Courts aren’t cutting it on access decisions
By Tom Bie
“The topic of stream access illustrates one of the most perplexing types of legal conflicts that can arise… Indeed, it is difficult to find a legal issue that is more tangled and uncertain.” —A Wildlife Primer (2009), by Eric Freyfogle and Dale Goble
Colorado’s river laws might be in trouble. Roger Hill, the octogenarian trying to fulfill his dream of legally wade-fishing the Arkansas River, was at the Colorado Court of Appeals on January 27 and got good news about his case—Hill v Warsewa.
Hill aims to show that the Arkansas was a “navigable” river at statehood, rendering its beds public and legal to wade under the “equal-footing doctrine,” which grants each state, at statehood, title to the beds of navigable waterways within its borders.
Hill first filed his complaint in 2018 after a dispute with defendants Mark Warsewa and Linda Joseph, who threw rocks at Hill as he attempted to fish the river below their home.
The case was first moved to Federal Court for jurisdictional reasons, where the State of Colorado was added as a defendant. It was then moved to district court, where Hill’s complaint was dismissed for “lack of standing” (essentially, the court said he had no right to bring the case). But the appeals court reversed that dismissal in Jan., allowing Hill to continue with a case that hinges on whether he can prove navigability on the Arkansas.
The outcome could impact Colorado’s fishing and rafting community in enormous ways. The State has never defined legal access or “navigability” on its rivers, so for decades it’s largely been a guessing-game as to what is or isn’t allowed.
Perhaps the most interesting news from the Court of Appeals came not from the dismissal being reversed, but from other thoughts the court chose to share in its opinion.
An amicus brief, which allows third parties with an interest in a case to weigh in with support for one side or the other, was filed by Colorado Springs, the Upper Arkansas Water Conservancy, and Colorado Water Congress, in support of defendants Warsewa, Joseph, and, now, the State of Colorado. The brief was supposed to help show that the district court made the right decision in dismissing Hill’s complaint. It didn’t turn out that way.
The main argument for the State being made in the brief is that Hill’s case is based on the premise of the “public trust doctrine”—the principle that certain natural resources like lakes and rivers should be held in trust by the government and remain open to the public. However, according to the brief, “Because Colorado has no public trust doctrine, Mr. Hill has no right to access the streambed.”
The first case cited as precedent in the brief, not surprisingly, is Colorado’s landmark People v. Emmert in 1979: “The Colorado Supreme Court has held that the State constitution ‘simply and firmly establishes the right of appropriation’ for water in Colorado, and has refused to apply a public trust doctrine to Colorado’s waters.”
Despite “water rights” and “stream-access” being very different issues, the two topics were conflated in this case, only adding to the confusion. People v. Emmert was decided on the court’s (extremely narrow) interpretation of article XVI, section 5 of the Colorado Constitution, which reads: “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation.”
Now, we can all protest the absurdity of that passage somehow being interpreted as restricting, rather than granting access rights. Plenty have, including both dissenting judges, James Groves and James Carrigan. Groves: “The constitutional language clearly dictates a result opposite to that reached by the majority.” Carrigan: “If the recreational use of streams was not among those uses for which streams were reserved to the public, it is impossible to conceive what uses were contemplated and reserved by the constitution.”
A brief overview of Colorado’s “landmark case”—the seminal altar upon which its hallowed water-laws are based: On July 3, 1976, David Emmert and three kids put two rafts onto a river, launching from public land. While floating downstream, the rafters were spotted by a riverside ranch owner, who, with help from his ranch foreman, went to their private bridge downstream and stretched a single strand of barbed wire across the river, eight- to ten-inches above the water. This was done “specifically to impede the defendants.”
The rafters did touch bottom, but they never left their rafts and never approached the banks or shoreline. They were stopped at the bridge until a deputy sheriff came and arrested them on charges of third-degree criminal trespass, because the land beneath (and the air above) non-navigable rivers in Colorado is considered private. The “non-navigable” river they were floating? The Colorado.
Three years later, Emmert was convicted of the charge by the Colorado Supreme Court, which relied in part on a common law from the 13th Century that states, “cujus est solum, ejus est usque ad coelum.” (“He who owns the surface of the ground has the exclusive right to everything which is above it.”)
“The Colorado Supreme Court, in rejuvenating the ancient principle of ‘cujus est solum, ejus est usque ad coelum,’ has embraced a doctrine which the United States Supreme Court long ago abandoned as obsolete,” Justice Carrigan wrote in his dissent: “In 1946, the United States Supreme Court concluded that the doctrine, which the majority opinion today adopts, had “‘no place in the modern world.”
Unfortunately for river lovers in Colorado, laws in the US rely heavily on judicial precedent set by majority rule, which dissenting opinions, regardless of strength, cannot overturn.
But another dubious claim in the amicus brief might present more of a problem. It asserts not just that Colorado’s Supreme Court, but many of its courts have similarly weighed in on the topic of a public trust: “Colorado courts have consistently rejected arguments asserting public easements or a public trust in the state’s natural streams.”
The Colorado Court of Appeals, in its Jan. 27 opinion written by Judge Tow, hinted that Colorado might want to re-consider its present legal strategy: “Appellees argue that even if the river were considered navigable, Hill would not have a right to access as a member of the public ‘because there is no public trust doctrine in Colorado.’ This may (or may not) be the case. The question of whether, and to what extent, the public trust doctrine should apply to the bed of a navigable river has never been resolved—or, as far as we can tell, even addressed—in Colorado.”
A suggestion, made by Mr. Peter Jaacks, in his lovely piece of for COLORADO NATURAL RESOURCES, ENERGY & ENVIRONMENTAL LAW REVIEW, Vol 32: “Colorado should create a state definition of navigability that includes all waters of the state that are navigable in fact and have a historical recreational use,” Jaacks wrote, “These waters would be defined as navigable, and therefore burdened by an easement for public access up to the mean high-water mark. Historical recreational use would encompass waterways that commercial or private parties have historically floated or waded.”
The earliest meaningful public-trust ruling in America came in 1821, in New Jersey, over the always-hot topic of oyster theft. In the case, Arnold v. Mundy, Arnold claimed that Mundy had pilfered his oysters and had trespassed to do it. An eventual ruling by New Jersey Chief Justice Andrew Kirkpatrick found Mundy not guilty because “the navigable rivers, the ports, the bays, the coasts of the sea, including both the water and the land under the water….are common to all the citizens.”
This ruling—that the land beneath navigable water couldn’t be transferred or sold into private ownership, became the central foundation of the public trust doctrine—and remains so today.
The most important aspect of the principle as it relates to anglers and boaters in modern America is that the “public” part of the public trust doctrine refers not to ownership of water but the use of it—particularly surface water—for recreational purposes.
Thanks to the power of judicial precedent, at least partial thanks for this must go to Wyoming. In the 1961 case Day v. Wyoming, the Wyoming Supreme Court ruled that the public could use rivers in the state whether the beds were privately owned or not. The State made it clear that Wyoming, not the Federal Government, determined ownership of land beneath its rivers, but it also ruled that ownership of the land beneath a river was “irrelevant to the public’s right to use public waters.”
The law of judicial precedent, otherwise known in the US as common law or case law, are the laws created by judges. Generally speaking, if a similar case has been previously resolved, then a judge or court is required to follow similar reasoning, a principle known as stare decisis. The exception being if the case is distinct, and existing laws either don’t address it or are too ambiguous to guide a ruling. One of the big difficulties facing both sides in Hill v Warsewa is the same problem challenging anglers and rafters across the nation: That the laws governing public access to rivers, if they exist at all, contain some of the most unclear, ambiguous, and open-to-debate legislation in the history of American jurisprudence.
Colorado’s last major access-blowup began in March 2010, when House Bill 1188 was introduced in the Colorado legislature. The original version would’ve gone a long way toward defining fair access, but after being gutted by the Senate, the resulting bill ended up as just another six-month study. As former Denver Post outdoors columnist Scott Willoughby wrote at the time, the resulting bill “did nothing more than offer weak politicians an escape clause until the next election.”
Enter Bill Ritter, Colorado’s governor at the time. It’s tough to put all the blame on politicians—they need money from rich landowners in order to run campaigns, and they need votes from everyone else in order to win them. So they consistently kick the can, which is just what Ritter did when a fight erupted two months later, in May 2010, along the Taylor River. Two rafting companies—Three Rivers Outfitters and Scenic River Tours—were being told by a private fishing club that they could no longer float past the club’s property, called Wilder on the Taylor (because what could be wilder than fishing “an additional meandering private flyfishing stream that we had built”).
“It is my firm opinion that any individual or group or company rafting through our private property,” wrote Lewis W. Shaw II, president of Wilder on the Taylor’s development company, “is committing an act similar to someone walking across your front lawn on a short cut to the grocery store.”
Ritter appointed a “River Access Dispute Resolution Task Force” in July 2010. It wasn’t involved in the private resolution on the Taylor. It met five times, the last one in October 2010.
Justice Louis Brandeis wrote, in 1932, that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Colorado must settle its matter of public access. Whatever the best solution may be, perpetual uncertainty can’t be it. Justice Brandeis added that in some cases a court must “bow to the lessons of experience and the force of better reasoning. Unwavering adherence to precedent threatens to undermine the principal policy on the other side of the stare decisis ledger: assuring accurate judicial decisions that faithfully apply correct principles of law.”
Back in August, Utah Judge Derek Pullan—despite getting it right the first time—made a U-turn on his 2015 decision and ruled against the Utah Stream Access Coalition in its case against Victory Ranch, thus granting four miles of private wading to ranch members while removing 2,703 miles of public wading from the rest of Utah’s quarter of a million anglers.
I doubt Pullan’s decision is what the State of Utah had in mind when its Constitution was adopted in 1896, confirming the right of its citizens “to use any of the waters in this State for any useful or beneficial purpose.” Pullan’s decision wasn’t based on the future needs of 21st Century Utah, nor on the perfectly rational argument he’d made six years earlier using 20th Century logic and the doctrine of public trust. Instead, Pullan went pre-statehood on us, going back to the Utah Territory in the 19th century, where the true and lawful verdict had apparently been hiding beneath a wagon wheel since the 1850s.
Even if Judge Pullan’s ruling in Utah was legally defensible, it cannot rationally, equitably, or economically be justified. All judges know that the public trust doctrine is vague, but attempts should still be made to serve its intended purpose. Pullan may even know himself that he made a questionable decision, but like too many judges, he would never admit it, choosing instead to hide behind stare decises to justify his illogical and unwarranted legal interpretations and the consequences they bring.
This long-held notion that every legal ruling should align with the past in order to account for the future does not often function well in the world of natural resources. And to believe that every member of the judiciary follows a rigid adherence to law in these matters is to place judges above the sort of political influences found throughout the rest of American government. I won’t call them “politicians in robes,” as some have. But two centuries of legal wrangling has shown that our judges can weigh prior opinions heavily when those opinions support their beliefs, and they can ignore them when they don’t.
Consider PPL Montana v Montana, in which nine Supreme Court Justices basically ignored 140 years of judicial precedent and the equally sound legal arguments of twenty-six states. Both sides in Hill v Warsewa have cited it in their arguments.
It began in 2003 when a few Montana moms and dads sued the PPL power company, claiming the riverbeds beneath the company’s dams along the Madison, Clark Fork, and Upper Missouri were school-trust lands. The State of Montana joined the suit, a bit of counter-suing occurred, and four years later, PPL (founded in 1920 as Pennsylvania Power and Light) was ordered by the First Judicial District Court in Montana to pay the state $41 million in back rent, based on the court’s opinion that Montana owned the riverbeds in question.
The case made it to the Montana Supreme Court, which agreed with the lower court’s decision that Montana was granted title to the beds of navigable rivers at statehood. But in Dec. 2011, PPL Montana v. Montana came before the US Supreme Court. It did not agree with the lower court’s opinion, ruling unanimously that Montana didn’t own the relevant riverbeds because portions of the river were non-navigable at statehood so ownership would not have passed to the state. The Court ruled that the State incorrectly used the test to determine federal regulatory power, instead of the test to determine title of submerged lands under the equal-footing doctrine, which grants states title to beds of its rivers that were navigable at statehood.
This may sound like buying tangerines when you meant to get clementines, but the fallout for Montana was enormous. The navigability test for regulatory power can designate an entire river as navigable or not, while the test to determine title on a non-navigable river—which the Court felt applied—must designate the river on a section-by-section basis.
The fear, initially, was with the ruling’s potential to impact Montana’s famously angler-friendly access laws. A decade later, it has changed little in Montana, but it could play a huge role in a Colorado ruling, and it was largely responsible for New Mexico’s Supreme Court spending March 1 striking down that state’s “Non-Navigable Waters Rule.”
Turns out, word of the decision in PPL Montana v. Montana spread pretty quickly. And the notion of slicing up rivers into tiny pieces dovetailed nicely with the aspirations of certain riparian landowners looking to close-off access to formerly public rivers. (See “Rough Water” Fall ’21, by Elizabeth Miller.)
It didn’t take long. Less than two years after the decision, drafts of New Mexico’s Senate Bill 226—the paradoxically named “River Access Bill”—were already floating around Sante Fe. The bill barred the public (unless they had written permission) from wading in streams that went through private property. It passed by one vote in 2015, and three years later, five ranch owners in New Mexico received a “Landowner Certification of Non-Navigable Water”—basically a permit to privatize river sections running through their properties.
All of those permits were voided on March 1 as part of the court’s 5-0 decision. And according to Jeremy Vesbach—one of the former Game Commissioners fired by Governor Michelle Lujan Grisham—this result should have surprised no one. “We had opinions from multiple attorney generals, and they were all consistent,” Vesbach said. “The only legal interpretation we were getting that said the rivers should be private was from lawyers for landowners wanting to privatize their portions of the river.”
At the Game Commission hearing before the first of the non-navigable water certifications were granted, former Chair Paul Kienzle told those in attendance, “This is what’s required by the United States Supreme Court, that this determination of non-navigability be done on a segment-by-segment basis. I’m talking about PPL versus Montana. Go do your homework. Read that case. It deals with title to streambeds in the United States.”
Proponents of the Non-Navigable Waters Rule were clearly counting on the PPL decision as their main defense of that rule, particularly that the equal-footing doctrine granted them title and the non-navigable designation allowed them to deny access. But as Justice Kennedy noted in his PPL v Montana opinion, that is a common misinterpretation between the “equal footing doctrine” and the “public trust doctrine.”
Federal law determines riverbed title under the equal footing doctrine. State law determines the use of waters above the riverbeds, under the public trust doctrine. Because New Mexico had already made its rivers public in the state constitution, and had precedent from its 1945 Red River case, it was fairly easy for the New Mexico Supreme Court to rule unanimously.
This is where Colorado’s Hill v Warsewa case is interesting. PPL Montana v Montana is cited in the amicus brief supporting the State, where it says that, “in PPL Montana, the U.S. Supreme Court held that ‘the States retain residual power to determine the scope of the public trust over waters within their borders.’ Specifically, the Court held that: ‘upon statehood, the State gains title within its borders to the beds of waters then navigable.’”
The reasoning behind the citation makes sense—just like Wyoming in Day v. Wyoming, Colorado points out that its up to the State, not the Feds, to “determine the scope of the public trust over waters within their borders.” But how does Colorado suddenly declare that it retains power over, and title to, the two things it has spent the past four years, in court, insisting that
it doesn’t have—a public trust doctrine or navigable rivers?
What Justice Kennedy wrote in the PPL Opinion is this: “Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine.” He did not write that States have the power to determine if there’s a public trust over waters within their borders. He also writes, “the public trust doctrine, which concerns public access to the waters above those beds for purposes of navigation, fishing, and other recreational uses.” (Bold added.)
If Kennedy thought the public trust doctrine only concerned the waters above those beds, he would have written that. But he didn’t. He included the words “public access to” for a reason.
Regardless of Kennedy’s intentions, the larger lesson here is that these four cases, in Montana, New Mexico, Utah, and Colorado—each lasting the better part of a decade—highlight the uncertainty of leaving access decisions up to the courts. Recent outcomes have only reinforced the opinions of many anglers that state legislatures and public-private partnerships are where we’ll find solutions to our access problems so the courts aren’t forced to solve them for us.
Indeed, one of the great ironies of the current access mess is that two states doing some of the finest, most creative work right now in adding public access for anglers, mostly by working with landowners, is Colorado and Utah. Last year alone, Colorado added nearly 200,000 acres to its Public Access Program, run through a lease agreement between Colorado Parks & Wildlife and the State Land Board. The program now has nearly a million acres, more than tripling its total in the past three years. Last fall, CPW secured a conservation easement that added nearly five miles of public fishing on the Yampa.
Meanwhile, Utah’s successful Walk-in Access areas are leased by the Division of Wildlife Resources and currently offer fishing on nearly 50 miles of streams and almost 200 acres of trout and warmwater ponds. Access is free with a fishing license.
These programs aren’t perfect, but they sure beat years-long legal battles costing millions of dollars that could be spent on conservation. Public-access problems will never be “solved,” but they can be improved, much like allocation has been improved:
By removing ourselves from the 1800s and asking—What are the most beneficial uses of rivers and lakes today and in the future?
Tom Bie is the founder, editor, and publisher of The Drake. He started the magazine in 1998 as an annual newsprint publication based in Jackson Hole, Wyoming. He then moved it to Steamboat, Colorado (1999), Boulder, Colorado (2001), and San Clemente, California (2004), as he took jobs as managing editor at Paddler, Senior Editor at Skiing, and Editor-in-Chief at Powder, respectively. Tom and The Drake are now both based in Denver, Colorado, where The Drake is finally all grows up(Swingers, 1996) to a quarterly magazine.