A long-simmering dispute over river access in Colorado is winding its way through the Colorado courts, with Colorado Attorney General Phil Weiser taking a stand on protecting landowner rights to keep fishermen from wading through their property.
Roger Hill, a fly fisherman, wants to fish in a particular pool in the Arkansas River, which happens to be on land owned by Mark Warsewa and Linda Joseph.
To do so, he had to trespass on their land, which he has done on several occasions.
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Warsewa and Joseph took umbrage and tried repeatedly to stop Hill, ultimately culminating in Warsewa firing shots, for which he pled guilty to menacing in Fremont County Court.
Hill filed a suit in federal district court against the pair in 2018, claiming that he has a right to walk and fish in the river. He asked the court to declare that specific segment of the Arkansas River open to public access because, according to him, it’s a navigable waterway and therefore the bed of the stream is public property owned by the state of Colorado and held in public trust for the benefit of its people.
The case’s broader importance is not just Weiser’s concerns about one person “trying to get courts to change this rule on a river-segment by river-segment basis.” The applicability of the definition of “navigability” and ownership of the banks and beds of Colorado rivers and streams also has serious implications for Colorado’s $150 million per year recreational rafting industry, as well as private float trips and kayaking if Colorado laws on airspace – meaning space above the surface of the land – become embroiled in the controversy.
In Weiser’s petition to the Colorado Supreme Court, the attorney general urged the court to reject Hill’s arguments.
“Statements by Hill and his counsel make clear that this is not a one-off action by a private individual, but is rather a concerted effort to assert navigability across the state and disrupt settled agreements for the use of our state’s rivers,” Weiser wrote. “By empowering any member of the public to force a court to determine whether a river segment was navigable for title, this decision allows for strategic deployment of interest groups to sue individual landowners, who usually will not have the resources to fully defend the fact-intensive claim about whether a segment of a river was navigable 150 years ago.”
The district court dismissed Hill’s complaint, saying he didn’t have standing to sue on behalf of what he believes to be state-owned lands, something the court said only the state can do.
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Hill made several legal attempts to move the case to state court, but it was sent back to the federal court because federal jurisdiction is involved. The case was then sent back to Colorado Court of Appeals, which rejected one of Hill’s claims but upheld another and remanded the case back to the district court.
“We reiterate that Hill cannot … seek any declaration regarding the state of Colorado’s title or ownership of the riverbed — only that the Warsewa defendants do not own it,” the appeals court said.
That claim is seeking a declaratory judgment that the landowners cannot prevent Hill from fishing on their property.
Weiser appealed the appellate court’s decision to the state Supreme Court, arguing that Hill is disrupting the nearly 150-year-old status quo regarding the non-navigability of rivers and streams in Colorado.
None of the courts that reviewed the case has examined the merits of Hill’s navigability claims, only whether he has standing to sue on the state’s behalf, which all of the judges so far have rejected.
According to Hill, his claim to navigability is based on evidence of floating logs and railroad ties down the river at times of high water to build the Union Pacific Railroad up the canyon from Canyon City to Leadville. Hill maintains that any degree of commerce is sufficient to support his claim.
Hill’s argument is that, if the river is navigable, then title to the bed was wrongfully transferred to the private owners, that it’s legally the property of the state, and, therefore, public, an argument none of the Courts so far have even considered.
The core issue Hill disputes is who owns the beds of natural rivers and streams in Colorado – the state or the private owners of record?
By the time Colorado was founded in 1876, Congress had decided to require western states to forfeit title of the then-unoccupied lands of the states, including Colorado, to the federal government as a condition of statehood, except for the beds of navigable waterways, to which the states retained title.
Congress then sold parcels of land to fund the federal government, vesting title in the buyers, including land underlying all non-navigable rivers and streams.
According to long-standing precedent, navigable waters are defined as “waters which, at the time of the entry of the state into the union, were, in their natural state or ordinary condition, or by reasonable improvements thereto, used, or were susceptible to being used as highways for useful interstate or foreign commerce of a substantial and permanent character, over which trade and travel were or may be conducted in the customary modes of trade and travel on water, and such waters are navigable in law if they are navigable in fact.”
That determination is made based on the river’s condition at the time of statehood, which means as of August 1, 1876.
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Both the Colorado legislature and Congress were aware of the arid nature of the region and the fact that no major navigable rivers, such as the Ohio or Mississippi, existed in Colorado. Early settlers characterized the Platte River as “a mile wide and an inch deep” as they drove their wagons across the river in Nebraska and Colorado.
“The Platte would be a considerable river if it were turned on edge,” said 19th century humorist Artemus Ward.
Another factor for the state Supreme Court to consider is that determinations of susceptibility to federal commerce clause navigability are a matter of federal adjudication, not the state’s, which means Colorado cannot on its own declare a river, or any part of it, as federally navigable.
The U.S. Supreme Court, in the 1917 case United States v. Cress, said, “Many state courts … have held that the legislature cannot, by simple declaration that a stream shall be a public highway, if in fact it be not navigable in its natural state, appropriate to public use the private rights therein without compensation.”
Weiser echoed that sentiment in a press release Monday, noting no river within Colorado was declared navigable at statehood.
“If the case is allowed to proceed, it would … have staggering implications for settled agreements governing the use of our state’s rivers,” Weiser said. “Since Colorado became a state, the state legislature and governor have never advanced the position that the state actually owns any of the riverbeds in Colorado.”
And there is yet another twist that might be triggered by the case: The legal effects on recreational boating through private property.
In the 1976 state case People v. Emmert, three float-fishermen were convicted of third-degree criminal trespass for floating through the private property of the Ritschard Cattle Company on the Colorado River. The defendants appealed their conviction to the Colorado Supreme Court.
In 1977, after the events in Emmert had taken place but before the Court made its ruling, the Colorado legislature passed a law decriminalizing floating through private property without touching the bed of the stream. Touching the banks or bed remained a criminal act. The expressed goal of the legislature was to find a way to permit recreational floating on the state’s non-navigable waterways where they pass through private lands, while, in theory, protecting landowners from trespasses to the banks and beds of the streams.
In 1979, two years after that law passed, the Colorado Supreme Court ruled in favor of the landowners in Emmert, saying, “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.”
In a long line of cases the U.S. Supreme Court has said that, when the government authorizes a member of the public to trespass on private property, it is a per se constitutional violation of the fundamental right to exclude others and implicates the 5th Amendment and Colorado Constitution’s prohibitions on taking private property for public use without just compensation.
And private property in Colorado isn’t just the surface, it includes the airspace above the surface, through which boaters and fishermen necessarily have to pass, even if they don’t touch the bed.
Colorado statutes say that the ownership of space above the land and water surface belong to the surface owners and that airspace ownership is subject to the same laws as surface ownership, which would include the right to exclude others, with the sole exception of “the right of the flight of aircraft.”
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