BOARD01066

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

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trespass and is subject to arrest and prosecution for third degree criminal trespass, But it was
widely assumed in Colorado, and the statements of legislators supported thc assumption, that
the new definition of "premises" was intended to pennit floating across prIvate property, so
that if the Emmert defendants had committed their act of floating after rather than before the
adoption of ~ l8-4-5()4,5, they would have been acquitted,

No reported Colorado appellate opinion has confinned (or denied) the correctness of
the widespread assumption regarding the ability to float without being subject to prosecution
for criminal trespass. However, in 1983, at the request of the then-Executive Director of the
Colorado Department of Natural Resources, then-Attorney General Duane Woodard issued a
fonnal Attorney General's Opinion ("Woodard AGO") addressing the "purpose and effect"
of S 18-4-504,5, Thii; opinion concluded that

(t)he intent, purpose, and effect of section 18-4-504,5 is to protect adjoining
property owners from trespasses to the banks and beds of streams and exempt
those who float upon the state's waterways from criminal trespass liability, Since
the statute speaks only to criminal trespass, it does not address the question of
civil remedies and therefore cannot be viewed as providing authority for private
owners of stream banks and beds to prevent such use of the water.

The Woodard AGO has not been challenged in any reported judicial proceeding.

(b) Civil Trespass.

Landowners believe that the above-quoted language from the Woodard AGO has
encouraged a widespread but erroneous impression that there is a "right to float" across
private lands in Colorado, They argue that a floater who only touches the water may not be a

criminal trespasser: but that such a floater nonetheless has committed the tort of civil
trespass, No reported case in Colorado has addressed the question of whether a floater who
does not touch the bee! or banks of a stream commits civil trespass, And of course, any claim
by a landowner against a floater for civil trespass would first have to establish all the usual
factual and legal elements of the tort such as injury to property, measure and amount of
damages, causation, etc,

While the landowners may not dispute the legal statement in the Woodard Opinion
that S 18-4-504.5 itself provides no authority for private owners to exclude floaters, they
assert that no such statutory authority is necessary, since the right to exclude others is

4 Some landowners continue to argue that the Woodard opinion was wrong regarding the
effect of the definition of "premises" in S 18-4-504,5, These owners argue that the
definition, when read together with the common law rule ("he who owns the surface has the
exclusive right to everything above it"), means that even a floater who does not touch the
streambed is a criminal trespasser as he passes over the streambed,