From BHA:
Court ruled against plaintiff Roger Hill, reversing progress in the fight for legal public access and recreation in the navigable waters of Colorado
DENVER – Today the Colorado Supreme Court issued a ruling on the Hill vs. Warsewa water access case, finding against plaintiff Roger Hill and taking a step backward in the fight for legal public access and recreation in the navigable waters of Colorado.
The court decided unanimously against Hill on standing grounds, holding that he does not have any legally protected interest separate from the state’s alleged ownership of the riverbed, and therefore he cannot pursue a declaratory judgment action. The result is that the case will be dismissed.
Backcountry Hunters & Anglers has been engaged in this legal battle for access for years, filing an amicus brief with two of its partners, American Whitewater and the Colorado River Outfitters Association. The brief argued that the Arkansas River was in fact a navigable waterway at statehood and thus the public has a right to wade, float and fish. Today’s decision did not address the question about whether the Arkansas River is a publicly accessible navigable waterway.
“For too long, the state of Colorado has neglected to provide the legal assurance needed to ensure anglers like Roger Hill can freely enjoy the state’s waterways without being threatened or harassed by neighboring private landowners,” said Don Holmstrom, co-chair of CO BHA and an attorney who is tracking the case on behalf of BHA. “Today’s decision leaves anglers like Roger Hill in a catch-22. He cannot sue unless he can prove a legal injury, but he lacks the standing to do so.
“We call on the state’s decision makers to stand up for the public’s right to enjoy recreational access to Colorado’s waters,” Holmstrom continued. “BHA remains committed to working to ensure the public has the right to fish and float in the Centennial State.”
To date, the state of Colorado has failed to affirm the public’s right to access to the state’s navigable waterways. Instead, the state has sided with private landowners who have taken extreme steps to block access from rivers and streams, including “death trap” metal obstacles, barbed wire and other aggressive measures that place recreators in dangerous situations. This status quo fails to recognize the importance of navigability and access to the tens of thousands of individuals each year who access Colorado’s rivers to fish, raft or simply enjoy the state’s natural beauty.
“Apparently, the only remedy for someone in Roger Hill’s position is to test their rights by fishing from the bed of a navigable stream and risking arrest and physical injury by angry landowners,” said attorney and public access expert Mark Squillace. “If Hill or some other parties were arrested for fishing from the bed of a stream, then standing would not be an issue because as defendants they could claim that they have the legal right to stand on the bed of a river because it is held by the state in trust for the people.”
“Indeed,” Squillace continued, “the U.S. Supreme Court has held that a state’s title to the bed of navigable waterways is unlike title that it might hold in other land; rather ‘it is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.’ Sadly, the Court fails to even acknowledge this important precedent let alone apply it to the facts of this case.”
“Today’s decision by the Colorado Supreme Court represents a setback for the public to recreate in the navigable waters of Colorado,” concluded Holmstrom. “This is not the end but only the beginning of our efforts to secure those rights.”
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