The Attorney General’s Office this week asked the Colorado Supreme Court to review a case that threatens to upend how water and access to Colorado rivers have been managed since Colorado joined the Union.
“Recreation on Colorado’s rivers is vital to Colorado’s economy and our way of life,” stated Attorney General Phil Weiser, in a recent press release. “For decades, property owners, water users and leaders in the recreation industry have worked together to increase public access to rivers for recreation. Many cities, farms and other water rights holders have relied on our settled rules to invest in critical infrastructure that sustains our agricultural communities and supports our cities. This lawsuit puts these agreements and practices at risk…”
AG Weiser filed a brief last week, asking the high court to rule on a case involving a fisherman who claims he has a right to wade on a stretch of the Arkansas River — and a landowner who claims the riverbed is private property.
In his active lawsuit, fisherman Roger Hill argues that the Arkansas River was ‘navigable’ when Colorado became a state, and therefore the state owns the riverbed and the public has legal access to wade the river.
AG Weiser is arguing that Hill’s lawsuit “is part of a coordinated effort to disrupt settled agreements for the use of state rivers.”
For the past four decades, riverside property owners and recreationists have generally cooperated under a vague agreement that allows boats, rafts and floating tubes to travel the river, so long as the recreationists did not touch the riverbed.
Colorado has no legislation or court decision that definitively outlines river access. More generally, however, a body of water located on private land is considered part of that same private land.
When Colorado became a state, who owned the bed of the river depended on whether it was ‘navigable’. Title to the bed of any navigable river would have passed to the state of Colorado, while title to the beds of non-navigable rivers remained with the United States. No river within Colorado was declared navigable at statehood, so title to all riverbeds remained with the United States when Colorado became a state.
The federal government has granted title to its non-navigable riverbeds to streamside landowners through federal patents.
Here, one person is trying to get courts to change this rule on a river-segment by river-segment basis. But to disturb these long- settled holdings, the legislative and executive branches need to start a comprehensive process to consider all important factors and establish statewide standards.
AG Weiser states, “If this longstanding Colorado approach to water and river access is to change, the decision-making process rightly belongs to the legislative and executive branches of government. Courts should not upend this long-settled practice.”
From an April 15 article by reporter Jason Blevins, in the Colorado Sun:
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 and the Colorado Court of Appeals ruled that Hill had no claim to title and failed to show a legally protected right in that title.
But the Court of Appeals also concluded that he could continue with his lawsuit and seek a court order preventing the private landowners from denying him access to the river because of his theory that title to the riverbed passed to the state at statehood.
According to the state’s filing, if the case is allowed to proceed, it would force courts to determine navigability for every river and stream in Colorado and have staggering implications for settled agreements governing the use of our state’s rivers. 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.
“This case is seeking to allow an individual to make this decision on behalf of the state,” concludes the AG’s press release.
Bill Hudson began sharing his opinions in the Pagosa Daily Post in 2004 and can’t seem to break the habit. He claims that, in Pagosa Springs, opinions are like pickup trucks: everybody has one.