Colorado Stream Access Oral Arguments May 2, 2023
American Whitewater, along with Colorado River Outfitters Association and Backcountry Hunters and Anglers, filed an amicus brief to the Colorado Supreme Court on a case the State of Colorado asked the high court to weigh in on determining an angler’s ability to wade fish in a section of the Arkansas River. The case has wound its way through state and federal courts discussing the anglers ability, or standing, to bring the lawsuit against the landowners who harassed him by throwing rocks and threatening arrest while he fished in the river that ran through their property. American Whitewater was eager to engage in this stage of the case as the key question raised was whether a member of the public could question Colorado’s restrictive river access laws. The following paragraphs are a summary of the case and oral arguments that took place on May 2nd, 2023 from our pro-bono attorneys on the case, Samantha Caravello and Lori Potter of Kaplan, Kirsch, and Rockwell.
We are writing to provide an update on and summary of a lawsuit with significant implications for river access in Colorado, currently before the Colorado Supreme Court as State v. Hill, Case No. 2022SC119.
The lawsuit has a long history involving proceedings in both state and federal courts. The case began when fly fisherman Roger Hill, while fishing on a segment of the Arkansas River, was threatened by landowners who chased him off the property, threw rocks at him, threatened legal action, and shot a gun at one of his friends. Hill then filed a lawsuit seeking a declaration that the landowners had no right to exclude him from fishing at that location and seeking to quiet title to the property in the state of Colorado in trust for the public.
After being removed to federal court and then remanded back to state court, the case began to move forward in state trial court. After motions by both the landowners and the State, defendants in the action, the trial court dismissed the case for lack of standing. The Colorado court of appeals affirmed the trial court’s conclusion that Hill lacked standing to assert a quiet title action on behalf of the State, but reversed the trial court’s conclusion that Hill lacked standing to seek a declaratory judgment, explaining that Hill alleged an injury to a legally protected interest sufficient for standing to maintain a declaratory judgment action.
The effect of the court of appeals’ decision would have been to allow Hill’s case to proceed in the trial court. However, the State sought review of the court of appeals’ decision in the Colorado Supreme Court, and the supreme court decided to hear the case on the following question: “Whether an individual has standing to seek a declaratory judgment that a river segment was navigable for title at statehood and belongs to the State.”
Briefing took place over the course of the first half of 2023. In addition to the State challenging Hill’s standing, multiple parties filed amicus (or “friend of the court”) briefs in support of the State’s arguments, including the landowners, Colorado Water Congress, the Colorado Farm Bureau and a number of property-owning associations, and the Pacific Legal Foundation. Amicus briefs filed in support of Hill included a brief filed by Backcountry Hunters and Anglers, American Whitewater, and Colorado River Outfitters Association (referred to collectively as the “River Recreation Amici”), represented by Kaplan Kirsch & Rockwell LLP, and a brief filed by law professors who teach in the areas of constitutional, environmental, natural resources, and property law.
The court held oral arguments on May 2, 2023. Colorado Solicitor General Eric Olson argued for the State. He was quickly interrupted with many questions about the equal footing doctrine and the public trust doctrine. The State received questions about the effect of preventing a member of the public such as Hill from bringing a challenge such as this one – was the State saying that no member of the public would ever have standing to bring a claim based on the public trust doctrine? The State replied that the plaintiff would have to have a particular relationship to the subject property.
Hill’s case was argued by Professor Mark Squillace of the University of Colorado Law School. Professor Squillace highlighted that the Colorado Supreme Court has never addressed the public trust doctrine in the context of access to stream beds. He also emphasized how Colorado is already an outlier among other states in terms of river access, and how restricting standing in this case would push Colorado even further out of step with other states.
The Justices’ questioning made clear that they reviewed and appreciated the amicus parties’ filings. Chief Justice Boatright asked a question about an argument made in the River Recreation Amici’s brief, specifically referencing the brief in his question, and also made a point to thank all counsel, which includes amici, for their work on the briefs.
There is no set timeline by which the court must issue an opinion deciding the case, but based on the court’s usual practice, it is likely that an opinion will be issued sometime next term, which will run from September 2023 through June 2024. If the court affirms the court of appeals’ opinion, Hill’s case will proceed in state trial court. If the court reverses the court of appeals’ opinion, Hill’s case will be dismissed.