Common Waters, a new film highlighting stream access issues in Colorado, has just released on YouTube. The film profiles river access advocate and angler Roger Hill, and also gives the most comprehensive overview of problems impacting stream access in Colorado to date.
Roger Hill is an angler who spends time on the Arkansas River. Hill accesses the river via Bureau of Land Management land, then continues staying either in the river, or below the high-water mark, when the river enters private property. Hill has yet to be arrested.
Why would they trespass?
Hill, and many others in Colorado, including filmmaker Benjamin Kraushaar, believe the public has a right to access rivers that flow through private property, whether it’s for fishing or floating. Currently, precedent in Colorado’s Supreme Court holds that the public does not have a right to access water as it flows through private land, despite the state’s constitution declaring all natural streams as public property.
According to legal experts in the film, that means Colorado should hold title to those lands in a trust, effectively guaranteeing continued public use. The state Supreme Court and Attorney General both disagree, as highlighted by some stretches of river not even being open to floating through on a raft or boat.
The way that Hill and others see it, they’re not trespassing. They’re exercising a legal right they have to access water guaranteed to them by the state constitution. Getting arrested would allow Hill to have standing in the case, thereby giving him and other legal experts a new avenue to challenge Colorado’s access laws.
Colorado is an outlier
Colorado is unique among Western states because of its stance on accessing rivers and streams. Even Utah and Wyoming, two states with notoriously tricky access to some rivers, still allow anglers to float through land that’s private. Colorado actively fights against any access to rivers through private property, even though that access is guaranteed in the state constitution.
“Despite the Colorado Constitution declaring all natural streams public property and federal law mandating a public trust for navigable waterways, the Colorado Supreme Court and Attorney General have failed to uphold these rights, effectively denying access to waters flowing through private land and even challenging the navigable status of rivers,” Common Waters’ filmmakers said in a brief accompanying their film. “This stance makes Colorado an outlier in the West, where many states actively protect public access to both navigable and non-navigable streams.”
Longstanding Right
Generally speaking, if a river was declared navigable at the time of statehood, that river’s streambed is property of the state, and therefore, accessible by the public. To determine a river’s navigability, it has to be proved that the river was used for commercial trade or travel, or was “susceptible” of being used for that purpose. This means larger rivers and streams—like those flowing through many mountain valleys where land costs a premium—should be considered public property.
This doesn’t give the public a right to access the river through private property, nor does it give the public a right to leave the river above the ordinary high-water mark. As Hill and other river access advocates argue, it simply means the public has a right to fish and float the river, even when flowing through private property.
This right is recognized in Montana and Idaho, and to some extent, in California and New Mexico.
Taking Action
Common Waters is a call to action for anglers and anyone who enjoys rivers throughout Colorado. Director Cody Perry said the impetus behind making the film started with the 2009 Taylor River dispute, which ultimately saw a law allowing a “right to float” fail.
“Through Common Waters, we aim to pull this vital issue from the shadows of neglect, not merely to educate Coloradans on our ambiguous river laws, but to ignite a renewed call for decisive action from our elected officials, who are entrusted to resolve these hard issues for the public good,” Perry said. “It’s time to ensure our rivers remain truly common, accessible for everyone who comes to Colorado, for river adventure, for generations to come.”
The film is available on YouTube, and is still touring through Colorado, as well.
