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Colorado Supreme Court ends fisherman’s right-to-wade argument

Roger Hill sued, arguing a riverbed is public property open for wading anglers
(Jerry McBride/Durango Herald file)

When a landowner hurled rocks at Roger Hill for wading and fishing in the Arkansas River, the octogenarian angler sued, arguing the river was navigable when Colorado became a state in 1876 and therefore public property and open for wading and fishing. The lawsuit threatened to upend decades of tenuous agreements around public access on the state’s rivers and streams.

The Colorado Supreme Court this week told Hill to stow his waders. The state’s highest court on Monday ruled Hill had no legal standing to argue the state’s rivers were public property if they were navigated for commerce in 1876.

Hill’s case produced hundreds of pages of briefings in the Colorado Supreme Court, with the Colorado Attorney General, recreational user groups, landowner advocates, environmental lawyers and state water guardians all wading in with perspectives on Colorado’s murky public access rules around rivers.

Those groups charged their arguments with perspectives on the public trust doctrine: The public has rights to natural resources including “air, running water, the sea and its shore.” And the equal footing doctrine: That states joining the United States of America gained title to riverbeds in waterways that were navigable. And the state argued that lawmakers, not a solitary angler, should be in charge of deciding access to rivers.

All these subjects “are ultimately irrelevant,” Colorado Supreme Court Justice Melissa Hart wrote in the ruling.

“Rather, this case requires us to answer just one question: whether Roger Hill has a legally protected interest that affords him standing to pursue his claim for a declaratory judgment ‘that a river segment was navigable for title at statehood and belongs to the state,’” Hart wrote. “He does not.”

Hill’s lawsuit argued if a river was used for commerce in 1876, then the riverbed was state property and open to wading. That argument went against a 1979 Colorado Supreme Court decision – People v Emmert – that concluded that while water may be public, the public could not float through private property. A Colorado Attorney General opinion a couple years later said rafters and kayakers could pass through private property so long as they didn’t touch the riverbed or shore.

Since the 1980s, access disputes on the state’s rivers involved recreational users and landowners meeting and hammering out agreements that typically aligned with that Attorney General’s opinion. A trial court dismissed Hill’s claims but the Colorado Court of Appeals in 2022 revived his case, opening the door for big changes in river access.

The appeals court dismissed one of Hill’s claims that he, as a member of the Colorado public, had ownership of the riverbed and could sue for the right to wade in the river. But the appeals court also reversed one of the trial court decisions and allowed Hill to argue that he had a right to wade and fish in the river because the river was navigable at statehood and therefore property of the state.

Colorado Attorney General Phil Weiser in April 2022 asked the Supreme Court to take up the river access case. Weiser noted no river within Colorado has ever been deemed navigable at statehood, when all riverbeds remained property of the federal government. Since 1876, the federal government has distributed nonnavigable riverbeds to landowners. To upend these nearly 150 years of transfers and agreements would require “a comprehensive process” involving lawmakers, Weiser argued, not one angler suing for access.

Weiser told the high court that a decision that agreed Colorado rivers were navigable at statehood “could have monumental consequences for water rights in Colorado and could lead to significant litigation challenging existing property rights.”

When someone sues for damages, they have to prove both an injury and a legally protected right. A declaratory judgment can recognize those rights if the person suing proves they have a legal basis to sue. The high court found Hill did not have that legal basis.

“To conclude that Hill has a legally protected interest, we would need to assume that he will win on the merits of his underlying assertion that the state owns the disputed property,” the court’s ruling reads. “Hill’s trespass claim only exists contingent on an antecedent claim that is not his to pursue – that the state owns the riverbed.”

The court’s ruling said Hill’s contention that he has standing because the landowners hurled rocks at him “is a red herring.”

“Proof that the state’s ownership of the riverbed is a necessary prerequisite to his claimed right to fish in that portion of the Arkansas River,” the ruling reads.

Mark Squillace, a professor of natural resources law at the University of Colorado Law School, is Hill’s lawyer. He said the Colorado Supreme Court’s decision was “disappointing.”

The ruling put Hill in an “impossible situation,” Squillace said, by forcing the angler to prove he has a legally protected interest without the legal standing to make that argument.

“It’s sort of a Catch-22 for him and I think that’s unfair,” he said.

Colorado’s river access laws will remain clouded, unlike other states in the West. The New Mexico Supreme Court earlier this year upheld public rights to access rivers through private property. The Utah Supreme Court in 2019 upheld a 2010 recreational access law that supports floating through private property but affirmed the rights of landowners to limit access on some rivers. Montana allows access up to the high-water mark. Arizona and California have laws that allow access on navigable waters through private property. Colorado is among the few states without legislation of court decisions that clearly outline river access, forcing conflicts to be resolved on a case-by-case basis.

For the “navigable by right” argument to last in Colorado, Squillace said a person will need to wade in a Colorado riverbed and either be charged with trespassing or be assaulted by a landowner to prove their legal standing to argue that the river is public property because it was navigable at statehood.

“It’s crazy to think we have to risk arrest or personal injury to test our legal rights,” Squillace said. “This is a really disappointing decision that could lead to unfortunate consequences for people who try to test their legal rights. Our argument was that we should not have to put ourselves in harm’s way in order to test our rights to fish in a navigable-by-title stream.”

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.