Someone asked why many organizations don't get involved. This just hit my email this morning:
Many of you may have seen recent news about a lawsuit filed by Roger Hill, asserting a right of access to wade on a privately owned section of the Arkansas River. His attorneys are citing a federal doctrine called ‘navigability for title’ under which the public would have access to a stream bed if that waterway was used for commercial activity at the time of statehood. The Denver Post has a pretty thorough article on the suit:
Fisherman's lawsuit seeks clarity in Colorado stream access laws
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Colorado’s river access laws have been murky, and at best an uncomfortable “truce” has existed for quite a number of years under a non-binding 1983 opinion issued by the Attorney General following the Emmert decision – basically indicating that floating past private property did not constitute criminal trespass but coming in contact with the stream bottom (wading, dropping anchor, even touching bottom) was trespass.* While flare ups have occurred, in recent years neither those seeking broader boating/fishing access rights, nor private landowners opposing such expansion of rights, have pushed for an ultimate decision that could dramatically remake the status quo – both sides seemed too concerned by the risk of what they might lose in an ultimate legal battle to litigate for what they might gain. Hill’s lawsuit may finally create definitive case law on some of these issues.
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As anglers (and many who are also boaters) we will all be watching this case play out with great interest.* As Trout Unlimited affiliates, at this point in time, we will need to remain neutral.* National TU policy restricts participation of chapters and councils in access disputes unless we get formal approval from National’s “Stream Access Working Group” and the Board of Trustees’ Executive Committee.* The relevant section of National TU’s policy document states:
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“Although the Board directs the Working Group, with the approval of the Executive Committee, to develop the precise categories of access issues for which TU’s participation will require formal approval, the Board finds that TU’s participation in disputes with individual landowners over the precise scope of their property rights, and TU’s participation in administrative or legislative changes in the law that would affect the precise scope of riparian property rights with respect to public access for recreation, always shall require formal approval by the Working Group and the Executive Committee.”
https://www.tu.org/sites/default/files/TU_Access_Policy_document_051006_13.pdf
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Colorado TU also adopted a policy in 2002 (not revised or revisited since then) indicating that the organization would not support measures to reduce existing rights of public access nor to reduce existing rights of landowners. A copy of that policy document is attached as well for your reference, and reflects the 2002 board’s concern that diminishment of access rights jeopardizes TU’s membership and engagement, while diminishment of landowner rights jeopardizes landowner support and partnership on conservation projects and efforts that cross public/private property lines.
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Of course, this does not preclude any of us from sharing articles about the case on an information basis – we just should not, in our TU capacity, advocate or engage on the issue unless and until addressing the requirements of the National TU Access Policy. *I expect this issue will warrant some further discussion by the Colorado TU board and Executive Committee going forward. In the meantime if you have any questions on this, please let me know.* Thank you!
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David Nickum
Executive Director
Colorado Trout Unlimited
1536 Wynkoop St, Suite 320
Denver, CO 80202
IMO,
If TU/ CTU gets involved, there will be a backlash. All the strides we have taken in forming working relationships with private property owners could be jeopardized. TU will not only have to hurdle the the stigma of being "environmental whackos" but also attackers of private property rights and proponents of land theft. I know I would be less inclined to allow TU to come onto my property for fear of what they may disagree with and decide to take it to court.
CFF
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