Amicus Brief Filed on Colorado Stream Access Case

In late March, American Whitewater, Backcountry Hunters & Anglers, and the Colorado River Outfitters Association filed an amicus brief in the Hill v. Warsewa stream access case that has the potential to clarify the public’s ability to affirm their rights to access Colorado’s streams and rivers.

The case has bounced around between state and federal court all on the question of Roger Hill’s standing to bring the case. An appeals court agreed with Mr. Hill in his claims that having baseball sized rocks hurled at him while he fished the Arkansas River was “individualized harm”. The state Supreme Court will be deciding whether that appeals court was correct in their decision and if Mr. Hill will have a chance to have his case heard on the merits of the navigability of the section of the Arkansas at the time of statehood. 

It is unclear what test of navigability applies in Colorado, as no state statutes or regulations define or describe such a standard. Colorado courts also have not indicated which test applies, although the Colorado Supreme Court has summarily noted on two occasions that all streams in Colorado are non-navigable. The extent of the public's rights, if any, to float or otherwise recreate on non-navigable streams running through private property is unsettled. The state of Colorado is concerned that the status quo is working well and clarifying navigability will upend long standing agreements.

The amicus brief argues that without Hill’s case proceeding, Colorado will fail to do what other western states have already done and engage with the question of navigability and open access to the public where the public deserves access.