Here in the West, we tend to think of lakes, rivers, and streams as inherently public property, like sunshine or the air we breathe. Sadly, a significant portion of Colorado’s rivers and creeks have become inaccessible, closed off by barbed wire and “no trespassing” signs. Questions arise as to whether private landowners can truly prevent all use of the waters that cross their lands.
Public access on waters flowing over private land has been the subject of vigorous disputes for decades. There are many stories of landowners hurling insults, rocks, and worse at fishermen and other recreational river users. Many states have developed “bright line” rules to define access rights. In Montana, for example, anglers and other river users have full access to most waterways between the high-water marks on either bank, and streambeds of any rivers that support recreational uses can be accessed by the public. Other states permit recreational users to float through rivers on private land so long as they don’t touch the riverbed. The question of public access in Colorado, however, is not that simple.
This issue recently came to light in a lawsuit that went all the way to the Colorado Supreme Court. The lawsuit was brought by a 71-year-old man named Roger Hill, who challenged the right of landowners to “exclude him from his favorite fishing spot” on the Arkansas River; it happened to be on a section of the river that traversed their property near Cotopaxi. Hill stated that he had many run-ins with landowners on the river and decided to pursue litigation after two other anglers escaped gunfire while wading next to private land. Hill’s claim was based on an obscure legal theory that whether a riverbed in Colorado is public land depends on its status at the time the state was admitted to the union in 1876. If a river was “navigable” in 1876 (i.e. used by commercial traffic), the riverbed was public property from which members of the public could not be excluded, regardless of whether the river is “navigable” today.
Forty years earlier, the Colorado Supreme Court was called to decide a similar case. A party of rafters was arrested for criminal trespass after floating a section of the Colorado River that crossed private land. The rafters had entered the river from a public access point and never touched the riverbed, they only floated across the land. Upon being notified that a party of rafters was approaching, the landowner extended a strand of barbed wire a few inches above the water to impede their progress. Shortly thereafter, a deputy sheriff arrived and placed the rafters under arrest. The rafters were convicted, and the state Supreme Court upheld the convictions, stating that in Colorado, “He who owns the surface of the ground has the exclusive right to everything which is above it.” In other words, if you own the property under the river, you have the right to control the fishing and other activities on the water flowing above it.
Hill’s case went back and forth between federal courts and Colorado courts for several years, until it was dismissed in June 2023. Although the court recognized that Hill’s legal theory had some validity (some states have followed this rule), it was not inclined to dive into the historical weeds of what Colorado rivers and streams were “navigable” in 1876. Rather, the court held that only the State could determine which waters were “navigable” in 1876, and therefore public, which it has never done.
After decades of litigation, the question of public access on waters crossing private land remains in flux. Although many have resorted to the courts for answers, the Colorado Supreme Court has said “if the increasing demand for recreational space on the waters of this state is to be accommodated, the legislative process is the proper method to achieve this end.” Until the legislature provides some clarity, the best bet is to ask for permission before fishing a river that crosses private land, and if permission is refused, honor the landowner’s wishes, no matter how promising the fishing may appear to be.
Craig Johnson is CREA’s Director of Government Relations and General Counsel, and in his spare time is an avid outdoorsman and fly fisherman. This article is not intended to be, and should not be relied upon as legal advice.