Public Mistrust Doctrine
“The topic of stream access illustrates one of the most perplexing types of legal conflicts that can arise… Indeed, it is difficult to find a legal issue that is more tangled and uncertain.”
—A Wildlife Primer (2009), by Eric Freyfogle and Dale Goble
COLORADO’S RIVER laws might be in trouble. Roger Hill, the octogenarian trying to fulfill his dream of legally wade-fishing the Arkansas River, was at the Colorado Court of Appeals on January 27 and got good news about his case—Hill v Warsewa.
Hill aims to show that the Arkansas was a “navigable” river at statehood, rendering its beds public and legal to wade under the “equal-footing doctrine,” which grants each state, at statehood, title to the beds of navigable waterways within its borders.
Hill first filed his complaint in 2018 after a dispute with defendants Mark Warsewa and Linda Joseph, who threw rocks at Hill as he attempted to fish the river below their home.
The case was first moved to Federal Court for jurisdictional reasons, where the State of Colorado was added as a defendant. It was then moved to district court, where Hill’s complaint was dismissed for “lack of standing” (essentially, the court said he had no right to bring the case). But the appeals court reversed that dismissal in Jan., allowing Hill to continue with a case that hinges on whether he can prove navigability on the Arkansas.
The outcome could impact Colorado’s fishing and rafting community in enormous ways. The State has never defined legal access or “navigability” on its rivers, so for decades it’s largely been a guessing-game as to what is or isn’t allowed.
Perhaps the most interesting news from the Court of Appeals came not from the dismissed case being reversed, but from a few other thoughts the court chose to share in its opinion.
An amicus brief, which allows third parties with an interest in a case to weigh in with support for one side or the other, was filed by Colorado Springs, the Upper Arkansas Water Conservancy, and Colorado Water Congress, in support of
