Public Stream Access in Colorado Becomes Federal Issue

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.

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 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.


Get Your Fish On.

Plan your next fishing and boating adventure here.

Recommended for You

Fly Tying

Tying the Kamikaze Sculpin

Charlie Craven

The Kamikaze Sculpin is easy to tie, versatile, and smartly designed to get the job done.


8 New Fly Lines for 2019


Here's a look at 8 new fly lines for 2019.

Fly Tying

Perdigon Nymph

Charlie Craven - January 15, 2019

These dense, indestructible nymphs will improve your subsurface game.

See More Recommendations

Popular Videos

Casting Backhand in Tight Quarters

A backhand cast is when you use your backcast to deliver the fly.

Basic Fly Casting

When learning to fly fish, casting is the first thing to master. Lean what to do, and not do, to successfully make a short fly cast.

Basic Saltwater Casting

In saltwater, several basic rules of the sea allows anglers to wade safely, cast well, and catch fish.

See more Popular Videos

Trending Stories


Picking the Perfect Fly-Fishing Leader

George Daniel - January 22, 2018

George Daniels offers his advice on which types of fly-fishing leaders are best for the most...


Alpine Lakes for Remote Monsters

Landon Mayer - April 18, 2018

You don't always catch large trout in these alpine lakes and streams, but even the small ones...

United States

Indian Peaks Wilderness Area Colorado

Steven B. Schweitzer - May 03, 2016

Read about Colorado's backcountry fly fishing in " Indian Peaks Wilderness Area Colorado."

See More Stories

More Industry


Well-Known Fly Fishing Guides Perish Tragically in Fishing Accident

Lynn Burkhead - May 22, 2018

Fly fishing world mourns as news breaks of well-known midwestern guides Brian Schumacher and...


Conservation organizations win big at Jackson Hole One Fly

Brian la Rue - October 26, 2018

The 2018 Jackson Hole One Fly not only raises funds for conservation projects and...


Train Spills Fuel Into the Delaware River

Rob Jagodzinski - August 13, 2018

A train derailment spilled some 4,000 gallons of diesel into the West Branch of the Delaware...

See More Industry

GET THE MAGAZINE Subscribe & Save

Temporary Price Reduction.


Give a Gift   |   Subscriber Services


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