# Colorado “Freedom to wade” Case Moves Forward



## Andy H. (Oct 13, 2003)

FYI - I saw this today:









“Freedom to wade”: 80-year-old Colorado fisherman notches win for public access to rivers


Colorado’s Court of Appeals has cleared the way for 80-year-old fisherman Roger Hill to make his case for a public right to fish on his favorite stretch of the Arkansas River as it flows down from …




www.denverpost.com





While this all sounds pretty good there are some considerations: Note that currently they've only gotten approval for the case to move forward - this headline has nothing to do with actually changing things in CO. "Navigable waters" in Colorado are only those rivers used for commerce at the time of statehood. This may only apply to reaches of the Arkansas if they were being used for transporting logs, and possibly other uses in 1876. While this case may win and grant the plaintiff use of a certain reach of the Ark, or certain reaches of some rivers around the State, there could be aspects of the decision that aren't favorable to boaters in the long run or that reinforce the current status quo. Thus a precedent from this could have the unintended result of making it more difficult to change the current system later. I'm not an attorney and don't know about this stuff, but I'd be really interested in hearing AW's and CW's take on this.


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## kayakfreakus (Mar 3, 2006)

Echoing Andy I would love to hear AW or a lawyers take. This seems like it might help but could also have disastrous unintended consequences. If the Ark is the only “navigable” river in CO that seems really bad. Would have to think the Colorado and every other major river was being used in the same way.

“Colorado doesn’t have the kind of navigable waterways that other states do.”

That’s a scary statement given the wealth of those purchasing riverfront property these days.


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## Acheron (Apr 5, 2021)

Interesting read, thank you for posting.


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## sarahkonamojo (May 20, 2004)

The sentiments above are the reason AW is not currently using the courts to gain river access/improvements, etc. (The sentiment of potential court defeat leading to more restricted public access to Colorado rivers.)


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## MT4Runner (Apr 6, 2012)

Montana's Constitution affirms that waters belong to the people of the state, and the Stream Access Law and state supreme court further clarified that people have a right to recreational access.


https://en.wikipedia.org/wiki/Montana_Stream_Access_Law


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## upacreek (Mar 17, 2021)

Ahh yes, the tired old "property rights" argument to protect those byzantine economies (mining, ag) but more importantly the monied landowner interests. I think the state is _really_ on the wrong side of the fence on the issue and they are going to try very hard to avoid this going to the state Supreme Court to settle it for all Colorado rivers...so I'd fully expect this to get litigated piecemeal until the dam breaks or public advocacy finally pushes the issue to a head.

Part of me also prays some d!psh!t rancher tries to Build A Wall across a well-recreated river to finally settle that navigability issue, but in any case Roger Hill is my new hero for opening this Window of Opportunity. And although am def not a lawyer, I know enough about public and environmental policy to dangerously hope that Kindon's 3 Streams Model might pan out here because preserving access for public resources is enshrined into law/statue/constitution in so many others states among land management mandates at the federal level.


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## MNichols (Nov 20, 2015)

I know the landowners in this, well, altercation personally. He worked, and I say worked literally, for the Fremont county assessors office. She owned a liquor store. Both very possibly might have been intoxicated when this happened, both quick to fly off the handle easily.. 

Shame that the fisherman bore the brunt of their anger, and even worse that this is heading to the courts. In my opinion, nothing good can come from this for the public's rights, the fisherman, or the landowners. Headed down a very dark rabbit hole, with many hazards and the possibility of a lot of unintended consequences.. FWIW, I understand that the landowner shot at another fisherman, and that's what cost him his job, but that's rumor and I can't substantiate it, just what went around here a few years ago..


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## sarahkonamojo (May 20, 2004)

MT4Runner said:


> Montana's Constitution affirms that waters belong to the people of the state, and the Stream Access Law and state supreme court further clarified that people have a right to recreational access.
> 
> 
> https://en.wikipedia.org/wiki/Montana_Stream_Access_Law


Always thought that was a great testament to Montana. Marginal stream access next to a bridge seems mean at times, but at least it is legal.
Welp, Colorado voters decided to protect wolves. Could rivers get the same treatment?


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## MNichols (Nov 20, 2015)

sarahkonamojo said:


> Welp, Colorado voters decided to protect wolves. Could rivers get the same treatment?


And that's going swimmingly. 
Wolves just killed a couple rancher's dogs, and are killing calves, calving season is JUST starting. Patently bad idea voted in by the suburban city dwelling voters on the front range who thought it fashionable to do. 
Nobody anywhere else other than the front range thought this a good idea..


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## Droboat (May 12, 2008)

The _don't touch the bed_ nonsense in the AG Opinion must die. The place to kill it and re-establish long-standing legal norms regarding river access is in the Colorado Courts.* That is finally happening. Celebrate and support.*

With any luck, after years of silence, this will be the leading case in Colorado, followed by more reform efforts. Excellent legal skills and judgment are on board and they are having success. The story has it all, Lawyers, Guns, and Money, plus water.

The hand-wringers and Stockholm Syndrome victims should stay silent on the sidelines. Get out of the way of those who recognized a good case, engaged the fight, and have won an initial battle. Please consider supporting (or at least don't kneecap) those who are willing to stand up to the one of the dumbest of the Lords of Yesterday that stole our rivers and gave them to the cattle/lumber/minerals mafia. 
*
For today, I'm celebrating the incremental victory and ignoring the hand-wringing naysayers who'd rather live with enslaved rivers than support those engaged in the fight to free them.*


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## Turner2 (Jul 2, 2008)

There is ample evidence of most rivers in Colorado (especially front range creeks) being used to float logs at and before statehood. IMO, a court ruling that applied the test would find that most of the large, commonly-floated river in Colorado were used for commerce or at least susceptible to being used for commerce at the time of statehood, and the bed/banks therefore passed to the state for the benefit of the public at statehood. The caselaw is pretty clear -- but as is the case in Montana, Wyoming, and Utah, the legislators will get involved to set the rules before (or after) the court applies that caselaw in Colorado. The State of Colorado has already become involved to file briefs arguing that only it can determine navigability (and you can bet the state executive branch is fully on the side of the private property owners).


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## craven_morhead (Feb 20, 2007)

Andy H. said:


> FYI - I saw this today:
> 
> "Navigable waters" in Colorado are only those rivers used for commerce at the time of statehood.


What's your legal authority for that statement?


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## Andy H. (Oct 13, 2003)

craven_morhead said:


> What's your legal authority for that statement?


I'm not an attorney but have dug into this stuff a lot over the last couple of decades, such as when the "Right to Float" legislation almost passed about a decade ago, or when Eric Leaper wrote up a bunch of half-baked legal-sounding stuff and was telling everyone that we have access up to the high water mark, or some of the other riparian access debates. Over that time I've corresponded with a couple of attorneys and others knowledgeable about this, including folks who have worked with Colorado river access on behalf of the CO river running community. IIRC the "navigable at the time of statehood" thing has come up repeatedly. It's one more of the disappointing aspects of Colorado riparian access and it really sucks. But folks should know about because the "navigable waters" thing gets quoted so frequently (as in, "...The XYZ River gets run regularly therefore it's navigable waters, therefore anyone should be able to have access up to the high water line. So tell that landowner to screw himself if you need to get out and portage....")

It's also mentioned in the article.

I hate it but brought up the point because if we're ever going to be effective working for river access, we have to understand the definitions of the legal language used. As much as I wish "navigable in fact is navigable by right" applied in Colorado, it hasn't been interpreted that way by the courts and there's plenty of precedent to support the crappy system of riparian access we have.

-AH


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## Paco (Aug 3, 2007)

MNichols said:


> And that's going swimmingly.
> Wolves just killed a couple rancher's dogs, and are killing calves, calving season is JUST starting. Patently bad idea voted in by the suburban city dwelling voters on the front range who thought it fashionable to do.
> Nobody anywhere else other than the front range thought this a good idea..


I'll call BS. I'm not on the front range, know plenty of ranchers, and I thought it was a great idea. 
My dad was a lifelong rancher, and he thought that the (marginally increased) integrity of the ecosystem was worth having wolves around and dealing with the consequences. He actually had a scheme to pay someone in Mexico to trap some gray wolves for him so he could release them stateside.


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## kayakfreakus (Mar 3, 2006)

Deleted


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## Turner2 (Jul 2, 2008)

craven_morhead said:


> What's your legal authority for that statement?


I think it goes back to late 1800s US Supreme Court cases, but here's recent legal authority from the Colorado Court of Appeals: 

"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." 

The full opinion is attached if you are interested in scanning through it...the clerks did a pretty good job with this one...


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## Turner2 (Jul 2, 2008)

Relevant: https://www.usnews.com/news/best-st...-supreme-court-to-consider-stream-access-case


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## craven_morhead (Feb 20, 2007)

Also: Standing Up for Public Access


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## kayakfreakus (Mar 3, 2006)

That NM ruling seems like a win.


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## craven_morhead (Feb 20, 2007)

kayakfreakus said:


> That NM ruling seems like a win.


It is, though the fact it was decided under state law makes it less helpful.


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## MNichols (Nov 20, 2015)

craven_morhead said:


> It is, though the fact it was decided under state law makes it less helpful.


but still should be citable as precedent, even of it is state and not federal ? At least lend some creedence to the petitioners case if nothing else


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## craven_morhead (Feb 20, 2007)

MNichols said:


> but still should be citable as precedent, even of it is state and not federal ? At least lend some creedence to the petitioners case if nothing else


As applied to Colorado, it would be persuasive authority (as opposed to precedent or binding authority).


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