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by case factual analysis." Zigan Sand & Gravel v. Cache La Poudre, 758 P.2d 175, 182 (Colo. 1988); see also State v. Southwestern Colorado Water Cons. Dist., 671 P.2d 1294, 1322 (Colo. 1983) ("What is beneficial use, after all, is a question of fact and depends upon the circumstances in each case"). Indeed, the constitutional argument raised by the State is directly addressed and refuted in Fort Collins, where in the context of discussing the recreation right at issue, the Court observed that the statutory right of the CWCB to appropriate minimum stream flow rights does not detract from the constitutional right of appropriators to divert and put to beneficial use unappropriated waters by removal or control. Ft. Collins, 830 P.2d at 930. Explaining the beneficial use definition at § 37-92-103(4), the Court in Ft. Collins held, "this statute provides that water appropriated for municipal, recreational, piscatorial, fishery, and wildlife purposes is water put to beneficial uses," and went on to specifically identify "kayaks and inner tubes." Fort Collins, 830 P.2d at 932 (emphasis added); see also Bd. of County Commr's. v. Upper Gunnison Water Cons. Dist., 838 P.2d 840, 849 (Colo. 1992)(finding beneficial use in enhanced "recreational uses by providing more predictable river and boating flows."). If there were any doubt on this point, SB 216 has unequivocally incorporated RICDs into the statutory definition of "beneficial use." C.R.S. § 37-92-103(10.3). The State's citation to People v. Emmert, 597 P.2d 1025 (1979) for the proposition that this Court has rejected "a constitutional right to recreational use of Colorado's water" (State at 7) is a specious misapplication of that decision. The Emmert decision was a criminal trespass case, not a water rights case. The principal holding was that persons floating on a raft across private land without permission of the landowner were guilty of trespass under the criminal trespass Tm1650 17