By Mark Squillace
Roger Hill is a 76-year old Coloradan who likes to fish while standing on the bed of the stream. One of his favorite spots is a stretch of the Arkansas River near Texas Creek. A local landowner claims that Roger is trespassing when he stands on the bed adjacent to the landowner’s property, and the landowner has repeatedly harassed Roger while he is fishing, throwing rocks at him and leaving threatening notes on his car. The landowner even shot at one of Roger’s fishing buddies. Fortunately, no one was hit, but the landowner did time in jail for that little stunt.
Roger claims a right to fish from the bed on the grounds that the stretch of the Arkansas River where he fishes is navigable and that Colorado thus owns the bed of the stream. If Roger is right in claiming that the Arkansas River is navigable, then he stands on firm legal ground, but he does not want to risk getting shot to prove his point. So, Roger sued the landowner. Now, Colorado has moved to have the case dismissed, not because the Arkansas River is not navigable, but rather because the State claims it is an indispensable party to any case determining title to the bed of the Arkansas River, but further that it cannot be made a party without its consent. Mind you, the State could simply waive its claim of immunity to suit and allow people like Roger to protect their legal right to fish. Instead the State is actively seeking to block Roger’s claim that he has the right to access navigable streams.
The notion that States own the bed of navigable streams derives from a constitutional principle known as the “equal footing doctrine.” It provides that when States enter the Union they do so on an “equal footing” with other States. Among the rights that States secure when they become States is title to the bed of all navigable streams and lakes. Despite the fact that Colorado is home to many substantial rivers and streams none have ever been officially declared “navigable” for purposes of determining title to the bed. This is a much bigger problem in Colorado than in most States because most States afford the public reasonably broad access rights whether or not they meet the federal navigability test. Indeed, in Colorado, you are deemed a trespasser if you merely float over the river bed adjacent to private property. As a result, Colorado recreation boaters and fisherman use Colorado’s waterways at the sufferance of private landowners. One good way around this problem, at least for Colorado’s larger rivers and streams, is to have them declared “navigable” for title purposes and that is what Roger Hill is seeking to do on the Arkansas River.
The U.S. Supreme Court considers waterways to be navigable for title purposes if they were used or were susceptible to being used at the time of statehood as highways for commerce. The Arkansas was in fact used by fur traders to move their furs and by railroads who sent hundreds of thousands of logs downstream for use as railroad ties. So it seems that the State owns the bed of the River, not in the conventional sense of a party owning land, but rather as a protector of public rights. The Supreme Court’s most eloquent expression of the nature of the title to the bed of navigable streams came in the context of a decision upholding Illinois’ rights to the bed of Lake Michigan in Chicago Harbor. According to the Court stated, title to the bed of navigable water bodies “is a title different in character from that which the state holds in lands intended for sale…. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.”
If the State were properly exercising its trust responsibility to the people of Colorado, and promoting the enjoyment of navigation, commerce, and fishing on our navigable waterways, then it would have filed this case itself on behalf of Roger Hill. Short of that, it might at least have intervened on his side after the case was filed, or even just stayed out of the dispute. Instead, it seeks to dismiss the case and undermine boaters and fisherman seeking to exercise rights guaranteed to them by the federal constitution. Think about what this means. State leaders are charged with protecting public rights in navigable waters are instead actively seeking to block those rights.
Colorado is renowned for outdoor recreation, including boating and fishing and it seems foolhardy for the State working to interfere with citizens seeking to exercise constitutionally-protected rights to state waterways. Come November, the people of Colorado will elect a new Governor and a new Attorney General. Let’s elect leaders who are prepared to stand up for the people of this State and protect our public rights, including the public’s constitutional right to access Colorado’s remarkable navigable waterways.
Mark Squillace is a professor of law at the University of Colorado Law School. He represents Roger Hill pro bono in the ongoing dispute over Hill’s right to access the Arkansas River.