Summary of HB10-1188

Sponsors: Curry/Hodge

Current law is unclear regarding the scope of the existing right of navigation. Section 1 of the bill recognizes that the state's adoption of the common law of England established the right of navigation. Section 2:

• Clarifies that a guide employed by a licensed river outfitter and the guide's passengers may float on waterways that have historically been used for commercial float trips without committing civil or criminal trespass if they gain access to the waterway from public land or from private land with consent and make only incidental contact with the beds and banks of the waterway while floating and portaging;
• Limits a landowner's liability to such persons to damages willfully or deliberately caused by the landowner unless the person is an invitee or licensee of the landowner;
• Specifies that such a person who damages private property is liable for the damage; and
• Specifies that nothing in the law regulating river outfitters affects water rights.

Section 3 makes a conforming and clarifying amendment to the criminal trespass statute.

CAR Position Statement:

HB1188 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 – we believe that is clear.

The claim 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.

Further, we believe 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”. We believe these 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.

Lastly, since the bill is written for a particular group, we have 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.

Status:

01/22/2010 Introduced In House - Assigned to Judiciary
02/08/2010 House Committee on Judiciary Refer Amended to House Committee of the Whole
02/11/2010 House Second Reading Laid Over Daily
02/12/2010 House Second Reading Special Order - Passed with Amendments
02/15/2010 House Third Reading Laid Over Daily
02/16/2010 House Third Reading Passed
03/02/2010 Introduced In Senate - Assigned to Judiciary
03/15/2010 Senate Committee on Judiciary Refer Amended to Senate Committee of the Whole
03/18/2010 Senate Second Reading Laid Over Daily
03/19/2010 Senate Second Reading Passed with Amendments
03/22/2010 Senate Third Reading Passed
03/24/2010 House Considered Senate Amendments - Result was to Laid Over Daily
03/29/2010 House Considered Senate Amendments - Result was to Laid Over Daily
04/23/2010 House Considered Senate Amendments - Result was to Not Concur - Request Conference Committee
05/11/2010 First Conference Committee Result was to No Report
05/12/2010 Died on the Calendar

Fiscal Notes

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