{"id":36732,"date":"2022-12-16T22:25:18","date_gmt":"2022-12-17T05:25:18","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/the-rock-hurling-spat-that-could-upend-colorados-river-access-rules\/"},"modified":"2026-03-31T02:33:00","modified_gmt":"2026-03-31T08:33:00","slug":"the-rock-hurling-spat-that-could-upend-colorados-river-access-rules","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/the-rock-hurling-spat-that-could-upend-colorados-river-access-rules\/","title":{"rendered":"The rock-hurling spat that could upend Colorado\u2019s river access rules"},"content":{"rendered":"\n

\"Roger
Roger Hill fishes a small creek in southwest Colorado. The angler has sued an Arkansas River landowner in an effort to change Colorado\u2019s stream access laws. (Provided by Roger Hill)<\/span><\/figcaption><\/figure>\n<\/p>

It\u2019s been more than a decade since a riverside property owner hurled rocks at angler Roger Hill as he waded and stalked trout in the Arkansas River above the Royal Gorge.<\/p>\n

The ripples from that splashy spat could upset Colorado\u2019s murky river access rules<\/a>.<\/p>\n

The Colorado Supreme Court this week decided<\/a> it would take up the case of Hill, an 80-year-old angler who is suing the landowner who threatened him, arguing that landowners can\u2019t own riverbeds and the public has a right to wade through waterways.<\/p>\n

The Colorado Supreme Court this week decided it would hear Hill\u2019s argument that he has a right to sue the landowner, a technical aspect of the lawsuit he filed in 2018. Hill\u2019s ability to sue for access \u2013 and possibly create a legal precedent that codifies Colorado\u2019s tenuous rules for floating and wading through private property \u2013 is a point of contention for Colorado Attorney General Phil Weiser, who has waded himself into Hill\u2019s case,<\/a> arguing that shifts in river access policy should be handled by lawmakers in a public process, not the courts.<\/p>\n

In it, he covers the industry from the inside out, plus the fun side of being outdoors in our beautiful state.<\/p>\n

\u201cFor decades, Colorado\u2019s legislature and executive branches have adhered to the established and existing legal policy to govern river access and have declined opportunities to alter it,\u201d Weiser said in a statement released this week. \u201cIn this case, our office is doing our duty to defend Colorado\u2019s legal policy. As for any possible change to that policy, it is the province of the political branches, not the courts, to do so.\u201d<\/p>\n

In April, Weiser asked the Colorado Supreme Court to intervene in the case, saying Hill\u2019s case could \u201cundermine statewide collaborate efforts to ensure public access to streams and rivers while respecting private property rights.\u201d<\/p>\n

No river in Colorado has ever been declared navigable at statehood and therefore public property owned by the state. That argument has been raised in other states, but not by individuals, Weiser argued. A lower court decision that agrees with Hill\u2019s argument that rivers are public property \u201ccould have monumental consequences for water rights in Colorado and could lead to significant litigation challenging exiting property rights,\u201d the attorney general argued in his April 2022 brief<\/a> asking the Colorado Supreme Court to step into the case.<\/p>\n

Even though the Colorado Supreme Court will be hearing arguments on Hill\u2019s ability to sue a landowner, it could weigh his overarching argument that if a waterway was open for commerce when Colorado became a state, then its riverbeds are public property.<\/p>\n

Hill and his attorneys have evidence that sawmills floated timber down the Arkansas River and trappers rowed beaver pelts downstream to Front Range cities in 1876, the year Colorado became the 38th state. So, according to that federal test of navigability \u2013 called navigable for title<\/a> \u2013 riverbeds that once floated commodities are public property and open for public use.<\/p>\n

A ruling in favor of Hill\u2019s argument could disrupt how Colorado recreational users typically handle conflicts with property owners on a case-by-case basis. A 1979 Colorado Supreme Court decision \u2013 People v. Emmert \u2013 ruled that even if the state\u2019s water is public property, the public does not have the right to float those waters through private property. An attorney general opinion in the 1980s tweaked that ruling to allow rafters and kayakers to legally pass through private property so long as they do not touch any of the privately owned rocks on the riverbed.<\/p>\n

That agreement-but-not-quite-a-rule has lasted decades, with occasional flare-ups involving irked landowners and floating paddlers handled with on-sight negotiations and agreements. It\u2019s a system that has worked since the 1980s with neither landowners nor recreational users appearing ready to push too hard for a formal policy that could end up with one of those groups losing either property rights or access. (The implications of that are disconcerting: landowners grappling for reimbursement of \u201cseized\u201d acres that are suddenly public or rivers suddenly closed and paddlers facing trespassing charges.)<\/p>\n

Wading along a river bottom \u2013 which is legal in several Western states \u2013 has never really been on the table in Colorado, with most landowners sure they own the ground beneath the water adjacent to their dry land. Hill is challenging that.<\/p>\n

The Colorado Court of Appeals revived his case in January, agreeing with his argument that a lower federal court and a state district court had erred in dismissing his claim that ruled he was a third-party and lacked standing to sue the landowner. Now the state\u2019s highest court will hear arguments from the state that Hill cannot sue to overturn state river access rules and from Hill that, as a member of the public, he has a constitutional right to sue to access public land.<\/p>\n

\u201cTechnically the court will not be ruling on the merits of water in the river being navigable for title, but they very well could say as long as we can show the Arkansas River is navigable for title, then the public would have the right to wade in the stream and use the river,\u201d said Mark Squillace, a University of Colorado law professor and attorney for Hill. \u201cThe court will hear a very narrow question but I think we have a very strong case for standing.\u201d<\/p>\n

If the high court agrees that Hill was uniquely impacted by those hurled rocks and his individual right to sue is supported, maybe the state will shift its position and support public access, Squillace said.<\/p>\n

\u201cThat could happen. The state could decide it is willing to support our claim that Roger has the right to be there. Other states have done that,\u201d Squillace said. \u201cWe have been disappointed with how the state is handling this. We would think a progressive attorney general would support the public\u2019s right to use their own waterways.\u201d<\/p>\n

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com<\/em><\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Colorado Supreme Court wades into lawsuit arguing Colorado rivers are public property<\/p>\n","protected":false},"author":1,"featured_media":36733,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[1030,28,976,1569],"naviga_topic":[],"class_list":["post-36732","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-environment","tag-headlines","tag-outdoor-recreation","tag-river-use"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/36732","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=36732"}],"version-history":[{"count":1,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/36732\/revisions"}],"predecessor-version":[{"id":83433,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/36732\/revisions\/83433"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/36733"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=36732"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=36732"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=36732"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=36732"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}