{"id":41067,"date":"2022-04-15T23:25:08","date_gmt":"2022-04-16T05:25:08","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/colorados-attorney-general-wades-into-murky-dispute-that-could-upend-access-to-rivers-streams\/"},"modified":"2026-03-31T02:58:53","modified_gmt":"2026-03-31T08:58:53","slug":"colorados-attorney-general-wades-into-murky-dispute-that-could-upend-access-to-rivers-streams","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/colorados-attorney-general-wades-into-murky-dispute-that-could-upend-access-to-rivers-streams\/","title":{"rendered":"Colorado\u2019s attorney general wades into murky dispute that could upend access to rivers, streams"},"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. (Courtesy of Roger Hill)<\/span>cca<\/span><\/figcaption><\/figure>\n<\/p>

Colorado Attorney General Phil Weiser wants the Colorado Supreme Court to wade into a murky river-access fight.<\/p>\n

Weiser this week filed a lengthy brief asking the state\u2019s high court to intervene before a lower court takes up a case involving a fisherman who says he has a right to wade on a stretch of the Arkansas River and a landowner who says the riverbed is private property.<\/p>\n

Angler Roger Hill\u2019s lawsuit argues that since the Arkansas River was navigable when Colorado became a state, the state owns the riverbed and it\u2019s open to everyone. Weiser, in his request that the Supreme Court intervene, said Hill\u2019s lawsuit \u201cis part of a coordinated effort to disrupt settled agreements for the use of state rivers.\u201d<\/p>\n

For four decades, riverside property owners and rafters have had a tenuous agreement that allowed floaters to pass so long as they did not touch the riverbed. Wading on those rocks, though, could get an angler in trouble. It\u2019s more of an agreement than a rule. There is no legislation or court decision that definitively outlines river access in Colorado.<\/p>\n

A 1979 decision by the Colorado Supreme Court \u2013 People v. Emmert \u2013 ruled that the state\u2019s waters were public property but suggested that the public did not have the right to float those waters through private property. A Colorado attorney general opinion in 1983 said rafters and kayakers could be subject to trespass charges if they touched the river bottom.<\/p>\n

And that\u2019s been the deal ever since. Years of agreements between recreational river users and landowners have kept river access in check. The occasional conflict between rafters and landowners has been typically settled with negotiations. Neither property owners nor recreational users have been keen to push the issue, each side realizing that a court decision or legislation could upset the process that has worked for nearly 40 years.<\/p>\n

Until Hill, a Colorado Springs angler, started looking for something a bit more definitive.<\/p>\n

When a landowner on the Arkansas River chucked rocks at him as he fished a shallow stretch in 2012, he filed a lawsuit against the landowner. His argument says that if a river was used for commerce \u2013 and thus navigable \u2013 when Colorado became a state in 1876, then the state owns the riverbed and anyone can walk on it.<\/p>\n

A district court rejected Hill\u2019s claim. The Colorado Court of Appeals earlier this year sent the case back to the lower court. Weiser wants the Colorado Supreme Court to review the appellate court\u2019s decision before the lower court takes up the case. He argues the appeals court made a mistake in its ruling and the high court needs to act.<\/p>\n

Weiser\u2019s focus on the appeals court decision concerns Hill\u2019s ability to argue what should be a statewide issue. Weiser admits that Hill may have a case involving injury from hurled rocks, but argues the angler shouldn\u2019t be able to claim an injury that could change public access to all Colorado rivers.<\/p>\n

Weiser argues the appeals court decision could allow anyone to sue a landowner who would have to defend themselves by arguing about the navigability of the river 150 years ago. That could upset years of work by the state to educate river users about public access and potentially create more conflicts, the AG filing argues.<\/p>\n

\u201cThe court of appeals\u2019 opinion will undermine statewide collaborative efforts to ensure public access to streams and rivers while respecting private property rights,\u201d Weiser says.<\/p>\n

No river in Colorado has even been declared navigable at statehood and thus owned by the state. But the argument has been raised in other states. And those arguments, Weiser notes, have been presented by the states, not individuals.<\/p>\n

\"Anglers
Anglers fish the Arkansas River March 5 at the base of the Lake Pueblo Dam. (Mike Sweeney\/Special to The Colorado Sun)<\/span>cca<\/span><\/figcaption><\/figure>\n<\/p>

He also argues that the appeals court decision could upend long-settled issues around property rights and water rights in Colorado. If landowners granting easements to irrigators suddenly do not have rights to the land, irrigators could be unable to divert water.<\/p>\n

\u201cSuch a decision could have monumental consequences for water rights in Colorado and could lead to significant litigation challenging existing property rights,\u201d the attorney general\u2019s filing reads.<\/p>\n

Other states have pushed river access issues to their high courts, including Utah in 2017 and most recently New Mexico. The New Mexico Supreme Court last month took about 15 minutes to reject a rule by the state\u2019s game commission that allowed riverfront landowners to claim the waterways next to their property are unnavigable and therefore closed to everyone but them.<\/p>\n

New Mexico appeared to have its right-to-float river access issues figured out before the game commission\u2019s rule. The New Mexico high court decision aligns with similar court decisions in Montana, Oregon and Utah.<\/p>\n

Hill\u2019s attorney, University of Colorado law professor Mark Squillace, said he was disappointed by the attorney general\u2019s arguments. He feels the petition could further delay the case for Hill, who is 80.<\/p>\n

\u201cFor that reason, I hope that the court responds to this quickly, whether or not they decide to hear the appeal,\u201d Squillace said.<\/p>\n

American Whitewater, the river advocacy group that has spent years working to protect river access in Colorado, agrees that Hill\u2019s lawsuit could smash long-held agreements that balance access with private property interests. But the group takes issue with Weiser\u2019s focus on how Hill\u2019s lawsuit could impact property rights and water interests \u201cand now how it could negatively impact outdoor recreation and the significant economy it supports,\u201d said Hattie Johnson, the Southern Rockies stewardship director for American Whitewater.<\/p>\n

Paddlers appreciate the state\u2019s argument that Hill\u2019s lawsuit is not the way to settle river access issues, Johnson said, \u201cbut it\u2019s frustrating to see the state take a position favoring one group of users.\u201d<\/p>\n

\u201cIf the legislative and executive branches are to begin a comprehensive process to address river access, river runners need to have a seat at the table,\u201d she said.<\/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":"

Official wants state Supreme Court to intervene in a case, warning of \u2018monumental consequences\u2019<\/p>\n","protected":false},"author":1,"featured_media":41068,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[120,28,1518],"naviga_topic":[],"class_list":["post-41067","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-colorado","tag-headlines","tag-rivers"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/41067","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=41067"}],"version-history":[{"count":1,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/41067\/revisions"}],"predecessor-version":[{"id":84845,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/41067\/revisions\/84845"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/41068"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=41067"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=41067"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=41067"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=41067"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}