Coloradans have known for generations that our large rivers and streams and the wildlife therein are publicly owned assets held in trust by the state for the enjoyment of all, regardless of private property status on and around the riverbanks.
It is a fundamental concept that we see exercised across the nation from the beaches in California to the rivers and streams in New Mexico to the tidal waters in New York.
We understand why courts nationwide have grappled with how to handle private property owners who mistakenly and often suddenly believe they can restrict access to navigable rivers and streams or coasts.
But Colorado lawmakers can finally settle this absurd power struggle once and for all.
Model legislation for making access and use of these publicly owned assets crystal clear already exists in multiple states, but we particularly like the aggressive access afforded in Montana legislation.
It only became necessary for Colorado lawmakers to spell out in detailed and direct language the rights of Coloradans to use navigable rivers and streams for recreation, commerce and fishing, due to the actions of landowners like Mark Warsewa and Linda Joseph — and inaction by the Colorado Supreme Court.
These landowners along the Arkansas River have gone to great lengths in an attempt to prevent people from using the river. One threw rocks at Roger Hill to chase him off the public river. The other spent time in jail for firing a gun at another fisherman. We can’t help but note that these two are among the worst Colorado has to offer, and we know most landowners in this great state care for their land and their neighbors with equal measure.
But aggressive landowners who mistakenly believe they own the river and can restrict access have a long history in this state – including erecting dangerous metal gates in an attempt to strain out river floaters (creating a drowning hazard in the process) – and the time has come for Colorado lawmakers and Gov. Jared Polis to act before someone gets hurt.
The Colorado Supreme Court could have settled this case once and for all by taking up Hill’s request for the courts to rule that he and others have access to wade, float or fish navigable rivers and streams. Instead, the court demurred, ruling that Hill had no standing to bring the case, an odd decision given that he was asserting a public right with a basis in the “trust doctrine” – a court-established ruling in 1892 that states hold navigable waters and underlying beds in trust for public uses, a ruling that has been built upon and expanded by the courts for decades.
The refusal of the state court to take up the issue demands that our lawmakers do what other states have done and declare that the water and beds in navigable rivers and streams and natural lakes is the property of the people.
Montana not only affords the public the right to float and fish through private property on public rivers but, critically, the right to portage around obstacles in the river even if it requires entering private land, and the right to camp on the river shore on private land as long as the individuals are out of sight of private dwellings. There is much to like in Montana’s law. Obviously, such rights do not extend to non-navigable rivers and streams on private property where there was never a public understanding that the river was held in trust, but we’d encourage the state to adopt a broad definition of navigable, as New York and other states have.
Hill and other anglers have talked about working to gain standing in their fight to maintain public access to these rivers and streams even as private fishing clubs pop up on the shores. That would look like deliberately fishing in places where known aggressive landowners, mistaken in their belief of ownership of the river, call the police to have the men and women fishing arrested. If the law officers are not up-to-date with the trust doctrine, they may mistakenly arrest individuals giving them standing before the court.
We are hesitant to encourage this route because of the risks involved. Yes, most landowners in this state are kind, caring individuals. But we must remind the Warsewas and Josephs of this state what The Denver Post wrote in an editorial in 2001, advocating for a compromise that preserved public access to these rivers and streams: “Colorado law gives property owners the right to use lethal force only to defend themselves or another person. It does not give anyone the right to set what amounts to a booby trap to protect property. Colorado law strongly shields private landowners from liability if the public uses their property for recreation — but only if they don’t create artificial obstacles.”
In other words, if you deliberately hurt or kill an angler or rafter or birdwatcher, you will go to jail, perhaps for a very, very long time, where you won’t be able to enjoy any rivers or streams, public or private.
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