An octogenarian angler&rsquo;s&nbsp;quest&nbsp;to wade freely into the Arkansas River is making waves in more than just Colorado waterways, as the state&rsquo;s highest court reconsiders century-old rules that govern who is allowed to enter a streambed.&nbsp;
The Colorado Supreme Court is weighing in on whether members of the public can access waters that traverse private lands &mdash;&nbsp;by evaluating the case of Roger Hill, who claims he was pelted by rocks for doing so more than a decade ago.
Hill, an 81-year-old Colorado Springs resident, filed&nbsp;a lawsuit in 2018 against landowners Mark Warsewa and Linda Joseph, arguing that they had &ldquo;no right to exclude him from his favorite fishing spot&rdquo;&nbsp;which is located on their property, near the south-central Colorado town of Cotopaxi.
&ldquo;I was 71 then, and I was about two weeks prior to a heart procedure to correct my AFib while I was on blood thinners. If I&rsquo;d been hit with one of those rocks, I would have died right there,&rdquo; the fisherman, a retired physicist, told The Hill.
Since Hill filed his initial lawsuit, the case has gone through removals, dismissals, appeals, remands and more dismissals and appeals &mdash;&nbsp;ultimately landing this past December in the hands of the Colorado Supreme Court.
During a&nbsp;hearing before the state&rsquo;s high court&nbsp;earlier this month,&nbsp;Mark Squillace, Hill&rsquo;s attorney and a professor at the University of Colorado Law School,&nbsp;accused&nbsp;the state of denying &ldquo;that it has any responsibility to protect public access rights&rdquo;&nbsp;and&nbsp;stressed that Colorado is instead &ldquo;protecting wealthy private landowners.&rdquo;
At the core of this ongoing dispute is the issue of &ldquo;navigability&rdquo; &mdash; a federal government distinction that typically dictates the rules of public access by establishing whether a stream or river has been used &ldquo;for purposes of interstate or foreign commerce.&rdquo;
Unlike most other states, Colorado does not have any law defining navigability, nor was any river officially declared navigable at the establishment of statehood in 1876. Because Colorado has never claimed ownership to any rivers based on the idea that they were navigable at statehood, Hill cannot make any such assertion on the state&rsquo;s behalf, Colorado Solicitor General Eric Olson argued at the Supreme Court hearing.&nbsp;
But the fisherman has a different view of the situation &mdash; telling The Hill that &ldquo;the state has avoided its responsibilities for 150 years.&rdquo;
Squillace echoed these sentiments, noting that in comparison to other Western states, Colorado &ldquo;has the narrowest of the rules.&rdquo; Hill acknowledged that certain century-old court decisions determined there were no navigable waterways in Colorado:&nbsp;a 1914 case, for example, found that &ldquo;the natural streams of the state are non navigable within its limits.&rdquo; But Coloradans at the time also generally associated navigability with the ability to &ldquo;run a steamboat up and down&rdquo; a waterway, which Hill stressed is by no means a legal definition.&nbsp;
&ldquo;Having told you all that, yes, I was rather brazen fishing in that part of the river,&rdquo; Hill admitted.
Hill said his quest to assert his right to streambed access began in the 1990s, when he started casually researching river navigability and the history of water use on the Arkansas River.
He uncovered newspaper clippings from 1872-77 that discussed logging drives ahead of the Santa Fe Railroad&rsquo;s construction, as well as the story of fur trapper Ezekiel Williams, who shuttled his wares by canoe to what was then Kansas.&nbsp;These historical details, Hill argued, demonstrate that the waters were navigable for commercial purpose at statehood.
But&nbsp;he&nbsp;said he only decided to pursue a lawsuit after two other fishermen allegedly escaped gunfire while wading next to private land in 2015 &mdash;&nbsp;or what Hill described as the moment when &ldquo;the infamous gunshot was fired.&rdquo;
&ldquo;I said, this just has to stop before somebody gets killed over who has the right to fish where,&rdquo; he continued.
Hill&rsquo;s first interaction with the defendants in his lawsuit, Warsewa and Joseph, occurred in the form of a warning from Joseph while he was fishing one day in 2012.
&ldquo;She told me, &lsquo;This is private land. You can&rsquo;t go in there,&rsquo;&rdquo; Hill recalled. &ldquo;And I replied, &lsquo;I have a right to be there. There are easements that provide me a right to be in this navigable river.&rsquo;&rdquo;
When he was fishing in the same spot two weeks after Joseph&rsquo;s initial warning, Hill said she began throwing rocks at him from their cliffside property.
&ldquo;I just got to the other side of the river and said to my fishing buddy, &lsquo;We might as well go,&rsquo;&rdquo; he recounted. &ldquo;We fished another 10 minutes and left, because that kind of an interaction just spoils a day.&rdquo;
In the several years prior, Hill said he had spoken to about five other landowners &mdash; whom he met while fishing &mdash; who didn&rsquo;t mind his presence&nbsp;on riverbeds that traverse&nbsp;their property,&nbsp;as long as he didn&rsquo;t kill his catches.
But when Hill and his friend were fishing&nbsp;at the spot on Warsewa and Joseph&rsquo;s land&nbsp;again in another two weeks, he said Warsewa came down to demand that they leave. Hill said he then tried to explain to Warsewa that the river is navigable,&nbsp;so he had a right to wade there.
Years after that interaction, in 2015, Warsewa allegedly shot at two other anglers who were fishing in the spot,&nbsp;according to Hill&rsquo;s&nbsp;May 2018 lawsuit. While the men were unharmed, Warsewa pleaded guilty to menacing and was sentenced to 30 days in jail.
Warsewa and Joseph&rsquo;s attorney, Kirk Holleyman, did not respond to The Hill&rsquo;s requests for comment.
Hill&rsquo;s initial lawsuit sought both &ldquo;quiet title&rdquo; action &mdash;&nbsp;a proceeding to determine property ownership &mdash; and a claim for &ldquo;declaratory judgment,&rdquo; a ruling that would prohibit his&nbsp;exclusion&nbsp;from that segment of the riverbed.
&ldquo;The idea of the declaratory judgment is that you should not have to put your person at risk for being prosecuted or for suffering some kind of harm in order to test your legal rights,&rdquo; Squillace told The Hill.
The lawsuit was eventually dismissed by a federal district court, which at first led to an unsuccessful appeal. But Hill tried again, and in January 2022, the appeals court appeared to provide his case a green light.
While the judges rejected the quiet title claim, they determined that the fisherman&nbsp;does have grounds&nbsp;to pursue a claim for a declaratory judgment.&nbsp;
Three months later, however, Colorado Attorney General Philip Weiser&nbsp;submitted a brief&nbsp;to the Colorado Supreme Court, describing the decision as &ldquo;wrong.&rdquo; Weiser urged the court to resolve a matter that &ldquo;threatens to upset long-settled arrangements governing water and river access.&rdquo;
This past December, the court&nbsp;announced it would step in and determine whether the fisherman has standing to sue Warsewa and Joseph.&nbsp;
&ldquo;Presumably, that&rsquo;s the only thing that the court is going to rule on &mdash; whether there is a right to be heard on the declaratory judgment,&rdquo; Squillace said.
If the judges decide to affirm the appeals court decision, and Hill then goes on to win a lawsuit, a ruling in his favor could afford him unfettered access to this part of the riverbed.
But Squillace said he is hoping the court might also rule on what&rsquo;s known as &ldquo;the public trust doctrine&rdquo; and whether it can be applied to the bed of navigable streams in Colorado.
Such doctrines, which require the government to hold natural resources in trust for the public, often ensure free access to submerged lands under navigable waters.
But Colorado, unlike most other states,&nbsp;has yet to adopt a public trust doctrine &mdash; a point that Olson, the solicitor general, emphasized during the early May Supreme Court hearing.
Absent such an adoption, Olson argued that even state ownership of the streambed would not provide Hill &ldquo;a legally protected interest in fishing there.&rdquo;
Yet federal law decrees that upon statehood, a state gains title to the streambeds of waters that were navigable at that time through what&rsquo;s known as the &ldquo;equal footing doctrine.&rdquo;
&ldquo;If the state owns the title in trust for the people, then it seems to me that Mr. Hill has the right to stand on that bed,&rdquo; Squillace said at the hearing.
Should the&nbsp;state&nbsp;Supreme Court choose to rule on the public trust doctrine issue, Squillace told The Hill that he thinks &ldquo;there&rsquo;s a reasonable possibility that we can settle the case,&rdquo; because then he would simply need to provide evidence that the waterway is navigable.
In such a scenario, the judges would likely remand the case to the lower court to &ldquo;determine whether this particular stretch of the Arkansas River is navigable for title,&rdquo; Squillace explained.
&ldquo;If we lose, I think it&rsquo;s the end of the road for us,&rdquo; he said&nbsp;of the Supreme Court decision.
A win, on the other hand, would bring&nbsp;the&nbsp;state more in line with its neighbors, while also instigating &ldquo;a big change in the way that Colorado treats public access rights,&rdquo; according to Squillace.
Sharing a similar perspective, Hill recognized that a ruling in his favor would leave the region&rsquo;s landowners grappling with a shakeup of long-ingrained riverbed norms.&nbsp;
&ldquo;The state is going to be in the position of explaining to a lot of people that you think you own that, because there&rsquo;s a blue line across the map,&rdquo; Hill said.
&ldquo;But that blue line did not convey to you ownership.&rdquo;