# CO Supreme court to here case of Arkansas river fisherman over river bed access



## caverdan (Aug 27, 2004)

This just popped up on my news feed. It should be interesting to watch this lawsuit play out.









Who owns rivers? Colorado Supreme Court to hear case


The Colorado Supreme Court will take up a case that pits private landowners against people who want to use rivers that flow through their properties.




kdvr.com


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## BastrdSonOfElvis (Mar 24, 2005)

It won't be that interesting. I can tell you exactly how that's gonna go...


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## Nanko (Oct 20, 2020)

Thanks for posting. Trigger warning: there’s some heavy rage fuel in the State’s Brief (linked in article) for access advocates.


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## Dangerfield (May 28, 2021)

I know nothing of this river so my question relates to the draw to the waters? Does the State manage the fishery and do they supplement any native fish with state funded fish. If they do, then possibly the state is either encouraging "trespassing" or they are using state taxpayer resources (fish) that only private landowners can access.


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## BastrdSonOfElvis (Mar 24, 2005)

Dangerfield said:


> I know nothing of this river so my question relates to the draw to the waters? Does the State manage the fishery and do they supplement any native fish with state funded fish. If they do, then possibly the state is either encouraging "trespassing" or they are using state taxpayer resources (fish) that only private landowners can access.


That's an excellent point. I know that there are fish hatcheries on the Gunnison and Quartz Creek (flows into Tomichi Creek, then into Gunnison). I'm not sure if they are CPW or fed. Easy enough to find out.


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## cuzin (Oct 4, 2007)

Yes, Colorado Parks and Wildlife does a lot of fish stocking on the Arkansas. Although when they are released, the Ranger whispers into each little fishy's ear to "please stay in public waters." 



https://cpw.state.co.us/thingstodo/Fishery%20Survey%20Summaries/ArkansasRiverUpper.pdf


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## cuzin (Oct 4, 2007)

Also, from what I can tell, it looks like this is the attorney representing the 'good guys' in this litigation. For those inclined to year-end charitable donations, it might be a worthy cause to throw some $$$ at. You know, if you're into public right of access and such. 






Alexander Hood, Esq. – Towards Justice







towardsjustice.org


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## Big Wave (6 mo ago)

We’ve voted to stop the spring bear hunt, reduce impacts from oil and gas extraction, re introduce wolves, make gambling legal, TABOR and make weed legal thru the constitutional amendment process.
I bet we can get our radical liberal socialist democratic majority to deal with this the truly Democratic way and vote on it as a amendment to the Colorado constitution.


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## Junk Show Tours (Mar 11, 2008)

Big Wave said:


> We’ve voted to stop the spring bear hunt, reduce impacts from oil and gas extraction, re introduce wolves, make gambling legal, TABOR and make weed legal thru the constitutional amendment process.
> I bet we can get our radical liberal socialist democratic majority to deal with this the truly Democratic way and vote on it as a amendment to the Colorado constitution.


This is the way.


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## BastrdSonOfElvis (Mar 24, 2005)

Big Wave said:


> I bet we can get our radical liberal socialist democratic majority to deal with this the truly Democratic way and vote on it as a amendment to the Colorado constitution.


lol you might want to check which side your attorney general is on.

Party of the (rich) people!

From the article linked in the OP:
“After the appeals court ruling revived the case, Colorado Attorney General Phil Weiser asked the Colorado Supreme Court to step in. Weiser’s office argues that Hill’s case could have “staggering implications for settled agreements governing the use of our state’s rivers.”

It would be a pleasant surprise to see your majority do anything actually useful, but I wouldn’t hold my breath. They know who butters their bread.

BTdubs, all 7 current CO Supreme Court justices were appointed by Dem governors. Watch them find no standing for the suit.


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## Big Wave (6 mo ago)

BSOE my post has nothing to do with the attorney general. I talking about getting George Soros to finance a amendment to the state constitution. Then we can rig the vote to allow wading and floating access to us poor peons. Fuck the rich people they are the Republican bastards that don’t want peon access.


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## BastrdSonOfElvis (Mar 24, 2005)

Haha. Touché.
I’m just waiting for it to occur to you that WE will never have a majority. THEY will always see to that. Regardless of which side (of the same coin) they’re on.

Again, when a Dem AG makes a case against your river access to Dem Justices and they effectively rule against you, perhaps you’ll start to see that you’ve been duped.


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## Big Wave (6 mo ago)

Established law and customary use is what the AG is following. A Republican AG and Republican judges would rule the same or not even allow the case to be heard.
What I’m saying is in Colorado when the citizens voices are not listened to we have the Constitution amendment process to deal with it. This is probably the only way to change river access in our state.
I’m not at all optimistic that the way that Colorado ownership laws have evolved over 150 years the courts would over turn that regardless of which party the judges are.
I want to edit a statement in my last post to say Republican, Democratic or Independent rich bastards are the ones that don’t want to allow peon access


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## BastrdSonOfElvis (Mar 24, 2005)

Big Wave said:


> Established law and customary use is what the AG is following.


No, he intervened on behalf of Richie Rich when he didn't have to do anything. But..the partisan sees what he wants to see.



Big Wave said:


> A Republican AG and Republican judges_ would rule the same_ or not even allow the case to be heard.


A tacit admission that you can see that the political establishment's contempt for us and our rights is bipartisan? I'll call that some headway.


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## Big Wave (6 mo ago)

BSOE I don’t want to get into a political diatribe with you it’s a fools mission.
Keep it simple stupid. This case is doomed in the courts.


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## BastrdSonOfElvis (Mar 24, 2005)

On that we certainly agree.


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## ColoRobo (Jan 22, 2021)

What bothers me is the term 'navigable waters' in the original law. If I'm correct, this means if a river/stream/creek was deemed not navigable back when the law was created, then land owners today can string a rope across it meaning you float the public water above and hope you see the wire and get out. No way to walk your craft around private property to the public water downstream. The Upper CO above Gore Canyon has this problem meaning citizens who want to float in a packraft or kayak can't float the length of the CO from RMNP to the west. That water is very navigable with these modern crafts not around when wooden boats were the only way down. Why can't CO make their law simple like MT and require river users to stay below the high water mark when floating/wading on thru?


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## cuzin (Oct 4, 2007)

Pursuant to 33 CFR 329.4 - Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.

I've heard the argument made that if rivers/streams were being used for commerce at the time of statehood (read: fur trappers, traders, miners, etc.) they should be considered "navigable" under Federal law, and hence, granted to the State. I don't know how that argument carries through, if the State then decides, "Welp, private landowners who own the land adjacent to a river also own the riverbed." End of story.


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## docd (Feb 14, 2004)

Actually, in Colorado, property owners pay property tax on land "to the middle of the river". Reassessing property lines and property taxes will be an issue to be discussed.


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## Big Wave (6 mo ago)

docd said:


> Actually, in Colorado, property owners pay property tax on land "to the middle of the river". Reassessing property lines and property taxes will be an issue to be discussed.


Most of that land is probably taxed as agricultural at a greatly reduced rate. It’s lost revenue to the state that I would be more than willing to give up.


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## ArgoCat (May 14, 2007)

Yep. 254 acres of riverfront ag land can be have an assessed value of $5000, which is less than 50 bucks a year in taxes.


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## Ole Rivers (Jul 7, 2005)

docd said:


> Actually, in Colorado, property owners pay property tax on land "to the middle of the river". Reassessing property lines and property taxes will be an issue to be discussed.


No, it will not be discussed in this proceeding. The only issue to be heard in this proceeding is procedural rather than the merits of the of the suit. 

COURT ORDER:
"The issue as announced by the Court this day is as follows:
Whether an individual has standing to seek a declaratory judgment that a river segment was navigable for title at statehood and belongs to the State.
DENIED AS TO ALL OTHER ISSUES."

To gain more clarity on the above Court Order, go online to get the legal definition of procedural "standing" and "declaratory judgment". Assuming the suit rules that Roger Hill has standing and gets to the merits...the main suit... -->amazon.com-->purchase ($10) then Search "Public Rights on Rivers" for terms such as "segment", "navigable for title purposes", "statehood", “bare technical title”, “the Daniel Ball”, “navigable in fact is navigable in law”, “navigational servitude”, “navigable for commerce clause purposes”, “navigable for recreational purposes”, "navigable for Clean Water Act", "navigable for admiralty", “jurisdiction”, “concurrent”, “ordinary high water”, “log drives’, “commerce", "access", "use", “recreation”, "title", etc. and other Search terms of interest.

Then post what you learn from "Public Rights on Rivers" in this or a new thread to raise awareness, clarity and understanding about the real stakes, win or lose, of Hill v Warsewa.


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## Ole Rivers (Jul 7, 2005)

cuzin said:


> Pursuant to 33 CFR 329.4 - Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.
> 
> I've heard the argument made that if rivers/streams were being used for commerce at the time of statehood (read: fur trappers, traders, miners, etc.) they should be considered "navigable" under Federal law, and hence, granted to the State. I don't know how that argument carries through, if the State then decides, "Welp, private landowners who own the land adjacent to a river also own the riverbed." End of story.


Good that you posted this most important definition, Cuzin. It's based on the language of the SCOTUS opinion "The Daniel Ball".


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## Ole Rivers (Jul 7, 2005)

ColoRobo said:


> What bothers me is the term 'navigable waters' in the original law. If I'm correct, this means if a river/stream/creek was deemed not navigable back when the law was created, then land owners today can string a rope across it meaning you float the public water above and hope you see the wire and get out. No way to walk your craft around private property to the public water downstream. The Upper CO above Gore Canyon has this problem meaning citizens who want to float in a packraft or kayak can't float the length of the CO from RMNP to the west. That water is very navigable with these modern crafts not around when wooden boats were the only way down. Why can't CO make their law simple like MT and require river users to stay below the high water mark when floating/wading on thru?


-->amazon.com-->"Public Rights On Rivers" writes about all the subjects you mention above and provides history, citations and existing law.


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## Jfizzle1 (Oct 9, 2015)

Hey Buzzards- I would encourage you to voice your opinions to Phil Weiser [email protected] I sent him a note voicing my opinion and he reached out to schedule some time to connect. Seems he is on the wrong side of this debate probably a result of major donor $s.


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## Ole Rivers (Jul 7, 2005)

Jfizzle1 said:


> Hey Buzzards- I would encourage you to voice your opinions to Phil Weiser [email protected] I sent him a note voicing my opinion and he reached out to schedule some time to connect. Seems he is on the wrong side of this debate probably a result of major donor $s.


In what ways does it seem AG Weiser is on the wrong side of this (standing and/or merits issues?) debate? Will you talk with AG Weiser or his team? What is your opinion about...the problem or the solution?


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## Jfizzle1 (Oct 9, 2015)

Ole Rivers said:


> In what ways does it seem AG Weiser is on the wrong side of this (standing and/or merits issues?) debate? Will you talk with AG Weiser or his team? What is your opinion about...the problem or the solution?


I favor the plaintiffs opinion which would mean that CO would have to determine which rivers were navigable water ways and if they were “navigable” then rivers users would have ability to walk on the stream/river bed up to high water mark (so long as they accessed via public lands without fear of trespass. I am scheduled to talk with Weiser and his team to voice my opinion.


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## BastrdSonOfElvis (Mar 24, 2005)

Jfizzle1 said:


> Hey Buzzards- I would encourage you to voice your opinions to Phil Weiser [email protected] I sent him a note voicing my opinion and he reached out to schedule some time to connect. Seems he is on the wrong side of this debate probably a result of major donor $s.


Unless you "voice your opinion" with a real big check...


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## Ole Rivers (Jul 7, 2005)

Jfizzle1 said:


> I favor the plaintiffs opinion which would mean that CO would have to determine which rivers were navigable water ways and if they were “navigable” then rivers users would have ability to walk on the stream/river bed up to high water mark (so long as they accessed via public lands without fear of trespass. I am scheduled to talk with Weiser and his team to voice my opinion.


If you're talking to the AG/team, then clarity and words matter. So do facts, evidence and _existing_ law (citations). Next up for the Colorado Supremes, according to their 12/12/22 Order, is to rule on* the procedural "standings" and "navigable for title" issues*. If you want to talk with the AG about the *merits of the main case* concerning navigable for title purposes, access, use, trespass, easements for land use over water use or vice versa, ordinary high water mark, stream bed, use of water with incidental contact with the streambed, etc., your discussions may be better served if it comes after the standings ruling, which will probably be announced in a bunch of months for briefs and the next Order in the process. Also, to better prepare how clearly your opinions and/or solution suggestions are made to the AG, you may want to *-->amazon.com-->"Public Rights On Rivers"* and Search the above Search topics and other Search terms of interest. The AG wants to talk facts and citations rather than fluff.
You have an opportunity to make a difference, Jfizzle1. Jfizzle11 and all of you viewers, posters, Buzzards, etc., get the book, Search/Read it and understand its usefulness before shooting the breeze with the Colorado State Attorney General so that* All Win*.


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## Jfizzle1 (Oct 9, 2015)

Ole Rivers said:


> If you're talking to the AG/team, then clarity and words matter. So do facts, evidence and _existing_ law (citations). Next up for the Colorado Supremes, according to their 12/12/22 Order, is to rule on* the procedural "standings" and "navigable for title" issues*. If you want to talk with the AG about the *merits of the main case* concerning navigable for title purposes, access, use, trespass, easements for land use over water use or vice versa, ordinary high water mark, stream bed, use of water with incidental contact with the streambed, etc., your discussions may be better served if it comes after the standings ruling, which will probably be announced in a bunch of months for briefs and the next Order in the process. Also, to better prepare how clearly your opinions and/or solution suggestions are made to the AG, you may want to *-->amazon.com-->"Public Rights On Rivers"* and Search the above Search topics and other Search terms of interest. The AG wants to talk facts and citations rather than fluff.
> You have an opportunity to make a difference, Jfizzle1. Jfizzle11 and all of you viewers, posters, Buzzards, etc., get the book, Search/Read it and understand its usefulness before shooting the breeze with the Colorado State Attorney General so that* All Win*.


Ole Rivers appreciate the response and certainly I understand your POV. Since I am not wielding a large check I am unlikely to win arguing/debating the finer points of the law with the AG. I can however point out that his political calculus to side with the rich whom are making river access difficult for us and thus will erode his base of support by the everyman rafter/flyfisher that helped put him in office. It’s clear he has sided with the wealthy and was spelled out in the NYTimes article “Does this fisherman’s have a right to be in a billionaires backyard”. I’ll circle back post my discussion. I just hope the larger community takes a few minutes to email and let them know what you think.


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## Recreation_Law (Oct 29, 2013)

There are 17 different definitions of Navigable in Federal Regulations and 30+ state definitions. Relying on one definition which may or may not have anything to do with the issue at hand has gotten a lot of boaters in trouble.


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## BastrdSonOfElvis (Mar 24, 2005)

So much bullshit. If you are fucking navigating it then it is fucking navigable!


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## Jfizzle1 (Oct 9, 2015)

I wanted to circle back around to let the group know of my convo with Deputy AG Kurtis Morrison. The AGs line on this is rooted in their stance that they have to protect the laws that are in the books and thus that is why they are against the case. I pressed asking why they were siding with the rich and reducing access for the common folk. This seems to be a sensitive talking point as they don’t want to be seen siding with the rich. We discussed the high water rules that govern public access in states like Montana and they seemed open to a potential working group on how we could enact rules like that in CO. I pressed that was exactly what the Hill case has setup to decide. Either way seems unlikely that this case will go in favor of Hill. I would still encourage everyone here to email Phil Weiser [email protected] and let him know you support Hill and overall better access for fishing/rafting in the state of CO.


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## BastrdSonOfElvis (Mar 24, 2005)

Yes, they certainly don’t want it to seem like they are siding with the rich but…


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## jeffro (Oct 13, 2003)

Jfizzle1 said:


> I wanted to circle back around to let the group know of my convo with Deputy AG Kurtis Morrison. The AGs line on this is rooted in their stance that they have to protect the laws that are in the books and thus that is why they are against the case. I pressed asking why they were siding with the rich and reducing access for the common folk. This seems to be a sensitive talking point as they don’t want to be seen siding with the rich. We discussed the high water rules that govern public access in states like Montana and they seemed open to a potential working group on how we could enact rules like that in CO. I pressed that was exactly what the Hill case has setup to decide. Either way seems unlikely that this case will go in favor of Hill. I would still encourage everyone here to email Phil Weiser [email protected] and let him know you support Hill and overall better access for fishing/rafting in the state of CO.


Which seems like total BS. Isn't the point of the case to clarify what the existing laws mean? Yeah Phil; it is a bad look because your stance is shitty.


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## Jfizzle1 (Oct 9, 2015)

jeffro said:


> Which seems like total BS. Isn't the point of the case to clarify what the existing laws mean? Yeah Phil; it is a bad look because your stance is shitty.


Agreed, send ole Phil an email and let him know how you feel about it. He needs to know that he is on the wrong side of this debate and that it is eroding his voter base.


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## Acheron (Apr 5, 2021)

He’ll be sure to wipe the tears from reading your emails with the $100 dollar bills he gets from the rich.

Govt, police, etc. exist, in our current society, to protect the rich. No tin foil hat needed when i is freely admitted.


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## smhoeher (Jun 14, 2015)

This is not a rich vs. poor issue. It's about public use of the land around and under Colorado's rivers.


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## BastrdSonOfElvis (Mar 24, 2005)

smhoeher said:


> This is not a rich vs. poor issue. It's about public use of the land around and under Colorado's rivers.


Yeah and the Civil War was about states’ rights, not slavery. 

Increasingly, CO property (especially riverfront) is priced way out of reach of the common man. This issue is absolutely about whether or not and to what degree Richie Rich (often out of state absentee) land owners can restrict use of waterways by the rest of us.


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## westwatercuban (May 19, 2021)

BastrdSonOfElvis said:


> Increasingly, CO property (especially riverfront) is priced way out of reach of the common man.


doesn’t matter if it wasn’t. The rich would still out bid us 🤷🏻‍♂️


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## Droboat (May 12, 2008)

Drink the Rich!

The sacred law of Western Water was made up by a bunch of genocidal greedheads who liked the claim-based allocation of property rights (i.e. transfer from public to private) for aggregating mines, so they applied it to water It is illogical, ill conceived, and loved by the propertied classes that would like to complete the Enclosure. The English and Spanish (not to mention North American indigenous) laws and customs were a barrier to Manifest Destiny (for the wealthy), so the Courts and eventually the Compact and Congress pushed western water out of the public domain and further into private hands. 

Polis and Colorado AG are serving the same masters (often their own class mates) who destroyed various riparian doctrines that got in the way of the transition to unabashed capitalism, industrialism and agribusiness. My guess is neither of these technocrats has any historical appreciation of their current role in the Enclosure.


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## Jfizzle1 (Oct 9, 2015)

Interesting timing. Our neighbor to the West is looking into water laws governing public access to river bottoms after trying to squash this years ago.









Utah Supreme Court to decide who gets access to river and stream beds


The Utah Supreme Court is again wading into a long-running legal battle about public access to rivers and streams.




www.fox13now.com


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