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House Bill 1188 has created quite the stir. It’s all anyone wants to talk about on the campaign trail, and understandably so. I’ve been answering questions about this so much that I thought I’d put it in writing for posterity. Here’s the summary of the bill:

The incumbent for House District 61 (Hinsdale, Gunnison, and Pitkin Counties and plus parts of Eagle and Garfield) proposed a bill to allow commercial rafters to float over private property and absolves them from criminal and civil liability for any “incidental contact” with the private property. The bill passed the House and was sent to the Senate. However, the Senate expanded the bill’s liability protection beyond just commercial rafters so that it includes anyone “who is floating a vessel on a waterway and any passengers of that person.”

It sounds harmless. What’s wrong with letting people float over private property so long as they only make “incidental contact” with the land?

Well, there are all kinds of wrong going on here. I divide them into three categories, in descending order of importance: (1) Offense to property rights, (2) Inappropriate use of the police power, and (3) Poorly drafted law.

First, Colorado law and tradition—as far as I understand them—provide that the real property under the public waters is protected by regular criminal and civil trespass laws. That is, the law recognizes the normal “bundle of rights” that attach to any real property. Among those rights is the right to exclude, meaning landowners can keep people off their land. This float bill offends those rights by forcing landowners to tolerate some surrender of the right to exclude. Folks have tried to assert that there also exists in the common law a “right to float” and that that right supersedes the right of landowners to exclude. I am open to the argument, but I am highly doubtful that it can be made to my satisfaction.

Second, as I understand it, this bill is in response to a dispute between one landowner and a few rafting companies on one river. I have been told that all private options to resolve the dispute have been exhausted, but I remain unconvinced. Furthermore, using legislation to address such a dispute is questionable. As a general matter, the use of governmental power should only be employed as a last resort, not as a default go-to means to achieve one’s ends. Moreover, legislation doesn’t just address one dispute at a time; it affects all qualifying rivers and landowners. That’s painting with a hefty-sized brush, which should only be used when absolutely necessary.

Third, the law fails a basic sniff test. If you read the text (this is actually a pretty short bill, and you can find it here: http://www.leg.state.co.us), you will notice a glaring problem: “River guides”—which includes everyone floating on the affected rivers—are absolved from liability for “incidental contact” with the private property. If you are curious what qualifies as “incidental contact” you will search the text in vain for a definition. A few things are mentioned as NOT being incidental contact, but that begs the question: What does qualify? I know from personal experience that we lawyers take our fair share of abuse for the problems we cause, but this is a great example of where legal drafting skills come in handy. If the legislature does not define its terms, it is asking for lawsuits to be filed and money to be wasted. That’s bad law-making, and I don’t want to be a part of it.

The problems with the bill are clear and any one of them should disqualify it from consideration. But here’s the kicker: I want rafters to float. In fact, truth be told, I wish that fishermen, boaters, floaters—everyone, really—could use all of the waterways for recreational purposes. But I am bound by the principles of respect for private property and the rule of law. I will not allow the ends to justify the means, nor will they overrule rights to private property.

There is one exception to my analysis here. In an extreme situation—and I mean there must be a huge problem of some sort broadly affecting the citizens of our state—I might support the use of eminent domain to permit floating, provided that there is sufficient, substantial, and just compensation paid to the landowners. I emphasize that this is only in extreme situations, and I do not expect this to happen. Let me say it again for clarity: this is for extreme situations only, and we are not even close to being there.

Finally, let us learn a lesson here. The force of government should be a last resort. Always. We should exhaust every conceivable private option before asking the government to step in. We should do so because it is right, because it would promote a culture of cooperation, and because it makes us talk with each rather than at each other. I, for one, would love to see conservation groups step forward with a plan to purchase easements over land that allow for rafting or other water activities with the willing permission of landowners. That would be a creative, private, and cooperative way to resolve not only this dispute but perhaps many others as well.

HB 1188, the so called “Right to Float” bill, should be sunk.