Is there a “Right to Wade” in Colorado Rivers?
A recent Colorado Court of Appeals case has given a fisherman the green light to continue litigation claiming that a certain stretch of the Arkansas River is public property. The case is Hill v. Warsewa, and the opinion can be downloaded at the link below. The specific issues before the Colorado Court of Appeals were fairly narrow – the Court was tasked with determining whether the Fremont County trial court properly dismissed Plaintiff Roger Hill’s lawsuit at the outset, without reaching the merits of his claims. In a nutshell, Mr. Hill wants the right to wade in the Arkansas River bed where it crossed land owned by the defendants. His primary theory: the river was “navigable” when Colorado became a state in 1876, and so the riverbed is actually public property. In general terms, “navigable” means the river was used for commerce or capable of such use. The Court of Appeals allowed Mr. Hill to pursue his request that the trial court prohibit the defendants from excluding him from his favorite fishing spot – which happens to be located on defendant Warsewa’s property.
The Court of Appeals stressed that the actual merits of Mr. Hill’s claim were not before it. Rather, the Court found that Mr. Hill’s theory of navigability and public trust was plausible enough to survive an early dismissal.
Obviously, this case has enormous potential implications for owners of property along Colorado’s rivers. Assuming the case goes back to the trial court in its current posture, the trial court will decide which of Mr. Hill’s legal theories actually exist in Colorado. The Court of Appeals’ opinion seems to recognize the navigability theory already, with the following language: “[i]f, 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…” Thus, it would appear that the Court of Appeals has cleared the way for anyone who wants to walk across private property along a river bed to pursue such right in court, bringing up a long list of potential issues and implications:
- What does “navigable” really mean? Is it enough to show that someone happened to float a few logs for a few miles over 100 years ago?
- Navigability is determined only for the segment of the river at issue, which could result in a patchwork of public and non-public areas of the same river.
- Are landowners owed any compensation if a river segment is determined to be public property?
- What can the public do on a “navigable” streambed? Could someone only walk by, or could they set up camp and stay awhile? Could they drive ATVs and snowmobiles? Could they alter the riverbed to improve fish habitat?
- What is the liability for a property owner if someone gets hurt in the riverbed?
- What are the boundaries of the riverbed? What if they change over time?
- Could the state of Colorado vacate or disclaim the rights of the public in the riverbed, if it wanted to?
- What use or occupation, if any, can the property owner make of the riverbed?
- To what extent could the State of Colorado limit the numbers and activities of members of the public on the riverbed?
Many of these issues would be litigated in future cases over a period of decades, resulting in long term uncertainty for anyone who owns property along a river in Colorado.
Note that as of this writing (February 23, 2022), the defendants in the Hill case and the state of Colorado have taken steps to appeal the case to the Colorado Supreme Court. Stay tuned…
 Mr. Hill alleged additional legal theories for why the riverbed is public property.