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The Colorado Supreme Court heard this month the case, years in the making, of an angler seeking river access that could have wide-reaching implications for public access to wade and fish certain river stretches in Colorado.
Beyond expanding or restricting fishing access, the court’s decision could also have “monumental consequences for water rights in Colorado,” according to an April 2022 brief from Colorado Attorney General Phil Weiser. The state argues that the case could open the door to what’s known as the public trust doctrine, a move that could upset years of water law and impact how water rights are administered.
The lawsuit pits the State of Colorado and water users against the recreation industry and thousands of people in Colorado who believe that the public should have access to streams, even through segments on private lands.
The case, The State of Colorado v. Roger Hill, was initiated more than a decade ago, after Hill waded into the Arkansas River to fish. But private landowner Mark Warsewa, who, with Linda Joseph, owns the land adjacent to that stretch of river, pelted Hill with small stones, shooing him away from fishing on their land. Upon return to his car, Hill found a note threatening that if he returned to the stream, he would be arrested for trespassing on the property.
In 2018, Hill sued Warsewa and Joseph in federal court for Arkansas River access where the river flows past their property, arguing that the state owns the riverbed, and the public has a right to wade, walk, stand and fish there. The case moved to Colorado district court, where it was initially dismissed. But it was heard by the Colorado Court of Appeals in January 2022, and that court agreed that Roger Hill does have standing and sent the case back to the lower court.
Concerned, Weiser weighed in, asking the state’s Supreme Court to intervene in the suit. According to Weiser’s memo, if the state’s high court upholds the Court of Appeals’ decision, it could “disrupt settled agreements for the use of state rivers,” “threaten statewide collaborative efforts providing public fishing access,” upset the “settled expectations” of landowners and water right holders, and “encourage dangerous behavior.”
In December 2022, the Colorado Supreme Court agreed to hear the case, and to look at one question only: Whether Roger Hill has the right to even bring the lawsuit, a principal known as standing. The court heard oral arguments on May 2[, 2023].
“We’ve been focusing on standing for five years now,” said Hill’s attorney Mark Squillace, a University of Colorado law professor, last month during a talk at the University of Denver Water Law Review’s 2023 Symposium. “The argument we’re making is that Roger Hill has the right to stand on the bed of the river which is held by the state in trust for the people if the court is able to determine, which we think it will, that the Arkansas River at this particular location is navigable for title.”
This is the federal “equal footing doctrine,” which says that upon entering the union, a state gains title to the beds of streams that are navigable. For Colorado that means looking at navigability in 1876.
To be considered “navigable for title,” a river must have been used for commerce at the time of statehood using the type of boat or watercraft that would have been used at that time, Squillace said. This “trust” idea comes in if, indeed, the river was navigable in 1876, in which case, the state should be holding the riverbed “in trust” for the people.
During oral arguments, Supreme Court justices focused much of their questioning not on navigability but on the public trust doctrine.
The doctrine is a common law principle which provides that a state hold “in trust” for the public, the public right to navigable waters and the lands beneath them — it must be adopted at the state level.
“The Colorado Supreme Court has held, multiple times, that there is no public trust doctrine,” said Eric Olson, who represented the state on May 2 for the Colorado Attorney General’s Office. Olson has since left the AG’s office.
Establishing a public trust doctrine would require either an amendment to the state constitution or a change in how the Supreme Court interprets the constitution. This case could introduce a public trust doctrine in Colorado.
The Colorado Water Congress, a group that represents water interests in Colorado, opposes any move toward establishing a public trust doctrine because it could undo the way in which the state constitution has been interpreted and interfere with the state’s prior appropriation system of water rights. The state constitution says that water is the property of the public and is subject to appropriation — currently, Coloradans also have a private property right to put water to beneficial use.
According to a fact sheet by the Colorado Water Congress, establishing a public trust doctrine would threaten the state’s “first in time, first in right” prior appropriation system, placing more emphasis on the public’s ownership of water rather than the rights of private water users. The Colorado Water Congress also argues that a public trust doctrine could prohibit or limit the consumptive use of water, alter the timing of diversions, and could invalidate or interfere with existing water rights.
If the court sides with Hill, it would be “destabilizing” said Steve Leonhart, an attorney with the firm Burns, Figa and Will who represents Colorado Water Congress.
“Common law public trust is problematic in itself. If standing is allowed [in State of Colorado v. Hill], what kind of a can of worms could it open for other litigation?” Leonhart asked. “It would just be the beginning of potential litigation up and down the Arkansas River, potential litigation on other streams, potential litigation on land rights but also on water rights,” he said.
But Squillace said other states have public trust doctrines that allow more public access to streams.
“In virtually every other state in the country, the state enjoys broad access rights,” Squillace said during oral arguments. “We’re worse than any other state. One of the things the state is doing in this case is protecting wealthy private landowners. If the public is entitled to have access to those waterways, that’s something the court should protect.”
Groups who filed briefs in support of Hill include American Whitewater, Backcountry Hunters and Anglers, and Colorado River Outfitters Association. Those who filed briefs in support of the state’s arguments include Colorado Water Congress, the landowners, the Colorado Farm Bureau, and the Pacific Legal Foundation.
When Colorado’s high court will rule on the case isn’t clear yet, but attorneys said a decision could come by the end of the year.
Caitlin Coleman is a contributor to Fresh Water News and is editor of Water Education Colorado’s Headwaters Magazine. She can be reached at firstname.lastname@example.org.