Colorado’s Access Issue

On June fifth, the seven members of Colorado’s court of last resort unanimously ruled that 81-year-old flyfisherman Roger Hill “lacks standing” to continue his decade-long legal battle for public access along the Arkansas River (Hill v. Warsewa).

Put another way, the Colorado Supreme Court unanimously ruled that its justices lack the resolve or the readiness to pursue a rational clarification of the state’s river-access laws.

It’s hard to blame the judges. Their reluctance is likely due in part to State Attorney General Phil Weiser not wanting the clarification pursued—not by the judiciary, anyway. But let’s not pretend that the state Supreme Court couldn’t have granted Hill the permission he sought. If we’ve learned anything about supreme courts over the past few years (state or federal), it’s that precedent doesn’t have the authority it once did. Still, just fifteen months before those seven Supreme Court justices ruled that Hill had no standing, three highly respected Colorado Court of Appeals judges—Matthew Grove, David Richman, and Ted Tow III—all agreed that he did. The 10th U.S. Court of Appeals, in 2020, also agreed with Hill. What changed?

After the Court of Appeals decision, Weiser petitioned the state Supreme Court to review Hill’s case, warning that, if Hill were to win, any number of horrors could befall Colorado.

From the AG’s petition: “This decision [granting Hill standing] was wrong, and absent resolution by this Court creates an unworkable process that threatens to upset long-settled arrangements governing water and river access.”

With all due respect to Mr. Weiser, Colorado has no “long-settled arrangements” governing river access. It has only short-settled arrangements, and shaky ones at that, exemplified by Dallas-based developer Jackson-Shaw’s 2010 decision to temporarily “grant permission” for two Taylor River rafting companies to float past its Wilder on the Taylor fishing reserve—permission both companies already had via Forest Service permits. (Jackson-Shaw filed an amicus brief in support of the State in Hill’s 2022 Court of Appeals hearing.)

“No river within the State of Colorado was declared navigable at statehood.”

Another statement in the petition reads: “No river within the State of Colorado was declared navigable at statehood.” This is true. So is this statement: “No river within the State of Colorado was declared nonnavigable at statehood.” It’s like saying: “No freeway within the City of Denver has been declared navigable at rush hour.” Might be true, but it’s still legal to drive one. A navigable river, like a freeway, should be a public right-of-way.

The AG’s petition goes on to state that a victory for Hill “could have monumental consequences for water rights across Colorado.” This suggestion that “water rights” could be affected has been the real red herring in Hill’s case, not Hill’s story of having rocks thrown at him in 2012, as was alleged in the state Supreme Court’s Opinion delivered by Justice Melissa Hart.

One of the many travesties aimed at restricting public access to Colorado rivers has been state officials and/or landowners giving purposefully misleading statements intended to conflate water appropriation (removing an amount of water from its source) with water access (floating on, or standing in, a river). Hill’s case is, or was, about legally accessing the riverbed; it was never about removing a single drop of water flowing over it.

Weiser knows this, of course. But he also knows politics in the West, where even the slightest suggestion that a case could jeopardize water rights for ranchers, farmers, or riverside landowners will rally those communities to fight against it.

To trace the history of this conflation, we return to the July 1979 precedent-setting case of People v. Emmert, in which David Emmert and friends were charged with third-degree criminal trespassing for—sin of all sins—allowing their feet to touch bottom while floating a stretch of the Colorado River.

The outcome in the Emmert case was determined by three primary factors: 1) The very navigable Colorado River (above) inexplicably being considered “nonnavigable,” thus granting ownership of its bed to the riparian landowner. 2) A primitive interpretation of Colorado’s archaic property law, plucked from the 13th Century. 3) Section 5, Article XVI of the The Colorado Constitution, which reads: “The water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the People of the State, subject to appropriation as hereinafter provided.”

Emmert’s attorney argued—as would any person with the ability to read—that Article XVI “establishes the public right to recreational use of all waters in the state.” This view has been shared by many a Colorado Supreme Court Justice, going back to Justice J. Bailey in his dissent of Hartman v. Tresise in 1906:

“This makes the waters of every natural stream public. They are dedicated to the use of the people, to be used by them in such manner as they see fit, subject only to one condition: that of the right of appropriation for beneficial purposes. Until the waters are appropriated and diverted from the stream, they belong to the public.”

The majority in Emmert ruled otherwise. In their illogical view, Section 5, Article XVI of the Colorado Constitution isn’t about recreational use at all. Rather, it “simply and firmly establishes the right of appropriation in this state.”

Two Justices dissented. Justice Carrigan: “It is difficult to imagine a more stark contrast than the disparity between the result which the majority reaches and the language and spirit of Article XVI.” Justice Groves: “The constitutional language clearly dictates a result opposite to that reached by the majority.”

Attorney General Weiser has said the access issue should be addressed by lawmakers. It’s a fair idea, expressed in Smith v. People and cited in Emmert: “If a change in long-established judicial precedent is desirable, it is a legislative and not a judicial function to make any needed change.” Problem is, Smith’s case took place in 1949, and the citizens of Colorado are still waiting.

If public access to rivers isn’t settled by Colorado’s lawmakers, the issue may be decided for us. In March 2022, New Mexico’s Supreme Court ruled for public access along its streams. In October 2022, Chama Troutstalkers and Z & T Cattle Co.—two of the companies on the losing side of that decision—sent a petition to U.S. Supreme Court Justice Neil Gorsuch, asking SCOTUS to review the New Mexico ruling. Trouble ahead.