The fight for public freedom to wade in Colorado rivers is getting gnarlier, with fishermen mulling civil disobedience, following a high court ruling this month that, if judges stand by it on Friday, bolsters the state’s position that riverbeds can be private property.
For a decade, this confrontation over who can fish where has revolved around longtime angling ace Roger Hill, 81, a retired Cold War-era physicist from Colorado Springs (his work helped in making nuclear missiles), who had rocks thrown at him as he was casting for trout, catch-and-release, along his favorite stretch of the Arkansas River near Cotopaxi. The owners of land adjacent to the river forced him to leave. He filed a lawsuit claiming a right, as a member of the public, to wade on the bottom of the river. He pressed this case, and won, until Colorado’s attorney general, with legal support from landowners, appealed to the Colorado Supreme Court and prevailed.
The high court judges, in a unanimous ruling on June 5, relied on a legal technicality to block anglers from challenging Colorado’s approach of allowing private control over riverbeds — which looms as an increasingly vexing matter as more wealthy outsiders buy up prime property along rivers. The judges said Hill lacked legal standing and dismissed his lawsuit.
The judges wrote that the case for public freedom to wade is “not his to pursue” — Attorney General Phil Weiser argued only the state government could sue to secure public rights — leaving Hill and fellow anglers in a no-win limbo. They contend Colorado’s navigable rivers, under the U.S. Constitution, belong to the public. But the judges have ruled that they lack legal standing to assert this claim proactively because Colorado authorities have never declared riverbeds public in the first place.
On June 16, Hill’s attorneys filed a petition requesting a rehearing. Judges are expected to respond on Friday.
University of Colorado law professor Mark Squillace, one of the attorneys, called the high court’s ruling “flat out wrong based upon the court’s own prior rulings on standing. To have standing, the court has repeatedly said that you simply need to show an injury to a legally protected interest.” But he doubted judges will reconsider.
And Squillace chafed at the role Weiser played, pressing the case against public access in a state where the economy increasingly depends on recreation, including fishing and rafting.
“The most tragic aspect of this case is that our state attorney general has decided to fight against public access rights, apparently at the behest of wealthy landowners. But for the state’s involvement, it seems very unlikely that standing would have been an issue in this case,” he said.
The Colorado Supreme Court ruling doesn’t address the core issue of who owns riverbeds.
The U.S. Supreme Court has ruled that rivers around the nation that were navigable at the time of statehood — even if the land on either side is privately owned — belong to the public “so that they have the liberty of fishing therein, free from the obstruction or interference of private parties” and are held in trust for the public by state governments.
Had they been allowed to argue the case, Hill and his attorneys planned to present evidence that trappers transporting beaver pelts, settlers floating logs, and railroad construction workers moving ties all “navigated” the Arkansas River around 1876 when Colorado became a state.
Around the West, the laws in most states allow broad public access to riverbeds. Colorado stands out now as the most restrictive. New Mexico’s supreme court recently issued an opinion ensuring public access to float through private property on rivers and streams and stand on the beds of streams even if they were not navigable at statehood.
“I appreciate the Colorado Supreme Court’s recognition that any change to river access rights in Colorado must be made through the political process,” Weiser told the Denver Post in response to queries. “If the legislature takes up this issue, we are committed to working with legislators and stakeholders to evaluate the best approach for Colorado.”
Hill’s legal team conceivably could appeal the Colorado Supreme Court ruling to the U.S. Supreme Court. They’re not planning to do that.
Instead, they are looking beyond courts of law, appealing to anglers in Colorado to assert freedom to wade by deliberately fishing on rivers that were navigable in 1876 where private property owners claim ownership of the riverbeds and exclude open fishing.
“Sadly, the only option is for interested parties to go out and fish on rivers they believe to be navigable and risk arrest and a possible assault. We are prepared to work with Hill and others who are interested in testing the law in this way,” Squillace said.
“I expect that we will have fishermen willing to test their right by going out and fishing from the bed of a stream that they believe to be navigable. If arrested, they would have the right to defend their case on the grounds that the stream is navigable. At that point, their standing to sue would not be an issue since they are a defendant, not a plaintiff.”
Outdoors groups that support public access in the past have considered lobbying Colorado’s governor or state lawmakers to pass a law clarifying who can fish where. Hill’s attorneys have proposed the creation of a state commission to make decisions determining the navigability of the various rivers and streams that run for more than 100,000 miles around the state.
Hill was gone fishing this week — in Montana for now.
The Colorado Supreme Court’s ruling leaves him “angry and sorely disappointed,” he said as he and his son got out of their vehicle and heard birds chirping near the Henrys Fork River.
“But we will continue the fight in other ways,” Hill said.
“The U.S. Supreme Court is clear that the beds of streams and rivers that were navigable are owned by the state for the public, not private landowners,” and the Colorado high court ruling “flouts” federal law and impairs public freedom to wade, he said.
“This is a civil wrong that is being suffered by the public. The public has the right to use rivers.”
