Last Updated:
March 10, 2010
Tennessee Real Estate
River Outfitting Bill Violates Private Property Rights
HB1188, sponsored by Rep. Kathleen Curry(I-Gunnison), and co-sponsored by Rep. Christine Scanlan (D-Frisco) creates a new right of trespass for commercial rafting businesses, and constitutes a taking of private property rights. Some proponents claim present law is unclear; however, it has been established that rafters, and other recreational water users, may pass through private property as long as they do not touch or otherwise use the private land. The bill asserts that old English common law somehow creates a blanket "right of navigation" is incorrect. Section 2-4-211, C.R.S. does not say anything pertaining to a right of navigation. Furthermore, Old English law was riparian in origin, which has never been recognized by most Western states, including Colorado. CAR believes the bill language is itself unclear in a few specific areas. The bill permits "incidental contact" but provides no definition of incidental contact with land. Neither does the bill explain what constitutes "minimum possible use". Those terms are too subjective, and do not provide stakeholders or authorities with a clear understanding about whether or not a rafting company is complying with the law. Since the bill is written for a particular group, CAR has concerns about what type of precedent will be set for other recreational users. The bill specifically precludes other recreational users, but the potential clearly exists for other groups to assert inclusion in this new right of trespass because of precedent here. The peaceful use and enjoyment of one's own property, and control of access, are fundamental to recognized private property rights. Some private land may be attractive to rafters, but their desires do not justify and must not overrule landowners' more fundamental rights.
The bill is being lobbied heavily by river outfitting groups, and some local Chambers of Commerce in support of the bill. Opposition to the bill includes the COlorado Association of REALTORS, The Cattlemen's, the Farm Bureau, Dairy Council, Club 20, and other groups. The bill passed out of the House very quickly and is now in the Senate, where Senate Leaders have promised to take a more measured approach to the bill.
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