Colorado Attorney General Phil Weiser wants the Colorado Supreme Court to wade into a murky river-access fight.
Weiser this week filed a lengthy brief asking the state’s high court to intervene before a lower court takes up a case involving a fisherman who says he has a right to wade on a stretch of the Arkansas River and a landowner who says the riverbed is private property.
This story first appeared in The Outsider, the premium outdoor newsletter by Jason Blevins.
Angler Roger Hill’s lawsuit argues that since the Arkansas River was navigable when Colorado became a state, the state owns the riverbed and it’s open to everyone. Weiser, in his request that the Supreme Court intervene, said Hill’s lawsuit “is part of a coordinated effort to disrupt settled agreements for the use of state rivers.”
For four decades, riverside property owners and rafters have had a tenuous agreement that allowed floaters to pass so long as they did not touch the riverbed. Wading on those rocks, though, could get an angler in trouble. It’s more of an agreement than a rule. There is no legislation or court decision that definitively outlines river access in Colorado.
A 1979 decision by the Colorado Supreme County in 1979 — People v. Emmert — ruled that the state’s waters were public property but suggested that the public did not have the right to float those waters through private property. A Colorado Attorney General opinion in 1983 said rafters and kayakers could be subject to trespass charges if they touched the river bottom.
And that’s been the deal ever since. Years of agreements between recreational river users and landowners have kept river access in check. The occasional conflict between rafters and landowners has been typically settled with negotiations. Neither property owners nor recreational users have been keen to push the issue, each side realizing that a court decision or legislation could upset the process that has worked for nearly 40 years.
Until Hill, a Colorado Springs angler, started looking for something a bit more definitive.
When a landowner on the Arkansas River chucked rocks at him as he fished a shallow stretch in 2012, he filed a lawsuit against the landowner. His argument says that if a river was used for commerce — and thus navigable — when Colorado became a state in 1876, then the state owns the riverbed and anyone can walk on it.
A district court rejected Hill’s claim. The Colorado Court of Appeals earlier this year sent the case back to the lower court. Weiser wants the Colorado Supreme Court to review the appellate court’s decision before the lower court takes up the case. Weiser argues the appeals court made a mistake in its ruling and the high court needs to act. Weiser’s focus on the appeals court decision concerns Hill’s ability to argue what should be a statewide issue. Weiser admits that Hill may have a case involving injury from hurled rocks, but argues the angler shouldn’t be able to claim an injury that could change public access to all Colorado rivers.
Weiser argues the appeals court decision could allow anyone to sue a landowner who would have to defend themselves by arguing about the navigability of the river 150 years ago. That could upset years of work by the state to educate river users about public access and potentially create more conflicts, the AG filing argues.
“The court of appeals’ opinion will undermine statewide collaborative efforts to ensure public access to streams and rivers while respecting private property rights,” Weiser argues.
No river in Colorado has even been declared navigable at statehood and thus owned by the state. But the argument has been raised in other states. And those arguments, Weiser notes, have been presented by the states, not individuals.
He also argues that the appeals court decision could upend long-settled issues around property rights and water rights in Colorado. If landowners granting easements to irrigators suddenly do not have rights to the land, irrigators could be unable to divert water.
“Such a decision could have monumental consequences for water rights in Colorado and could lead to significant litigation challenging existing property rights,” the AG’s filing reads.
Other states have pushed river access issues to their high courts, including Utah in 2017 and most recently New Mexico. The New Mexico Supreme Court last month took about 15 minutes to reject a rule by the state’s game commission that allowed riverfront landowners to claim the waterways next to their property are unnavigable and therefore closed to everyone but them.
New Mexico appeared to have its right-to-float river access issues figured out before the game commission’s rule. The New Mexico high court decision aligns with similar court decisions in Montana, Oregon and Utah.
Hill’s attorney, University of Colorado law professor Mark Squillace, said he was disappointed by the AG’s arguments. He feels the petition could further delay the case for Hill, who is 80.
“For that reason, I hope that the court responds to this quickly, whether or not they decide to hear the appeal,” Squillace said.
American Whitewater, the river advocacy group that has spent years working to protect river access in Colorado, agrees that Hill’s lawsuit could smash long-held agreements that balance access with private property interests. But the group takes issue with Weiser’s focus on how Hill’s lawsuit could impact property rights and water interests “and now how it could negatively impact outdoor recreation and the significant economy it supports,” said Hattie Johnson, the Southern Rockies stewardship director for American Whitewater.
Paddlers appreciate the state’s argument that Hill’s lawsuit is not the way to settle river access issues, Johnson said, “but it’s frustrating to see the state take a position favoring one group of users.”
“If the legislative and executive branches are to begin a comprehensive process to address river access, river runners need to have a seat at the table,” she said.