On June 5, the Colorado Supreme Court tossed out a case that could have broadened the public’s access to the Centennial State’s streams and rivers. With its unanimous decision in a case known as Hill v. Warsewa, the court ruled against an angler who sued after he was threatened, harassed, and ultimately denied access to a favorite fishing hole on a popular river. The ruling will maintain the stream access status quo in Colorado—where anglers have no legally-protected right to wade fish on any stretch of water that runs through private property.
The case stemmed from an incident that occurred more than a decade ago when an 81-year-old angler named Roger Hill was fishing on the Arkansas River near the town of Salida. He says that’s when landowner Linda Joseph began hurling rocks down at him from the top of a bluff on her property. Joseph, who owns a parcel of land adjacent to the river, believed that she also owned the riverbed, and that Hill was trespassing by standing on it to fish.
Hill narrowly evaded the tumbling rocks without injury, exiting along the same stretch of public property he’d used to access the spot. One year later, his friend was fishing the same hole when Joseph’s husband, Mark Warsewa, fired a pistol in his direction. Warsewa’s bullets missed the fisherman, but he served 30 days in jail for the stunt.
The Origins of the Case
Hill later sued Warsewa and Joseph as a result of these hostile run-ins. In court, he claimed that he has a right to stand on the bed of the Arkansas River and cast a fly, without being harassed or physically assaulted, because the river was “navigable” for commerce at the time of statehood. In most states, the beds of navigable rivers are considered state-owned property and thereby open to fishermen and other recreational water users.
Hill staked his argument for navigability on historical records of commercial activity on the very stretch of the Arkansas that flows past Joseph and Warsewa’s property. He pointed to old news reports of early 19th century “tie-drives,” when loggers near the high elevation town of Leadville floated rough-hewn timber downriver during periods of heavy spring run off. Those ties were used to build railroad tracks, linking Colorado to population centers in the East around the time of statehood.
His lawyers also unearthed documents and newspaper accounts about a beaver trapper who used that portion of the Arkansas River extensively back when the fur trade was one of the world’s leading global industries. All of this, Hill argued, constituted clear evidence of commercial activity and navigability.
Hill later added the state of Colorado to his lawsuit. Had the state ruled in his favor and deemed the Arkansas River navigable—and thereby public property—it could have opened public access to hundreds of miles of fishable waters on similar rivers across the state.
But the state fought the angler at every turn, and Colorado Attorney General Phil Weiser even went on record opposing Hill’s argument. With its ruling earlier this week, the Colorado Supreme Court brought Hill’s case to an abrupt halt, saying that he has no legal standing to argue that Colorado’s navigable rivers are indeed public property.
The Fight Continues
Groups like Backcountry Hunters & Anglers (BHA), American Whitewater, and the Colorado River Outfitters Association have supported Hill for years in his quest to reform stream access in Colorado. They say the state has some of the most outdated and restrictive stream access laws in the nation. And that, by refusing to hear Hill’s case, the Supreme Court is inviting more conflict between landowners and recreational water users.
“For over 100 years, the state has avoided doing its due diligence and showing that we do in fact have navigable rivers in Colorado, and they should be held in trust for the use and enjoyment of the public,” Boulder-based attorney Don Holstrom, who co-chairs the Colorado Chapter of BHA, tells Field & Stream. “It’s created an unsettled situation and has continued the occupation of these navigable waterways by folks who may not own them.”
According to BHA’s State Policy Director Tim Brass, anglers in Colorado have been dealing with a legal grey area around public access for a long time. “I think this ruling will allow for continued incidents like the one here on the Arkansas,” Brass tells F&S. “It’s unfortunate that some interests are working so hard to ensure that stretches of clearly-navigable waterways are inaccessible to members of the public who should have clear, legally-protected rights to fish and wade in them.”
Brass, who lives in Longmont, is disheartened by the Colorado Supreme Court’s recent decision. But he says BHA isn’t letting up in its fight to bring about more robust stream access laws in the state. “There are other avenues for the state to provide some clear direction that these waters are in fact public—whether that be through statute or some administrative action,” he said. “We’ve seen other states pass ballot measures to that end.”
Roger Hill calls the Colorado Supreme Court’s ruling “a catch-22 that leaves no solution” but says he plans to continue fighting for stream access within the state’s judicial system. “We’re not done. We’ll find another way,” Hill tells F&S. “It is clear that the state owns the beds of navigable rivers in Colorado, and it’s clear that the state refuses to acknowledge that. And there may still be something that can litigated based on those facts.”
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