Dear Jock,
I was kayaking on the San Miguel down by the Naturita power plant and a rancher yelled at me to “get off his stretch of river.” Doesn’t the public have free access to the waterways in Colorado?
—River Rat
Dear Rat,
According to the Colorado Bureau of Land Management’s website: “When rivers cross public land, managed by the BLM or Forest Service, they are generally open for a wide variety of recreational uses. When rivers flow through private land, though, the situation changes dramatically. Under Colorado law landowners own the bed and banks of any non-navigable river or stream flowing through their property. The State retains control of the water in the river.”
For many years this has meant that boaters can float on the river, even through private property, as long as they do not touch the bed or the banks of the stream (which would be criminal trespassing).
There is, however, a potential gray area when it comes to portaging obstacles in the river. Legal texts summarizing the law typically contain statements of legal principles supporting portaging. For example, the American Law Institute has recognized a limited privilege by a navigator to enter the otherwise private land next to a river: “… The privilege of navigation carries with it the ancillary privilege to enter on riparian land to the extent that this is necessary for the accomplishment of the purpose of the principal privilege.
“The portage right is a specific application of this privilege. Of course, a navigator’s right does not extend to a general sort of wandering or sightseeing upon a pasture near the river, because such wandering or sightseeing on private land is not necessary to carry out the navigation right.” I hope everything is now clear as the San Miguel in the summer.
— Jock