Colorado says fishing next to private land is trespassing

But that could change on the Arkansas River if a legal decision declares it navigable.

 

Mark Squillace is a contributor to Writers on the Range, the opinion service of High Country News. He is professor of law at the University of Colorado Law School, and he represents Roger Hill pro bono in the ongoing dispute over Hill’s right to access the Arkansas River.

If you care about fishing or boating Colorado’s rivers, this ongoing legal case should have relevance for you. Roger Hill is a 76-year-old Coloradan who likes to fish while standing on the bed of a stream. One of his favorite spots is a stretch of the Arkansas River below Salida. 

A local landowner claims that Hill is trespassing when he stands on the streambed adjacent to the landowner’s property. He has responded by repeatedly throwing rocks at Hill while he is fishing and leaving threatening notes on his car. The landowner even shot at one of Hill’s fishing buddies, though he was thrown in jail for that little stunt. 

A rafter floats the Arkansas River near Salida, Colorado.

Hill claims a right to fish from the streambed on the grounds that the stretch of the Arkansas River where he fishes is navigable and that the state of Colorado thereby owns the bed of the stream. So he sued the landowner. 

Now, Colorado has moved to dismiss the case, arguing that it cannot go forward without the state’s participation. In a complicated argument, the state also claims that because it has not consented to being sued, the case must be dismissed. Mind you, the state could simply waive its immunity claim and support the right of people like Hill to fish. Instead, the state is actively seeking to block Hill’s claim that he has the right to access navigable streams.

The notion that states own the beds of navigable streams derives from a constitutional principle known as the “equal footing doctrine.” It provides that when states enter the union, they do so on an “equal footing” with other states. Though Colorado is home to many substantial rivers and streams, none have ever been officially declared “navigable” for purposes of determining title to the bed. 

This is a much bigger problem in Colorado than in most states. In Colorado, you are deemed a trespasser if you merely float over a riverbed adjacent to private property. As a result, Colorado recreational boaters and fishers use Colorado’s waterways at the sufferance of private landowners. One good way around this problem is to have them declared “navigable” for title purposes, and that is what Roger Hill is seeking to do on the Arkansas River.

The U.S. Supreme Court considers waterways to be navigable for title purposes if they were used or could have been used at the time of statehood as highways for commerce. It is well known that fur traders used the Arkansas River to move their furs, and loggers once sent hundreds of thousands of logs downstream for use as railroad ties. That seems to be evidence that the state owns the bed of the river — not in the conventional sense of a party owning land, but as a protector of public rights. 

The Arkansas River flowing through Browns Canyon National Monument near Salida, Colorado.

The Supreme Court’s most eloquent expression of the state as protector of access came in the context of a decision upholding Illinois’ rights to the bed of Lake Michigan in Chicago Harbor. According to the Supreme Court, title to the bed of navigable water bodies “is a title different in character from that which the state holds in lands intended for sale. … It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.”

If the state were properly exercising its trust responsibility to the people of Colorado, then it would have filed this case itself on behalf of Roger Hill. Short of that, it might at least have intervened on his side after the lawsuit was filed, or even just stayed out of the dispute. 

Instead, it seeks to dismiss the case and thereby undermine all the boaters and fishers who merely want to exercise the rights guaranteed to them by the U.S. Constitution. Think about what this means: State leaders charged with protecting public rights in navigable waters are actively seeking to block those rights.   

Colorado is renowned for its outdoor recreation, and it seems foolhardy for it to interfere with citizens seeking to exercise their constitutionally protected rights to state waterways. Come November, the people of Colorado will elect a new governor and a new attorney general. We need to elect leaders who will stand up for the people and protect our public rights, including the public’s constitutional right to access Colorado’s remarkable navigable waterways. 

High Country News Classifieds
  • PLANNED GIVING OFFICER
    National Parks Conservation Association (NPCA), the nation's oldest and largest national parks nonprofit advocacy organization seeks a Planned Giving Officer. Do you find energy in...
  • DEPUTY DIRECTOR
    The Methow Valley Citizens Council has a distinguished history of advocating for progressive land use and environmental values in the Methow Valley and Okanogan County...
  • ACTING INDIGENOUS AFFAIRS DESK EDITOR
    High Country News is seeking an Acting Indigenous Affairs Editor to oversee the work of our award-winning Indigenous Affairs Desk while our editor is on...
  • GRANTS PROGRAM DIRECTOR
    The Cinnabar Foundation seeks an enthusiastic, team-oriented and knowledgeable Grants Program Director to work from their home in Montana. Established in 1983, the Cinnabar Foundation...
  • ARTEMIS PROGRAM MANAGER
    The Artemis Program Manager will work with National Wildlife Federation sporting and public lands staff to change this dynamic, continue to build upon our successful...
  • ALASKA SEA KAYAK BUSINESS FOR SALE
    Well-known and successful sea kayak, raft, hike, camp guiding & water taxi service. Sale includes everything needed to run the business, including office & gear...
  • MEMBERSHIP AND EVENTS PROGRAM COORDINATOR
    Great Old Broads for Wilderness seeks a detail-oriented and enthusiastic Membership and Events Coordinator to join our small, but mighty-fun team to oversee our membership...
  • PROGRAM DEVELOPMENT FACILITATOR
    ABOUT THE HIGH DESERT MUSEUM Since opening in 1982, HIGH DESERT MUSEUM has brought together wildlife, culture, art and natural resources to promote an understanding...
  • LAND STEWARD, ARAVAIPA
    Steward will live on-site in housing provided by TNC and maintains preserve areas frequented by the visiting public and performs land management activities. The Land...
  • DEVELOPMENT WRITER
    Who We Are: The Nature Conservancy's mission is to protect the lands and waters upon which all life depends. As a science-based organization, we create...
  • CONNECTIVITY SCIENCE COORDINATOR
    Position type: Full time, exempt Location: Bozeman preferred; remote negotiable Compensation: $48,000 - $52,000 Benefits: Major medical insurance, up to 5% match on a 401k,...
  • EXECUTIVE ASSISTANT
    ArenaLife is looking for an Executive Assistant who wants to work in a fast-paced, exciting, and growing organization. We are looking for someone to support...
  • EXECUTIVE DIRECTOR
    The Mountain Lion Foundation is seeking an Executive Director. Please see our website for further information - mountainlion.org/job-openings
  • WASHINGTON DC REPRESENTATIVE
    Position Status: Full-time, exempt Location: Washington, DC Position Reports to: Program Director The Western Organization of Resource Councils (WORC) is seeking a Washington, DC Representative...
  • REGIONAL CAMPAIGN ORGANIZER
    Position Title: Regional Campaign Organizers (2 positions) Position Status: Full-time, exempt Location: Preferred Billings, MT; remote location within WORC's region (in or near Grand Junction...
  • DEVELOPMENT DIRECTOR
    Driggs, ID based non-profit. Full time. Full job description available at tvtap.org. Submit cover letter and resume to [email protected]
  • ENVIRONMENTAL AND CONSTRUCTION GEOPHYSICS
    - We find groundwater, buried debris and assist with new construction projects for a fraction of drilling costs.
  • SPRING MOUNTAINS SOLAR OFF GRID MOUNTAIN HOME
    Located 50 miles northwest of Las Vegas, Nevada in the pine forest of Lee Canyon at 8000 feet elevation. One of a kind property surrounded...
  • MAJOR GIFTS MANAGER - MOUNTAIN WEST, THE CONSERVATION FUND
    Cultivate, solicit and steward a portfolio of 75-125 donors.
  • NATURE'S BEST IN ARAVAIPA CANYON
    10 acre private oasis in one of Arizona's beautiful canyons. Fully furnished, 2123 sq ft architectural custom-built contemporary home with spectacular views and many extras....