Get Me to the River
The New York Times travel section’s lead story on August 19, 2012, explained how hard it can be to get access to rivers to fish in Colorado. The article described the Rocky Mountain Angling Club, a nonprofit that has assembled forty-six ranches in three states to market private fishing. Nearly all the ranches are in Colorado, a state “whose infamous water laws can frustrate the out-of-state visitor.”
The article noted that Montana and Washington permit fishermen “to walk along a river’s waterline even if the surrounding land is private property. Not so in Colorado, where landowners own the shore and the earth under the river too.”
Anglers and rafters can float, but they can’t touch the bottom.
“And private property can be vigorously enforced—with phone calls to the authorities, tickets for trespassing, and, occasionally, confrontations,” the Times reported.[1]
At the time, the member-ranches in the Rocky Mountain Angling Club owned eighty miles of frontage along creeks and rivers, including some of Colorado’s greatest rivers—the Gunnison, Arkansas, and Yampa.
The Times article included a photograph of a fisherman crossing a creek on the Gianinetti Ranch in Carbondale, my hometown. The article described it as spring fed, but I recognized it as an irrigation ditch filled with water diverted from both the Roaring Fork and Crystal rivers. The East Mesa Ditch carries irrigation water from the Crystal into the Roaring Fork, a mini “transbasin diversion,” and it ends up in the Gianinetti Ditch.
At the time, the Angling Club was charging a $350 initial fee and $120 annual dues. Tourists typically paid $65-120 per day to fish, and the fees are shared between the club and the ranches. Participating ranches typically make their money by renting cabins for fees ranging from $150 to $1,000 a night. They also offer guides who take guests to the best fishing spots on nearby rivers.
“When these clubs provide access that otherwise wouldn’t exist, that’s a good thing,” Randy Hampton of Colorado Parks and Wildlife told the Times. But when they provide access that only a few that can afford, he says it raises questions about the commercialization of wildlife and who gets to fish.[2]
And it’s not unusual for people who own land along rivers to get tense about people floating down those rivers and stopping at their property. And while I do have empathy for landowners who’ve encountered groups of, shall we say, exuberant, boaters standing around and, let’s face it, probably peeing on signed private property, I maintain that such boaters are the exception, not the rule. And rudeness on the river works both ways. I once led a group of beginning kayakers down the Woody Creek section of the Roaring Fork River in 1998, a section that is fast moving and overgrown with trees, leaving few eddies to stop and regroup. We stopped in one, and a grizzled man came down and started spraying us with his garden hose, yammering at us to get off his property, even though we were just in the eddy. (This was below the barn that once had the middle finger painted on the roof, which was visible from Highway 82 and from the flight path into the Aspen airport.)[3] We were already wet, so that wasn’t a problem, and we soon left. But we got off easy. On the South Platte River below Deckers, landowners have shot over the heads of kayakers.
In 1996 State House Majority Leader Tim Foster, a Republican from Grand Junction, who you met in the introduction, sponsored a bill called the “Colorado Stream Safety Act.” The bill would have permitted kayakers to get out to scout and portage dangerous obstacles like waterfalls, barbed wire fences, or downed trees that blocked rivers. It would have guaranteed river access to kayakers, but not to rafters or fishermen, to lessen the supposed impact.
The Colorado Stream Safety Act proved to be the most contentious bill of the 1996 legislative session. Rep. Foster got it through the House, but it died in the Senate agricultural committee. Before voting against it, Sen. Tilman Bishop, a Republican from Grand Junction and a neighborhood friend of the Foster family, said that if he kept hearing of access problems, he might change his mind and vote for it in the future. Anticipating that the bill might come back someday, I kept track of kayak access incidents across the United States when I served on the board of American Whitewater. Between 1998 and 2000, eighty-two incidents were reported to me, and thirty were from Colorado alone, 37 percent of the total. That means that every two weeks during the 1998 and 1999 boating seasons, somewhere in Colorado a kayaker was being hassled for being on a river. I received reports from nineteen states other than Colorado, and on average these states reported less than three each, a tenth of the number reported in Colorado.
Some rivers are worse than others. The upper South Platte River near Deckers is notorious for its access problems. My friend Ethan Greene was arrested for kayaking the difficult but spectacular run above Cheesman Dam. That was a bad day on the river. Private fishing clubs including the Sportsmen’s Paradise Club, a collection of about twenty houses, thought they owned the South Platte. Park County District Attorney David Thorson said, “Sportsman’s Paradise was effectively regulating access to miles of water through public lands downriver.” The 1999 version of the kayaking guidebook Colorado Rivers and Creeks counseled, “It is necessary to perform a few impromptu maneuvers through obstacles deviously placed by the testy owners of the Sportsmen’s Paradise Club. Despite their aggressive taunting and displays of superiority, it is legal to float the stream so stay your course, hold your tongue, and don’t be lured into a confrontation with the tribe.” If boaters portage around fences put up by the Sportsman’s Club, “they are left with little choice: trespassing charges or potential death. The Colorado legislature and our legal system offer little-to-no leadership in this aspect of the law.”[4]
But is floating down a river legal? Kayakers and rafters say yes, and most ranchers say no. On July 3, 1976, David Emmert launched his raft on the upper Colorado River from a public access point below Byers Canyon in Grand County with three children. Downstream, the owner of the Ritschard Cattle Company and his ranch foreman strung a strand of barbed wire 10 inches above the river at a private bridge near Parshall, designed to make them to get out and walk around it. When they did, the waiting sheriff arrested them.[5] Stringing barbed wire across the channel is about the most dangerous thing you can do on a river. Boaters might not see it, especially if they are looking downstream into the sun in the late afternoon. Fortunately for Emmert, so much of the Colorado River is diverted from Grand Lake to Greeley that the river was barely a trickle, shallow and moving slowly. If the water had been high and a passenger on Emmert’s raft had been caught in the barbed wire and drowned, I wonder who the sheriff would have been arresting that day.
The 1970s were a different time, and the Colorado legislature quickly moved to amend the law to protect Emmert from committing a crime. They did this by amending the criminal trespass statute in 1978 to specifically exclude the stream bed and banks from the definition of “premises.” That meant Emmert could not be found guilty of committing criminal trespass, since bumping along the river bottom was not the sort of act for which a criminal trespass charge could be brought. During a committee hearing on the bill, the bill’s primary sponsor, Rep. Kenneth Kinnie, explained that under the bill that “if they stay in the boat, they are all right.” He also told the committee that the bill “simply makes it a criminal trespass to loiter on the stream banks … or the stream beds. If they want to canoe or tube or stay on the water, not bother the properties, why there would be no problem.” The bill passed.
But in 1979, deaf to claims of judicial activism (where courts ignore what the legislature does), the Colorado Supreme Court upheld Emmert’s conviction, despite the legislature’s earlier clarification of things. The majority opinion of the court trotted out an ancient Roman doctrine holding that the landowner owns all the land beneath the surface of his property and all the air space above.[6] I call it the “China to Mars doctrine,” as in digging down to China and flying up to Mars. It is considered a dubious legal doctrine in America since we started flying planes and sending radio waves through the airspace. It’s unlikely that Emmert would have been arrested in any other state.
The supreme court in the case was aided by numerous friends-of-the-court briefs. The Western River Guide’s Association filed one to support Emmert, but the best-known water law firms in Colorado came out in force to support rancher Ritschard. The Colorado Cattlemen’s Association, the Colorado Water Congress, the Colorado Farm Bureau, and the Lazy 7 Rod & Gun Club all submitted briefs supporting the rancher.[7]
Emmert told the court that Wyoming’s constitution, like Colorado’s, stated that the water was owned by the public, and the Wyoming Supreme Court said this meant the public had the right to float.[8] But the Colorado court ruled that Colorado’s constitution held the water was the public’s only until it was appropriated, thus distinguishing Colorado from Wyoming. The Colorado court said Colorado appropriation law controls river access. That’s like saying if we give a logging company a license to cut down trees in a national forest, the logging company can stop people from skiing there or using the forest. Huh?
Under the Colorado court’s reasoning, the water wasn’t owned by the public very long, since most valuable water rights were appropriated within months or a few years after we shoved the Indians out. Also, prior appropriation law permits multiple uses of water, both consumptive and non-consumptive, if each priority is met. Rafters aren’t interfering with anyone’s priority right. But Emmert does suggest that it’s ok to kayak at high water since that represents water that is too high to be appropriated and put to beneficial use.
What the Colorado Supreme Court did was to apply riparian law to Colorado by letting a landowner prevent someone from using water that coursed along the landowner’s property. But isn’t Colorado known for the Colorado Doctrine, the purest form of prior appropriation law in the country? Colorado long ago rejected the riparian doctrine.[9] The irony is unavoidable—the Emmert court used the appropriation doctrine to justify a holding based on riparian water law principles we rejected a hundred years earlier. The Colorado constitution holds it is perfectly legal to tromp across a person’s property to dig an irrigation ditch, but Emmert holds it is illegal to float past the property the irrigation ditch runs through.
Colorado Supreme Court Justice Greg Hobbs wrote about the 1979 Emmert decision, agreeing it “has been a controversial case in Colorado. Emmert is best read as supporting the proposition that the Colorado Constitution does not address the recreational use of water and that this subject is properly a matter for legislative consideration.”[10] It’s worth nothing there was a well-reasoned dissent in Emmert, that raises real questions about the court’s reasoning. And in 1983 Colorado Attorney General Duane Woodard issued a “formal legal opinion” in response to a request from the Dept. of Natural Resources and its acting executive director, Hamlet “Chips” Barry, who would go on lead Denver Water.
The attorney general reviewed the intent of the lawmakers who tweaked the law after Emmert’s arrest, in part by reviewing the committee hearing transcripts, and concluded that the legislature did clearly intend to exclude from criminal trespass those who simply float down a river past private property. The attorney general concluded in his opinion that “… one who floats upon the waters of a river or stream over or through private property, without touching the stream banks or beds, does not commit a criminal trespass.” The opinion meant that rafters and kayakers could legally float in Colorado. Today, and boaters and many state officials still rely on that legal opinion as setting the rule on the right to float on Colorado rivers.[11]
In practical terms for rafters and kayakers, it means when you eddy out, as long as the current does the work, and you don’t touch the bed or banks of the river, you can spin around in an eddy as long as you want, but touch a rock on the bed, or even a bush on the bank, one might assume, and you are in violation of the “law,” such as it is. You can also take some safe harbor in knowing that the real intent of the law is to prevent you and your friends from pulling over, climbing out, and “loitering” (standing around while drinking beer and chatting with friends likely qualifies) on someone’s private property, which, to be fair, is understandable.
But the story of the “right to float” in Colorado was far from over after the attorney general’s opinion in 1983. Some landowners claimed that the opinion only applies to criminal trespass, not civil trespass, the type of distinction that lawyers cherish. And thus began the next chapter in the “right to float” saga in Colorado.
A company that commercially rafted the Lake Fork of the Gunnison River for decades was sued for civil trespass by a rancher who owned land along the Lake Fork. The raft company, awkwardly named “Cannibal Outdoors,” closed its business, thereby rendering the case moot, rather than incur the steep legal costs that were inevitable.[12]The rancher on the Lake Fork of the Gunnison claimed he feared he would be sued if a rafter was injured while floating through his property. But Colorado, like nearly every other state, long ago passed a recreational use statute. It holds that a landowner cannot be held liable if people are injured while recreating on the landowner’s property unless the landowner charges a fee, or unless the landowner intentionally injures the person.[13] That’s a tough standard to meet, and there is no case in Colorado that I can find holding a landowner liable if someone is injured while recreating on the landowner’s property since the statute was enacted in 1969.[14] It provides superior protection to landowners and, if they are sued, they get their attorney fees if they prevail.
Recreational use statutes logically say that the sportsman assumes the risk of injury. Colorado’s statute also eliminates water features like rivers, dams or irrigation ditches from the definition of “attractive nuisance,” further protecting the landowner. The attractive nuisance doctrine holds a landowner liable for failing to protect against property features that attract children too young to appreciate the risk, such as an unfenced swimming pool. By stating rivers, lakes, and irrigation ditches are not attractive nuisances, landowners don’t need to worry if people drown when having fun in them. Cases involving private landowners and recreational use statutes are rare. More commonly, the recreational use statute is invoked by a city or other governmental entity that is trying to avoid liability when someone is injured at a public facility like a skateboard park.[15] Colorado could improve its recreational use statue by removing the clause saying a landowner loses the statute’s protection if the landowner charges a fee to recreationists. Nineteen states have eliminated this bar—landowners in those states can charge a rental fee and still be protected by the recreational use statute.[16] This change would further encourage landowners to open their lands to public use, the purpose behind the recreational use statute.[17]
Access to the outdoors is under increasing assault. In 1987, 25 percent of landowners permitted persons they did not know to access their land; this decreased to 12 percent when landowners were surveyed ten years later in 1997. The number of licensed hunters decreased 10 percent between 1982 and 1998, and a prime reason was lack of access to public and private land. Most public access studies indicate that landowners are concerned about the threat of liability and often use this as a justification to restrict public access.[18] Colorado’s access issues have spilled over into New Mexico where landowners and ranchers have spent much of the last decade trying to reduce access to fishing streams. Rather than getting wrapped around the axel about whether people can touch the stream bed or banks when fishing or floating on a river, the New Mexico Supreme Court in 1922 simply said what the rest of us already know, that “Walking and wading on the privately owned beds beneath public water is reasonably necessary for the enjoyment of many forms of fishing and recreation.”[19] The court said the public easement covers what would be reasonably necessary to use the water itself and that any use of the beds and banks must have minimal impact. The court also said, in essence, that both landowners and boaters should be courteous and try to work things out together, writing that “the right of the public and the right of the landowner are not absolute, irrelative, and uncontrolled, but are so united, each by the other, so that there may be a due and reasonable enjoyment of both.” The court concluded that “the public has the right to recreate and fish in public waters and that this right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment of such right.” (Not sure if peeing on someone’s signed private property is “necessary,” so be both smart and courteous, boaters! Better to stand in the river and pee, if you must.)
The New Mexico Supreme Court also specifically noted in its opinion that Idaho, Iowa, Minnesota, North Dakota, Wyoming and South Dakota have all recognized public use of water is distinct from river or stream bed ownership. Guess which state is conspicuously absent from this list? I have long wondered if other motives are involved here in Colorado.
In 2010, Jackson-Shaw, a Dallas real estate developer, informed two local river rafting companies that they could no longer float through property it recently purchased along a 2-mile stretch of the Taylor River between Crested Butte and Gunnison. Jackson-Shaw had been building properties for Fortune 500 companies since 1971, like the fancy office buildings in the Denver Tech Center. [20] The company worried that fun-loving rafters would “interfere with the fishing” that would lure vacation home buyers.[21] The two rafting companies, Scenic River Tours and Three Rivers Outfitting, had been floating the river since 1983, long before Jackson-Shaw bought the property and accused them of “disrupting fish and upsetting clients.”[22]
“It is my firm opinion any individual or group or company rafting through our private property is committing an act similar to someone walking across your lawn on a shortcut to the grocery store,” Lewis Shaw, president of Jackson-Shaw, said according to the Grand Junction Sentinel.[23] That’s one way of putting it. My take is that Shaw is saying is that if you don’t own property adjoining the grocery store, you can’t go inside and buy anything from it. There’s no way we would permit that, since it interferes with the commerce clause in the U.S. Constitution. Jackson-Shaw didn’t build the river. If rafting companies had as much clout with the Colorado legislature as developers do, we’d make rivers accessible like many other states do.
Jackson-Shaw’s “Wapiti Ranch” development spurred yet another river access bill before the Colorado legislature in 2010, this time with a much longer name, “Concerning Clarification of the Scope of the Existing Right of Navigation of Guides Employed by River Outfitters.” The House passed one version assuring access for commercial rafting companies, while the Senate version included private kayakers as well. When they could not agree on a final version, the bill failed to make it out of committee. The legislature apparently got cold feet when someone planted a rumor that allowing people to float down a river would be a taking. Oh my!
Ranchers and some of the best paid water lawyers in Colorado claim that allowing someone to float past private property is a taking, no different than if the highway department condemned your property and built a road right past your front door. In case you’re thinking that’s stretching the law a bit too far, part two of a takings claim is proving damages. Our concern with takings is not new—it is part of the original Bill of Rights passed in 1791. The Anti-Federalists, who did not like the idea of a U.S. government, proposed a concept to be included in the Fifth Amendment: “nor shall private property be taken for public use without just compensation.” The proposal was accepted. Taking property for public use is not prohibited, but it demands just compensation.
Suppose you own a property on a Colorado river, immediately making it one of the choice properties in the world. Just how much do you think it will drop in value if someone floats past it? Apparently not much, since real estate brochures don’t mention this drawback when describing riverfront property. They’re sure to mention that it adjoins the river, suggesting that’s a benefit. Even if it is a taking, just compensation is probably about $0. If a buyer doesn’t want to be disturbed a few weeks every year by some rafters having the time of their lives or a kayaker floating by with an ear-to-ear grin when the water’s up, there are plenty of other buyers who will take the property. There are no damages, at least none that have been proven so far, to my knowledge.
Rafting is indisputably popular and big business here. In a 2012 law review article, University of Colorado law student Cory Helton wrote, “Colorado offers rafting opportunities are unmatched by any other state, and, with over 150 named rivers, recreational river use has become a favorite pastime for residents and visitors alike. In 2010 alone, individuals logged a total of over 500,000 user days rafting Colorado’s rivers, making Colorado the most popular locale for whitewater rafting in the country. As a result, Colorado’s commercial rafting industry is among the busiest in the nation. Given the river-rafting industry’s economic and cultural importance to Colorado, it is surprising and ironic that the law surrounding the right to float remains ambiguous.”[24] When the 2010 raft access bill failed in the legislature, a Colorado Water Congress lobbyists suggested that the access problems could be solved with mediation sessions. So then Colorado Governor Bill Ritter formed a task force. It came back and reported that people don’t know if they legally can float in Colorado and landowners fear they’ll be sued if someone gets injured on their property. Nothing new there. The task force recommended a mediation committee with representatives from the boating community, ranching community, and the director of the Colorado Dept. of Natural Resources.
John Leede, president of the Creekside Coalition representing 600 riverfront property owners, was quoted in The Denver Post in 2015 as saying, “Over the years, Colorado’s property owners and rafters around the state, working on a case-by-case basis, have found ways to accommodate each other.”[25] That’s wishful thinking. Jackson-Shaw’s Wapiti Ranch attorney John Hill of Gunnison said, in the Trust for Public Land magazine that “This is a physical invasion taking. It’s authorizing people to go on private property.”[26]
Kayakers don’t want to spend their Saturdays knocking on doors asking 600 landowners if they can float past their property, assuming they can find them, or get past the locked gate, or past the ranch manager who says he can’t give permission since the owner’s out of town and can’t be reached. They want to spend their Saturdays boating.
In the early 1970s landowners along the scenic Blackfoot River in Montana started grumbling that the public shouldn’t be allowed to float there. Outraged Montana citizens were so offended that they immediately amended their constitution in 1972 to guarantee the right to float and fish and walk along the banks of any river up to the normal high-water mark. If you listen to the alarmist Colorado landowners that have carried the day here, that should have wrecked Montana’s economy. Ahem, Montana is known today for the best trout fishing in the country, with rivers like the Madison, Gallatin, and Yellowstone achieving legendary status. When I did an online search for “best trout fishing in America,” the first article that came up, published by Forbes magazine in 2009, pointed to Montana: “In the West, Montana has earned the reputation as perhaps the best trout fishing spot in North America. Missoula and West Yellowstone are two of the most prominent, but really any place in the western part of the state could fit the bill.”[27] Do you think Forbes would have said this if you can’t get to rivers in Montana?
Compare the status of river access in Montana with what’s been unfolding on the Fryingpan River above Basalt. The ‘Pan is designated by Colorado Parks and Wildlife as a Gold Medal trout fishery and it is a big source of tourist revenue in the mid-valley part of the Roaring Fork Valley. But as trophy homes built along the river keep getting bigger, public fishing access has gotten worse. “No Trespass” and “Private Property” signs are all over the place on the river and downstream along the Roaring Fork River. Meredith Long, a prominent art dealer in Houston, once took matters into his own hands to restrict access to his 34-acre slice of heaven. The highway up the Fryingpan River follows the old railroad bed that was blasted over from Leadville. The road right-of-way allows the public to fish along the riverbank that drops from the highway to the river.
According to a 2015 story by Tim Mutrie in the Aspen Daily News, Long’s house is on the other side of the river from the highway, and he just didn’t like seeing people across the river. So, he put up a fence to block people from fishing. It was designed to catch their flies when they back cast, snapping their line. The fence also extended over the river, a hazard with potentially ugly consequences if a boater got caught and drowned by the fence. He also planted thorny hawthorn trees along the road bank to mess with them more.
Local residents who have been living and fishing there for forty years asked for help, at first without much success. The local Colorado Parks and Wildlife agent said it’s a land use problem that Eagle County had to solve, and Eagle County’s attorney said he won’t get involved until a local citizen sues the Texas art dealer. Dean Wagner, a neighbor who has lived there since 1977, told the Daily News that “You can’t cast with the wires there. The landowner is breaking the law but nobody seems to want to do anything about it.” Another neighbor, Bruce Gabow, also spoke with the News. He said “Especially being up here for forty years and seeing so much of the river closed off by all these rich people. It’s always been a bit ridiculous here at this one spot. But now it’s just getting dangerous. I can’t understand how it can be legal.”[28] Eagle County Deputy Sheriff David Edstrom was quoted as saying, “I’m not going to debate this in the media. If somebody has a true complaint they can file a civil action and we’ll let a judge decide.” That might cost Dean Wagner or Bruce Gabow a pretty penny.
Imagine a dad taking his son out to go fishing and five minutes after they cast their lines, a stranger walks up and says, “This is my private property.” The dad says, “I’m just trying to teach my son how to fish here. We’re not causing any harm.” The neighbor repeats, louder this time, “You’re on my private property.” The dad drives off, feeling emasculated in front of his son. Next time he might as well take his son up to Montana where this wouldn’t happen.
Economic Drag
Every five years the U.S. Fish and Wildlife Service surveys the number of tourists and the economic contribution from hunting, fishing, and wildlife-watching in every state. The graph below shows the trend for out-of-state fishing tourists. Whatever the reason, Colorado is building a reputation as the wrong place to go fish. The two lines are the trend lines.
Figure 2.1 Fishing tourism in Colorado dropped from 1996 to 2011[29]
Maybe Colorado residents do not fish or hunt as much because they’re a different demographic group than people living in Alaska, Idaho, Montana and Wyoming. Maybe fewer nonresidents fish here because there are so many people already fishing here—between 1996 and 2001, Colorado averaged 6.6 million fishing days on average each year compared to 2.4 million for Alaska, Idaho, Montana and Wyoming. But the corollary is how many Colorado residents fish elsewhere. The conclusion is the same.
Figure 2.2 Colorado residents travel to fish more than other Western residents[30]
But while non-resident tourists are less likely to fish here, hunting is a different story.
Nonresident hunters would much rather hunt here than in Alaska, Idaho, Montana or Wyoming—they’re 49 percent more likely to hunt in Colorado than those states.
Figure 2.3 Tourists come to Colorado to hunt, not to fish[31]
I am not a hunting and fishing economist, but this doesn’t surprise me. If you cannot fish on rivers bordered by private property, and if it is legal to dry up nearly every river in the state, and if Colorado’s state fish survives in only one four-mile stretch of river, is it surprising that both tourists and Colorado residents fish elsewhere?
Is there an economic impact from this?
Probably.
Figure 2.4 Access problems could be costing over $200M in lost revenue
The above graph compares the number of tourists fishing in Alaska, Idaho, Montana, and Wyoming with the number of tourists fishing in Colorado, asking the question, “what if the percentage of nonresident tourists fishing In Colorado was the same as in those states?” The blue bars represent what non-resident tourists would have spent in Colorado at an average of $77 per day if they fished in the same numbers here as they do in the other states. The red bars indicate the revenue the Colorado economy loses when Colorado revenue leave the state to fish elsewhere. (The graphs are only current through 2011 because the 2016 and 2022 National Surveys of Fishing, Hunting, and Wildlife-Associated Recreation published by the U.S. Fish & Wildlife Service no longer report the data necessary to update the graphs.)
If Colorado residents fished at home at the same rate that residents in Alaska, Idaho, Montana and Wyoming fish, and if the same percentage of tourists came here to fish as they do in those states, we could have earned $210 million more revenue in 2011 at an average fishing expenditure of $77 per day, spent for things like fishing equipment, gas, lodging, etc. The reason there’s no blue bar in the chart for 2001 is because there were actually more tourists fishing here that year than in the other fishing destination states. It could also represent a weakness in data collection that year.
The Colorado Tourism Office says tourism grew 4.7 percent in 2012, as 60 million visitors spent $17 billion in Colorado.[32] That amounts to 6.5 percent of the state’s economy, slightly more than the national average of 6.1 percent.[33] That fits because Colorado is a tourist destination. About one of every sixteen dollars moving through Colorado’s economy is a tourist dollar. While significant, it is far from being the biggest driver of our economy as the graph below shows.
Figure 2.5 How the information age is changing Colorado’s economy[34]
The above graph shows how Colorado’s economy has evolved since 1997. The biggest change is the growth in professional jobs, the highest blue bar in the table above. Colorado’s Front Range is becoming the nation’s next Silicon Valley. That is what governors Owens, Ritter, and Hickenlooper all said they hoped would happen as they campaigned for office. The bottom blue bar, which reports the cumulative economy as one moves left to right, tells us that Colorado’s economy is a knowledge-based economy. In 2013, 84 percent of Colorado’s economy was based on knowledge and the industries needed to support it, including real estate, retail trade, and government and social services.
We have moved past the natural-resource based economy that characterized Colorado’s first 100 years. Natural gas production has grown 7.6 percent per year since 1997 in Colorado, the most of any business category, but it still only accounted for 6 percent of Colorado’s economy in 2013. Tourism accounts for a bigger share of Colorado’s economy today than mining and oil and gas production. We’ve moved on. We will likely pump most of the easily-recoverable natural gas in Colorado within the next 10-30 years.[35] While Weld County is lauding the Niobrara oil play, most of the natural gas in Colorado could be gone before today’s kindergartners finish college, and almost certainly within their lifetimes at current production rates.
Colorado’s economy grew 2.7 percent per year after inflation between 1997 and 2013. That is 17 percent better than the country as a whole, which expanded 2.3 percent yearly during this period. But how did tourism do? Real tourism (that is, after removing the distorting effect of inflation) grew 1.5 percent per year in Colorado, barely half the rate that Colorado’s economy grew. Still, tourism is growing faster in Colorado than the national average. Nationally, tourism grew only 0.5 percent per year from 1997-2013, reflecting the ravages of two recessions.[36] People don’t travel as much when the economy stalls.
On the Western Slope I love, tourism accounts for 26 percent of our economy.[37] In 2023 commercial rafting companies treated 535,013 paying customers to a day they won’t soon forget, generating $82 million in direct sales, and a total impact of $211 million after factoring in the 2.6 mutiplier for fuel, meal, and lodging expenses the customers also spent.[38] The Arkansas River, often the most popular rafting river in the US depending on the year, logged 224,700 user days, contributing $88 million to the local economy. While these numbers are small compared to Colorado’s overall economy, they make a big difference in local rural economies.
Although we must be careful not to love places to death, tourism is the epitome of a sustainable industry. It has infinite value, since it does not use up any local resources. The citizens that keep Colorado’s information economy chugging along will keep valuing recreation and tourism more and more, since that is what is drawing them here. Like it or not, every river diversion and every “No Trespassing” sign ultimately harms Colorado’s reputation among tourists and subtracts value from our economy. Every time we add water back to our streams or make them more accessible we will reap the dividends forever. As Brown University professor Robert Scholes once wrote, “The total value of biodiversity is infinite so having a debate about what is the total value of nature is pointless because we can’t exist without it, therefore its value reaches infinity. What we can talk about, meaningfully, is how much do you lose for a small change in biodiversity in relation to what you gain from having done some development that causes that loss. We very frequently lose more in undertaking developments which destroy biodiversity, than we gain from the economic flows that come from the development that we did.”[39] And when it comes to recreation, making places nicer to visit increases visitation. No shock, I suppose, but I’ve seen it happen with my own eyes.
Horsethief and Ruby Canyons are the last canyons the Colorado River cuts through in Colorado before it enters Utah, and they are among the most scenic of the river’s 1,450-mile journey to the sea.[40] Troy Schnurr started working this river stretch as a BLM seasonal ranger in 1991. He began pulling out tamarisk in 2000, an invasive species we imported from Iraq over a hundred years ago. Today Ruby-Horsethief is one of the best managed stretches of river in the Southwest. Schnurr says, “Around 2000, I started noticing that traditional campsites on the river were so overrun with tamarisk and Russian knapweed that all the rafting parties were forced to camp at Black Rocks.” Black Rocks is a scenic stretch where the resistant pre-Cambrian basement rock pokes up into the sandstone to form a series of whirlpool rapids that can give fits to beginning canoeists. Today there are nine camps at Black Rocks, and they are among the most scenic river camps in the entire Colorado river system. In addition to clearing this stretch of tamarisk, Troy and his work crews have been planting cottonwood galleries that provide welcome shade and lovely fall color. The Ruby-Horsethief Canyon run is about 24 miles long, and Troy and his work crews have cleared nearly every riverbank mile of tamarisk. He got most of the work done with teams of Civilian Conservation Corps workers. A chainsaw crew of eight used to cost $7,500 a week. Workers cut down the tammies, brush herbicide on the open tree trunks to keep them from re-sprouting and drag the felled trees into piles that Troy burns in the winter when it is cool. The transformation along the river has been remarkable, and today tammies on this stretch are rare. At the same time, the work crews have been clearing and building more and more campsites, and today there are thirty-four camps along the river.
As rafting increased in popularity, visitor use increased so much in Ruby-Horsethief that the BLM initiated a reservation system in 2010. I was dismayed when the BLM proposed this since Ruby-Horsethief was one of the last popular river stretches in the West that didn’t have a permit system. They bring bureaucracy to the wilderness, and each river has different rules. On some popular rivers, like the Yampa, it seems like you just can’t get a permit (although clearly, someone is!). I’ve been skunked every year I’ve applied for a permit on the Yampa during high water. At Ruby-Horsethief you can reserve any date that is less than 60 days out. If you want to launch on a Friday or Saturday on a busy summer weekend, you better call exactly 60 days before, starting at 8:00 AM. But the system works better than most. If you can launch midweek, you can sometimes have the river to yourself and permits aren’t a problem, especially for the less-popular campsites. (Technically, the permits are for camping, not for boating, and are based on which campsites are available, which is unique among permitted rivers). I’ve now come around and now think the permit system has created a much better rafting experience.
The permit costs $10 per person, so a 10-person group will pay $100 for a permit, and it doesn’t matter how many days they spend on the river. The commercial outfitters [BG1] [KR2] [KR3] that have concessions to run the river kick in 3 percent of their revenue. Added up, these fees paid for most of the $125,000 cost the BLM budgets to manage the river each season.[41] The BLM spent about $40,000 removing tamarisk and restoring campsites, and paid the remaining $85,000 to five seasonal rangers they hire to manage the river each summer.[42] There can be more than 400 people camping along the river on busy weekends from May through September, and BLM surveys show the median travel distance for campers is 166 miles. Salt Lake City and Denver are each about 250 miles distant. In 2017 over 23,000 campers spent a night in the canyon, an experience they’ll long remember.[43] Ruby-Horsethief is a gem today because of the work Troy and his partner Sparky Tabor at the Grand Junction BLM office have done.
Farther upriver, Eagle County has used its open space funds to purchase campsites and conservation easements on a 65-mile stretch of the upper Colorado River that passes through Eagle County. The rafting begins at a put-in known as Pumphouse. Like Ruby-Horsethief, the BLM manages this stretch of the river.[44] The upper Colorado River between Pumphouse and Glenwood Canyon is generally Class 2 with an occasional Class 3 rapid, so it is suitable for families and beginning boaters. The fishing is better in this stretch because the water is clear, only about fifty miles downstream from the headwaters. The upper Colorado River flows through an alpine environment with spruce trees instead of the pinon-juniper populating the desert along Ruby-Horsethief. But, unlike Ruby-Horsethief, “No Trespassing” signs are common, especially between Bond and Burns. The town of Parshall, where Emmert had his bad day on the river, is just 25 miles upstream of Pumphouse. In 2002, Eagle County voters told the county to dedicate 18 percent of the property tax it spent running the county to purchasing open space instead. About 3 percent of the property tax assessed to residences is dedicated to this fund—a $500,000 residence contributes about $60 a year.[45] By 2010, even after acquiring over 4,600 acres of open space, the fund had $22 million in the bank. Newly hired Executive Director Toby Sprunk set his sights on the Colorado River and, between 2012 and 2015, the fund purchased six properties on the river. The BLM estimates about 60,000 people float the upper Colorado River every year, about three times more than the people on Ruby-Horsethief, with two-thirds of them paying customers for commercial float companies. About half live in nearby Eagle and Garfield counties, but plenty come from the Front Range, less than three hours away when there’s no traffic. Eagle County has expanded river access since acquiring three raft launching areas at State Bridge, Two Bridges, and Dotsero. It purchased property at Red Dirt Creek where it plans to construct five campsites accessible by river rafters only.
In 2014 Eagle County purchased Spencer’s Cabin, a lone cabin on a beautiful, lonely stretch of river that is rented to rafters on the popular VRBO (Vacation Renter by Owner) website. The afternoon I visited Spencer’s Cabin with Toby, a bald eagle swooped down to the river and flew off with a fish. Eagle County spent $8 million to acquire these properties including $1.3 million for improvements, primarily access ramps to the river. Great Outdoors Colorado, the state open space program funded with lottery proceeds, kicked in another $4 million. The BLM appreciates that Eagle County is now helping to manage campsites and river access points. Peter Pauwels runs Accessible Outdoors, a Denver nonprofit whose mission is to get people with disabilities into the outdoors. Eagle County’s river access sites now allow wheelchairs to get to the river. Wheelchairs can be outfitted with “sip and puff” controls that let quadriplegics cast fishing rods and reel in the catch by puffing on a straw. Rafting is ideally suited for disabled people on gentle stretches like this. Toby Sprunk’s assistant Phil Kirkman is a former raft guide on the Arkansas River. I asked him what other rivers he thinks would be suitable for improved camping and access. He immediately suggested the Yampa River through Routt County, the Gunnison River between Almont and Gunnison, and the Arkansas River between Florence and Pueblo. There’s practically no camping allowed on any of these rivers because they run through private property. The upper Arkansas is one of the world’s great rafting rivers, but there are only a handful of campsites on it. The South Platte River east of Denver has lots of birdlife and beautiful cottonwood galleries, especially in the fall, but I’ve never heard of anyone boating or camping on it. The demand is clearly there to open these rivers to camping. Colorado is not providing the funds to improve Ruby-Horsethief or the upper Colorado River, the federal Bureau of Land Management and Eagle County are. The Colorado Department of Natural Resources manages rafting on the Arkansas River, but its presence is barely noticeable on other rivers.
Could the state do more? We can look to Minnesota which I think has the country’s best river trails program. Minnesota funds its program with a license fee charged to every boat registered in the state, from power boats to kayaks. The license fees raised about $17 million in 2017, of which about $1.5 million came from non-motorized boats. The Minnesota River Trails Program then received $750,000 to $1 million each year, about 5 percent of the total, and it paid for three staff to manage the state’s rivers and its campgrounds. The funds are used to construct campgrounds and portage routes to bypass dangerous rapids, and to purchase and monitor conservation easements that preserve river corridors from development. The Minnesota River Trails Program has mapped routes for paddling, boating and camping on over 4,500 miles of state water trails on nearly forty rivers and the north shore of Lake Superior.[46] They have about 3,000 Public Water Access sites that are owned and managed by the state Department of Natural Resources and local units of government. The 2013-2014 Guide to Minnesota State Water Trails listed runs on thirty-four popular rivers across the state, and twenty-seven of them have camping. Peter Hark ran the program. He is a friend and fellow board member when I served as the volunteer accountant for the River Management Society. When I described Colorado’s access difficulties to him, he shook his head and said the public in Minnesota just wouldn’t tolerate the situation in Colorado. I asked Peter how the public responded when they just to motorboats when the license fee was enacted in 1972).
“Of course, there was a bit of public resistance at first, but paddlers have since been enjoying world-class recreation opportunities that literally could not have been provided without registration fees,” Hark said. “It's important that paddlers understand that their fees are used only to support activities that they participate in."
If we tried to enact a similar fee in Colorado, it would create a TABOR problem. The additional revenue collected would cause tax revenue to increase, and the Taxpayer Bill of Rights requires that either the public vote to approve this additional revenue, or the money raised from the fee would have to decrease funding for some other program to keep revenue from increasing. Imagine telling a school superintendent that her school district was losing $1.5 million because that’s what was raised in new boat licensing fees. Such are the travails of Colorado’s strange and rigid tax regime.
Recreational In-Channel Diversions
The put-in at Pumphouse, the start of a popular rafting stretch on the upper Colorado, is in Grand County. And the county installed a kayak play spot there in 2015 to perfect a water right known as a “recreational in channel diversion,” or RICD. This is a water right that leaves water in the river rather than taking it out, with a priority date slotted into the prior appropriation system just like every other water right.[47] RICD water rights can only be used to create whitewater parks and play features, so I describe them here as whitewater park decrees. Boulder attorney Glenn Porzak helped Golden obtain a whitewater park water right in 2001, with a priority date of 1998.[48] The decree is called the City of Golden Whitewater Course, and it consists of seven boulder structures cemented in place that form waves and holes that kayakers use to perform acrobatic moves.[49] They’re incredibly fun! Golden applied for a continuous flow right for up to 1,000 cfs between May and August every year, and it turned heads when Jonathan Hays, the Division 1 water judge in the South Platte basin, granted it in 2001. Arvada, Westminster, Idaho Springs, Georgetown, Coors Brewing Company, and the CWCB all opposed Golden’s water right application. Visit Golden today in the summer and notice all the cars with kayaks on top. It is no coincidence that Golden’s downtown facelift took place at the same time the town created its whitewater park.
Whitewater park decrees typically take advantage of water during the peak of the hydrograph. They are controversial because they can prevent a later appropriation of water. Grand County’s right to call water through the Pumphouse whitewater park could prevent later diversions to the Front Range from the upper Colorado River, and that’s what made it controversial.[50] Before Judge Hays granted Golden’s whitewater park decree on Clear Creek, the CWCB lobbied the legislature to rein in water rights for whitewater parks.[51] Whitewater park rights cannot interfere with Colorado’s ability to fully consume water it reserved under various interstate compacts. Only cities, counties or water providers can hold whitewater park decrees, and applicants must prove they have access to the river. For that reason, they are generally limited to urban settings. Some are in awkward places because that’s the only place that the applicant has river access or because that’s the only way to protect a river at risk. For instance, Basalt’s whitewater park is located next to county land on the Roaring Fork River about a quarter mile upstream from the Fryingpan River and downtown Basalt along a steep riverbank because Pitkin County, the applicant, wanted to protect water in the Roaring Fork all the way down the confluence with the Fryingpan, but also stay above that confluence in regard to river flow. It’s a good spot from a water rights perspective, but not ideal from a recreation perspective. Whitewater parks have been built in Salida, Buena Vista, Pueblo, Avon, Gunnison, Fort Collins, and other cities. Some are more strategically located than others when it comes to water rights.[52] One of the most famous whitewater parks in Colorado is the Glenwood Wave next to the West Glenwood onramp onto eastbound Interstate 70. It has gained international attention and been the site of several national U.S. Freestyle Kayaking competitions. But the Glenwood Wave doesn’t have a RICD water right, as the wave can rely on steady flows from the water rights tied to the Shoshone hydropower plant upstream on the Colorado River.
To obtain a water right for a whitewater park, an applicant has to actually install structures in the river. This entails building a coffer dam to divert water around the proposed site, and drilling down until bedrock is reached so the rocks that create the wave feature can be anchored to something solid in the riverbed. After the rocks are set in place, the coffer dam is removed. Rivers want to move any obstacles that get in their way, and that includes whitewater park structures, so they are prone to shifting in high flows. Most RICD whitewater features require periodic maintenance or multiple attempts to dial in the resulting surf wave. Kayakers and surfers love some of them, depending on the quality of the artificial waves, and so do chambers of commerce, if they prove to be an attraction. They can draw attention to rivers and have helped rejuvenate the downtown areas of Golden and Salida, where the waves are popular. Whitewater park water flow rights must not exceed the flow necessary “for a reasonable recreation experience in and on the water,” and this phrase is a gotcha.[53] The City of Gunnison spent $650,000 in legal fees to obtain its whitewater park water right and much of that was spent arguing over how much of a river flow was appropriate for a reasonable recreational experience, which is not an uncommon feature of the approval process.[54] Gunnison wanted flows as high as 1,500 cfs, and the CWCB decided that 250 cfs was enough. Gunnison hoped the RICD would benefit Western State College’s outdoor recreation program and bolster Gunnison’s economy.
The best analogy I can think of for river flows is snowfall. Skiers know when their skis are hitting rocks, and expert skiers know there’s a big difference between powder and packed powder. Kayakers call the river “bony” when it gets too low. We share river flow knowledge, or “beta,” with other kayakers, and we know that river experiences can change dramatically when flows change only a few hundred cfs. Every river stretch is different. On a big river like the Colorado River through Glenwood Canyon, 250 cfs will not be noticeable in gentle stretches, but it can change a rapid significantly in Class V Gore Canyon. American Whitewater has been doing flow studies for decades in hotly contested FERC relicensing applications. The Federal Energy Regulatory Commission, or FERC, regulates most of the nation’s large dams, granting licenses for 30-50 years that regulate dam releases and river flows. When the initial licenses started coming up for renewal starting in the 1970s, recreation and environmental groups intervened and called for flows that considered more than just hydropower and irrigation deliveries. American Whitewater assembles kayakers and rafting companies to conduct “flow studies” where they run rapids at different flow levels and then rate the recreational experience. There’s a lot more science involved than opposers like the CWCB want to admit. Nathan Fey, American Whitewater’s Colorado representative before joining the Governor’s cabinet as the Outdoor Recreation Director in 2019, has been conducting flow studies throughout the state to determine non-consumptive needs that the 2015 Colorado Water Plan called for. American Whitewater’s flow studies helped Grand County build its whitewater park at Pumphouse. Yes, there’s a subjective element whenever you ask a person what his “experience” was. But we don’t have to look at the bottom of our skis or snowboards to know we’ve been hitting rocks.
In 2013 the city of Glenwood Springs proposed RICD whitewater features in three locations on the Colorado River in Glenwood Canyon below the No Name exit off Interstate 70. Its RICD application is requesting 4,000 cfs for up to five days between June 30 and July 6 so that it can hold freestyle kayak competitions over the 4th of July weekend, lower flow rates of 2,500 cfs between May and July, and flows of 1,250 cfs beginning in August in order to enhance public rafting through Glenwood Canyon.[55] The Shoshone hydroelectric plant in Glenwood Canyon has a 1902 priority to call for 1,250 cfs, and a second, more junior 1929 right for 158 cfs (1,408 cfs total), so Glenwood’s RICD whitewater application is basically back-stopping this senior right.[56] The higher proposed flows of 4,000 and 2,500 cfs between May and July raised the hackles of Aurora, Colorado Springs, and the CWCB.[57] In a joint legal brief, they complain the proposed whitewater play features at No Name Canyon will prevent them from diverting still more water to the Front Range: “This will result in further ‘buy and dry’ of agricultural water rights, and could in addition motivate west slope users to make transbasin diversions from other river basins, such as the Yampa and Gunnison.”[58]
They cite a CWCB study that proclaims Colorado can still develop another 1 million acre-feet of Colorado River water and claim that Glenwood’s RICD application would interfere with 700,000 acre-feet of additional diversions now on the drawing board.[59] Reclamation said in 2012 that the Colorado River was over-appropriated and that the seven Basin States will likely have to reduce their consumption by 3.2 million acre-feet (MAF) by 2050. Reclamation was right on target 12 years ago. Today, Arizona has reduced annual Central Arizona Project diversions by 600,000 acre feet and the Imperial Irrigation District, the lowest and largest user on the river in the US, is reducing its use by 750,000 acre feet per year down by the Mexico border.[60] The Lower Basin states of California, Arizona, and Nevada agreed to conserve at least 3 maf of water by the end of 2026, including 1.5 MAF by 2024.[61]
The Front Range’s claim that Glenwood Springs’ RICD application will halt 700,000 to 1 million acre feet in further Colorado River development is tiresome. The Fish & Wildlife Service believes that only 120,000 acre-feet is available for development. based on flow studies needed to support endangered fish in the 15-mile reach through Grand Junction.
That water is already spoken for in the following proposed diversions, most of which are backed up with conditional water rights quite senior to Glenwood Springs’ RICD application.
Table 2.1 Senior water rights on the Colorado River as it relates Glenwood RICD
Project
Glenwood’s whitewater RICD claim could benefit Western Slope communities like Rifle that just spent $30 million upgrading their water treatment plant to remove salt and selenium which gets more concentrated at lower flow levels.[62] The hot springs that pump hot water into the river through Glenwood Canyon contribute 5 percent of the total salt added to the Colorado River in the entire Colorado River basin. As we divert more pure water from the headwaters, salt concentrations increase downstream. Glenwood Springs’ RICD application is likely piggybacking off of flows that must occur anyway so Colorado can meet its compact obligations to Lake Powell. It is true that Glenwood’s whitewater park application could limit the ability of Front Range cities to divert more, but the natural hydrology—rain and snowfall—will likely dictate this anyway. After nine years of negotiation, Glenwood Springs secured this water right in 2022, but only after conceding that Front Range cities can develop 30,000 more acre feet—that is, pump it to the Front Range—in years when there’s a 50% probability that the Colorado River flow through Glenwood Canyon will be less than 1.4 million acre feet from April through June. This sounds like a lot of jargon, but it means the water right is secure only in higher flow years when the water would have likely been already in the river anyway.[63]
By the way, Colorado water law does not require that dam releases be coordinated with recreation flows. Denver Water, Reclamation and other water providers release water when they want to. Recreation interests, even though they provide a lot of Western Slope jobs, generally have no seat at the table. The water buffalos have thankfully accommodated requests for flows down the Colorado River for the Gore Race one weekend in August, and flows are released down the Arkansas River in June through August to facilitate rafting. But the buffalos are quick to point out that these flows only occur because they agree to release them. No law in Colorado requires them to accommodate recreation. Prominent Colorado water lawyer Peter Nichols says, “Colorado water law is a 19th Century institution, with 20th Century infrastructure, and it’s now bumping into 21st Century realities.”
As explained in the next chapter, the US Fish & Wildlife Service has encouraged dam operators since 1995 to coordinate reservoir releases to increase peak flows in the 15-mile reach on the Colorado River above its confluence with the Gunnison River as part of the Endangered Fish Recovery Program. This occurs in June in about 40 percent of all years.
Colorado is never going to be a world leader in agricultural production because we’re a mile above sea level. But we could become the world leader in managing water for recreation and environmental quality. And maximizing water for recreation is low hanging fruit.
If we do this, the world will come to us and make the tourism growth curve steeper sooner.
Here’s where we can start:
· Make rivers accessible. Overrule Emmert and eliminate all civil and criminal liability for anyone on a Colorado river. That’s what nearly every other state does.
· Leave as much water in the river as possible as a matter of policy. Ferret out and reform every wasteful diversion, starting with the most egregious first.
· Give refundable tax credits to ranchers who provide campsites along riverfront property. Refundable tax credits pay money to ranchers even if they don’t owe tax.
· Provide the reduced agricultural property tax preference to all open space whether it is growing hay. This would take away the incentive to divert water to grow hay.
· Permit ranchers to rent their property for recreation without losing the protection of recreational use statutes.
· Add teeth to these statutes by penalizing anyone who sues landowners for an accident on their property unless they can prove the landowner lured the public in and intentionally injured them. Recreational use statutes simply aren’t strong enough, as evidenced by all the water right holders who diss them.
· Build hiking trails and campsites along rivers as they are every bit as spectacular as the state’s Fourteeners. For a start, Grand County could build a trail along the Colorado River in Gore Canyon. The river downstream from the confluence of the North and South Forks of the South Platte River above Strontia Springs Reservoir is another ideal location for this.
· Every county should adopt an open space fund to improve recreation within the county, with a dubious chump award bestowed on the last county in Colorado to adopt one.
Notes:
[1] Solomon, C., “Your Own Piece of River,” Aug. 19, 2012, The New York Times.
[2] Id.
[3] Frey, David, 2004, Aspen Daily News, “Fickle fate faces famous middle finger,”
[4] Banks, G., Eckardt, D., 1999, Colorado Rivers and Creeks, 2d Ed., pgs. 220-222.
[5] People v. Emmert, 597 P.2d 1025 (Colo. 1979).
[6] “The common law rule holds that he who owns the surface of the ground has the exclusive right to everything which is above it ("cujus est solum, ejus est usque ad coelum "). Emmert at 1027.
[7] Well-known law firms Welborn, Dufford, Cook & Brown from Denver, Moses, Wittemyer, Harrison & Woodruff, P. C. from Boulder, and Delaney & Balcomb from Glenwood Springs wrote the briefs that supported restricting river access.
[8] Wyoming held the public could float on rivers in Day v. Armstrong, 362 P.2d 137 (Wyo.1961). The relevant section in the Wyoming Constitution is Article 8: Irrigation and water rights, Sec. 1: “Water is state property: The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.” Colorado’s companion provision is in Article 16, 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.”
[9] In Empire Water & Power Co. v. Cascade Town Co., 205 F. 123 (1913), the court found that Colorado had rejected the riparian doctrine and that the Cascade Town Co. was not “entitled to a continuance of the falls solely for their scenic beauty.” In Nebraska v. Wyoming, 325 U.S. 589, 599 (1945), U.S. Supreme Court Justice Douglas wrote, “Colorado and Wyoming have the rule of priority of appropriation, as distinguished from the rule of riparian rights. Colo. Constitution, Art. XVI, Secs. 5, 6; Farmers' Highline Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028; Sternberger v. Seaton Co., 45 Colo. 401, 102 P. 168; And see the discussion of the problem in Wyoming v. Colorado, 259 U. S. 419, 259 U. S. 459.”
[10] Hobbs, G., “Beneficial use and Anti-Speculation,” The Water Report, July 15, 2015, pg. 6, https://www.urbanwater.com/wp-content/uploads/2015/09/Justice-Gregory-Hobbs-Water-Report.pdf.
[11] Woodard, Duane. Colorado Attorney General’s Opinion: Right To Float On Colorado River, Aug. 31, 1982, AG Alpha no. NR AD AGALA, State of Colorado.
[12] Smith, J., “Fighting for the Right,” Winter 2014, Colorado Foundation for Water Education.
[13] CRS Section 33-41-101 et seq.
[14] A landowner cannot invoke the Act to avoid liability “For injury received on land incidental to the use of land on which a commercial or business enterprise of any description is being carried on if a paying customer is injured.” CRS § 33-41-104(1)(d). This statute was considered in Smith v. Cutty's Inc., 742 P.2d 347 (Colo. App. 1987).
[15] See Luenberger v. City of Golden, 990 P.2d 1145 (Colo. App. 1999). A "dangerous condition" is defined generally as a facility that constitutes an unreasonable risk to the public, which risk is known or reasonably should have been known, and the dangerous condition results from a negligent act or omission of the public entity that constructed or maintains the facility. CRS §24-10-103(1).
[16] Wright, B.A. et al, “Rural landowner liability for recreational injuries: Myths, perceptions, and realities,” 2002, Journal of Soil and Water Conservation, Vol. 57, No. 3, http://www.tamu.edu/faculty/rakwater/research/Rural_landowner_liability.pdf. Table 1 lists the 19 states that now permit landowners to charge rent to recreationists and still be protected by the recreational use statute.
[17] “The purpose of this article is to encourage owners of land to make land and water areas available for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” CRS Sec. 33-41-101.
[18] Wright, pg. 183.
[19] Adobe Whitewater Club of New Mexico v New Mexico State Game, Commission, No. S-1-SC-38195, New Mexico Supreme Court. Sept. 1, 2022. An appeal to the U.S. Supreme Court was rejected in 2023.
[20] Jackson-Shaw’s partners include Wells Fargo, GE Capital, Bank of America, DR Horton, Marriot International, and other well-known companies.
[21] Helton, C., “The Right to Float: The Need For the Colorado Legislature to Clarify River Access Rights,” 2012, U. Colo. Law Review, Vol. 83, pg. 845, http://lawreview.colorado.edu/wp-content/uploads/2013/11/10.-Helton-FINAL_s.pdf.
[22] Id, footnote 30, pg. 849.
[23] Grant, B., “Freedom-to-float bill deserves quick passage in Legislature, “ Feb. 9, 2010, Grand Junction Sentinel.
[24] Helton, pg. 848.
[25] Fender, J., “Rafting compromise diffuses debate for now,” June 15, 2010, The Denver Post.
[26] Grant, B., “Freedom-to-float bill deserves quick passage in Legislature.”
[27] Burke, M., “North America's Top 10 Trout-Fishing Towns,” Aug. 19, 2009, http://www.forbes.com/2009/08/19/trout-fishing-trips-lifestyle-sports-fly-fishing.html.
[28] Mutrie, T., “A thin line on the Fryingpan,” June 7, 2015, Aspen Daily News. https://www.aspendailynews.com/a-thin-line-on-the-fryingpan/article_59f77933-33bb-50b9-a753-177575fa2ea4.html
[29] Like all federal agencies, the Fish & Wildlife Service keeps reams of statistics to justify its budget and to determine how it should be allocated across the country. Every 5 years it publishes “National Surveys of Fishing, Hunting, and Wildlife-Associated Recreation.” These statistics are from the table titled “Days of Fishing by State Where Fishing Took Place and Angler’s State of Residence.” The 2011 report is at Table 59, pg. 108.
[30] Id.
[31] This is determined by comparing the percent of hunting or fishing days by nonresidents compared to the total hunting and fishing days.
[32] “Colorado tourism office sees record growth for visitor spending and visitation in 2012,” July 23, 2013, Colorado Tourism Board, http://www.colorado.com/news/colorado-tourism-office-sees-record-growth-visitor-spending-and-visitation-2012-0.
[33] Economists measure those categories because it is easy to measure how much money we spend on airline tickets each year. But they do not measure where each person on an airplane is going or what their purpose is, and they cannot distinguish personal tourism from business tourism.
[34] Real GDP by state, Colorado, 1997-2014, Bureau of Economic Analysis.
[35] The U.S. Energy Information Administration projects that oil production will peak in 2020 and natural gas production will peak 10 years later in 2030. “Table A14, Oil and gas supply,” downloaded Jan. 15, 2017, U.S. Energy Information Administration Annual Energy Outlook 2015, pg. A-28.
[36] Tourism growth was less than overall GDP growth because of the 2000-02 and 2007-2009 recessions; vacations are the one of the first expenses that consumers cut back in recessions. Real tourism grew .5 percent nationally from 1997-2013. See, “Satellite Accounts Data,” downloaded Jan. 15, 2017, Tourism Satellite Accounts 1998-2014.
[37] Dean Runyan Associates, “Colorado Travel Impacts 1996-2015p,” June 2016, Travel-Generated Earnings as a Percent of Total Earnings, Colorado Regions, 2015p, pg. vi.
[38] Colorado River Outfitters Association CROA, Commercial River Use in the State of Colorado 1998-2023, https://www.croa.org/wp-content/uploads/2024/07/2023-Commercial-Rafing-Use-Report.pdf
[39] Scholes, R., “The Value of Biodiversity.”
[40] “Colorado River The Beating Heart of the American Southwest,” downloaded Jan. 16, 2017, American Rivers, https://www.americanrivers.org/river/colorado-river/.
[41] Annual fee revenue was $96,080 in 2015, and $101,835 in the 2015 and 2016 fiscal years; “Colorado River Ruby-Horsethief Recreation Area, Business Plan Update,” BLM, April 2019, page 10.
[42] “Colorado River Ruby-Horsethief Section Business Plan,” Nov. 5, 2011, BLM Grand Junction Field Office, McInnis Canyons National Conservation Area.
[43] Bureau of Land Management (BLM), “BLM seeks public comment on proposed permit changes,” Dec 13, 2007.
[44] For a description of the river stretches on the upper Colorado River, see “Rafting and Float Boating on the Upper Colorado River,” downloaded Jan. 16, 2017, BLM.
[45] “Eagle County Annual Report 2010,” pg. 8.
[46] “A-Z listing of Minnesota state water trails,” downloaded Jan. 16, 2017, MN Dep’t Nat. Resources, http://www.dnr.state.mn.us/watertrails/az.html.
[47] CRS § 37-92-103(10.3) defines RICDs as the minimum amount of water diverted, captured, controlled and put to beneficial use between control structures by a municipality or other water provider between April 1 and Labor Day. The RICD is defined by specific flow rates between specific dates at least fourteen days long, unless the applicant shows it needs it for a shorter period. The owner of a RICD may not call for water legally stored by another appropriator. Later appropriations are deemed to not cause material injury if they do not reduce the RICD by 0.1 percent of the lowest decreed flow rate in the RICD, and the cumulative flows of all such later appropriations do not exceed 2 percent of the lowest decreed flow rate in the RICD.
[48] Golden RICD decree, Case No. 98CW448.
[49] In order to fit into Colorado water law, the decree describes the rock structures as ”damsas ” dams,” but in fact they just deflect the water around the rock. In water-speak, it is a diversion within a river channel that is used for recreation, hence the name Recreational In Channel Diversion.
[50] Id. Table 3-20 on page 16, indicating that after the Windy Gap and Moffat Firming Projects, the average annual flow below the confluence of the Colorado and Fraser Rivers will be approximately 26 percent of native flows between 1950 and 1996, a period that is conceivably wetter than average.
[51] Senate Bill 01-216 was passed in 2001 to permit RICD water rights. CRS Section 37-92-102(5) and (6) set forth conditions the CWCB must find in order to grant a RICD water right. Section 37-92-103(4) defines beneficial use to include RICD diversions. The water court must consider five factors in granting a RICD whitewater park water right: compact impairment, stream reach appropriateness, access availability, instream flow rights injury, and maximum utilization of the state’s waters. See, Colorado Water Conservation Board vs. Upper Gunnison River Water Conservancy District, Case No. 04SA44, (Colo. 2005), http://caselaw.findlaw.com/co-supreme-court/1126839.html..
[52] For a list of RICD decrees, see CWCB’s website.
[53] CRS Section 37-92-103(10.3).
[54] Personal conversation with Kathleen Curry, former state representative and longtime employee of the Upper Gunnison Water Conservancy District.
[55] In its RICD whitewater park application filed December 31, 2013, pg. 3, Glenwood claims 2,500 cfs from April 30 to July 23, with 5 days of 4,000 cfs flows between May 11 and July 6. From April 1 through April 19 and from July 24 through September 30, 1,250 cfs are claimed. The application is on the CWCB website at
[56] Xcel Energy holds a water right with a 1902 priority date for 1,250 cfs, and a 1929 priority for another 158 cfs, 1,408 cfs total. This right, which probably does more to bolster Colorado river flows for western Colorado than any other water right, could be sold. See the CDSS (Colorado Decision Support System) website.
[57] Gardner-Smith, B., “Glenwood Springs still facing challenge to water rights for new whitewater parks,” Sep. 5, 2016, Aspen Journalism, http://aspenjournalism.org/2016/09/05/glenwood-springs-still-facing-challenge-to-water-rights-for-new-kayak-parks/.
[58] “Party Statement of City of Aurora, City of Colorado Springs, and Homestake Partners,” filed June 4, 2015, Case No. 2013CW3109, pg. 4.
[59] Id, Table 1, pg. 3.
[60] Letter dated May 22, 2023, from Arizona, California, and Nevada to Camille Calimlim Touton, Commissioner, US Bureau of Reclamation, available at https://www.doi.gov/sites/doi.gov/files/lower-basin-plan-letter-5-22-2023.pdf
[61] “Lower Basin Proposal Adopted By Federal Government Stabilizes Colorado River System Through 2026, Arizona Department of Water Resources, May 10, 2024, https://www.azwater.gov/news/articles/2024-05-10
[62] Hoffman, R., “New Rifle Regional Water Treatment Plant near completion,” Dec. 4, 2016, Glenwood Springs Post Independent, http://www.postindependent.com/news/local/new-rifle-regional-water-treatment-plant-near-completion/.
[63] Sackett, H., Aspen Journalism, “Glenwood Springs secures water right for whitewater parks,” Glenwood Springs Post Independent, April 6, 2022, https://www.postindependent.com/news/glenwood-springs-secures-water-right-for-whitewater-parks/
[64] Like all federal agencies, the Fish & Wildlife Service keeps reams of statistics to justify its budget and to determine how it should be allocated across the country. Every five years it publishes “National Surveys of Fishing, Hunting, and Wildlife-Associated Recreation.” These statistics are from the table titled “Days of Fishing by State Where Fishing Took Place and Angler’s State of Residence.” The 2011 report is at Table 59, pg. 108.
[65] Id.
[66] This is determined by comparing the percent of hunting or fishing days by nonresidents compared to the total hunting and fishing days.
[67] Real GDP by state, Colorado, 1997-2014, Bureau of Economic Analysis.
