For lawmakers, an afternoon float on the Colorado River reignites an age-old question: Who gets access to the state’s streams? 

Sporting sandals, swim shorts and baseball caps — and hopefully plenty of sunscreen — a cohort of state lawmakers hopped aboard several rafts on a hot June day to talk policy as they floated the Colorado River. 

Splashing their way downstream from Kremmling, less than 60 miles from the river’s headwaters in Rocky Mountain National Park, the group of roughly a dozen politicians found themselves in a quintessential setting for their wide-ranging conversation on what outdoor recreation means for the state. 

The June 19 trip was donated by the Grand County-based rafting outfitter Downstream Adventures and organized by public lands advocates and river conservationists, who joined lawmakers for the expedition. 

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Underpinning their discussions was a question that recreators, legislators and legal scholars have wrestled with for years: Who gets to enjoy Colorado’s waterways?

Advocates say the state’s murky laws around stream access leave the public in a legal gray area when it comes to river recreation. Past legal battles over river access have largely ended on the side of landowners, who’ve clashed at times with recreators who float or wade in privately owned sections of otherwise public streams. 

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“The law in virtually every other state in the country, certainly all of our neighbors, protects that right to float through private property,” said Mark Squillace, an environmental lawyer and professor at the University of Colorado Law School. “So, Colorado’s an outlier.” 

Now, Squillace, alongside a group of advocates calling itself the Colorado Stream Access Coalition, is hoping lawmakers take action to change that. 

What better way to discuss the issue, they thought, than on the water itself. 

Muddied waters: River access in Colorado remains unclear 

Standing on the banks of the Colorado River under a hot midday sun while guides readied their rafts, legislators listened as Squillace recounted the history and issues surrounding river access. 

He noted that “public rights of access,” in the legal sense, date back to the Roman Empire.

“It’s always been understood that the public has rights to use waterways,” he said.  “That’s just a fundamental principle of international law.” 

A landmark 19th-century Supreme Court decision affirmed that right in the U.S., saying that states, and, by extension, the public, own the bed of navigable rivers. A navigable river is generally described to mean a waterway that is deep, wide, and calm enough for commercial or recreational use. 

Colorado’s state constitution says that all natural streams, except those already appropriated under a water right, are owned by the state and dedicated to public use. Yet the state has no process for determining which of its rivers are navigable, Squillace said. 

That has spurred a host of legal challenges over the past several decades related to private landowners who’ve accused recreators of trespassing on their waters. Squillace pointed to a 1979 Colorado Supreme Court decision that upheld the criminal trespassing conviction of a group of recreators who had floated into a private section of the Colorado River, despite entering from public land.

More recently, Squillace represented longtime Colorado angler Roger Hill, who sued a landowner after he hurled rocks at him for fishing in a privately owned section of the Arkansas River near the Royal Gorge. 

The Colorado Supreme Court in 2023 ruled against Hill, who had argued that the state rivers were public property if they were navigable at statehood, saying he had no legal standing. 

Squillace feels that the decision was a mistake. 

“I happen to believe that when the framers of the (state) Constitution dedicated our waters to the use of the public, they must’ve also meant the use of floating and fishing and the kinds of things that we all love to do on a recreational river,” Squillace said. 

It’s why he and river access advocates are pushing for new legislation that would codify the public’s right to use navigable rivers for a host of recreational purposes. As lawmakers listened, they fired off questions around what it would look like to wade into the fight between public and private river access.

Colorado House Speaker Julie McCluskie said both she and Sen. Dylan Roberts “recognized we would have constituents on both sides of this issue.”

McCluskie and Roberts, both Democrats from Summit County, represent several Western Slope communities. McCluskie asked what the arguments have been against the “right to float.”

Squillace said some water users worry about losing their water rights, but stressed that the right to float is a separate issue. He added that, because the state has not defined which of its waterways are navigable, there have been disputes over whether or not a landowner can lay claim to the river bed itself. 

“We’d have to go through probably litigation on every stretch of river to decide whether it’s navigable or not, and we’re trying to figure out ways to avoid that cumbersome, problematic way of doing that,” Squillace said.

Bill hasn’t come to the legislature for over a decade 

Departing from the Pumphouse Recreation Area just below Kremmling, three rafts carrying lawmakers floated south toward the small community of Radium in unincorporated Grand County. 

Paddling along mostly gentle waters, lawmakers and advocates delved into the wonky world of river politics, pausing their discussions occasionally to hear a directive from their raft guide or to spot wildlife nearby. 

“This issue has some history at the legislature,” said Sen. Dylan Roberts, a Frisco Democrat, referencing a bitter 2010 fight over a bill that sought to define public river access for some recreationists. 

Led by then-Rep. Kathleen Curry, the measure, House Bill 10-1188, would’ve given outfitters the right to float even through private sections of rivers, so long as those sections had already been commercially rafted. The legislation, spurred by a 2009 dispute between rafters and landowners along the Taylor River near Gunnison, brought hundreds to the Capitol for fiery, late-night testimony. 

Squillace said the bill, which passed the House but failed to advance out of the Senate, faced opposition from an unusual alliance of landowners and some river access advocates. 

Squillace, who testified against the legislation alongside some of his law students, said he thought the bill’s focus on commercial users was too narrow and wouldn’t have given protections to individual recreators. 

Hatti Johnson, Southern Rockies restoration director for the nonprofit American Whitewater, one of the groups that make up the Colorado Stream Access Coalition, said late changes were made to the bill to extend protection to private recreators in certain circumstances. 

But she said the outfitting community “recognized leaving the general public out was an issue.” 

To lawmakers’ knowledge, the 2010 bill was the last time legislation had been introduced to try and tackle the issue of river access. 

While Squillace believes there is broad public support for access rights, he said, “small, concentrated, organized people can overwhelm the public interest, particularly against groups that are kind of disorganized and disparate.”

Part of the goal of forming a coalition is to “unite behind a single idea to rally public support,” he said. 

“The opposition is well-funded and more cohesive,” Squillace said. “Think about trying to organize a bunch of fishermen and boaters, particularly non-commercial boaters. It’s hard. So I think we have a lot of support from that community, but most of them probably don’t even know about the issue.” 

By building public interest, the coalition is planning to push lawmakers to bring a bill forward as soon as the next legislative session, which begins in January. No language has been drafted, however, and lawmakers and advocates are still collecting input on the idea. 

“We’re in the talking stage right now,” Squillace said. “If we don’t get it through, we’ll keep coming back. We’re in this for the long haul.” 

Advocates say fight is far from over 

After bouncing their way through moderate rapids in Little Gore Canyon, where they stopped to watch a group of cliff jumpers descend into the waters below, lawmakers arrived at their take-out site in Radium. 

Huddled under a metal gazebo, potato chips and ice-cold waters in hand, they continued to listen as river advocates stressed that the fight for public access is far from over. 

Many outfitters rely on a patchwork of agreements with landowners to access different sections of streams. But handshake agreements won’t be enough to secure river access for all, said Kestrel Kunz, American Whitewater Southern Rockies protection director. 

“There’s been a perception that the issue has been resolved, or at least has gotten better,” Kunz said. “(But) we have people that call us pretty regularly, at least once a season, where they have been shot at or tangled in a barbed wire fence or threatened.” 

Kunz thanked the group for “showing up today to have these conversations,” hoping it can lead to “compromise and consensus on both sides of the issue.”

Lawmakers, preparing to head home after a day on the water, said the problem touches on all sorts of facets of Colorado life, from the outdoor economy to personal liberties. 

“Tourism and outdoor recreation are huge economic drivers for my community as well as the entirety of the Western Slope,” said Rep. Meghan Lukens, a Steamboat Springs Democrat. “Navigating smart, environmentally friendly conservation that supports the industries that are alive and well here is something that I’m always interested in learning about.” 

Sen. Mark Baisley, a Republican whose district includes parts of the foothills and the mountain towns of Leadville, Salida and Fairplay, said the issue of river access is “exactly what the legislature ought to be taking on.” 

“So that in the end, my grandchildren, who, seven of them, live in Colorado, can own property with a river running through that … and understand, intuitively, ‘this is the rules for people using that stream through their property,'” he said. 

But Baisley, who, unlike his Democratic colleagues, is more supportive of broader efforts to privatize some public lands, said he wants to avoid legislation that calls out the “right to float,” saying he finds that language adversarial. 

“It picks a fight right away,” Baisley said. “It’s a clash of rights.” 

McCluskie, the Democratic House speaker, said the “idea around ‘right to float’ and river access is, in my mind, an absolute necessity” for upholding not only the state’s economy, but its values. 

“It doesn’t matter if you were born in this state or you moved to this state, what we appreciate about being here is our great outdoors,” she said. “I think the challenge, here, is that the policy has history, the policy has politics, and it will be important that everybody sit at a table and start talking about this.” 

McCluskie stopped short of saying whether she thought a bill would come forward next year, but she said the House Agriculture, Water and Natural Resources Committee, which she sits on, “could be a group where we start entertaining new conversations about this.”