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Colorado appeals court revives river access, right-to-wade debate

Roger Hill fishes a small creek in Southwest Colorado. The angler has sued an Arkansas River landowner in an effort to change Colorado’s stream access laws. (Provided by Roger Hill)
Angler Roger Hill is suing a landowner over a right to wade in the Arkansas River, arguing that historic commerce on the river proves navigability, which requires public access

For nearly 40 years, riverside property owners and recreational river users in Colorado have relied on a tenuous agreement when it comes to floating rivers and streams through private property.

The deal is this: Stay on your boat and don’t touch the riverbed or you could face trespassing charges. If you wade on those rocks while fishing, a landowner might hurl rocks at you.

That agreement-but-not-a-rule could change with a recent decision by the Colorado Court of Appeals that breathes new life into a decades-old debate over public access in public water crossing private land.

“I think the decision from the appeals court is what the future is,” says Roger Hill, an 80-year-old Colorado Springs angler who sued a landowner in 2018 after the property owner threw rocks at him while he waded along the Arkansas River riverbed and fished. “We will open up navigable rivers for use by the public … just like every other state. I expect this will be a few years before it’s over, but my hope is that Colorado joins the enlightened outdoor sportsmen community found in other states that enjoys the use of navigable rivers.”

Public access on rivers that wind through private property has been a thorny issue in Colorado for decades. Traditionally the access-versus-property rights issues have revolved around a “right to float,” with landowners and boaters arguing over trespass when obstructions in the river force boaters to touch the river bottom.

A 1979 Colorado Supreme County decision — People v. Emmert — said even though the state’s waters may be public property, that did not give the public the right to float those waters through private property. Then a Colorado Attorney General opinion in the early 1980s said rafters and kayakers could be subject to trespass charges if they touched the river bottom.

In the past few decades, fights have erupted on the Lake Fork of the Gunnison, the Taylor River, the Deckers stretch and the North Fork of the South Platte and the North Fork of the Poudre River as landowners fought to block rafters and kayakers from passing through stretches of river and streams crossing their properties.

Public access to rivers through private property is still based on that 1983 Attorney General opinion. No court cases have tested that legal opinion or challenged the state’s murky access laws. And neither property owners nor boaters have seemed particularly eager to push the issue, with both sides reluctant to see a statewide resolution that could potentially limit either access or property rights. In 2011, then-Gov. Bill Ritter created a River Access Dispute Resolution Task Force to help resolve access conflicts between landowners and boaters. That task force, which has not met since 2015, created a procedure for resolving conflicts and that has largely controlled the volatility of occasional issues.

In most cases, groups like American Whitewater have worked with landowners and boaters to settle squabbles without pushing the fight into court.

“What we’ve got is far from perfect, that’s for sure, but it is working for the most part,” said Hattie Johnson, American Whitewater’s stewardship director for the Southern Rockies, who advocates more for boaters’ right to float than anglers’ right to wade. “This is a case we have been watching closely and are very interested in.”

Johnson said it’s important to note that this appeals court decision is not addressing navigability or how to define that in Colorado. The appellate court’s decision gives the lower court another chance to possibly determine that.

“It doesn’t mean anything yet. We have got a ways to go until we know what this actually means in terms of public access,” she said.

Colorado is not alone in its disputes over who and how river users can access waters that thread private property. The New Mexico Supreme Court will soon weigh the issue after three conservation and public access groups sued the governor and New Mexico Game Commission over a 2017 Department of Game and Fish rule that allowed landowners to restrict access to riverbeds on private property. That rule came after years of somewhat peaceful agreement that the public could access any river that was used for commerce when New Mexico became a state.

Hill’s case, which involves the right to wade more than that the right to float, would apply a federal standard of navigability to river access. If a stretch of water was used for commerce when Colorado became the country’s 38th state in 1876 — like if the waterway was used by sawmills to float trees downriver or by trappers to float beaver pelts — then riverbeds are public property, navigable and open for public use.

Utah’s recently proposed Navigable Water Determinations bill would apply the same standard that Hill is seeking. So if a river or stream was “used or susceptible to being used as a highway of commerce” at the time of Utah’s statehood in 1896, then it is navigable and open to public recreation. In 2017 the Utah Supreme Court used the federal commerce standard of navigability to uphold public access to the state’s rivers and streams without addressing ownership of the land beneath the moving water.

The standards in Utah create an interesting legal dynamic on the Colorado River at the Colorado-Utah border, said Mark Squillace, a University of Colorado professor who is working as Hill’s pro bono attorney. As soon as the Colorado River crosses from Colorado into Utah on the popular Ruby-Horsethief stretch, the river legally moves from not navigable to navigable, he said.

Fly fishing in the Fryingpan River near Aspen. (Jesse Paul/The Colorado Sun)

“The test of historic commerce could settle this and determine navigability” for every river and stream in Colorado, Squillace said.

Squillace said his arguments will include evidence of sawmills floating railroad ties down the stretch of Arkansas River near Cotopaxi for building railways.

“If commerce was not allowed on that river, then that would mean any individual landowner could have blocked those tie drives,” Squillace said. “We will have evidence showing commerce beyond just log floating.”

Squillace said that showing historic commerce on a river could prevent having to litigate access on every stretch of water in the state.

“If we establish the principle that if a river was used as a highway for commerce at statehood, then there is a public right to the bed of the river,” he said.

It’s the second time an appeals court has sided with Hill. In 2020 the 10th U.S. Court of Appeals overturned a federal district court’s dismissal of Hill’s case. Hill moved his case over to the state district court in Fremont County, which dismissed his claim. The Colorado Court of Appeals decision sends the case back to Fremont County.

The state of Colorado has waded into the case, arguing that only state officials, not residents, can sue for public access to rivers. (A spokesman for Attorney General Phil Weiser said the office is reviewing the appeals court ruling.)

Hill acknowledges his case “will have staggering implications,” if he prevails. (Namely, if riverbeds are suddenly deemed public property, will landowners be reimbursed for acreage they no longer own?)

“I want the public, which is everyone under the sun, to have the ability to use the land that the state owns. Right now, the land owned by the state is being claimed by people who own adjacent land. That is wrong,” Hill said. “The people of Colorado should be able to use the land the state owns.”

Hill, a retired physicist, has fished the Arkansas River for more than 50 years. In 1991, he wrote a guidebook to fishing on the South Platte.

He said landowner Mark Warsewa threw rocks at him as he waded the Arkansas River near Warsewa’s home in 2012. (Warsewa in 2018 said his property line extended across the river. “I own the riverbed,” he said. Warsewa did not return phone calls last week.)

That could change with Hill’s case, which would step beyond Emmert and the Attorney General’s 1983 opinion with a new standard for determining navigability and access.

Squillace dismisses the idea that allowing public access to riverbeds would constitute a taking of privately owned property. He called that “a silly argument.”

“The title to the bed passed to the state on the day that Colorado became a state in 1876,” he said. “So any claims, deeds or documents that say someone else owns the riverbed are invalid because the state owns the bed. So it cannot be a taking because the property was never privately owned.”

Read more at The Colorado Sun

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