Few people have spent more time standing hip-deep in rivers than Roger Hill. A Colorado Springs-based angler so accomplished that he’s written guidebooks on the subject, Hill has coaxed trout to his hand-tied midges and mayflies in waters across the West. Yet many stretches of stream in his home state remain off-limits to him and other members of the public — and a recent ruling by the Colorado Supreme Court suggests that won’t change anytime soon.
More than a decade ago, Hill was fly-fishing a prime stretch of central Colorado’s Arkansas River, between Salida and Cañon City, when adjacent homeowners accused him of trespass and chucked rocks at him. Hill sued the rock-throwers and, later, the state: The Arkansas, he argued, was a historically navigable river that had served as a commercial highway as early as the 1870s. As a result, its bed wasn’t rightfully private property, but state-owned land on which anglers and other members of the public should be allowed to set foot. A ruling in Hill’s favor stood to transform river recreation in Colorado, long the West’s most restrictive state when it comes to aquatic access. “There are waters I’ve wanted to fish for 50 years, and I’ve been denied the use of a state-owned resource,” Hill told High Country News last year.
Hill will have to keep waiting. On June 5, the Colorado Supreme Court ruled that the angler lacked legal standing and dismissed his case. The question of who owns the river’s rocky bottom, wrote the court, was “not (Hill’s) to pursue”: In essence, he couldn’t sue for being kicked off a riverbed that had never been deemed public in the first place. The ruling likely relieved the state, whose Attorney General, Philip Weiser, had worried that the case could have “monumental consequences” for river access and water law. But it angered outdoor groups, including Backcountry Hunters & Anglers, which called it a “step backward in the fight for legal public access.”
High Country News recently caught up with Hill about the ruling’s significance, the case for the Arkansas’ navigability, and what happens next. This interview has been edited for length and clarity.
High Country News: What was your reaction to the Supreme Court’s ruling that you don’t have standing to pursue this case?
Roger Hill: They are just plain wrong — that’s my reaction. And I’ll tell you why. They came out and said that the river must be navigable for me to have standing to sue. Well, I was suing for a court statement that the river is navigable. Why would I sue to prove a river is navigable if someone else has already proven it’s navigable? Tell me, how do you understand that?
HCN: I think that’s what your attorney, Mark Squillace, recently referred to as a Catch-22: You don’t have standing to sue because the riverbed’s never been proven to be public land, and you can’t try to prove it’s public land because you don’t have standing.
RH: That’s what we’re dealing with. And that’s one of the worst things about the ruling: Now nobody has standing to claim navigability on a Colorado river, because the first thing you will have to prove is that the state owns it. But claiming navigability is only the state’s prerogative. So the state breathes a deep sigh of relief, because now it can keep people like me at bay.
HCN: The Colorado Supreme Court ruled that, in order to have standing, one would have to assume that you’d “win on the merits” of your claim that the river was historically navigable and thus owned by the state. What’s the evidence that you would have presented in court if you’d had the opportunity?
RH: In order for the river to be navigable, it must have been usable, at the time of statehood, as a highway of commerce. Now, I have 70 newspaper accounts of railroad tie drives going down the Arkansas River. These drives started just below Leadville and went all the way to Kansas, approximately a million ties. As I told you once before, if building a railroad ain’t commerce, tell me what’s commerce. We also have two different trips by a fellow named Ezekiel Williams, a beaver trapper, who utilized a section of the river to transport goods for profit. I don’t know what else would make it more convincing.
HCN: What’s next for you? Since litigation was unsuccessful, how do you intend to continue this fight?
RH: We are still considering what we are doing. We want the citizenry to be more educated in Colorado history and the use of rivers at statehood. And we want to get in front of other river users — the rafting community, the whitewater community, the kayak community. We are going to be looking for popular support. Will that ultimately involve talking to politicians? I don’t see how we can avoid it. But politicians have tried a couple of times (to change state river access laws) in the past. The attitudes are so hardened that it has been destined to fail.
HCN: If one of your goals is to educate the public, do you take some solace in the high-profile nature of your case? You may have lost, but presumably you also raised some degree of awareness about river access in Colorado.
RH: Yes, it’s gotten people talking about the right questions. There are a whole lot of recreational assets going to waste because we can’t use them. What that means to us is very crowded rivers: Every time you fish a good spot on the Arkansas, there are too many people. We have a shortage of recreational opportunities — and a growing demand for them.
Ben Goldfarb is a High Country News correspondent and the author of Eager: The Surprising, Secret Life of Beavers and Why They Matter. His next book, on the science of road ecology, will be published by W.W. Norton in 2023.
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