Does federal legal precedent prior to statehood allow river access?

Browns Canyon via BrownsCanyon.org

From The Denver Post (Jason Blevins):

Colorado Springs fisherman Roger Hill has had repeated run-ins with Mark Warsewa, whose property spans the Arkansas River between Texas Creek and Cotopaxi. Hill likes to wade from public land nearby and fish in the river near Warsewa’s place.

“I own the bottom of the river,” said Warsewa, who bought the property in 2006.

Hill on Friday sued Warsewa in U.S. District Court, arguing the bottom of the river actually is public property. His lawyers point to a federal doctrine called “navigability for title,” which holds that if a waterway was used for commercial activity at the point of statehood, the state owns the stream bed and the public has access.

With historical records showing loggers sending hundreds of thousands of railroad ties down the Arkansas River before Colorado became a state in 1876, Hill’s attorneys hope to prove “navigability for title” and, therefore, unfettered public access.

If Hill wins, the Arkansas River could be open for wade fishing through private land, and the standard could apply to just about every Colorado waterway. It also could resolve a thorny public-access issue that Colorado’s Western neighbors — New Mexico, Idaho, Montana, Wyoming and Utah — have cleared up in recent years.

“There has been a lot of confusion around this. Private landowners have been led to believe that they have the right to block access to waterways in front of their property, but that is only true if that river was not navigable for title purposes,” said Mark Squillace, a professor at the University of Colorado Law School who, with Dillon attorney Alexander Hood, is representing Hill. “This case has the potential to bring some clarity to the law and show that, yes, like any other state in the country, we have the right to access state-owned river beds under navigability for title.”

Stream-access issues erupt every several years in Colorado. A landowner on the Lake Fork of the Gunnison River in 2001 sued to block a river outfitter from floating guests past his property. Owners at a private fishing community on the South Platte River above Cheesman Gorge once chained a gate to the riverbed to block kayakers from passing through the property.

Still, little has been done to permanently resolve stream- and river-access conflicts in Colorado. No state laws or regulations define navigability.

The Colorado Supreme Court, in the seminal 1979 People vs. Emmert case, upheld a trespass conviction against rafters who floated on the Colorado River through private property in Grand County. In 1983, the Colorado attorney general sought to clarify the court’s decision with a legal opinion that paddlers floating through public property only commit criminal trespass if they touch the river bottom. The boaters could, however, be charged with civil trespass.

Colorado still relies on the 1983 legal opinion, which is not binding and has not been tested by a Colorado court. (Colorado and Arizona recently finished below six other Western states for stream access in the annual Western States Conservation Scorecard by the Center for Western Priorities.)

In 2011, then-Colorado Gov. Bill Ritter created a River Access Mediation Commission to help resolve access conflicts between landowners and boaters. That commission has not been appointed since 2015.

The Hill lawsuit highlights “an interesting point” with the evidence of commercial activity on the Arkansas River before Colorado’s statehood, said Nathan Fey, the Colorado stewardship director for American Whitewater. But he’s nervous. A victory or loss could have sweeping impacts across the state, he said.

“Regardless of which way this goes, there’s going to be trouble,” said Fey, whose job entails traveling around the state dealing with river access conflicts on a case-by-base basis.

If Hill wins, Fey said, the next issue will be to address whether the state has the right to claim a riverbed property that previously was considered private property and how much, or if, that landowner should be reimbursed if that property is deemed public. If Hill loses, Fey said, “it could have much broader implications for a pretty robust outdoor recreation economy surrounding water in Colorado, especially on the Arkansas, the nation’s most rafted river.”

“I think there’s a lot of risk here,” said Fey, noting that wading fishermen are clearly contacting the river bottom in violation of the 1983 legal opinion and this case could force a decision that impacts floating boaters.

Warsewa, who learned of the lawsuit Friday, said he doesn’t have issues with rafters or fishermen floating the Arkansas River through his property. He does have problems with fisherman walking on the river just past the riverbank below his home. In 2015, he pleaded guilty to a menacing charge after firing a handgun when fishermen were in the water.

2018 #COleg: SB18-143 (Parks And Wildlife Measures To Increase Revenue) introduced

From KOAA.com (Tyler Dumas):

A bipartisan group of Colorado lawmakers has introduced a new bill with the hopes of ensuring access to Colorado’s natural resources for future generations, by finding a long-term funding solution for Colorado Parks and Wildlife (CPW).

Senate Bill 18-143, or the Hunting, Fishing, and Parks for Future Generations Act was introduced on Monday, Jan. 29.

The bill is sponsored by two Republicans – Sen. Don Coram of Montrose and Rep. Jim Wilson of Salida – as well as two Democrats – Sen. Stephen Fenberg of Boulder and Rep. Jeni Arndt of Fort Collins.

CPW said the bill was introduced after roughly three years of public meetings with legislators and outdoor enthusiasts, regarding the agency’s financial challenges and the future of Colorado’s outdoor recreation, state parks, and wildlife.

CPW receives less than one percent of it’s annual budget from general fund tax revenue. They rely primarily on sales of hunting and fishing licenses, park passes, and camping fees. With the proposed bill, the agency is seeking approval to adjust fees to cover the rising costs associated with managing wildlife, protecting habitat, and maintaining and improving state parks to meet the needs of a growing population.

With new funding the bill would bring, CPW said they are committed to pursuing the following goals and objectives by 2025:

  • Grow the number of hunters and anglers in Colorado through investments in programs such as hunter education, Fishing is Fun, and the Cameo Shooting and Education Complex, and grants for shooting ranges in all regions of the state.
  • Expand access for hunters, anglers and outdoor recreationists by renewing existing high-priority leases and supporting additional public access programs on public and private lands.
  • Increase and improve big game populations through investments in habitat and conservation, including building more highway wildlife crossings to protect wildlife and motorists.
  • Improve species distribution and abundance monitoring and disease prevention efforts through partnerships with private landowners.
  • Increase the number of fish stocked in Colorado waters to above 90 million through hatchery modernization and renovations.
  • Identify and begin planning the development of Colorado’s next state park.
  • Reduce risks to life and property and sustain water-based recreation opportunities by reducing CPW’s dam maintenance and repair backlog by 50 percent.
  • Engage all outdoor recreationists, such as hikers, bikers, and wildlife watchers, in the maintenance of state lands and facilities and the management of wildlife.
  • Recruit and retain qualified employees to manage wildlife, park, recreational and aquatic resources.
    Provide quality infrastructure at CPW properties by completing much needed construction and maintenance.
  • In order to achieve these objectives, the bill would adjust fees for hunting and fishing licenses, as well as park passes. Hunting and fishing licenses would increase by $8. For example, an annual fishing license would increase from $26 to $33, and an elk tag would increase from $45 to $53. The bill would however reduce the price of an annual fishing license for those 16 and 17-years-old to $8. It would also allow the Parks and Wildlife Commission to implement other license discounts, in order to introduce a new generation of hunters and anglers to the outdoors.

    In addition to licenses, the proposed bill would CPW to raise state park entrance fees. Any increase though would be capped at $1/year for a daily pass, and $10/year for an annual pass.

    For more information on the Future Generations Act, you can visit the CPW website at the following link: Future Generations Act

    #Snowpack news: South Platte best in state = 89% of average

    Click on a thumbnail graphic to view a gallery of snowpack data from the NRCS.

    Here’s the Westwide SNOTEL basin-filled map for February 5, 2018 from the NRCS.

    Westwide SNOTEL basin-filled map February 5, 2018 via the NRCS.

    And here’s the situation in California where they perform their own snow course measurements independent of the NRCS.

    California snow survey map February 1, 2018.

    White River Conservation District annual dinner recap

    Algae bloom on the White River.
    Photo courtesy of Colorado Parks and Wildlife via the Rio Blanco Herald Times.

    From The Rio Blanco Herald-Times (Reed Kelley):

    District Executive Director Callie Hendrickson, of Grand Junction, reviewed subjects including rangeland health and monitoring; excess horses on public range; range improvement programs and opportunities; greater sage grouse management; and water issues. The latter includes facilitation, on behalf of the county, of the deliberations and research of the county’s White River Algae Task Force. The mission of the task force, Hendrickson stated, is “to ascertain what is driving the algae growth in the White River (in order) to improve the overall health of the watershed.”

    The 2018 Plan of Work presented covers the development and implementation of the rangeland monitoring and weed control project with the federal Bureau of Land Management on the Piceance-East Douglas (Wild Horse) Herd Management Area; ongoing facilitation of the White River Algae Task Force; continuing utilization of the Land and Natural Resource Plan and Policies developed by the districts and approved by the board of county commissioners as a guide to public lands use; continuing equipment rental, tire tank and polyacrylamide (PAM) sales for sites where quick fixes are needed on dam areas where there are known leaks and for setting up the surface for new ponds as well as flooded field irrigation and ditch projects; continuing excess wild horse education; continuing work with partners to support the wise use of natural resources; and working to secure long-term sustainable funding to replace losses in mill levy funding.

    Enterprise Products, Williams gas company, and XTO Energy were the primary sponsors of the district dinner this year. Steve Cochran, Enterprise manager, and Darren Baker, representing Williams, were presented “thank you” awards for the sponsorships. Past district manager Chris Colflesh and his bride, Kim O’Donnell, both now of Silt, were also honored.

    The Natural Resources Conservation Service district conservationist, Kendall Smith from Craig, whose jurisdiction covers Moffat and Rio Blanco Counties; Kent Walter, field manager for the White River Field Office of BLM; and U.S. Forest Service Rio Blanco District Ranger, Curtis Keetch, each gave updates on the activities of their agencies.

    The evening’s program closed out with presentations by Colorado Parks and Wildlife water quality guru Mindi May, Denver, and Elk Creek Ranch fishing manager Colton Brown sharing their perspectives on the White River algae situation.