February 05, 2018
By Jonathan Wright
Public stream access in Colorado has once again become a contested issue, and this time it's being argued in federal court. Landowners in the centennial state claim that they own not only riverbanks, but river bottoms, and that fishermen wading midstream are committing criminal trespass.
As reported last week in the Denver Post, Colorado Springs angler and guidebook author Roger Hill has brought suit in US District Court, maintaining that the bottom of a river is actually public property. At issue is a federal doctrine called "Navigability for Title", where in cases that people or goods have been historically transported on the water, it establishes public utility of the resource -- but only if the use was prior to the designation of statehood.
Hill is suing landowner Mark Warsewa, who holds title to property that spans both banks of the Arkansas River. Hill has had repeated confrontations with Warsewa after accessing the river from a public access point, and wading into the section of water that runs between Warsewa's holdings.
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.
Coverage in the Post continues, quoting Hill's attorneys as stating, "There has been a lot of confusion around this. Private landowners have been led to believe that they have the right to block access to waterways in front of their property, but that is only true if that river was not navigable for title purposes," said Mark Squillace, a professor at the University of Colorado Law School who, with Dillon attorney Alexander Hood, is representing Hill. "This case has the potential to bring some clarity to the law and show that, yes, like any other state in the country, we have the right to access state-owned river beds under navigability for title."
Neighboring states in the region, notably Montana, have had the question resolved for some time, with Montana stream access laws allowing wading anglers full access to stream beds up to the high water mark of navigable watercourses there. The question of what comprises the definition of navigability then comes into question, and what vessels were intended to be accommodated by early lawmakers. If river barges were part of the original intended vision, then inflatable rafts that only draw inches of water -- and certainly free floated logs, despite historical precedent -- might not be encompassed within legal bounds. Currently, navigability remains legally undefined in Colorado.
One hundred miles west of of Warsewa's property lies the Lake Fork of the Gunnison River, a much smaller stream than the Arkansas. Here, a rancher sued in 2001 to bar rafting access to outfitters through his property. To reinforce his position, the rancher strung a length of 1/4" steel cable across the river from bank to bank, presenting an inobvious but potentially lethal threat to anyone floating the river. As of August, 2017, the cable remained in place, with the only public warnings being printed cautions from the Forest Service attached to pit toilets in a campground upriver nearby. As with the question of access rights, whether this comprises felony menacing is apparently a matter of definition, as local law enforcement has not intervened.
Public stream access is an ongoing and thorny issue that is still winding it's way through the court system, and any resolutions are bound to have broad implications for sportsmen and property owners alike.