May 05, 2023
By Lynn Burkhead and Joshua Bergan
The Colorado Supreme Court began hearing arguments this week from Roger Hill in a case that stems from an incident on the Centennial State's Arkansas River over a decade ago.
The case, The State of Colorado et al. v. Hill, could be instrumental in stream access rights for anglers in Colorado.
University of Colorado Law School professor Mark Squillace Squillace represents Hill, an 81-year-old angler who years ago had a difficult encounter with a landowner along the Arkansas River. After allegations of assault with rocks and a written threat of being arrested, Hill sued. The Colorado Supreme Court's agreement is to hear the State of Colorado's appeal from a lower court decision in Hill vs. Warsewa, with the issue at stake being whether or not Mr. Hill has "standing" to sue.
"It’s just hard for me to believe, in a state that prizes so much its outstanding outdoor recreational opportunities, that the state of Colorado would say, 'Sorry, public, you cannot bring this lawsuit and the state is allowed to basically deny that it has any responsibility to protect public access,'" Squillace said in his argument.
According to a Denver Post story in 2022, the case dates back to August 2012. That's when the paper says that Mark Warsewa and Linda Joseph, owners of land adjacent to the Arkansas River, told Hill to get off the river as he fished about five miles from Cotopaxi, Colo. The paper also notes that Hill's initial complaint alleges that Joseph threw "baseball-sized rocks" down on him.
The Arkansas has a long history of commercial use, from the downstream floating of raw railroad ties in the mid-19th century to today's white water rafting industry, with proponents claiming the river is one of the most heavily used recreational waterways in the nation.
In January, a Colorado Court of Appeals three-judge panel gave Hill good news in the case, and potentially opened the door for other stream access challenges.
"If, as Hill alleges, the relevant segment of the river was navigable at statehood, then the Warsewa defendants do not own the riverbed and would have no right to exclude him from it by threats of physical violence or prosecution for trespass," Judge Ted C. Tow III said in the appeals decision. "We certainly cannot, at this early stage, know whether Hill will be able to establish that the river segment was navigable at statehood. But we cannot say it is not plausible."
Backcountry Hunters & Anglers, American Whitewater and the Colorado River Outfitters Association have filed an amicus brief supporting Hill in the case.
“I just like to get out on a clear stream and I enjoy watching the fish,” said Hill, a Colorado Springs resident and author of Fly Fishing the South Platte River, in his comments to the Post.
The octogenarian angler was delighted at the decision last year, but now he'll have to see what the state's Supreme Court ultimately decides.
“We’re going to get a chance to establish this as the law of Colorado – the freedom to wade in rivers, whether you fish or not, the freedom to have your feet on the bottom of a river,” he said in the Post story. “It could open access to waters I am dying to fish if I live long enough.”
Lynn Burkhead is a Senior Digital Editor with Outdoor Sportsman Group.