado Legislature would give private paddlers the right to make
incidental contact with streambeds, streambed obstacles and stream banks
as they float through his private parts, so to speak. This in flagrant
disregard (he feels) for the hallowed *Emmert* case which clearly (he is
certain) contra-indicates that sort of thing (sorry, for the legal BS).
In Colorado there seem to be a few--not most, but a few--riverside
landowners like Scott for whom "respecting the barb wire," as you put it,
means turning around and going back the way you came.
It doesn't matter to them how "legal" your access point was or how legal
your take out point may be. It dosen't matter to them how long the river
is, how much public land you may have passed up to that point or how much
public land might lie on the other side of the thin ribbon (or not so thin
ribbon) of land they own on either side, underneath or sticking up out of
the river.
What matters to them is that they own that dirt, wet or dry. And if you so
much as touch it or pass over it without their permission, much less
actually desecrate it with trash, human waste, etc. ...well, you know the
rest.
And there are just enough of these folks and a sufficient scarcity of
water out here to make this a hot issue. That's the short answer to your
question, Jimi, but that's not the only combination that makes this a hot
issue, and, at this point, you might want to sign off 'cause we're about
to wade into some of that legal BS you don't care for but for which Scott
has at least a selective appetite. But I post with the faint hope that
others will find this issue, and Scott's approach to it *interesting.*
As Scott will be the first to tell you, the Emmert court held in its
concluding substantive paragraph that "the public has no right to the use
of waters overlying private lands for recreational purposes without the
consent of the owner." End of opinion. End of story? Well, not quite.
What Scott didn't point out was that the Emmert majority also held (just
as clearly) that while the public does not have a *constitutional* right
to float through private land and that Colorado common law should prevail
in this state, it *IS* within the province of the legislature to extend
that right to the public. Said the court: "it is within the competence of
the General Assembly to modify rules of common law within constitutional
parameters." And just so no one would miss it, they reaffirmed that idea
a few pages later: "If the increasing demand for recreational space on the
waters of this state is to be accommodated, the legislative process is the
proper method to achieve this end."
So it is *not* a case of, as Scott recently wrote, "If changes are to be
made, they must be made by Constitutional amendment, and must overcome the
significant hurdle of the US Constitution as well, since the property
right...cannot simply be legislated away."
On the contrary. The Emmert opinion upon which Scott relies so heavily
*twice* specifies just such a remedy and allows, for at least the
possibility, that such legislation can be written within "constitutional
parameters."
Well, guess what, Jimi. The legislature did that. We think. In 1977, they
added a section to the state statutes that defined private property as
including all the usual stuff, as we
Jerry Trottmann
(snip)
>>
>>EXCELLENT IDEA RICK ----- I'm off to the Web and the AWA, Scott Weiser
>>is much too myopic to learn, so let's change the subject.
>>BYE.
>>
>
>Learn what? That boaters are intolerant and disrespectful of divergent
>opinions?
>
>That boaters believe that their need to recreate outweighs the
>constitutional rights of landowners, and that they should be allowed to
>take private property for their pleasure without compensation?
>
>What is it you expect me to learn from such cavalier, arrogant
attitudes?
I looks like the tresspass bill is moving on the the Colo. Senate.
It the tresspass bill becomes law, will Scott Weiser have to hire two
more lawyers to try and get the law repealed?
------------------------
<Bill Dall Wrote:>
>> We as a society are under no obligation to continue to operate under
>>codes created and interpreted by people long dead who could not even
>>have
>>imagined the current situation. We are free to modify such codes by new
>>legislation or amendment.
-------------------------
Excellent comment Bill.
This was taken from this morning newpaper.
================================================
The Coloradoan (Ft. Collins, CO)
Wednesday, February 7, 1996
By staff and wire services
DENVER Boaters and rafters would be able to step into a
stream or onto a stream bank to avoid danger or
hazard without trespassing under a bill which cleared the
Colorado House earlier this week.
The measure was approved 33-30 Monday without debate
and was sent to the Senate, where it will be carried by
Sen. Joan Johnson, D-Adams County. House Majority
Leader Tim Foster, R-Grand Junction, stalled the bill
until after morning floor work, then scheduled a rare
afternoon floor session when it appeared he had the 33rd vote
needed to move the bill.
There was no debate when the measure was passed. But three
days earlier, Foster explained the bill clarified a
situation that developed in the 1970s when the state Supreme
Court made it clear trespassing occurs when an
individual traveling waterways steps out of the craft and
touches a stream's bottom or bank. His bill was drafted
because obstructions across the waterway often make it
necessary for rafters and boaters to get out of their craft. It
permits people to linger on shore no more than 10 minutes.
Local representatives voting for the measure included Peggy
Reeves, D-Fort Collins, and Steve R-Fort Collins.
Those voting against the measure included Bill Jerke, R-
LaSalle; William Kaufman, R-Loveland; and David
Owen, Greeley.
==========================================
Chris Webster
Scott Weiser writes:
> But, of course, you can't get the Bill itself, because the folks who drafted
> it won't post it.
>
> I wonder why? Is there something in the language they don't want you to know?
Maybe because the folks who drafted it, don't have access to the internet.
However, I've posted it. Also, full text and status of all legislation in
the state of Colorado is available via:
--Chris
Scott Weiser
>Scott....@colorado.edu wrote:
>
>>
>>The impacts on my property are up to me to analyze and decide upon, not you or
>>anyone else. I am the steward of the land and I will not permit anyone, particularly
>>not a bunch of boaters, to dictate to me what is best for my land. Without my
>>judgement and effort, none of those species would be present today, so I'll
>>continue to make the decisions.
>>
>>None of you has any right to trespass on my land by boating, and that is that.
>>
>>I intend to fight any such attempt to the bitter end, and I will win.
>Scott: I appreciate that you are very angry. Let me say clearly that I
>am an out-of-stater (although I come to colorado frequently to bike and
>kayak), and that I am not involved directly in the evolution of all this,
>other than as an interested observer and lover of navigable streams
>[whatever they are.....] So I am not arguing with you just asking for
>clarification and continued dialog. An earlier response to you (sorry, I
>didn't save it) suggested that this bill was essentially discussed with
>you previously, and that it had the support of the Cattlemen. Is there
>any substance to this? My understanding is that the Cattlemen are a
>pretty tough group in terms of protecting their property interests, and
>if they supported this legislation in principle that would say a lot.
No, this is incorrect. The Colorado Cattlemen's Association agreed to work with
boaters on the drafting of the bill, until they saw the language and danger to property
rights, at which time the Board of Directors voted to oppose the bill. This is where
they stand now.
>
>It is clear that everyone can get pretty riled up over this, and I
>believe that polarization is not helpful. The bill as I understand it
>doesn't seem to bad--it certainly would help clarify a troublesome area.
> It would make it clear that the important practical concerns you
>repeatedly--and correctly--raise are addressed: namely, environmental
>impact (no hunting, fishing, deterioration of fish habitat, picnicking,
>littering, etc), and agricultural impact. Touching the land only to
>maintain safety. No other contact.
It is an unconstitutional taking of private property for public use. There is no such
thing as a lawful "little bit" of taking. A private property owner has the absolute
right to exclude the public from his land under the 5th Amendment to the Constitution
and Section 15 of the Colorado Constitution.
>I appreciate that your interpretation of existing law is that the
>waterway is yours as is the land. There is, on the other hand,
>tremendous pressure in favor of the concept that perhaps Colorado made a
>mistake in not anticipating the change in navigability that changes in
>boating would cause, and that we are now faced with the reality of our
>present and future. There are many many parallels in the area of
>technological/cultural changes colliding with old law. The constitution
>is ill-equipt to deal with advances in genetics, medicine,
>communications, etc., to say nothing of the impact of over-population.
>It would seem that this proposed legislation is a bona fide attempt to
>deal with advances in recreational technology and culture.
How many times to I have to say this; IT'S NOT MY INTERPRETATION, IT'S THE LAW!
I didn't make the law, the framers of the state Constitution did, and Congress
recognized that decision when it ratified the state Constitution.
You cannot simply discard 100 years of legal precedent in this state.
>
>I appreciate that you feel it would deprive you of things belonging to
>you without due process. If that is the case you would certainly be
>entitled to seek redress for the "taking." On the other hand, the things
>that you most vehemently identify as sacred seem to be acknowledged and
>protected by this proposed law.
Everything except the most important thing, my right to exclude the public from my
land.
>
>I hope the dialog can continue.
>
So do I. But time is running out.
--
Regards,
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a lawyer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
Copyright 1996 All Rights Reserved
Scott Weiser
Well, the AWA certainly has access to the Internet, they even have their
own Web page, which is where I heard about the legislation in the first
place, so I tend to believe that the concealment was deliberate.
Scott Weiser
>Scott Weiser <Scott....@colorado.edu> wrote:
>>Harry Crockett <har...@lodestone.com> wrote:
>>>I have a question. You mentioned a few posts back that your property
>>>is closed "for environmental reasons."
>>
>>There are several threatened/endangered species on the property,
>>including the mining bee, rare lichens and an endangered fern which
>>occurs nowhere else in the United States. There are several other
>>species of plants which are rare, but not endangered. There are large
>>areas of wetlands which support varied wildlife. On the whole, the area
>>is not suited for public access because of the negative impacts. Much of
>>the wildlife exists there because it has been protected from public use,
>>and is therefore a sanctuary for them. These species include coyote,
>>fox, badger, skunk, raccoon, deer, elk (1), mountain lion, bear
>>(unconfirmed), golden eagle, numerous species of raptors, bobcat, snakes
>>of several varieties, and many other species.
>>
>
>question. I'm still a little confused, though. The species you
>list above are all (with the exception of the
>threatened/endangered ones) quite able to coexist not only with
>heavy recreational use but a variety of commercial uses that
>number of recreational floaters are going to chase the deer
>away. The eagles, maybe, but probably not; I see eagles
>regularly along some of the busiest roads around Ft Collins and
>Loveland.
>
>As for the mining bee, lichens and fern, it's obvious that
>recreational floaters can have no impact upon them, *provided*
>they stay in their boats. There, of course, lies the rub. Have
>you tried erecting a polite but firm sign at the upstream end
>of your property to the effect that "you may float through but
>not get out, because endangered plants live here"? I, and
>virtually every boater I know, would respect such a sign. Of
>course, that is an xpense of time and maintenance in itself;
>maybe one of the paddlers groups would consider paying for it?
And how, exactly, am I going to ensure that they *stay* in their boats
without full-time security posted along the creek? The problem is that all
too often they *don't* stay in their boats.
It's not up to you to determine how I steward my land or what decisions I
make about what uses are appropriate. My judgement stands the test of time.
>I don't want to get off into endless back-and-forth about what
>does or does not constitute a significant impact, so let me
>just say where I'm coming from. I've been a boater and
>fisherman in this state for a long time, and those interests
>have drawn me increasingly into what I guess you'd call
>environmental activism on behalf of rivers. I now spend a lot
>of the time I used to spend boating and fishing trying to
>protect and restore rivers. I feel that blanket prohibitions
>based on questionable assumptions about impacts are a
>self-destructive tactic; they can't be upheld when challenged
>and they generate horrible PR. Remember, Scott, the shoe is
>more often on the other foot: when a landowner is in a dispute
>over environmental impacts, most often *he's* the one who wants
>to *cause* the damage. If others want to change his (or her)
>activities, they'd better be able to say exactly what they're
>trying to protect and how it will be impacted.
Indeed. But that's demonstrably not the case here.
>>Recreational floating, in addition to being an unreasonable intrusion on
>>my privacy, has the potential for great harm, as has been amply
>>demonstrated in the past by cutting of fences, leaving of trash, and most
>>significantly, the danger of fires, which have been started both
>>accidentally and deliberately by trespassers.
>>
>
>But not by boaters, I presume, or you certainly would have said
>so. Cutting fences is utterly inexcusable, but does no
>*environmental* harm, and the same is true of litter in the
>quantity that could possibly be left by recreational boaters.
>My point is, again, I asked for specific environmental impacts
>of recreational boating that would justify closing the land to
>that specific use "for environmental purposes," as you said it
>was.
Environmental purposes is only one of the reason I choose to close my
*private* land to trespass.
>
>>The impacts of numerous floaters is the same as it is elsewhere, in
>>places such as the Grand Canyon and other heavily-used rivers, but on a
>>smaller scale but larger impact.
>
>This is laughable. In the Grand Canyon, on a trip of two to
>three weeks, people have to camp, take dumps, eat, and so
>forth. There are very heavily used rivers in this country where
>the run is only a few hours long and stopping is prohibited or
>impractical, where there are essentially no environmental
>impacts, despite many times the number of people floating
>through that you have on your property.
As I said, it's not up to you to judge, it's up to me, and I judge it to be
detrimental.
>
>>
>>The main problem is that it is impossible to police the conduct of
>>boaters if they are allowed to enter the property.
>
><snip>
>
>I agree with you there. I ask again, have you ever tried
>telling the boaters they can pass through in exchange for quiet
>comportment, courtesy, no dawdling and *no* stopping? Or have
>you always just declared the stream closed?
Since I was menaced with a shotgun in the 70's, the property has been
completely closed, and will remain so.
Chris Bell
>You like to boat, I like to type.
Different strokes for different folks...
-- Chris
BillDall
In response to my post you said:
<< I find it interesting that you insist on making it "Scott's"
interpretation of the
Colorado Constitution. >>
In fact I never indicated in any way that you are defending "Your"
interpretation, but rather that you are defending "a very narrow,
traditional interpretation". Keep it straight.
Two additional points;
We as a society are under no obligation to continue to operate under
codes created and interpreted by people long dead who could not even have
imagined the current situation. We are free to modify such codes by new
legislation or amendment.
I find it difficult to follow your suggestion that the proposed
legislation would somehow violate the US constitution as similar
legislation already exists in many states.
As the proposed "takings" would consist of the airspace above the water,
are the landowners who support the traditional interpretation proposing to
charge the boating public for the air which we breathe?
Still Creekin' & Hardly Leakin',
Bill Dallam (a notorious trespassor)
Scott....@colorado.edu
> Scott....@colorado.edu wrote:
> >> rb...@rayleigh.mech.Virginia.EDU (Brad Whitehurst) writes:
> >
> >> Heh. Of course, Scott is also to be found periodically in
> >> rec.autos.4x4 braggin' on his studly customized HUMMV (which he now
> >> tells us he uses to plow his irrigation ditches, hmmm...) so, mebbe he
> >> knows about the snow plows already! ;-) Not exactly your basic rusted
> >> out Ford farm truck, eh? Now, what I wanna know is, has he gotten the
> >> .50 cal mount finished yet!?!
> >
> >Not yet. Do I take it from your tone that you now presume to judge my
> >choice of automobiles? Do I detect a note of envy?
>
> a search on Scott using Alta Vista. Incredible. The guy is amazingly
> prolific (something like 400 hits in the month of January, though some are
> just responses to what Scott has said). And I thought I wasted a lot of time
> on the internet...at least I limit myself to rec.boats.paddle! I am led to
> conclude that HUMMV's must make awful quick work of plowing irrigation
> ditches.
>
> -- Chris
>
>>>>
pump after I got it stuck.....
You like to boat, I like to type.
Regards,
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a laywer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
Copyright 1996 by Scott Weiser
All rights of reproduction or distribution are retained by the author.
PGP 2.62 public key fingerprint:
Keith Beck
>
>It is an unconstitutional taking of private property for public use. There is no such
>thing as a lawful "little bit" of taking. A private property owner has the absolute
>right to exclude the public from his land under the 5th Amendment to the Constitution
>and Section 15 of the Colorado Constitution.
>
>>I appreciate that your interpretation of existing law is that the
>>waterway is yours as is the land. There is, on the other hand,
>>tremendous pressure in favor of the concept that perhaps Colorado made a
>>mistake in not anticipating the change in navigability that changes in
>>boating would cause, and that we are now faced with the reality of our
>>present and future. There are many many parallels in the area of
>>technological/cultural changes colliding with old law. The constitution
>>is ill-equipt to deal with advances in genetics, medicine,
>>communications, etc., to say nothing of the impact of over-population.
>>It would seem that this proposed legislation is a bona fide attempt to
>>deal with advances in recreational technology and culture.
>
>How many times to I have to say this; IT'S NOT MY INTERPRETATION, IT'S THE LAW!
>I didn't make the law, the framers of the state Constitution did, and Congress
>recognized that decision when it ratified the state Constitution.
>
>You cannot simply discard 100 years of legal precedent in this state.
>
THE LAW doesn't just exist without interpretation and application. You
are offering your interpretation. The Emmert decision has internal
confusion and contradictions, and needs clarification. Since Emmert,
different atty's gen. and different sheriffs have interpreted and applied
THE LAW differently. Clarification is needed. This current bit of
legislation is a legislative attempt to clarify. You don't like it, one
would gather. Perhaps the next step is interpretation by courts, up to
the state and US supreme courts. If they interpret things differently
than you do, then that will be THE LAW. Isn't that how it works? And my
non-lawyerly view of history is that indeed courts and legislatures can
and do simply discard precedent when social, cultural and legal pressures
align.
Lori Maxfield
> Colorado boaters have exactly one chance to get me back into a mode of
> cooperation with them, and that is to call their state Senator *today* and demand
> that HB 1079 be killed in committee.
Scott,
Please clarify for me what you consider to be a reasonable compromise
between private property owners and boaters? My impression is that you
are willing to cooperate with us only under the condition that your
property is completely closed to all forms of public trespass including
all boating on the creek that flows through your land. What is the
compromise?
If it is not, and it passes to the floor of the
> Senate, any offer I might have made to work with boaters to create legislation
> which will ensure your access to important recreational waters will be withdrawn,
Am I correct in interpreting that the form of your "cooperation" to the
boating community is as follows: as long as you personally could retain
complete control over "your" creek, you wouldn't make so much fuss when
we fight to have the right to navigate other waters (that may actually
flow over the lands of other private land owners). Am I understanding
your intent correctly? I'm trying to understand more clearly and
precisely what exactly the boating community is losing by losing your
"support" and "cooperation".
> If they want to get huffy and flame me, let them, but understand that I can be
> a formidable foe. I started this, and I will see it through to the end,
Yes, I definitely believe this. You seem to have inexhaustible energy
to fight this..... It surprises me a bit that you wouldn't rather spend
your time enjoying this wonderful chunk of land you have. Still, it
would be so much better for all if this didn't turn into a long and ugly
court battle at some point.
Regards,
Lori Maxfield
lmax...@cor-mail.biochem.hmc.psu.edu
Jerry Trottmann
>I propose a law allowing me to take your boat and paddle, and car, and
>clothing, and furniture and use them for bank-fill material to stabilize
>flood damaged streams. Of course, I don't intend to pay you for them,
>just take them.
>--
>Regards,
>
>Scott Weiser
Say "Scotty" does this mean your stream is not a environmentally sensitve
and pristine as you would lead everyone to believe? Do you already dump
cars and other polluting garbage into Boulder Creek?
It must really be hard always being a victim of the un-enlighten up
stream of you. Just keep you chin up and keep on fighting the forces of
gravity.
One last question, in one of the other postings you referred to owning
the space above your stream. How far above the ground does thia
ownership extend? The hot air balloon folks may have a forum you might
want to checkout.
See you on the water, in the air and on the mall...
BillDall
<Scott....@colorado.edu> writes:
>
>I propose a law allowing me to take your boat and paddle, and car, and
>clothing, and furniture and use them for bank-fill material to stabilize
>flood damaged streams. Of course, I don't intend to pay you for them,
>just take them.
Getting a little bitter after the vote Scott?
Bo Eakens
> Best enjoy it, because I'm through being nice.
>
> The bill passed the House on 3rd reading by 1 vote.
(snip)
> I intend to fight any such attempt to the bitter end, and I will win.
>
> Colorado boaters have exactly one chance to get me back into a mode of
> cooperation with them, and that is to call their state Senator *today* and demand
> that HB 1079 be killed in committee. If it is not, and it passes to the floor of the
> Senate, any offer I might have made to work with boaters to create legislation
> which will ensure your access to important recreational waters will be withdrawn,
> and I will instead expend every effort ensuring that the historical precedents in
> Colorado are upheld and strengthened by the courts. I will also take action, even
> at my own personal expense, to notify riparian landowners of the boating
> community's attempts to take their land from them, and I will ensure that they ALL
> know that they have the right to close their land to trespass by boaters, and to
> have them arrested.
>
> This is not an idle threat. Colorado boaters broke trust with me 4 months ago with
> their duplicitious and underhanded actions, and I am very, very angry.
>
> If they want my assistance, you will have to come to me with hat in hand and
> apologize for the despicable actions of your representatives.
>
> If they want to get huffy and flame me, let them, but understand that I can be
> a formidable foe. I started this, and I will see it through to the end, and if
> necessary, I will make sure that you can never boat over private lands with
> impunity again.
I'm just curious as to who moved the rock this guy was hiding under.
Someone
told me about this guy's postings and I had to check it out for myself.
No wonder the AWA, etc.. gave up trying to work with this guy. If anyone
really
thinks he would be of any help to boating rights I've got some ocean
front
property in Tennessee I'd like to sell you. I took a few psych courses
in
college and can almost assure you that he would do exactly what he
states
above even if the boating community did everything he asks.
Unfortunately
if Scott wasn't venting his anger at boaters it would probably be some
other group.
I remember all the problems in Arkansas back in the 70's. I was
threatened
with gun and dogs at a takeout on the Mullberry. This guys babbling kind
of
reminds me of the fellow that threatened me. Everything in Arkansas has
changed dramatically since then. It required a lot of patience and
persistence but the courts and legislature did come through.
We may all have to thank people like Scott one day as they do seem to be
the
catalyst required to make necessary changes. Good luck with the
legislation in Colorado.
Heads up,
Bo
Scott Weiser
>Scott,
> In response to my post you said:
>
><< I find it interesting that you insist on making it "Scott's"
>interpretation of the
>Colorado Constitution. >>
>
>In fact I never indicated in any way that you are defending "Your"
>interpretation, but rather that you are defending "a very narrow,
>traditional interpretation". Keep it straight.
I won't argue the point with you, since it's peripheral to the issue, but if
you didn't, many other people have.
>Two additional points;
>
> We as a society are under no obligation to continue to operate under
>codes created and interpreted by people long dead who could not even have
>imagined the current situation. We are free to modify such codes by new
>legislation or amendment.
Correct. But you must do so in the appropriate lawful fashion. You may not
legislate away fundamental Constitutional rights without first amending the
Constitutional provisions upon which those rights are based. In this case,
the 5th Amendment to the US and section 15 of the Colorado Constitutions
state that private property shall not be taken for public use without the
payment of just compensation. This is a fundamental right of property
ownership, and the US Supreme Court, and every court in the nation have so
ruled. The USSC has ruled repeatedly that the right to exclude others is
one of the three most fundamental rights of private property, and that,
while the regulation of some other "strands" in the "bundle" of property
rights does not necessarily consitute a taking, that removing one of the
fundamental strands, specifically the right to exclude, in and of itself is
so abhorrent to the concept of private property that it is, defacto, a
taking for which compensation must be paid. (Kaiser-Etna v United States is
the most pertinent case of late) There is no question on this point.
So, in order to overcome the 5th Amendment and section 15 and authorize a
taking of private property for public use *without* compensation, which HB
1079 purports to do, you must *first* amend or repeal *both the 5th
Amendment and section 15* to allow such uncompensated takings.
Any legislation which contravenes the fundamental protections provided to
the owners of private property which does not amend *both* these documents
first is unconstitutional and must fall.
If you believe you can amend these documents to allow the taking of private
property for public use without compensation, go ahead and try. I believe
that you would regret the results if you did succeed, considering that this
very issue was one of the fundamental complaints against the Crown which
caused the Revolutionary War.
But remember, if you change it for me, or other riparian landowners, you
change it for *everyone else*, that's call "equal protection of the law", to
which I am as entitled as you are.
> I find it difficult to follow your suggestion that the proposed
>legislation would somehow violate the US constitution as similar
>legislation already exists in many states.
Applying the provisions of other states' Constitutions is bootless, Colorado
is Colorado, and laws must be interpreted under it's Constitution, not
Wyomings, or California's or anyone elses. Please cite such legislation,
chapter and verse, and also provide the Constitutional language of the state
which makes this law valid.
I doubt you can.
> As the proposed "takings" would consist of the airspace above the water,
>are the landowners who support the traditional interpretation proposing to
>charge the boating public for the air which we breathe?
It is not the "air" which is owned, it is the "space".
>
> Still Creekin' & Hardly Leakin',
> Bill Dallam (a notorious trespassor)
--
Regards,
Scott Weiser
******
"I love the Internet, I no longer have to depend upon my
friends, family and co-workers, I can annoy people WORLDWIDE!"
******
The opinions expressed are my own. If I was a lawyer, you'd be
paying big bucks for this. All complaints should be
delivered in person to: Gatek...@hell.org
Copyright 1996 All Rights Reserved
Scott Weiser
>By now I suspect you know that Scott is torqued because a current bill in
>the Colorado Legislature would give private paddlers the right to make
>incidental contact with streambeds, streambed obstacles and stream banks
>as they float through his private parts, so to speak. This in flagrant
>disregard (he feels) for the hallowed *Emmert* case which clearly (he is
>certain) contra-indicates that sort of thing (sorry, for the legal BS).
The bill does not "give a right", it cannot "give a right" which does not
exist, it can only create a taking, for which the government, which means
the taxpayers, will ultimately have to pay.
>In Colorado there seem to be a few--not most, but a few--riverside
>landowners like Scott for whom "respecting the barb wire," as you put it,
>means turning around and going back the way you came.
More than a few.
>It doesn't matter to them how "legal" your access point was or how legal
>your take out point may be. It dosen't matter to them how long the river
>is, how much public land you may have passed up to that point or how much
>public land might lie on the other side of the thin ribbon (or not so thin
>ribbon) of land they own on either side, underneath or sticking up out of
>the river.
Exactly correct.
>What matters to them is that they own that dirt, wet or dry. And if you so
>much as touch it or pass over it without their permission, much less
>actually desecrate it with trash, human waste, etc. ...well, you know the
>rest.
And the airspace over the land as well.
>And there are just enough of these folks and a sufficient scarcity of
>water out here to make this a hot issue. That's the short answer to your
>question, Jimi, but that's not the only combination that makes this a hot
>issue, and, at this point, you might want to sign off 'cause we're about
>to wade into some of that legal BS you don't care for but for which Scott
>has at least a selective appetite. But I post with the faint hope that
>others will find this issue, and Scott's approach to it *interesting.*
>
>As Scott will be the first to tell you, the Emmert court held in its
>concluding substantive paragraph that "the public has no right to the use
>of waters overlying private lands for recreational purposes without the
>consent of the owner." End of opinion. End of story? Well, not quite.
>
>What Scott didn't point out was that the Emmert majority also held (just
>as clearly) that while the public does not have a *constitutional* right
>to float through private land and that Colorado common law should prevail
>in this state, it *IS* within the province of the legislature to extend
>that right to the public. Said the court: "it is within the competence of
>the General Assembly to modify rules of common law within constitutional
>parameters." And just so no one would miss it, they reaffirmed that idea
>a few pages later: "If the increasing demand for recreational space on the
>waters of this state is to be accommodated, the legislative process is the
>proper method to achieve this end."
Re-read your quote. The important part is the "within constitutional
parameters".
>So it is *not* a case of, as Scott recently wrote, "If changes are to be
>made, they must be made by Constitutional amendment, and must overcome the
>significant hurdle of the US Constitution as well, since the property
>right...cannot simply be legislated away."
>
>On the contrary. The Emmert opinion upon which Scott relies so heavily
>*twice* specifies just such a remedy and allows, for at least the
>possibility, that such legislation can be written within "constitutional
>parameters."
>
>Well, guess what, Jimi. The legislature did that. We think. In 1977, they
>added a section to the state statutes that defined private property as
>including all the usual stuff, as we
No, it does not. The Emmert court said that, where common law remains as
the prevailing law, the legislature can change it within constitutional
parameters. The law of trespass in Colorado is not common law, it is
statute, as is the law of airspace. If you understood the Emmert court you
would realize that the statements you attribute were a stern warning by the
Court to the legislature, in dicta, that what the legislature *tried* to do
when they changed the definition of premises is not what they *actually
did*, and the Supreme Court told them this in the only way they could, since
the new statute was not part of their deliberations.
Think about why the SC would insert what everyone agrees is dictum regarding
a new statute which was enacted after the offenses in the case before them
into a decision. You and I both know that such dicta is, at best, a
warning. However, in this case it is exactly that, a warning, and a strong
one at that.
Despite what the Attorney General would have us believe in his opinion, the
law of airspace, upon which the SC predicated it's decision in Emmert, *is
not common law*, it is statute, in both the section regarding air navigation
and the "condominium law". Therefore, discussions of "changing the common
law" are utterly irrelevant, because the common law, that is to say the "ad
coelum" or "heaven to hell" ownership of airspace common law doctrine does
not exist in Colorado, but has been codified into statute.
In order for the legislature to "change" this law, it would have to amend
the previous statutes as well.
Therefore, there are several rules of statutory construction and
interpretation which apply to the legislature's change of CRS 18-4-504.5,
the definition of "premises", which you claim as authorization to trespass
across private lands.
First, irrespective of "legislative intent", the legislature may not take
what was previously private property, which is the real estate and the
airspace above it, and give it to the public to use without paying just
compensation under the 5th Amendment of the US Constitution and Section 15
of the Colorado Constitution. The rivers and streams of Colorado are
non-navigable, and therefore the title to the lands under such flowing
waters passed to private persons by grant of Congress as a condition of
statehood. This created a private property right in both the surface of the
land and the airspace above it, which right cannot be taken away by the
government without just compensation.
The CO SC, in Hartman v Tresize, stated flatly that the legislature cannot
make lawful the trespass of one man upon the lands of another for a public
purpose, much less mere private recreation. This case is an exact match
with the circumstances of this bill, which purports to make lawful the
"incidental touching" and indeed frank trespass upon the banks and beds for
mere personal recreation. What's more, since airspace in Colorado is "real
estate" in every legal sense of the word, it too is subject to trespass,
just like the surface of the land is, and it too can be subject to taking by
the government.
So, if you are correct in your analysis that the change to the premises
definition "decriminalized" such trespasses, then the legislature
perpetrated a taking under eminent domain in 1977 which has continued since
then. This places the state at risk for takings claims which have the
potential of bankrupting the treasury.
Second, another rule of statutory construction says that if a statute
enacted by the legislature is capable of two interpretations, as the
premises definition legislation *clearly* is (after all, the Colorado
Supreme Court interpreted it as supporting *their* conclusion that
trespassing is prohibited) and where one interpretation is constitutional
and the other is not, the law *must* be interpreted in the manner which
renders it constitutional, *irrespective of legislative intent in passing
the law*.
Third, yet another rule of statutory construction states that newly enacted
statutes are presumed to have been enacted so as to be in harmony with
previous legislation on the same subject. Previous legislation regarding
the ownership of real estate (including airspace,which is real estate in
every legal sense) is clear and unequivocal, it belongs to the owner. These
statutes created a protectable private property interest in such areas which
the government cannot infringe upon without creating a taking.
So, since to authorize a trespass upon private lands (including airspace)
without paying just compensation is unconstitutional, and to interpret the
premises definition as the SC did in Emmert *is* constitutional (that's why
they put the dicta in there), the inescapable conclusion is that the change
that the legislature intended is not what actually occurred, and that the
law must be interpreted as supporting the SC's decision in Emmert and
confirming that "breaking the close" is indeed a trespass. This is what the
SC said when it placed into the decision language which "interpreted" the
changed statute in dicta. It was telling the legislature, in no uncertain
terms, in the best way it could (because the revised law was not before them
for consideration) *how it would rule on the new law*!
The new bill proposes to exacerbate the taking which the legislature
attempted in 1977 by expanding the trespass to the banks and beds and even
allowing frank trespass on the shore for "scouting". This is clearly, and
unequivocally unlawful under an enormous mass of state and federal case law.
Even in states which have navigable waterways which meet the federal tests
for being navigable waters of the United States, NO state authorizes
trespass on private land above the mean high water mark of the waterway, nor
can they without creating a taking. Federal jurisprudence dictates that on
a navigable waterway (of which Colorado has only 2) the bed title remains
with the state, held in trust for the people. This title extends *only to
the mean high water mark* and not beyond, not a foot, not an inch.
In Montana, the legislature tried to create such a right of trespass on
larger rivers which allowed hunting, camping etc within 100 yards of the
stream, but this was recently struck down as unconstitutional, and persons
using the rivers must remain within the channel, between the mean high water
marks, although they may touch the bed and obstacles, since the bed title
remains with the state, so reserved by their Constitution.
Your assumptions are mistaken and are not well founded in law.
Anyone who is interested may refer to my paper, along with supporting
documentation including the full text of Emmert and the Attorney General's
opinion at:
http://spot.colorado.edu/~weisers/Home.html
Scott Weiser
>>thing as a lawful "little bit" of taking. A private property owner has the absolute
>>right to exclude the public from his land under the 5th Amendment to the Constitution
>>and Section 15 of the Colorado Constitution.
>>
>>>I appreciate that your interpretation of existing law is that the
>>>waterway is yours as is the land. There is, on the other hand,
>>>tremendous pressure in favor of the concept that perhaps Colorado made a
>>>mistake in not anticipating the change in navigability that changes in
>>>boating would cause, and that we are now faced with the reality of our
>>>present and future. There are many many parallels in the area of
>>>technological/cultural changes colliding with old law. The constitution
>>>is ill-equipt to deal with advances in genetics, medicine,
>>>communications, etc., to say nothing of the impact of over-population.
>>>It would seem that this proposed legislation is a bona fide attempt to
>>>deal with advances in recreational technology and culture.
>>
>>How many times to I have to say this; IT'S NOT MY INTERPRETATION, IT'S THE LAW!
>>I didn't make the law, the framers of the state Constitution did, and Congress
>>recognized that decision when it ratified the state Constitution.
>>
>>You cannot simply discard 100 years of legal precedent in this state.
>>
>
>are offering your interpretation. The Emmert decision has internal
>confusion and contradictions, and needs clarification. Since Emmert,
>different atty's gen. and different sheriffs have interpreted and applied
>THE LAW differently. Clarification is needed. This current bit of
>legislation is a legislative attempt to clarify. You don't like it, one
>would gather. Perhaps the next step is interpretation by courts, up to
>the state and US supreme courts. If they interpret things differently
>than you do, then that will be THE LAW. Isn't that how it works? And my
>non-lawyerly view of history is that indeed courts and legislatures can
>and do simply discard precedent when social, cultural and legal pressures
>align.
>
Go....Read....The.....Constitutions.
No matter what Emmert says, no matter whether or not Colorado rivers are
navigable or not, no matter if the state holds the bed title or not, HB
1079 is an illegal taking. Period. Even in states where there *are*
navigable waterways, one cannot go beyond the mean high water mark without
trespassing.
This bill allows physical intrusion on the banks of the river for
"scouting". It is illegal. There is no question about this.
This has nothing whatever to do with "navigation" or the Emmert
controversy or anything else. The mere fact that it purports to allow a
physical trespass on land that even the proponents of the bill admit are
private property makes it unconstitutional.
Forget about Emmert, concentrate on the wording of the bill.
Scott Weiser
>In article <4fbj9i$7...@lace.colorado.edu>, Scott Weiser
><Scott....@colorado.edu> writes:
>
>>
>>I propose a law allowing me to take your boat and paddle, and car, and
>>clothing, and furniture and use them for bank-fill material to stabilize
>>flood damaged streams. Of course, I don't intend to pay you for them,
>>just take them.
>
> Getting a little bitter after the vote Scott?
Indeed. And a bit depressed at the idea that my elected representatives
would forswear themselves and vote to support a law which is a clear
violation of the Constitution, which they are sworn to uphold. And this
oath-breaking was mostly political patronage, not firmly held conviction,
since a number of representatives I talked to said that they felt
compelled to vote for the bill, even after finding out what the true
import of the bill was, because they had "promised" the House Majority
Leader, the Honorable Mr. Foster, that they would vote for his little
special-interest bill.
Landowners in the state have taken notice of this dereliction of duty,
and will remember it come election time.
But, as for my comment you quote, you, like most boaters, don't have a
clue as to what I meant. Typical.
Scott Weiser
>Scott,
>
>Please clarify for me what you consider to be a reasonable compromise
>between private property owners and boaters? My impression is that you
>are willing to cooperate with us only under the condition that your
>property is completely closed to all forms of public trespass including
>all boating on the creek that flows through your land. What is the
>compromise?
Not at all. Please keep in mind that "my" property is the merest blip on the
screen. We must look at the larger issues. I use my property only as an example
of the kinds of arguments which *other* landowners have made as well. Whether or
not my particular land is open or closed is of small concern.
The compromise is to find a way to permit the state to legally acquire a
"right-of-passage" for "public recreational use of waters" on those rivers and
streams which are particularly suitable for such activities. Not every stream
and creek is suitable for public access, and this is the fundamental fact which
boaters need to recognize. Yes, this means picking and choosing, but I provide
for fair representation on the committee which classifies the rivers and streams,
so they will have the chance to argue their case.
> If it is not, and it passes to the floor of the
>> Senate, any offer I might have made to work with boaters to create legislation
>> which will ensure your access to important recreational waters will be withdrawn,
>
>
>Am I correct in interpreting that the form of your "cooperation" to the
>boating community is as follows: as long as you personally could retain
>complete control over "your" creek, you wouldn't make so much fuss when
>we fight to have the right to navigate other waters (that may actually
>flow over the lands of other private land owners). Am I understanding
>your intent correctly? I'm trying to understand more clearly and
>precisely what exactly the boating community is losing by losing your
>"support" and "cooperation".
No, not at all. While I want my property closed, I will not abandon other
landowners just to get my "special interest" fulfilled. This is a matter of
statewide concern, and impacts tens of thousands of private landowners, and it
would be morally bankrupt for me to simply get mine and run.
I started this whole mess because I saw that there were fundamental issues of law
and fairness which needed to be resolved on *both* sides, and I will see it
through, one way or the other. It depends on you. If we can work together in a
spirit of honest cooperation, then I will work as hard to be fair to boaters as I
am to landowners, but if this petty, mean spirited, underhanded selfishness
continues, then I will take up the sword of private property protection and will
bend my efforts at protecting the *landowner*, at the expense of the boaters.
>
>
>> If they want to get huffy and flame me, let them, but understand that I can be
>> a formidable foe. I started this, and I will see it through to the end, You may have me as a friend and voice of moderation or =
you may have me as a bitter enemy. The choice is yours.
>
>
>Yes, I definitely believe this. You seem to have inexhaustible energy
>to fight this..... It surprises me a bit that you wouldn't rather spend
>your time enjoying this wonderful chunk of land you have. Still, it
>would be so much better for all if this didn't turn into a long and ugly
>court battle at some point.
I agree completely. I would *much* rather work in peace and harmony to solve a
problem fairly and honestly, but the AWA and others have severely damaged the
trust I was trying to build by this action, and they will have to come a long way
to repair my faith in their integrity.
I have much better things to be doing right now, but this is *important*, so I
make time for it.
I didn't choose to sneak a bill in and use parlimentary tricks to get it passed,
I was honest and open, but what's done is done, and I have been *forced* into the
opposition's camp by these tactics. I still want to be a moderate voice in this,
but it gets harder by the minute.
Lakyak
writes:
>On the contrary. The Emmert opinion upon which Scott relies so heavily
>*twice* specifies just such a remedy and allows, for at least the
>possibility, that such legislation can be written within "constitutional
>parameters."
>
>Well, guess what, Jimi. The legislature did that. We think. In 1977, they
>added a section to the state statutes that defined private property as
>including all the usual stuff, as we................
And the remainder of my message died somewhere in cyberspace. What the
hell. Like most commentary in this thread, it was way too long anyway.
But my purpose in posting, Scott, was not to attempt to convince you of
the error of your ways. Oh, no. Nothing so utterly futile as that. Rather,
the point was to share with those who have been following this discussion
the two references within the Emmert decision where the court specifically
called for a legislative remedy to the problem presented by the case.
Furthermore, I thought folks should know that the 1977 Colorado
Legislature had addressed this issue *prior to* the Emmert decision by
redefining the statutory definition of “premises” with the obvious intent
of allowing people to float through and over private property free from
the threat of being charged with criminal trespass.
I thought those fortunate enough to live in states with more reasonable
court rulings (my personal value judgment, of course) regarding state
ownership of unappropriated water would find it both confusing and
contradictory, as I and many others have, that the Emmert court would
place such emphasis on legislative remedy and then apparently cast aside
the ‘77 Legislature’s actions without so much as a single comment
regarding the constitutional deficiencies from which the “premises”
redefinition presumably suffered.
I was sure that, armed with these facts, that most people would better
understand the legitimacy of the controversy which divides us. As I see
it, it is simply this: the Emmert court either ruled on the
constitutionality of the 1977 premises redefinition or it did not. If it
did, then it did so in the most cavalier manner imaginable and gave the
Legislature and Colorado citizens no guidance as to the specifics of how
the statute erred. Such a "ruling," if it in fact occurred, could only be
described as woefully incomplete at best or vacuous at worst.
If, as you suggest, the court’s notation of the ‘77 statute coupled with
its decision is merely a "warning" (however stern it may be) as to how
that court would "likely" or "might possibly" rule at some point in the
future (since, as you point out, "the new statute was not part of their
deliberations"), then it stands to reason that the constitutionality of
the 1977 premises redefinition has yet to be determined with any true
legal certainty.
Absent a court ruling to the contrary, it seems not only reasonable but
obligatory for all of us to presume the constitutionality of *any*
statute. Otherwise, what is our alternative as citizens every time our
legislative bodies enact a law containing any degree of controversy? Are
we to stand mute obeying none of the law's requirements or exercising none
of its privileges until such indeterminate time that it is either granted
or denied validity by the judiciary?
"Reasonable" or not, obligatory or not, I and other boaters are certainly
within our statutory rights to exercise such a presumption of
constitutionality in regards to the 1977 premises redefinition. I, for
one, choose to do so.
I plan on exercising a similar presumption this summer in regard to the
Colorado Stream Safety Act should it pass the Senate and be signed by the
Governor.
In any event, this inclination to presume the legitimacy of prior
legislative action might at least explain why some boaters you've
encountered "breaking your close" seem less than charitable in regards to
your attitude and approach.
Scott Weiser
>And the remainder of my message died somewhere in cyberspace. What the
>hell. Like most commentary in this thread, it was way too long anyway.
>
>But my purpose in posting, Scott, was not to attempt to convince you of
>the error of your ways. Oh, no. Nothing so utterly futile as that. Rather,
>the point was to share with those who have been following this discussion
>the two references within the Emmert decision where the court specifically
>called for a legislative remedy to the problem presented by the case.
>Furthermore, I thought folks should know that the 1977 Colorado
>Legislature had addressed this issue *prior to* the Emmert decision by
>redefining the statutory definition of “premises” with the obvious intent
>of allowing people to float through and over private property free from
>the threat of being charged with criminal trespass.
Indeed they did, as is indicated by the Attorney General's opinion, which,
along with Emmert and other information, is available at:
http://spot.colorado.edu/~weisers/Home.html
What you fail to mention is that the change in the premises definition by the
legislature, if interpreted according to legislative intent, was, and is,
also an unconstitutional taking of private property for public use without
just compensation.
The CO Supreme Court has so ruled. The most pertinent case to that statutory
change as well as the pending bill is the CO case Hartman v Tresize, in which
the SC ruled,
"The Legislature cannot make lawful a trespass by one man upon the lands of
another by providing that, if any damage is thereby done, a recovery
therefor may be had. That is just what our General Assembly by its statute
has attempted. But the act contravenes the provisions of section 15 of
article 2 of our state Constitution, and is clearly in conflict with the
law of Congress relating to the disposition of the public domain."
"In the enjoyment of his private property plaintiff is protected, both by
federal law and the state Constitution, against encroachment by defendant.
Neither the state, nor an individual, nor a corporation to whom the right
of eminent domain is delegated, can take private property for public use
without just compensation, much less can the state, without any
compensation, take the private property of one, and give it to another
citizen to be enjoyed by the latter for a mere private use."
(Hartman v.Tresise, 84 P. 694)
Explicitly clear and unequivocal language which even you should be able to
understand.
What the legislature tried to do in 1977 was exactly the same thing, without
even offering the recourse of civil damages. What the current bill does is,
again, exactly the same thing but expanded even more perniciously. The
Hartman court cited many, many precedents, as did the Emmert court when
citing Hartman. The US Supreme Court also explicitly recognized the taking
of the right to exclude to be a defacto governmental taking in Kaiser-Etna,
"The Government contends that as a result of one of these improvements, the
pond's connection to the navigable water in a manner approved by the Corps
of Engineers, the owner has somehow lost one of the most essential sticks
in the bundle of rights that are commonly characterized as property--the
right to exclude others."
(Kaiser Aetna v. United States, 444 US 164 (1979))
"When the property owner has a full bundle of property rights, the
destruction of one strand is usually not a "taking." "Takings"
jurisprudence does not divide a parcel of property into single, discrete
segments and attempt to determine whether rights in a particular segment
have been entirely abrogated. However, when the regulation destroys an
"essential" strand in the bundle of rights, there may be a "taking." The
two most important strands are (1) the right of possession and (2) the
right to devise to heirs."
(Potashnik v. Public Serv. Co., 126 Colo. 98, 247 P.2d 137 (1952))
and:
"The Supreme Court has held that the destruction of one strand may be a
"taking" if the strand is an "essential" one. See, Hodel v. Irving, 95
L.Ed.2d 668 (1987). There appears to be a hierarchy of the "essential"
strands, In descending order of importance, they are: (1) the right to
exclude;(2) the right to devise and descend; and (3) the right to make a
profit."
(Rosen, "Attacking Regulatory Takings of Natural Resource Property Rights."
17 Colo. Law. 2155 (1988))
These are but three cites from hundreds of similar cases where such actions
have been found to be takings.
If you read my paper, you will find all the supporting arguments.
The gist of it is that the CO SC placed the dicta regarding the ability of
the legislature to repeal common law, and the explicit recognition of the
1977 change to "premises" as supporting their ruling in Emmert specifically
to put the legislature on notice that if they wanted to "create" a right of
navigation or trespass, they had to do so *lawfully*, and that the way that
they TRIED to do it was *unlawful* and was to be interpreted as the SC stated
it was in Emmert. The SC indeed said that the legislature could change and
make law, but it *specifically* said they must do so in accordance with the
law itself, and not by trying to redefine the rights in private property by
legislative fiat, and in contravention of the Constitution.
In order for the legislature to "create" a right of navigation without having
to pay for it under eminent domain, it would first need to repeal the 5th
Amendment and section 15.
>I thought those fortunate enough to live in states with more reasonable
>court rulings (my personal value judgment, of course) regarding state
>ownership of unappropriated water would find it both confusing and
>contradictory, as I and many others have, that the Emmert court would
>place such emphasis on legislative remedy and then apparently cast aside
>the ‘77 Legislature’s actions without so much as a single comment
>regarding the constitutional deficiencies from which the “premises”
>redefinition presumably suffered.
>
>I was sure that, armed with these facts, that most people would better
>understand the legitimacy of the controversy which divides us. As I see
>it, it is simply this: the Emmert court either ruled on the
>constitutionality of the 1977 premises redefinition or it did not. If it
>did, then it did so in the most cavalier manner imaginable and gave the
>Legislature and Colorado citizens no guidance as to the specifics of how
>the statute erred. Such a "ruling," if it in fact occurred, could only be
>described as woefully incomplete at best or vacuous at worst.
It did not, because it could not, because the issue was not before it. It
did indeed give very specific and explicit guidance to the people and the
legislature about how to interpret the 1977 change to premises by stating in
no uncertain terms that by including the "banks and beds" of natural rivers
and streams explicitly *within* the definition of premises, that the
legislature, in fact, *confirmed* the very thing they were trying to change.
It may well be that the SC did not consider the "legislative intent" of the
bill because it saw no need to, since the plain wording, interpreted as they
interpreted it, was wholly Constitutional, and it simply never occurred to
them that the legislature would have had any other idea in mind, since an
opposite reading is clearly unconstitutional. We would have to ask the
Justices who rendered the decision for a definitive answer.
As I have said before, it is a common rule of statutory construction that if
a statute may be interperted in two ways, one Constitutional and the other
unconstitutional, it *must* be interpreted in the manner which renders the
statute Constitutional, even if that is not what the legislature intended
when enacting the law.
>If, as you suggest, the court’s notation of the ‘77 statute coupled with
>its decision is merely a "warning" (however stern it may be) as to how
>that court would "likely" or "might possibly" rule at some point in the
>future (since, as you point out, "the new statute was not part of their
>deliberations"), then it stands to reason that the constitutionality of
>the 1977 premises redefinition has yet to be determined with any true
>legal certainty.
Only of one is utterly incapable of reading and understanding the plain
language of the 5th Amendment to the US, and section 15 of the Colorado
Constitutions, the decision in Emmert, and the huge mass of other case law
which says plainly and clearly that to take the right to exclude away from a
private property owner is a taking under eminent domain, which must be
compensated.
You base your premise, I believe, on the specious idea that Colorado rivers
and streams are indeed "navigable waterways". The error of this
interpretation is confirmed by the very fact that the legislature even tried
to de-criminalize floating. For, you see, if a river is "navigable" in fact,
it is navigable in law, and if it is navigable in law, THE TITLE TO THE BED
REMAINS, AND HAS ALWAYS BEEN WITH THE STATE, held in trust for the people,
and the river is then a public highway in every sense of the word, and IS NOT
private property subject to trespass.
If the rivers of Colorado are in law navigable waterways meeting the
appropriate tests, then the legislature has NO NEED to redefine premises,
because the "premises" spoken of, the banks and beds, and the airspace above,
ALREADY BELONG TO THE PUBLIC and the trespass statutes do not apply.
So, if the rivers are indeed navigable, why would the state bother to amend
the trespass law, since it's utterly unnecessary to do so if the title to the
bed belongs to the public. The reason is that the rivers and streams of
Colorado ARE NOT NAVIGABLE in law. This has been recognized by both the
framers of the Constitution as well as Congress, and includes both the
Colorado and US Supreme Courts.
If the streams are not navigable, then the bed title is in the private
landowner's hand, so granted by Congress, and therefore the space through
which the water flows, and the airspace above, are also private, and any
"breaking of the close" is a criminal trespass.
So, the legislature indirectly recognized that the rivers are non-navigable
merely by attempting to pass the 1977 bill, and when they did pass it, they
perpetrated a taking of private property for public use without just
compensation, which the instant bill proposes to *expand*.
or, the change to the premises definition *must* be interpreted as the SC
interpreted it in Emmert as *confirming* ownership of the bed by private
person (and therefore the airspace above the bed), and therefore private
property protected from trespass, legislative intent notwithstanding.
If the first, the state owes every riparian landowner in the state
compensation for a taking which has lasted 19 years so far, and if the
second, they owe nothing, as no taking occurred. Which do you think the
legislature would choose if put to the test? Which do you suppose the Court
will choose? Which would you prefer it to choose? Pay hundreds of millions
in damages or keep a few elitest kayakers off the rivers?
>Absent a court ruling to the contrary, it seems not only reasonable but
>obligatory for all of us to presume the constitutionality of *any*
>statute. Otherwise, what is our alternative as citizens every time our
>legislative bodies enact a law containing any degree of controversy? Are
>we to stand mute obeying none of the law's requirements or exercising none
>of its privileges until such indeterminate time that it is either granted
>or denied validity by the judiciary?
So, if the legislature passes a law which mandates that you commit sodomy on
all 8 year old children, you would comply?
Your alternative, and indeed your obligation as a citizen is to stand up and
protest the unlawful taking of private property in contravention of our State
Constitution, and to protest the violation by your representatives of their
oaths of office, in which they swore to "preserve, protect and defend" the
Constitution of the US and the Colorado Constitution.
That you cannot, or more likely will not recognize the inequity of both the
1977 act and the instant bill is a demonstration of either your profound
ignorance of the law and the equities of private property ownership, or of
your utter disregard for the law and the rights of others in the face of
incontrovertable evidence. I suspect the latter.
Just remember, if they can take my land, they can take your land too.
>"Reasonable" or not, obligatory or not, I and other boaters are certainly
>within our statutory rights to exercise such a presumption of
>constitutionality in regards to the 1977 premises redefinition. I, for
>one, choose to do so.
No, you are not. NO person arguing your side of this issue has yet provided
any legal foundation WHATSOEVER for your "presumptions". No refutation of
the plain language of the Constitutions, no citations of law which would
support your claim that the 1977 act was, indeed Constitutional, nothing.
Nothing at all other than bull-headed denial of the facts and the weight of
evidence and case law.
The law is clear, and was enunciated in Emmert, which was handed down *after*
the 1977 change, and it says that "breaking the close" is a trespass.
>I plan on exercising a similar presumption this summer in regard to the
>Colorado Stream Safety Act should it pass the Senate and be signed by the
>Governor.
Go right ahead, and I will arrest you if you trespass, and you will lose your
case in court. I welcome it, I encourage you to test the law. I have every
faith that in the end result, you will get a fine and/or jail, the law will
be confirmed as I have stated it, and Colorado boaters will be much worse off
than they were before.
Of course, you could simply recognize the futility of your flawed analysis,
and avoid the problem altogether by working with me to find a solution which
is lawful.
>In any event, this inclination to presume the legitimacy of prior
>legislative action might at least explain why some boaters you've
>encountered "breaking your close" seem less than charitable in regards to
>your attitude and approach.
Ignorance of the law is no excuse. Blatent denial of the law is despicable.
Brad Whitehurst
Richard Penny <rikp...@CyberGate.COM> wrote:
>Chris Bell (be...@unca.edu) wrote:
>
>: My, am I ever impressed! I was curious about the HUMMV, so I did a did
>: a search on Scott using Alta Vista. Incredible. The guy is amazingly
>: just responses to what Scott has said). And I thought I wasted a lot of time
>: on the internet...at least I limit myself to rec.boats.paddle! I am led to
>: conclude that HUMMV's must make awful quick work of plowing irrigation
>: ditches.
>
>interesting example of a post on co.general:
>
>
>: No, if you shoot, you shoot to kill, always, every time, and repeatedly
>: until the perp stops moving. Then you REMAIN in a protected, barricade
>: position, re-loaded weapon trained on the perp, waiting for backup to
>: arrive, even if it takes an h our and a half! NEVER approach a shot
>: suspect....NEVER, EVER! Shout at him to remain still from a tactically
>: sound position, and SHOOT HIM AGAIN if he moves.
>
Quite the expert Rambo, eh? Heh, I guess the Kampus Kops at
UC Boulder won't let him play with anything louder than a radio. I
wanna know how many other comm techs are wheelin' around in Hummers!
Colorado pays better than Virginia I guess.
--
Brad Whitehurst | Aerospace Research Lab
rb...@Virginia.EDU | We like it hot...and fast.
Scott Weiser
Please, Arnold, not Sly. Get your venues straight.
As if it's any of your business, I stopped working active police duty due to
disability. Colorado pay for comm techs, like virtually everywhere else, sucks,
but hey, it's a job, and I get Internet access as a benefit. I pay for my HUMMER
out of my own pocket, from my "living" as a farmer/rancher, so it's really none of
your business.
Oh, BTW, do you disagree with my tactical analysis? Oh, I forgot, you don't know
your asshole from a hole in the ground when it comes to tactical analysis....
Tell you what, I'll leave analysis of eskimo rolls and whatnot to you, and you
leave analysis of tactical gunfighting to me, OK?
jnelson
: In article <4f8l2d$3...@opal.CyberGate.COM>,
: Richard Penny <rikp...@CyberGate.COM> wrote:
: >Chris Bell (be...@unca.edu) wrote:
: >: My, am I ever impressed! I was curious about the HUMMV, so I did a did
: >: a search on Scott using Alta Vista. Incredible. The guy is amazingly
: >: prolific (something like 400 hits in the month of January, though some are
: >: just responses to what Scott has said). And I thought I wasted a lot of time
: >: on the internet...at least I limit myself to rec.boats.paddle! I am led to
: >: conclude that HUMMV's must make awful quick work of plowing irrigation
: >: ditches.
: >
: >Boy, Chris, you are right! Took a look with DejaNews. Here is an
: >interesting example of a post on co.general:
: >In MessageID: 4enbtc$s...@peabody.colorado.edu, Scott Weiser wrote:
: >
: >: No, if you shoot, you shoot to kill, always, every time, and repeatedly
: >: until the perp stops moving. Then you REMAIN in a protected, barricade
: >: position, re-loaded weapon trained on the perp, waiting for backup to
: >: arrive, even if it takes an h our and a half! NEVER approach a shot
: >: suspect....NEVER, EVER! Shout at him to remain still from a tactically
: >: sound position, and SHOOT HIM AGAIN if he moves.
: >
: Quite the expert Rambo, eh? Heh, I guess the Kampus Kops at
: UC Boulder won't let him play with anything louder than a radio. I
: wanna know how many other comm techs are wheelin' around in Hummers!
: Colorado pays better than Virginia I guess.
: Brad Whitehurst | Aerospace Research Lab
: rb...@Virginia.EDU | We like it hot...and fast.
I wonder if Mr Weiser does anything except post messages all day? After
reading the above, one might wonder if the net isn't the safest place for him.
Maybe the university prefers him in front of a computer all day?
--
----------------------------------------------------------------------
jne...@netcom.com
Home Page: ftp://ftp.netcom.com/pub/jn/jnelson/index.html
Brad Whitehurst
>
>I wonder if Mr Weiser does anything except post messages all day? After
>reading the above, one might wonder if the net isn't the safest place for him.
>Maybe the university prefers him in front of a computer all day?
Actually, to be fair, the time stamps on most of his posts
indicate posting outside what would be normal business hours, unless
he's a night shifter.