Will a Colorado Supreme Court Case Open Thousands of Miles of “Private Water” to Public Fishing?

The public’s ability to fish and wade Colorado’s rivers is on the line as the Colorado Supreme Court takes up a case involving a dispute between an angler and a landowner on the Arkansas River. If the court rules in favor of the fisherman, there could be major changes to the way wade-in anglers access the legendary streams and rivers of the Centennial State.

Stream access is a highly contentious issue in the American West. In Colorado, it’s complicated by the fact that different parties can own different pieces of the river—including riparian areas, the surface of the water, the streambed, and the water itself. Eighty-one-year-old Roger Hill, the angler at the center of Hill v. Warsewa, argues that land ownership doesn’t extend to the streambed beneath the surface of a flowing waterbody. Mark Warsewa and Linda Joseph—the landowners that Hill is suing—disagree.

The impetus for the case arose more than a decade ago when Hill was fishing his favorite stretch of the Arkansas, not far from the town of Salida, Colorado. He says that’s when landowner Linda Joseph began hurling rocks down at him from the top of a bluff on her property. He managed to evade the falling rocks and left the fishing hole, exiting along the same stretch of Bureau of Land Management (BLM) property that he’d used to access the spot. One year later, a friend was fishing the same hole on Hill’s recommendation when Warsewa, who co-owns the adjacent land with Linda Joseph, discharged a firearm in his direction.

“Respondent Roger Hill … has a real, concrete, and particularized dispute with Defendants Warsewa and Joseph,” the complaint before the Colorado Supreme Court reads. “Hill would like to return to his favorite fishing hole on the Arkansas River without facing the risk of violence, civil suit, or arrest. But the Individual Defendants, who undisputedly own the land adjacent to the River, have assaulted Hill with baseball-sized rocks and threatened him with prosecution for trespass.

The Defendants even shot at Hill’s friend who was fishing while wading on the disputed riverbed. As a result, Hill cannot safely return to the River to fish without first having his rights, and the Individual Defendants’ rights, clarified.”  

If heard and considered on the merits, the case will come down to whether the Arkansas River, at this particular location, was “navigable” for commercial use at the time of Colorado’s statehood. If the river is deemed navigable, then it’s owned by the state and held in trust for the public. According to Hill’s legal team, there is substantial evidence that commerce—in the form of logging, railroad activity, and beaver trapping—did indeed occur within that stretch of the Arkansas River when Colorado was entering the Union.

If the Colorado Supreme Court agrees and rules in favor of Hill via the navigability test, he and other members of the public could soon have the right to access the streambed of the Arkansas as it flows past Texas Creek. That means anglers will be permitted to stand in the river and wet a line—despite any objections from adjacent landowners.

Major Implications for Other Streams and Rivers in Colorado

If Hill prevails, his case could open the door for a significant liberalization of Colorado’s notoriously restrictive stream access laws. And it will almost certainly lead to a flurry of future court cases based on similar instances of denied access on other Colorado streams and rivers. Some access proponents have suggested that the state could get out ahead of such litigation by appointing a regulatory body with the authority to determine which waterways are navigable—and therefore open to wade-in access.

American Whitewater, the Colorado River Outfitters Association, and Backcountry Hunters & Anglers (BHA) have filed an amicus brief in the case on behalf of Hill and other public water users. “BHA has taken action to support Hill’s legal fight from early in the litigation,” said Colorado BHA member Dan Holmstrom in a recent press release. “A large part of Colorado’s outdoor economy depends on recreation related to public waters. Expanding access creates significant economic opportunities. Improved access to public waters is one of the best outdoor pathways for communities where recreational opportunities historically have been challenging.”  

For its part, the state of Colorado has not supported Hill in his quest to gain fishing access to his favored stretch of the Arkansas River. In fact, since Colorado entered the Union in 1876, neither the state legislature nor the Governor have supported the notion that any of the state’s streams or rivers are navigable and therefore open to public access. 

Read Next: U.S. Supreme Court Dismisses Lawsuit Challenging New Mexico Stream Access Ruling

Back in April, before Hill’s case made it onto the Colorado Supreme Court’s docket, the state’s attorney asked the High Court to preemptively strike it down. “If this longstanding Colorado approach to water and river access is to change, the decision-making process belongs to the legislative and executive branches of government,” said Attorney General Phil Weiser at the time, adding that, “the courts should not upend this long-settled practice.”