Home Science Environment The Colorado stream case that could revolutionize river access

The Colorado stream case that could revolutionize river access


This story was initially printed by High Country News and is reproduced right here as a part of the Climate Desk collaboration.

The first rock hurtled previous Roger Hill’s head and plunked into the Arkansas River on a summer time day in 2012. Hill, then 71, stood hip-deep within the move, clad in waders, and clutching his fly rod. Atop a steep bluff, a lady — whose identify, Hill later discovered, was Linda Joseph — glowered down at him. Hill was trespassing on non-public property, Joseph shouted, and flung one other rock. “If she’d hit me with a baseball-sized rock from 50 feet up, honest to God, it would have killed me,” Hill recalled.

Hill retreated, however the dispute was solely starting. The subsequent time he waded to his favourite spot, some 20 miles upstream of Cañon City, Colorado, Joseph’s husband, Mark Warsewa, left a notice on Hill’s automotive that threatened him with arrest. Hill stayed away, however in 2015, two of his buddies returned to fish. Warsewa emerged from his riverfront residence with a handgun and fired a shot of their route. The bullet struck the floor a mere 15 toes from the anglers.

Although Warsewa received 30 days in jail for his stunt, the problem that sparked the battle stays unresolved: Who owns the beds of Colorado’s rivers? 

From a river-access standpoint, Colorado is among the many West’s oddest states. Federal legislation dictates that the beds of “navigable” rivers — waterways as soon as used as highways for commerce — belong to the states, which, in flip, typically enable boaters and anglers to make use of them. Idaho, for example, grants public access for “all recreational purposes,” together with angling on foot, on any river able to both carrying minimize timber or “being navigated by oar or motor.” Washington permits fishermen and different members of the general public to wade streams deep sufficient to drift “a bolt of shingles.”  

By distinction, Colorado has traditionally denied that it even has navigable rivers. In 1912, the state’s Supreme Court opined that the state’s waterways — steep, dashing, canyon-bound — had been “nonnavigable within its territorial limits.” By that logic, the beds of even main rivers belonged to not the state, however to the house owners of adjoining non-public properties, who usually didn’t look kindly on the intrusions of the hoi polloi. When, in 1976, a bunch of rafters drifted previous a ranch that abutted a shallow stretch of the Colorado River east of Kremmling, they were convicted of trespassing for having the audacity to often bump the underside. In the aftermath, most of the state’s landowners and recreators struck a fragile, casual settlement: You might float by means of non-public land, however you couldn’t contact mattress or financial institution. 

Hill, nonetheless, prefers to do his fishing on foot. In 2018, he sued Joseph and Warsewa for entry to the Arkansas the place it flowed previous their property; later, he added the state of Colorado to his swimsuit. Contrary to standard knowledge, Hill believes, the Arkansas River was traditionally navigable, and its mattress thus belongs to the general public. And whereas his case applies solely to the river that locals affectionately know because the Ark, it might finally have an effect on waterways all through Colorado, the place the general public has by no means craved out of doors alternatives extra. “We don’t have enough quality recreational opportunities to satisfy demand today,” Hill instructed me. “There are waters I’ve wanted to fish for 50 years, and I’ve been denied the use of a state-owned resource.”

One April morning I met Hill at a public easement on the Arkansas River close to the city of Buena Vista, 60 miles upstream from the place he’d been pelted with rocks. Hill’s face was sun-chapped, his silver hair tousled by the spring gusts that bedevil Colorado’s anglers. He wore wading boots from the gear firm Patagonia, which had caught wind of his case and despatched some supportive swag. Hill hoped the brand new footwear would preserve him upright within the Ark’s stiff move. “When you read my obituary, the first line is going to be, ‘A man his age should have had better sense than to wade the river where he did,’” he stated.

Hill fished with an admirable economic system of movement, a precision to which my flailing limbs might solely aspire. He solid crisply into seams and riffles, chewing gum and stripping line in metronomic rhythm. Although few fish had been rising, he tied on a dry fly of his personal making — the design of which, he knowledgeable me, was strictly off the file — and coaxed a chew from a stunning brown trout freckled in vivid purple and black. “There’s one looking up, at least,” he stated as I netted his fish. 

Hill, who grew up in Oklahoma, got here of age fishing the Midwest’s limestone creeks in cutoff denims and tennis footwear. But his angling profession started in earnest in 1967, when he moved to Colorado Springs to work as a nuclear physicist for a weapons producer. He approached fly-fishing like a scientist, poring by means of entomology textbooks to know the life cycles of mayflies and midges, then bending over his fly-tying vise to mimic their manifold types. Although his profession later wandered into actual property and used vehicles, his studious devotion to angling by no means wavered. “Something as simple as adding another foot of tippet” — the superb, translucent line to which anglers tie their flies — “may be the difference between success and failure,” he wrote in a single guidebook. 

While Hill fished everywhere in the West, he had a particular affection for the Arkansas River, the snow-fed torrent that tumbles down from the Sawatch Range, rolls east by means of central Colorado, and, practically 1,500 miles later, spills into the Mississippi. In the early 2000s, at a neighborhood information’s suggestion, Hill started fishing the Ark’s confluence with a tributary known as Texas Creek, a primary spot graced with ample rocky trout habitat. Although a tony subdivision squatted on the financial institution close by, he by no means had an issue with its owners — till Linda Joseph started chucking rocks at him in 2012.  

Hill was adamant that he had a proper to the river. His rationale was rooted within the “equal-footing doctrine,” a authorized precept that, in concept, granted Colorado possession of any river that was navigable at statehood in 1876. But was the Arkansas really navigable? Hill scoured newspaper archives and located dozens of references to industries using the river as a business freeway. In 1813, a beaver trapper named Ezekiel Williams canoed down the Ark with bales of pelts, and within the 1870s, railroad corporations floated hundreds of picket ties from the river’s headwaters to the city of Pueblo. “If building a railroad ain’t commerce, I don’t know what’s commerce,” Hill stated. 

Hill has not but had the chance to current his proof, although. After he filed swimsuit in 2018, his case bounced between jurisdictions because the defendants, together with the state, contested his standing. In January 2022, Colorado’s Court of Appeals lastly dominated that Hill had standing to take the case to trial. The ramifications could possibly be immense: If a courtroom ultimately decides that conveying railroad ties and pelts makes the Arkansas navigable, then different rivers within the state — the Yampa, the Roaring Fork, the Dolores, and the Colorado, to call just a few — may qualify. “There’s a lot of places where people could apply this legal precedent and consider similar challenges,” stated John Gale, conservation director for Backcountry Hunters & Anglers.

These repercussions clarify why Hill has attracted as many opponents as supporters. A panoply of pursuits — together with owners’ associations, water suppliers, and the town of Colorado Springs — have joined the case towards him. He’s additionally encountered resistance from Colorado’s legal professional normal, Phil Weiser, who has accused Hill of partaking in a “coordinated effort” to upend property rights on rivers across the state. By siding with Hill, Weiser has written, the Court of Appeals might disrupt “long-settled and carefully balanced rights” on the Arkansas and past. (Weiser’s workplace declined to remark for this story.)

Most displeased, maybe, are riverfront property house owners. Among the entities who filed briefs opposing Hill is the Colorado arm of Jackson-Shaw, a Dallas-based growth firm that bought practically two miles of land alongside the Taylor River close to Gunnison in 2007 to create a “private fly-fishing property sanctuary.” Jackson-Shaw isn’t any stranger to entry disputes: Even rafting by means of the event, the corporate’s chairman has written in the past, is akin “to someone walking across your front lawn on a short cut to the grocery store.” In its temporary on Hill’s case, the developer famous that it made “substantial financial investments” in enhancing fish habitat on its Taylor property; modifying privately owned riverbeds and controlling who will get to fish them, the corporate added, represents the “lifeblood” of dude ranches and personal angling golf equipment. A victory for Hill, it wrote, would solid a “dark cloud” over riverbed house owners across the state. (Jackson-Shaw and its Taylor River growth didn’t reply to my requests for remark.) “If we were to win, it would upset the claimed rights that some of these landowners have to keep the public riff-raff off what I consider to be public streams,” stated Mark Squillace, Hill’s pro-bono legal professional, who’s a professor of natural-resources legislation on the University of Colorado Boulder. 

In a 2003 photograph, Don Menk adjusts a “No Trespassing” signal alongside the west financial institution of the Gunnison River on his property close to his residence. He was accused of firing his gun close to fishermen.
Lyn Alweis / The Denver Post by way of Getty Images

Some Colorado water managers are simply as involved because the state’s builders. Who owns Colorado’s riverbeds is, in fact, a special query than who owns the water that flows over them: As Hill put it, “Not one drop of water will ever have its ownership or use changed, end of discussion.” That doesn’t a lot mollify Terry Scanga, normal supervisor of the Upper Arkansas Water Conservancy District, a bunch that manages water within the Arkansas Valley and advocates for its water-rights holders. Hill’s swimsuit relies partly on the general public belief doctrine, the notion that sure assets are so essential that they need to be stewarded by the federal government for public use. If Colorado declares its riverbeds topic to the general public belief, Scanga argues, the state might sometime apply comparable logic to water itself, upsetting the traditional “first in time, first in line” system for allocating rights. 

“It’s not the wading itself that’s the key here,” Scanga instructed me. “It’s the basis upon which you get the right to do that. It raises a whole bunch of potential legal issues in the future — big ones.”

Here may be second for a confession: I’m not a wholly disinterested social gathering in Hill’s case. I lately moved to the Arkansas Valley after dwelling for years within the inland Northwest, the place I did most of my fishing in Montana, an angling mecca the place state legislation permits fishermen to wander down any stream they select, navigable or not. Upon my return to Colorado, I used to be stunned to search out the Arkansas lined with NO TRESPASSING indicators. About 30 p.c of the Ark is privately owned, and, whereas it boasts extra public entry than many state waterways, barbed wire appeared as ample alongside some stretches of financial institution as cottonwood bushes. 

Nor is the Arkansas the one Western river the place recreators and landowners have develop into embroiled in stream entry battles. In 2010, the Utah Legislature barred the general public from wading non-navigable waters by means of non-public property, effectively closing more than 40 percent of the state’s miles of fishable streams; though anglers and boaters sued, a decide upheld the legislation final 12 months. Access advocates have had extra success preventing again in New Mexico, the place the state’s Game Commission handed a rule in 2017 that allowed landowners to preclude the general public from streams deemed non-navigable. Fence-and-wire barricades promptly popped up on the Rio Chama and the Pecos River — the latter erected by Hersh Family Investments, a Texas-based fairness fund. “An unsuspecting floater getting swept into that, it’s a really hazardous place to be,” stated Norm Gaume, a board member of the Adobe Whitewater Club. The membership and different teams challenged the rule, and, in March 2022, the New Mexico Supreme Court deemed it unconstitutional after deliberating for all of quarter-hour. “There was a lot of celebrating in Santa Fe,” Gaume stated.

This preponderance of circumstances testifies, I believe, each to the murkiness of river legislation, and to the hoary philosophical variations in regards to the nature of rivers themselves — who they’re for, what they even are. Are riverbeds a class of land like some other, topic to privatization and enclosure? Or are they essentially not like land: shared areas for non secular renewal and pleasure, rendered so treasured within the West by their shortage that it might be unjust to disclaim the general public their pleasures? It’s no coincidence, maybe, that the present slew of stream-access circumstances arrives at a fraught second in leisure historical past, one through which we’ve sought the solace of rivers extra desperately than ever. The public’s urge for food for fishing — an exercise that’s, in any case, inherently outside and socially distant — spiked during COVID-19; so many anglers hit Western waters that one author dubbed the state of affairs “Rivergeddon.” Hill lately visited a primary spot on the South Platte River, solely to search out vehicles parked bumper-to-bumper alongside its financial institution. “The good waters are just mobbed,” Hill instructed me this April as we paused to vary flies on the Arkansas’ banks. 

Whether Hill may have the prospect to lastly attempt his case stays unclear: That very day, the state had petitioned the Colorado Supreme Court to disclaim him standing, arguing that the appeals courtroom had “reward(ed) trespassing” by discovering in his favor. The Supreme Court is at the moment contemplating the petition and is predicted to rule quickly; if it upholds the decrease courtroom’s choice, Hill might convey his case to trial as early as this fall. “I’m determined I’m going to win, but God knows how long it’s going to take,” Hill stated. He squinted on the minuscule mayfly sample in his hand and jabbed his line at its eye. His imaginative and prescient wasn’t as eager because it was, he admitted, nor his fingers as regular. I provided help, however Hill waved me off and bent again to his fly. “I won’t let the son of a bitch beat me,” he stated.  



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