The U.S. Court of Appeals will hear oral arguments on Tuesday in a case brought by Colorado fisherman Roger Hill in 2018 which asserts that a segment of the Arkansas River in Colorado is public property based on longstanding legal precedent. Landowner Mark Warsewa owns the land adjacent to the stretch of the Arkansas River that Hill likes to fish, and he maintains that he owns the river bed in dispute as well.

Colorado is a state whose stream access helps to drive a powerful outdoor recreation economy, however, neither the Colorado Constitution nor Revised Statutes provide sufficient guidance to property owners, recreationists, or Courts regarding waterways’ ‘navigability for title’ or public access rights. In most other U.S. states, waterways that were used for commerce or could have been used for commerce at the time of statehood have been classified as ‘navigable for title,’ which means that they were navigable for trade at one point and therefore the waterway and the underlying bed are ‘owned’ by the public. This navigability for title designation results in riverbed ownership being retained by the state for the use and benefit of the people.[1]

Colorado became a state in 1876 but has never designated any rivers in the state as navigable, despite there being sufficient historical evidence to justify designation of some of its rivers. The confusion around stream access and recreational use of Colorado waterways commonly results in unnecessary conflict between private landowners and recreationists, which can turn violent and lead to arrests and litigation as we’ve seen in this case.

Colorado is not alone in being slow to designate rivers as navigable for title and therefore held in trust for the people. Three Montana rivers were declared navigable for title by the US Supreme Court as recently as 2012 (PPL Montana, LLC v. State) based on historical evidence and therefore became assets of the public – not to be controlled by private entities.

What could happen so that stream access policies change in Colorado?

If the Court finds that there is evidence of historical navigability of the Arkansas River segment in dispute in Hill v. Warsewa and rules that it is navigable for title, there will surely be other rivers proposed for this designation by anglers and outdoor recreationalists across the state. A commission of some sort could be established to evaluate other Colorado rivers in an effort to avoid additional litigation.

Theoretically, the state legislature could also adopt a clear statute, as Montana’s legislature did in 1985. Montana’s 1985 Stream Access Law states that “(1) Except as provided in subsections (2) through (5), all surface waters that are capable of recreational use may be so used by the public without regard to the ownership of the land underlying the waters.”[2] In Montana, as long as water is flowing, people can use the water and riverbed up to "the ordinary high-water mark" of rivers and streams.[3] This law does not however allow the public to enter or cross private lands bordering those streams, thus protecting and respecting private property rights.

Whitewater rafting, kayaking, and sport fishing are among the many river-related activities that make up the powerful Colorado outdoor recreation industry. Colorado’s outdoor recreational opportunities are important to residents and draw tens of millions of tourists to the state every year.[4] Anglers represent a significant- and growing(!)- percentage of Colorado’s population, are well-distributed across the state, and their hobby require access to healthy streams that support fish.[5] [6]

As I’ve moved around to and recreated in different states, it’s been eye-opening to me to learn how different the rules can be from state-to-state. I know that change can be uncomfortable, and that the public vs. private land debate can get heated, but the freedom to wade in Colorado streams and rivers instead of having to buy an expensive raft to fish sure sounds nice, not to mention more equitable than the status quo. 

[1] Pollard's Lessee v. Hagan, 44 U.S. 212 (1845)

[2] MCA 23-2-302

[3] “Stream Access in Montana: Rights and Responsibilities of Landowners and Recreationists.” Montana Fish, Wildlife, & Parks. Accessed Dec. 2018. http://fwp.mt.gov/fish/guide/access/streamAccess.html

[4] Wenzel, John. “Colorado hits new tourism record: 86 million visitors, $1.28 billion in tax revenue.” The Denver Post. June 28, 2018. Accessed Dec. 2018. https://www.denverpost.com/2018/06/28/colorado-tourism-record-2017/

[5] Southwick Associates. “Economic Contributions of Recreational Fishing: U.S. Congressional Districts. Produced for the American Sportfishing Association.” Oct. 2015. Accessed Dec. 2018. https://asafishing.org/uploads/Congressional_District_Sportfishing_Impacts_2015_Report.pdf  

[6] Tory, Sarah. “Colorado’s river economy worth $9 billion.” High Country News. Oct. 2, 2014. Accessed Dec. 2018. https://www.hcn.org/articles/colorados-river-economy-worth-9-billion