Updated September 8, 2016 – Author’s Note: On September 5, 2016, The Daily Sentinel ran a front-page story about the possibility of opening the banks of the Orchard Mesa Canal for public recreational use. The article quoted former Colorado State Rep. Tim Foster, now president of the University of Colorado Mesa, as calling claims by landowners that they fear legal liability for the opening of canals to the “red herring” public recreation. Here is the quote:
[Colorado Mesa University President] Tim Foster… served as Colorado State Representative between 1988 and 1996 and helped pass a bill in the early 1990s that would transfer responsibility for the canal banks to the state, paving the way for the combination trails and canals. The law was passed to help complete the current High Line Canal Trail in Denver which stretches over 70 miles, although this ditch usually does not hold much water.
“The bill gave them liability protections,” Foster said. “The accountability argument is a complete red herring. Me and Tillie (Bishop) wore it, and it gives them immunity. At the end of the day, these guys got locked in to let nobody on the channels.
Citizens of the Grand Junction, Colorado area can often be seen walking dogs, running, biking, and even cross-country skiing along the beautiful banks of the Grand Valley irrigation canals. Maintenance roads along the canals provide expansive vistas, absolute calm, and a sense of safety for recreationists due to the absence of motor vehicles. New housing estates across the valley even have concrete pathways leading directly to the banks of the canal, inviting residents to take peaceful walks there.
But at the same time, signs posted along the canal roads warn that these are “no trespassing” areas.
So which one is it? Are the canal roads off limits or can the public walk, run or cycle there?
The answer is both, and neither.
A long tradition of intrusion
People have been encroaching on the banks of the Grand Valley Canal for generations, as the canals were built over 100 years ago. During this period, the “no intrusion” rule was almost never applied. Mesa County Sheriff Stan Hilkey says no canal road trespassing cases have ever been prosecuted in the valley in the 28 years he served as the sheriff. “Maybe somebody got a ticket,” Hilkey said, but basically it’s “the lowest priority offense there is.”
In law enforcement terms, this means that if someone calls 911 and reports a canalside trespassing, they probably shouldn’t expect a car to answer.
The canals and their associated roads and facilities are owned by the U.S. Bureau of Reclamation (“Reclamation” or “BuRec”), which is willing to open the canal banks to non-motorized public recreation. Some of the canals cross private property, and in these cases the US government (BuRec) holds easements or rights of way for the maintenance and operation of the canal. In a August 13, 2013 letter to Christian Reece, Chairman of the Grand Junction Planning Commission (pdf), wrote Ed Warner, regional manager of BuRec’s Grand Junction office,
“Reclamation is open to trail development on or near reclamation project lands if such development does not interfere with the operation and maintenance of the water project or increase the liability to its management entities and the United States. [government]. In addition, the restoration will require the consent of the [Grand Valley Water Users] the association and the [Orchard Mesa Irrigation] District before we consider any lead on any reclamation [Operations and Maintenance] road.”
If the canal banks were open to the public, BuRec says, they would want another legal entity, such as the city, county or trail association, to take on the responsibility and cost of operating and maintaining the canals. trails, and law enforcement. and order on it. This makes sense because BuRec is not in the business of operating trails. BuRec is also seeking written consent from their contracted irrigation companies and the underlying private landowners along the canals.
When asked why no trespassing cases had been prosecuted on the canal banks, Kathleen Ozga of BuRec said her agency was mainly concerned about damage to the canal and irrigation facilities. If there’s no damage, they don’t care about people on the canal banks. She also said prosecution for trespassing is left to the underlying private landowners along the canal roads.
It’s not easy to chase a trespass on Canal Road
According to Sheriff Hilkey, to prosecute a trespass, a private landowner must be able to identify a trespasser by name and prove that the trespass took place.
It is not easy.
A landowner could take a time-stamped photo of someone walking on his section of the canal bank, for example, but he would have to get the intruder’s name – information an intruder is unlikely to give up. Upon seeing a suspected trespasser, a property owner might call 911, but if there are higher priority crimes in town, due to the extremely low priority of trespassing calls on the canal banks, a car will not probably won’t answer. Additionally, since it takes only seconds for a walker, cyclist, or runner to finish traversing inconspicuous private land, there is little time left for a property owner to document the alleged “crime.” Another consideration is the time a property owner must invest in prosecuting an alleged trespass. He or she should go to the sheriff’s office to file a report, make an official statement and/or possibly appear as a witness.
Given the large body of evidence to press charges, and since trespassing on canal roads is an act that leaves essentially no evidence other than footprints, it is no wonder that prosecution for this “crime have long been non-existent.
Private landowners worry unnecessarily
As more community-minded people and younger, more active generations move to our area, more and more locals look to the canal roads and begin to wonder why these gems high-potential recreational facilities are not officially open to the public. Whenever the subject of opening the canal banks to non-motorized public recreation comes to the fore, as it does with increasing frequency in Mesa County, private landowners along the canals invariably say that their biggest concern is the legal liability they would face for people who might be injured on their land.
But these fears are unfounded.
In 1970, the state legislature enacted the Colorado Recreational Use Law specifically to encourage rural landowners to make their land available for recreational purposes. This law severely limits the liability of landowners to people who recreate on their land. The law states that if a landowner allows the general public free access to their land for recreational purposes, the owner is do not responsible for the damage suffered by a recreational user. Landowners are only liable for injury if they intentionally or maliciously injure someone using their land, for example by setting up a tripwire designed to shoot someone who sets it off while walking on their land. In enacting this law, the legislature took the rare additional step of requiring that if ever a landowner is sued by a recreational user and the landowner prevails, the recreational user be obliged to pay landowner’s attorney fees and other related legal costs. The law provides additional protection for landowners by specifically stating that water is not an attractive nuisance. What more could be done to protect landowners from liability? Not a lot.
So what to do?
Basically, what stands between the indefinite perpetuation of what are essentially bogus ‘no-trespassing’ zones and the transformation of the canal’s main roads into a fabulous recreational asset are the irrigation companies, which contract with BuRec to operate the canals, and the few private landowners along the canals who continue to make efforts to officially open the canal roads to the public.
People wishing to recreate on the canals can ask individual landowners for permission to walk, run, bike or ski along their canal banks. Who owns the land along the canals can be found out and is a public record. People with an Internet connection can access emap.mesacounty.us — the county assessor’s map — to find out who owns the parcels along the different sections of the canals. Once on the assessor’s map, use your cursor to drag the map to your area of interest, then zoom in on the parcels of interest. In the “Selection Tools” menu, click on the exclamation point, then click on any plot. A new window will open showing who owns this plot, their contact details (including their city of residence, as often plots are owned by people who live out of town), a description of the plot and its use (e.g. , residential or agricultural) and the property tax that owners pay on the plot. People can use the contact information to request formal permission to cross the land or find out if the owners live outside the area.
You can also write to the various irrigation companies (Grand Valley Irrigation or Orchard Mesa Irrigation), or just those close to your neighborhood, and express your wish that they open their canal banks to non-motorized public recreation. You can find all contact details for local irrigation companies at irrigationprovidersgv.org.
In the meantime, keep noticing the long-standing presence of the “No Trespassing” sign and act accordingly, but you can also practice walking, biking, skiing, or running really fast..