Colorado Supreme Court upholds narrow stream access laws – 'a total outlier' in the Mountain West
Public access to rivers has long been disputed in the West, and the Colorado Supreme Court handed down a ruling this week that leaves the state's stream access laws as narrow as ever, to the frustration of those who want to use rivers for recreation.
The case arose when 81-year-old Roger Hill was fishing in a part of the Arkansas River above the Royal Gorge that ran through private property. The landowner threw rocks at him. Hill later sued the state in 2018, arguing, in part, that the river was navigable when the state was founded in 1876, and therefore its riverbed belongs to the public.
“The problem, of course, with this transfer of title to the bed is that there's no paper to sort of designate which streams are navigable or not navigable,” said Mark Squillace, Hill’s lawyer and a professor of natural resources law at the University of Colorado Law School. “It requires this type of litigation to make the determination that a particular stream or stream segment is in fact navigable for title. And so that’s what we sought to do in this case.”
That argument directly challenged People v. Emmert, a 1979 Colorado Supreme Court decision that concluded that the public could not float on the water through private property on a non-navigable river. A few years later, Colorado's attorney general issued an opinion allowing passage on the river as long as boaters don’t touch the riverbed or shore.
But the court — despite "extensive discussions of the public trust doctrine, the equal footing doctrine, and arguments around who is best positioned to determine legal policy on access to rivers" — ruled unanimously that those arguments are ultimately “irrelevant.” The justices said Hill did not have standing and that “proof of the state’s ownership of the riverbed is a necessary prerequisite.”
“This case requires us to answer just one question: whether Roger Hill has a legally protected interest that affords him standing to pursue his claim for a declaratory judgment ‘that a river segment was navigable for title at statehood and belongs to the State,’” states the opinion, written by Justice Melissa Hart. “He does not.”
Squillace said the decision leaves anglers like Hill in a Catch-22 scenario.
"We don't have standing to litigate the case unless we can prove in advance that Hill has a legal right to be there, but we can't prove that he has a legal right to be there because we don't have standing to sue,” he said. “I think it's just so unfortunate that we're in this position right now where in order to have the court determine our legal rights, we have to put ourselves in harm's way.”
In other Mountain West states, stream access laws vary widely. Montana's law is the region's most permissive, giving the public access to a river and its bed up to the high water mark. Idaho's is similar. The New Mexico Supreme Court ruled last year that the public has the right to touch privately owned streambeds, while the Utah Supreme Court in May upheld a law that limits public access to privately owned streams. Wyoming’s law is similarly restrictive.
Squillace calls Colorado “a total outlier” when it comes to stream access.
“I would say there is not a state in the West — really in the entire country — that has public access rules that are narrower than those here in Colorado,” Squillace said.
He said he may ask the court to reconsider its decision, as the ruling ensures more stream access disputes like the one between Roger Hill and the landowner on the Arkansas River.
“The state is going to have to face the music and realize that they need to change the law in this area,” he said.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Nevada Public Radio, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.