Who Owns the River?

The property rights crowd just can’t seem to comprehend that ownership rights are not absolute. Property doesn’t exist in a vacuum, but in a social, ecological context. The latest installment of this long-running drama is the controversy between private landowners in Gunnison, Colorado, and river-rafting outfitters that take people down the river.

The question at hand: Are the rafters violating the private property rights of landowners when they float down the river?

Historically, under the public trust doctrine of most state’s laws, the water in river and lakes belongs to everyone, and can be accessed through public rights of way. However, as the New York Times reported on April 16, it seems that they are some ambiguities about the scope of private landowner rights in Colorado. The water belongs to the public, but the river and lake beds and banks belong to the people who own the adjacent land.

As for rafting, one court ruling declared that rafters need permission to float through someone else’s land, or face criminal penalties. Another court ruling says it’s okay to float through someone’s land, but only if you don’t touch the banks or bottom.

To try to clarify the law, Colorado Representative Kathleen E. Curry introduced a bill that would make it legal for commercial rafting companies to use designated parts of the state’s rivers without fear of criminal or civil liability. She explained that the state’s 50-plus river rafting companies bring in $140 million a year in revenue, and need to be able to operate without a cloud of illegality hanging over their heads.

But Rep. Curry’s bill incited landowners to protest that allowing rafters to float through their land would violate their property rights. While some use legalistic arguments — that an "implied invite onto private property" opens up new liability responsibilities for landowners — I think that the real issue lies at a deeper place. Some landowners are irrationally committed to a hyper-individualistic fantasy of absolute ownership. The idea that the larger community or an ecosystem might have some modest claims on their property rights — or that there is some elemental interdependence among people and nature — is anathema.

I consider it a kind of fundamentalism; there’s no arguing with it. The merits of the dispute are less important than the psychological need to declare, "It’s mine, goddamn it!"

At this point, it’s unclear how the dispute between landowners and river rafters will be resolved. However, both have submitted ballot measures that would invite voters to either legalize access to rivers or limit it.

Cases like this one make me wish that I could make property-rights fanatics live in their fantasy world of absolute ownership. Homeowners could charge passersby for enjoying their beautiful flower gardens. Motorists would have to pay tolls for using all public roads and sidewalks. Users would have to pay surcharges when eating USDA-inspected meat and flying on FAA-approved airlines. And so on.

As a practical matter, the idea that property rights can be absolute is an asinine idea. It’s also profoundly anti-social. But perhaps our society has just become too narcissistic and paranoid to comprehend the idea of community any more. Let’s hope the voters of Colorado can see the wisdom of supporting the rafters.