September 2005

Who owns the Dolores River? Tips for rafters and landowners

By James Preston

“In the end, all things merge into one; and a river runs through it.” — Norman MacLean

Property Owners and Nature Lovers: Who owns the Dolores River?

ANSWER: No one owns the Dolores River. The Dolores was a navigable river when Colorado became a state in 1878. It is known as a river of “navigable waters of the United States.” The U.S. Supreme Court has declared such rivers to be “public highways.”

Property Owner: But I have a deed that says I own my property to the middle of the Dolores River. Doesn’t that mean that I have absolute ownership in my property, including the river?

ANSWER: You cannot own a navigable river, or even part of a navigable river, any more than you can own an interstate highway or the Brooklyn Bridge. If you believe that someone sold you a part of the Dolores River then you should not attempt to make a living at “horse-trading.” The Dolores is very much like an interstate highway. The U.S. government has absolute authority over the waters in the river. The State of Colorado owns the land underneath the river. The State owns the land in “public trust.” It cannot give ownership in the land under the river to anyone, except, the State can give it back to the United States government.

Nature Lovers: Since it is a public highway, can’t I go across a property owner’s land to get to it so I can use it?

ANSWER: You may not go across a private property owner’s land to access the river. You must use public accesses only. If you go across private land you are trespassing and are committing a crime

Property Owner: Where can I put a fence to keep nature lovers away from my property while they are using the river?

ANSWER: You cannot put a fence (or any other obstruction) across or in the river. You might be allowed to put a fence along the river if you have written permission of the U.S. Army Corps of Engineers. Only the Secretary of the Army has the authority to determine the location of the river with regard to anything permanent which may obstruct the river or anyone using it. (This is for reasons of national defense and national security).

Nature Lover: If there are no signs or fences, can I leave the river, temporarily, to do something on dry land?

ANSWER: You may use dry land in the river channel. You may not use private land next to the channel on either side. The river is not just the water that we see. It is also the channel which carries the water. In the spring, with high water, the river fills the channel and you can float in or on the water up to the high-water mark. In low-water time, you may use the water in the river and you may also use the public land that is dry in the channel.

Property Owners and Nature Lovers: What do we do about people who are violating our rights regarding the river?

ANSWER: Property owners could understand that Nature Lovers have a right to use the river for such things as fly-fishing, rafting, canoeing, boating, swimming and other “traditional maritime activities.” Property owners could also understand that they have a right to enjoy the beauty and amenities of property next to the river. However, with those rights come responsibilities to be tolerant of others who have equal rights to use and enjoy the river. Nature lovers could take a lesson from hunters and fishermen. For centuries, they have sought the permission of private landowners to enjoy and recreate with respect to private land. It is far better for everyone to ask permission than to create situations in which it is necessary to ask for forgiveness. This is the law of good sense.

Property Owners and Nature Lovers: I’ve heard that courts in this state have ruled that private property owners can exclude nature lovers from rivers. What is going on?

ANSWER: State courts do not have the authority to determine rights regarding “navigable waters of the United States.” State courts may only determine rights regarding small streams that were not navigable when Colorado became a state. State courts that are making these decisions regarding navigable rivers are mistaken. State courts are not aware that the international laws of “Admiralty” control all navigable waters, from the “high seas” to rivers such as the Dolores. No one state controls the laws of navigable rivers.

State courts declaring private ownership in navigable rivers, or excluding anyone from a navigable river, may need a reminder from the U.S. Supreme Court, or one of the U.S. courts underneath it, that the laws governing the Dolores River, and all rivers like it, must be in harmony with the laws of the Sovereign United States of America.

Property Owners and Nature Lovers: What can we do to ensure our best use of the Dolores River?

ANSWER: If there is enough interest, the Free Press will sponsor a forum about being good neighbors on the river. E-mail your interest in this forum to: freepress@fone.net

James Preston has a post-doctoral degree in international law (the law of sovereignty) from New York University. He was admitted to practice, in person before the U.S. Supreme Court in 1991.