Skip to main content

Public Stream Access in Colorado Becomes Federal Issue

Public stream access in Colorado has once again become a contested issue, and this time it's being argued in federal court.

Public Stream Access in Colorado Becomes Federal Issue
Arkansas River in Browns Canyon National Monument. Pat Dorsey photo

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.

Public Stream Access in Colorado Becomes Federal Issue
Steel cable across the river from bank to bank, presenting an inobvious but potentially lethal threat to anyone floating the river.

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.

Public Stream Access in Colorado Becomes Federal Issue
Public warning sign by Forest Service to anglers.

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.

[embed]https://www.youtube.com/watch?v=j-BRr4YdExg[/embed]




GET THE NEWSLETTER Join the List and Never Miss a Thing.

Recommended Articles

Recent Videos

Dana Dribben captured this footage of bonefish feeding on the grass flats near the boat launch of Deep Water Cay. He got the underwater film with a GoPro Hero 3+ Black Edition camera.
Destinations/Species

Underwater footage of feeding bonefish at Deep Water Cay

Master Fly Tier Charlie Craven ties the Chernobyl Ant, a great terrestrial pattern and dry dropper fly.
How-To/Techniques

Tying the Chernobyl Ant

The spring creeks of Kamchatka are untouched waters, harboring wild rainbow trout that have lived their entire lives without seeing a fly. They attack aggressively and as you can see aren't easily spooked by a missed hook set. This mysterious land offers some of the world's most exciting fishing and ancient, undeveloped landscapes. To learn more visit www.thebestofkamchatka.com.
Destinations/Species

Kamchatka Spring Creek Rainbow Trout with The Best of Kamchatka

Guide, author, and Fly Fisherman contributing editor stalks a big rainbow on Colorado's South Platte river with a tiny midge.
Destinations/Species

Landon Mayer Midge Fishing on the South Platte in Colorado

Guide, author, and Fly Fisherman contributing editor Landon Mayer demonstrates how a simple downstream mend can reposition a fly line to create a drag-free drift and natural presentation.
How-To/Techniques

Landon Mayer: Line Management

Charlie Craven shows how to tie the simple but popular Clouser Minnow fly in this step-by-step video guide.
How-To/Techniques

How to Tie the Popular Clouser Minnow Fly

 "I've found that the most effective way to consistently land larger trout is by using this type of short game," says Mayer. "I estimate that 80 percent of the big trout I catch are inside a 20-foot cast. Visualizing and imagining the drift of your fly before you cast is similar to a golfer reading the green and planning the direction of the putt. This creativity forces you to evaluate and plan these opportunities and help you master the short game.”
How-To/Techniques

Mastering The Short Game

Successful flats fishers don't always make 90-foot hero casts for tarpon. In reality, many of the shots—especially in poor light conditions—are less than 50 feet. Capt. Bruce Chard shows Kara Armano how to cast short and accurate, and make the line land straight so you can immediately move the fly.
How-To/Techniques

Fly Casting Short & Stripping For Tarpon

Join guide, author and fly innovator Blane Chocklett in this short film showcasing cicada hatches and the big carp that call them dinner.
How-To/Techniques

Cicadapocalypse: Fly Fishing for Carp with Cicada Flies

Fly Fisherman Magazine Covers Print and Tablet Versions

GET THE MAGAZINE Subscribe & Save

Digital Now Included!

SUBSCRIBE NOW

Give a Gift   |   Subscriber Services

PREVIEW THIS MONTH'S ISSUE

Buy Digital Single Issues

Magazine App Logo

Don't miss an issue.
Buy single digital issue for your phone or tablet.

Buy Single Digital Issue on the Fly Fisherman App

Other Magazines

See All Other Magazines

Special Interest Magazines

See All Special Interest Magazines

GET THE NEWSLETTER Join the List and Never Miss a Thing.

Get the top Fly Fisherman stories delivered right to your inbox.

Phone Icon

Get Digital Access.

All Fly Fisherman subscribers now have digital access to their magazine content. This means you have the option to read your magazine on most popular phones and tablets.

To get started, click the link below to visit mymagnow.com and learn how to access your digital magazine.

Get Digital Access

Not a Subscriber?
Subscribe Now

Enjoying What You're Reading?

Get a Full Year
of Guns & Ammo
& Digital Access.

Offer only for new subscribers.

Subscribe Now