Appeals Court Decision Advances Stream Access Case in Colorado

On January 23rd, Colorado river users received welcome news from 10thCircuit Court of Appeals by allowing a lawsuit to proceed between fisherman Roger Hill, landowner Mark Warsewa and the State of Colorado. The dispute between the angler and landowner has been in the courts since 2018, with the state moving to intervene based on 11thAmendment grounds. In 2019, the District Court ruled that Hill lacked standing, which precipitated the appeals process that led to this ruling.

Roger Hill claims that his favorite fishing spot on the Arkansas River near Texas Creek should be open to the public and legal to fish. Based on newspaper accounts from the early 1870’s, before Colorado statehood of 1876, the river was used to float logs and railroad ties down that stretch of the river, which supports the argument that the river was “navigable at the time of statehood because it was regularly used and was susceptible to being used in its ordinary condition at the time of statehood as a highway for commerce, over which trade and travel are or may be conducted.” This is the federal test of navigability for title, meaning that the title of the stream bed was granted to the state at the time of statehood. In most states, this would mean that the waterway would be held in the public trust and for use of the public.

The recent court ruling gives hope that Colorado stream access policy can be improved in the future. As Don Holmstrom, Colorado BHA co-chair states, “The decision by the 10thcircuit is a significant step forward for public fishing access. Colorado has some of the worst laws for public access in the West. The Court’s ruling overcomes a procedural issue that can allow for a decision on the merits. More legal hurdles are likely to be seen but BHA will continue to support Mr. Hill’s right to fish on property that was navigable at the time of statehood with title held in trust for public uses such as fishing.”

In 2010, the Utah legislature passed the Public Waters Access Act, which allows recreationists the right to use navigable waters flowing through private property, after a State Supreme Court decision. Could the Hill lawsuit be the beginning for better stream access in CO?

 

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