BOARD01066

• Board Meeting Date: 7/24/2000
• Description: Gunnison Basin Issues - Right-to-Float
• Board Meetings - Doc Type: Memo

Page 2

Clearly, the various contradictory and mutually exclusive requests for c1ari fication
and interpretation of the various interest groups and authorities illustrate that the existing
state of the law is unsettled, in at least some significant respects, The following describes the
current state of the law in Colorado as it relates to the relationship between boaters and
floaters on the one hand, and landowners across whose property flow floatable streams on
the other. (This memo is based on the assumption that the rivers and streams in question are
non-navigable,) An outline of the main points is attached as Appendix A.

.

(a) Criminal trespass.

There seems tp be no serious disagreement over what behavior constitutes criminal
trespass under CRS 9 18-4-504 and -504,5, Section 18-4-504 provides that it is a third
degree criminal trespass if a person "unlawfully enters or remains in or upon premises of
another." , Before the People v, Emmert' case, the term "premises" was not statutorily
defined, The defendants in Emmert floated across the Ritschard ranch in 1976 for the
express purpose of testing whether the criminal trespass statute covered floating across
private property, Emmert and the other defendants claimed that Art. XVI, Section 5 of the
Colorado ConstitutionJ made such entry by floating lawfid and therefore not a criminal
trespass within the language of 9 18-4-504, The Colorado Supreme Court held that the
section of the Colorado Constitution relied upon by defendants did not apply to these
circumstances, and therefore such floating was a criminal trespass,

In the Emmert case, the defendants were convicted of criminal trespass for merely .
floating, (Although the defendants admitted touching the bed and banks, too, that apparently
was not a factor in their conviction.) After the events that led to the conviction in Emmert, in
1977 the legislature adopted the definition of "premises" in 9 18-4-504,5, explicitly including
the "stream banks and beds of any nonnavigable fresh water streams" flowing through
private real property but not specifically including the water itself in such definition, The
legislative history of this enactment made it pretty clear that the omission of the water itself
from the definition of"premises" was deliberate, So clearly, if a floater touches the bed or
banks of the river, or presumably anything in contact with the bed or banks (such as a weir
dam or a bridge or boulders) without permission of the landowner, he commits criminal

, Third degree criminal trespass is a class I petty offense with a maximum penalty of six
months imprisonment and a $500 fine. C.R,S, 9 18-1-107, If the criminal trespass occurs on
land which has been classified by the county assessor as agricultural land, the offense is a
class 3 misdemeanor with a maximum penalty of six months imprisonment and a $750 fine,
C.R.S.918-l-l06,
'597 P.2d 1025 (Colo, 1979),
J "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." .