A lawsuit that sought to clarify Colorado’s stream access laws and improve access for anglers there has been brought to a halt. The Colorado Supreme Court ruled Monday that 81-year-old angler Roger Hill does not have the legal standing to continue his lawsuit, State of Colorado v. Hill, in which he argued for the public’s right to wade in certain rivers that flow through or adjacent to private property.
In their June 5 decision, the justices wrote that Hill “does not have standing to pursue the declaratory judgment claim.” They found that because Hill’s case is based on a question of State property ownership and not his own “legally protected interest,” he did not have a legal right to carry the lawsuit forward.
The court’s decision strikes a blow to the pro-public-access crowd and maintains the status quo allowing private landowners to exclude the public from certain streambeds in the state.
How the Stream Access Lawsuit Began
Hill’s legal saga started in the summer of 2012, when private landowner Linda Joseph accused him of trespassing and threw rocks at him while he wade fished a stretch of the Arkansas River adjacent to Joseph’s home. Then, in 2015, Joseph’s husband, Mark Warsewa, fired his handgun in the direction of one of Hill’s friends, who was wade fishing in the same spot on the Arkansas. (Warsewa served 30 days in jail for this stunt.)
Hill filed a lawsuit against Joseph and Warsewa in 2018. He argued that the two landowners did not have a right to exclude him from a portion of the Arkansas River near their home because that portion of the streambed should belong to the public.
Hill later added the state of Colorado to his suit. In doing so, he launched a campaign to clarify the state’s stream access laws and determine what right (if any) the public has to wade in certain rivers that flow over or adjacent to privately owned land.
Stream Access Laws in Colorado
At the root of Hill’s argument is the idea of “navigability.” This is a distinction that the federal government uses to determine whether a stretch of river has been used for commerce. The term became important when Western states received statehood, as the federal government considered the streambeds of “navigable waterways” to be owned by these states and therefore held in the public trust.
Colorado, however, did not declare any of its rivers to be navigable when statehood was established in 1876. And in 1912, the Colorado Supreme Court solidified this idea when it found that all rivers in the state were “nonnavigable within its territorial limits.” This has allowed private landowners in the state to claim ownership over streambeds that flow adjacent to or over private land.
Hill, meanwhile, has argued that the Arkansas was navigable at the time of statehood and remains navigable today, according to the federal government’s definition. He points to historical references of beaver trappers and railroad employees who used the Arkansas to transport pelts and railroad ties. (A Gold Medal trout stream and a mecca for whitewater paddlers, the Arkansas remains one of the most important commercial rivers in the state today.)
Furthermore, Hill has told reporters that the Arkansas is just one of many rivers in the state that should be subject to a navigability test. And he’s said that by avoiding any distinctions of navigability on the Arkansas and other rivers in Colorado, the “state has avoided its responsibilities for 150 years.”
Because Hill’s lawsuit could have opened the door to additional court cases based on the question of navigability, it had huge implications for stream access across the state. This led many pro-public-access organizations, including Backcountry Hunters and Anglers and American Whitewater, to join Hill’s side by filing amicus briefs. These groups argued that Hill’s case represented an important opportunity to address a murky and long-simmering public-access issue in Colorado.
“Mr. Hill’s case in front of the state Supreme Court provides an important opportunity to public river users to have a say in clarifying their rights to use the amazing rivers of our state,” American Whitewater stewardship director Hattie Johnson said in a press release earlier this month.
Now, with Hill’s case being tossed out by the state Supreme Court, it seems that sense of clarity will continue to elude anglers, boaters, and other stream-access advocates in Colorado.