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Our View: Angler tests waters of river-use law

An email arrived from a local Democrat who refused to vote for Phil Weiser, based on the attorney general’s stance on the use of Colorado’s rivers, and private landowners and the public’s rights. Weiser must defend the state, which sides with landowners. Challenger John Kellner won’t win over this voter either. If elected attorney general, Kellner told us he’d do the same as Weiser, voiding this issue for this year’s election.

Weiser and Kellner formed opinions partly on an interpretation of what waterways are “navigable.” Some say the legal definition of navigable is as murky as a river during spring runoff. Others say it’s straightforward. And fly fisherman Roger Hill will test it.

Hill is suing a landowner and the state, asking Colorado to clarify its stream-access laws to favorite fishing spots along the Arkansas River outside of Salida.

When the West was settled, the federal government gave states the ownership of any river deemed navigable. Waterways used at the time of statehood as “highways for commerce” were public. Hill argues that the Arkansas was such a highway based on historical evidence with newspaper clippings from the 1870s showing the river full of timber for railroad construction.

“There’s no doubt it’s navigable,” Hill said.

According to federal law, states hold riverbeds in trust for the public. But in Colorado, at least one court ruling gave a landowner leeway to keep the public from riverbeds adjoining his property – and the water over it.

In 1976, David Emmert was arrested for tubing along a private stretch of the Colorado River near Vail. The case rose to the state Supreme Court, which sided with the landowner, a rancher who had strung barbed wire across the river.

The court stated, “We hold that the public has no right to the use of waters overlying private lands for recreational purposes without the consent of the owner.” Making waters muddier, the state’s attorney general at the time issued an opinion that floating through private land was not a criminal offense.

We’re confused, too.

Durango resident Tim Wolf is a longtime kayaker and a riverfront property owner for more than 30 years. “Colorado river law is clear and has long established rights that are balanced between private property rights and rights of others to use the river,” Wolf said. “Boaters (and fisherman in boats) have the right to float or navigate a river through private property. (Property lines typically go to the center of the river.)

“However, they clearly do not have the right to touch private property, including along riverbanks or the river bottom. They may not walk in-stream, nor can they anchor a boat on the river bottom of private property. To do so is illegal trespass.”

A large question that may surface in Hill’s case is whether the public trust doctrine, a legal principle arguing that some resources are too important not to be stewarded for the public, would be tested in this case.

We love seeing people playing in Colorado rivers on steamy afternoons or cool mornings with aspen leaves dotting the riverbank. The public has embraced the idea that the rivers are for all of us to enjoy. We know there are bad actors, too, partying loudly and leaving trash.

But in Colorado, private property rules. At least for now.

Weiser has said Hill’s suit lacks standing, but a win for Hill would “have staggering implications” for settled agreements.

Whether it’s Weiser or Kellner in office, he will defend the state and its interpretation of navigable. Whatever that actually is in Colorado.