It likely comes at no surprise that stream access is a contentious topic wherever it is challenged. Anglers across the country commonly deal with whether or not a waterway is public, and more so if the streambed is public property. One such challenge, on the Arkansas River in Colorado, picked up momentum in the state’s court system when the Colorado Court of Appeals announced that the “Hill v. Warsewa” case will move forward into appellate court. Mark Squillace, a professor of natural resources law at UC Boulder, remarked that the court’s decision is a big development in taking a public waters access case to trial.
You can read Mr. Squillace’s full remarks on the case, below:
“The Colorado Court of Appeals has upheld our standing to bring this stream access case. The court denied our claim that the public enjoys an easement over the bed for which Hill could bring a quiet title action, but held nonetheless that Mr. Hill has standing to claim that the Arkansas River is navigable for title and subject to a trust on behalf of the public. Here’s the key language from pp. 16-17 of the opinion:
If, as Hill alleges, the relevant segment of the river was navigable at statehood, then the Warsewa defendants do not own the riverbed and would have no right to exclude him from it by threats of physical violence or prosecution for trespass. In support of his claim, Hill proffers numerous factual allegations that the river was used for commerce at or near the time of statehood, including floating beaver pelts, logs, and railroad ties down the river. We certainly cannot, at this early stage, know whether Hill will be able to establish that the river segment was navigable at statehood. But we cannot say it is not plausible.
Moreover, as noted, the question of whether, and to what extent, the public trust doctrine should apply to the bed of a navigable river has never been resolved — or, as far as we can tell, even addressed — in Colorado. Nor has Hill’s claim that he is entitled to access to the riverbed based on English common law been resolved or addressed. Thus, it cannot be said that the law as it stands now unequivocally bars Hill’s claim.”
To learn more about the case, and its importance, check out this article from Backcountry Hunters and Anglers.
You can also read the court’s opinion on the case, here.
