Riverbeds in western states should be open to the public for fishing.
Roger Hill, 80, went fishing on the Arkansas River in Colorado. But he sometimes had to dodge baseball-sized rocks thrown at him by landowners who insisted he was in violation. When he got back to his car, he sometimes found notes threatening him with arrest if he returned. Worse still, another fisherman was shot dead by a landowner, who was sentenced to 30 days in jail for the attack.
Rather than risk being injured or arrested, Hill sued the landowners, claiming the Arkansas River bed is navigable. If this assumption is true, then Hill can legally stand on the river bed and fish.
But Roger Hill’s fight isn’t just about his right to fish. It’s about fighting the creeping tide of wealth-driven privatization that seeks to deny the public access to our waterways and other public resources.
Here is Hill’s case in a nutshell: When Colorado became a state in 1876, it entered the Union on “equal footing” with the other states. Among other things, the doctrine of equal footing gives states title to the beds of all navigable rivers within their borders.
As the United States Supreme Court explained in a case called Illinois Central Railroad v. Illinois, “this is a title of a different character from that which the state holds to land held for sale…. It is a title held in trust for the people of the State, that they may enjoy the navigation of the waters, trade therein, and be free to fish therein, free from obstruction or interference from private parties.
History buffs might be interested to know that these public waterway rights date back at least to the time of the Roman Empire.
You might assume Colorado would join in this case on Hill’s side. Instead, the opposite happened. Attorney General Phil Weiser, a Democrat, joined the case on the side of the private landowners and took aggressive action against Hill, seeking not only to deny him the right to fish in the riverbed, but also to assert that Hill does not. even have the right to be in court.
On several occasions, Weiser has made the somewhat startling argument that there are no navigable rivers in Colorado, and that even if there were, the state could deny public access to the beds of navigable rivers. So much for the Supreme Court’s ruling that the state holds title to the beds of navigable streams “in trust for the people, that they may … have liberty to fish therein.”
In Colorado, opportunities to get out and explore are celebrated. For this reason, it is alarming that the state’s attorney general is seeking to deny public access to Colorado’s waterways. If it were to win, Colorado would be the only one of the 50 states – including all of its western neighbors – to deny those rights.
Recently, the Colorado Court of Appeals offered Roger Hill a glimmer of hope that Weiser could be arrested. The court ruled that Hill had standing to pursue his claim in state court and made the important finding that if “the affected segment of the river was navigable in the state, then the … defendants do not own the bed.” of the river and would not have the right to exclude [Hill] by threats of physical violence or prosecution for trespassing”.
Although it seems unlikely, Weiser now has the opportunity to switch sides and support public rights in the waterways, including Roger Hill’s right to fish while wading in the bed of the Arkansas River. The people of Colorado should expect and demand it.
The Colorado Constitution proclaims that “the water of every natural stream…in the State of Colorado, is…the property of the public…” the Attorney General would aggressively try to block public use .
Roger Hill’s fight is everyone’s fight. Let’s hope he wins.
Marc Squillace is a contributor to Writers on the Range, writersontherange.org, a non-profit organization dedicated to sparking lively conversations about the West. He is the Raphael Moses Professor of Natural Resources Law at the University of Colorado Law School, and he and Alexander Hood are representing Roger Hill, pro bono.