From The Denver Post (Bruce Finley):
Colorado’s Court of Appeals has cleared the way for 80-year-old fisherman Roger Hill to fight for his right to fish in peace on his favorite stretch of the Arkansas River as it flows down from snow-packed mountains.
This court ruling also means any other Colorado resident who has been forced off a river, from the Animas to the Yampa, can go to court to protect public access. A three-judge panel unanimously rejected the position of Colorado’s government, which sided with landowners against Hill. Colorado allows private ownership of riverbeds while all other states treat rivers deemed “navigable” as public…
“We’re going to get a chance to establish this as the law of Colorado – the freedom to wade in rivers, whether you fish or not, the freedom to have your feet on the bottom of a river,” he said. “It could open access to waters I am dying to fish if I live long enough.”
Back in August 2012, Mark Warsewa and Linda Joseph, owners of land adjacent to the Arkansas, ordered Hill off the river as he was catch-and-release fishing about five miles downstream from Cotopaxi where Texas Creek flows in and brown trout abound along with occasional rainbows, court records show. Hill’s initial complaint alleges Joseph threw baseball-sized rocks down on him to drive him away.
The appeals judges’ Jan. 27 ruling says state courts must decide river access cases depending on how rivers were used in 1876 when Colorado became a state. That’s the “navigability at statehood” test, based on whether rivers could be used commercially in their ordinary condition, that the U.S. Supreme Court set for states in determining whether a riverbed can be private property.
In Hill’s case, Colorado Attorney General Phil Weiser contends only state authorities, not residents, can fight in court for public access to rivers. Weiser wrote in a July 21, 2021, letter to a concerned southwestern Colorado resident that allowing residents to press claims in court “would destabilize property rights throughout the state” and jeopardize “partnerships” state officials have negotiated with landowners that allow limited public access for fishing…
No state laws or regulations define navigability.
Hill in 2018 filed a lawsuit in federal court challenging Warsewa and Joseph after they forced him off Arkansas River. Colorado’s attorney general at the time, Republican Cynthia Coffman, joined the case backing the landowners.
Since then, Hill and his attorneys — University of Colorado law professor Mark Squillace and Dillon-based attorney Alexander Hood — have fought in federal court and back to state court on procedural grounds, insisting that Hill should be able to be heard in a court.
Colorado appeals judges in their decision wrote that “if, as Hill alleges, the relevant segment of the river was navigable at statehood, then the Warsewa defendants do not own the riverbed and would have no right to exclude him from it by threats of physical violence or prosecution for trespass.”
Hill’s case is based on historical evidence that the Arkansas below Leadville was used for commerce around the time Colorado became a state, specifically the transport of beaver pelts, logs, and railroad ties down the river…
Hill’s case will turn on an intense factual battle over “navigability” in 1876, and “floating logs and beaver pelts” shouldn’t be enough to satisfy the federal test, [Steve] Leonhardt said…
As Colorado’s population and outdoor recreation industry expand, future legal fights over access to rivers have emerged as a possibility. Gov. Jared Polis could set up a process for efficiently determining which stretches of rivers were “navigable” at statehood, Squillace said.