Who Owns the river-bottoms in Colorado? High Country News

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The first rock hurtled past Roger Hill’s head and plunked into the Arkansas River on a summer day in 2012. Hill, then 71, stood hip-deep in the flow, clad in waders and clutching his fly rod. Atop a steep bluff, a woman — whose name, Hill later learned, was Linda Joseph — glowered down at him. Hill was trespassing on private property, Joseph shouted, and flung another rock. “If she’d hit me with a baseball-sized rock from 50 feet up, honest to God, it would have killed me,” Hill recalled.

Hill retreated, but the dispute was only beginning. The next time he waded to his favorite spot, some 20 miles upstream of Cañon City, Colorado, Joseph’s husband, Mark Warsewa, left a note on Hill’s car that threatened him with arrest. Hill stayed away, but in 2015, two of his buddies returned to fish. Warsewa emerged from his riverfront home with a handgun and fired a shot in their direction. The bullet struck the surface a mere 15 feet from the anglers. 

Although Warsewa got 30 days in jail for his stunt, the issue that sparked the conflict remains unresolved: Who owns the beds of Colorado’s rivers? 

From a river-access standpoint, Colorado is among the West’s oddest states. Federal law dictates that the beds of “navigable” rivers — waterways once used as highways for commerce — belong to the states, which, in turn, generally allow boaters and anglers to use them. Idaho, for instance, grants public access for “all recreational purposes,” including angling on foot, on any river capable of either carrying cut timber or “being navigated by oar or motor.” Washington permits fishermen and other members of the public to wade streams deep enough to float “a bolt of shingles.”  

By contrast, Colorado has historically denied that it even has navigable rivers. In 1912, the state’s Supreme Court opined that the state’s waterways — steep, rushing, canyon-bound — were “nonnavigable within its territorial limits.” By that logic, the beds of even major rivers belonged not to the state, but to the owners of adjacent private properties, who often didn’t look kindly on the intrusions of the hoi polloi. When, in 1976, a group of rafters drifted past a ranch that abutted a shallow stretch of the Colorado River east of Kremmling, they were convicted of trespassing for having the audacity to occasionally bump the bottom. In the aftermath, many of the state’s landowners and recreators struck a delicate, informal agreement: You could float through private land, but you couldn’t touch bed or bank. 

By that logic, the beds of even major rivers belonged not to the state, but to the owners of adjacent private properties, who often didn’t look kindly on the intrusions of the hoi polloi. 

Hill, however, prefers to do his fishing on foot. In 2018, he sued Joseph and Warsewa for access to the Arkansas where it flowed past their property; later, he added the state of Colorado to his suit. Contrary to conventional wisdom, Hill believes, the Arkansas River was historically navigable, and its bed thus belongs to the public. And while his case applies only to the river that locals affectionately know as the Ark, it could ultimately affect waterways throughout Colorado, where the public has never craved outdoor opportunities more. “We don’t have enough quality recreational opportunities to satisfy demand today,” Hill told me. “There are waters I’ve wanted to fish for 50 years, and I’ve been denied the use of a state-owned resource.”

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