10th Circuit Revives Fisherman’s River Dispute

Legal scholars and water law experts have weighed in on what could be a precedent-setting case

Fishing takes patience, and Roger Hill might need more of it than other fans of the sport. 


A recent 10th Circuit decision gave the fly fisherman another shot at testing his right to access a stretch of the Arkansas River, but he’ll likely be waiting a while for the courts to rule on whether he may cast his line from his favorite spot. 

He isn’t the only one awaiting an outcome. Environmental law scholars, water law attorneys and property owners are watching the case, which some say could set precedent in determining title to riverbeds in the state. 

Hill has for years been feuding with landowners Mark Warsewa and Linda Joseph about who ultimately owns the riverbed on their property in Fremont County. Hill claims he should be able to wade in the river because the state holds title to the riverbed in trust for the public, while the landowners assert it’s their private property. 

In 2018, Hill sued the property owners in state court to ask for declaratory judgment on the dispute. The case was removed to federal court due to federal question jurisdiction, and the State of Colorado was later added as a defendant. 

In January 2019, a federal district court dismissed the lawsuit, finding Hill lacked prudential standing to bring his claims because they rested on the rights of a third party—the state of Colorado — rather than his own. However, on Jan. 23, the 10th Circuit Court of Appeals reversed the district court’s decision and remanded the lawsuit to the lower court.

OUTSTANDING ISSUES

Colorado Attorney General Phil Weiser expressed “disappointment” in the appellate court’s decision. “It is the job of Colorado — and only the State of Colorado — to assert its right over the land in question. The Department of Law is studying the ruling and considering its options moving forward,” Weiser said in a statement.

Hill’s team was happier about the reversal, even though it only addressed the prudential standing issue. “We’re really delighted about the initial outcome, because had we lost in the 10th Circuit, we basically would have been barred from the courthouse,” said Mark Squillace, a University of Colorado Law professor representing Hill. “And now at least we have a chance to make our case.”

But there are other questions of standing Hill has to overcome before he can test his case on the merits. On remand, the district court will consider whether Hill’s complaint is too general to grant him constitutional standing. 

Hill has argued his claims are more than a generalized grievance because he’s suffered harm in the form of harassment and violence from the property owners. 

In his complaint, Hill alleged that Joseph had thrown rocks at him and that Warsewa had shot at his fishing buddy with a gun. 

Others are skeptical those arguments will hold up. The district court originally found Hill’s was a generalized grievance, but the 10th Circuit majority didn’t weigh in on that conclusion because it didn’t apply to the prudential standing question. In his dissent, 10th Circuit Judge Robert Bacharach questioned the logic of remanding the case just to have the district court come to the same conclusion a second time.

“It seems likely that’s where this is headed — they give the district court one more opportunity to find this is a generalized grievance and therefore doesn’t belong in federal court,” said Burns Figa & Will shareholder Steve Leonhardt, who filed an amicus brief on behalf of the Colorado Water Congress in support of the defendants. 

If that happens, the case could end up back in state court. “We feel like, at worst, we’re in a position where Mr. Hill can go back and test his rights on the river,” Squillace said, adding that if Hill were to be arrested or face other harm, “presumably, then, the court would agree to hear his claim.”

RIVER BY RIVER

No matter where the case lands, Squillace said his client is just asking for his day in court to prove he — and the rest of the public — has the right to access the stream. Hill’s argument rests on the equal footing doctrine under constitutional law, which holds that Colorado took title to the beds of all its navigable streams when it became a state. However, there was no determination made in 1876 about which streams were navigable, Squillace said.

“While the doctrine is there, we have to go through river by river, and river segment by river segment, to determine whether or not any particular rivers are navigable for title purposes,” Squillace said. 

To establish navigability, Hill cited in his complaint newspaper articles from the 1870s that suggest his favorite stretch of the Arkansas River was being used to transport railroad ties when Colorado entered statehood. He also referred to accounts from the early 19th century as evidence of other commercial uses of the river, including travel by fur traders.

However, another amicus brief supporting the defendants disputed these claims of navigability. “The Colorado courts have repeatedly stated that there are no navigable rivers in Colorado,” said the brief filed by property owners and developments, citing state Supreme Court decisions dating back over a century.

Leonhardt said that courts, including the U.S. Supreme Court, have determined the only navigable stretch of the Arkansas River is downstream from Tulsa, Oklahoma. “Courts have recognized that in this stretch of the river in Fremont County, it’s a mountain torrent that is not navigable by any criteria that have historically been considered for navigability,” he added.

WADING INTO CONTROVERSY

Those who have taken a position in the case have waded into a debate about the public trust doctrine, which says the state holds certain natural resources in trust for public use.

The defendants and their supporters argue that Colorado courts haven’t adopted the public trust doctrine and that the doctrine is inconsistent with water use protections under the state constitution. Leonhardt said that the theory of the public trust doctrine has become a “significant limitation” on water rights in states like California. “That’s part of the reason why Colorado has steadfastly rejected the public trust doctrine,” he said.

Law professors at the University of Denver and Columbia University argued in an amicus brief supporting Hill that the state hasn’t actually rejected the public trust obligations it gained at statehood. 

“Colorado just hasn’t taken any type of clear action or express statement that would have altered the nature of its trust relationship or the fact that it holds title in land under navigable waters,” said Sarah Matsumoto, a clinical fellow at the University of Denver Sturm College of Law. It’s not even clear the state could fully “reject” its trust obligations regarding navigable waters, even if it wanted to, Matsumoto and her colleagues argued in the brief.  As far as real-world consequences, Squillace said it could be a “major precedent-setting case” if Hill can show the Arkansas River is navigable for title. That would open up the possibility of other rivers in the state meeting the same test, he said.

The state has voiced concern that if Hill is successful, it could expose Colorado to takings claims from property owners. Similarly, the housing developments argued in their brief that “Hill’s assertion of state ownership of riverbeds could result in a destabilizing and radical transfer of property rights” to the state. But the law professors’ brief dismissed these as “Chicken Little” fears, arguing the state can’t “take” property it has owned since 1876. “I don’t think that Mr. Hill is trying to necessarily do anything that’s really earth shattering here,” Matsumoto said of the controversy. “He’s really just trying to exercise his own personal right of access that has existed until somebody says otherwise.”

— Jessica Folker

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