It’s been more than a decade since a riverside property owner hurled rocks at angler Roger Hill as he waded and stalked trout in the Arkansas River above the Royal Gorge.
The ripples from that splashy spat could upset Colorado’s murky river access rules.
The Colorado Supreme Court this week decided it would take up the case of Hill, an 80-year-old angler who is suing the landowner who threatened him, arguing that landowners can’t own riverbeds and the public has a right to wade through waterways.
The Colorado Supreme Court this week decided it would hear Hill’s argument that he has a right to sue the landowner, a technical aspect of the lawsuit he filed in 2018. Hill’s ability to sue for access – and possibly create a legal precedent that codifies Colorado’s tenuous rules for floating and wading through private property – is a point of contention for Colorado Attorney General Phil Weiser, who has waded himself into Hill’s case, arguing that shifts in river access policy should be handled by lawmakers in a public process, not the courts.
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“For decades, Colorado’s legislature and executive branches have adhered to the established and existing legal policy to govern river access and have declined opportunities to alter it,” Weiser said in a statement released this week. “In this case, our office is doing our duty to defend Colorado’s legal policy. As for any possible change to that policy, it is the province of the political branches, not the courts, to do so.”
In April, Weiser asked the Colorado Supreme Court to intervene in the case, saying Hill’s case could “undermine statewide collaborate efforts to ensure public access to streams and rivers while respecting private property rights.”
No river in Colorado has ever been declared navigable at statehood and therefore public property owned by the state. That argument has been raised in other states, but not by individuals, Weiser argued. A lower court decision that agrees with Hill’s argument that rivers are public property “could have monumental consequences for water rights in Colorado and could lead to significant litigation challenging exiting property rights,” the attorney general argued in his April 2022 brief asking the Colorado Supreme Court to step into the case.
Even though the Colorado Supreme Court will be hearing arguments on Hill’s ability to sue a landowner, it could weigh his overarching argument that if a waterway was open for commerce when Colorado became a state, then its riverbeds are public property.
Hill and his attorneys have evidence that sawmills floated timber down the Arkansas River and trappers rowed beaver pelts downstream to Front Range cities in 1876, the year Colorado became the 38th state. So, according to that federal test of navigability – called navigable for title – riverbeds that once floated commodities are public property and open for public use.
A ruling in favor of Hill’s argument could disrupt how Colorado recreational users typically handle conflicts with property owners on a case-by-case basis. A 1979 Colorado Supreme Court decision – People v. Emmert – ruled that even if the state’s water is public property, the public does not have the right to float those waters through private property. An attorney general opinion in the 1980s tweaked that ruling to allow rafters and kayakers to legally pass through private property so long as they do not touch any of the privately owned rocks on the riverbed.
That agreement-but-not-quite-a-rule has lasted decades, with occasional flare-ups involving irked landowners and floating paddlers handled with on-sight negotiations and agreements. It’s a system that has worked since the 1980s with neither landowners nor recreational users appearing ready to push too hard for a formal policy that could end up with one of those groups losing either property rights or access. (The implications of that are disconcerting: landowners grappling for reimbursement of “seized” acres that are suddenly public or rivers suddenly closed and paddlers facing trespassing charges.)
Wading along a river bottom – which is legal in several Western states – has never really been on the table in Colorado, with most landowners sure they own the ground beneath the water adjacent to their dry land. Hill is challenging that.
The Colorado Court of Appeals revived his case in January, agreeing with his argument that a lower federal court and a state district court had erred in dismissing his claim that ruled he was a third-party and lacked standing to sue the landowner. Now the state’s highest court will hear arguments from the state that Hill cannot sue to overturn state river access rules and from Hill that, as a member of the public, he has a constitutional right to sue to access public land.
“Technically the court will not be ruling on the merits of water in the river being navigable for title, but they very well could say as long as we can show the Arkansas River is navigable for title, then the public would have the right to wade in the stream and use the river,” said Mark Squillace, a University of Colorado law professor and attorney for Hill. “The court will hear a very narrow question but I think we have a very strong case for standing.”
If the high court agrees that Hill was uniquely impacted by those hurled rocks and his individual right to sue is supported, maybe the state will shift its position and support public access, Squillace said.
“That could happen. The state could decide it is willing to support our claim that Roger has the right to be there. Other states have done that,” Squillace said. “We have been disappointed with how the state is handling this. We would think a progressive attorney general would support the public’s right to use their own waterways.”
