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Discussion Starter #1
Forum is stagnant yet there have been bunches of 50+ degree days this winter; putting it in the top 5 warmest winters I have seen. Granted I've hit the water only a few times but due to the mild winter I have accessed a couple of trails that I would have to wait until late March to even begin thinking of fishing. Absolutely epic!! I had MILES of river to myself, well, I was sharing it with at least one lion as I saw some fresh tracks in the dirt on one route. Outside of that, not one two legged animal without wings and more fins than many would hope to see in a summer. Bit cool and the shadows came early but these sights are seldom seen this time of year.

No pictures? Nope. I was enjoying a slice of heaven on earth and didn't bother to take out the camera. Besides, I would have to edit them too much to keep the location from being advertised.:thumb:

So to the point:

Let's see if we can get some participation in a subject that once again has come to "suit". Maybe knock off some dust on the keyboard and poke and prod some intelligent conversation from the members here or maybe not. I can already see the grim face on TthePikester as he pops some antacids thinking "Not this DB again!" but we can be civilized. Right? I would think so.

Here goes: Who owns the river bottom? If you do not follow the news you can read up on on it here:

https://www.denverpost.com/2018/02/03/akansas-river-ownership-roger-hill-mark-warsewa/

*I will triple dog dare posters to write their opinions leaving out reference to socioeconomic status.

*This is not a political discussion but one of law. I can hack a political jab as long as you can as well but POLITICS IS NOT THE ISSUE AT HAND. Don't make it such. Quick way to lead the thread to a sudden death.

Seeing as how I am usually the first to post an unpopular opinion on a controversial subject, I will give someone else the first shot at arguing their position in the court of Coloradofisherman.com.
 

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I think this is going to be a long fight for both sides. I can see the side of the landowner, but at the same time as an angler I would like to have access to the river. I completely understand how the land owner feels that it's his land and he can do whatever he wants, but the moving water I struggle with a bit.
 

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My opinion....

Who owns the wildlife (including fish) of Colorado? The CO taxpayer.

That does not mean I can go banging around on someone's private property looking for pheasants.

What is stopping Roger Hill from floating this section of river if he really wants to fish it so bad?

Did Roger Hill ever approach this landowner and ask for permission to fish the private property he covets so much? Or did he decide that he was just going to wander on over from the nearest adjacent public access? Seems like that would be an important question to ask.

Until the law is changed, willfully trespassing to prove a point seems like a stupid thing to do. It also seems stupid to sue an individual landowner directly because you couldn't respect private property law on the books. Maybe this guy should go after Paul Tudor Jones instead, but no, he wouldn't do that.

I don't really care what the laws are in neighboring states. The law in Colorado is what it is, until it isn't anymore.
 

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Thanks for sharing the article, I rarely read the Post anymore. I think Hill stands on good legal ground and has taken a sound approach to perhaps changing Colorado law for the better as far as fishing access is concerned.

I have fished Michigan a lot and the navigable waterway rules apply , including for wade fisherman.

FYI Hills book, Fishing the South Platte is a very informative read.


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I have fished Michigan a lot and the navigable waterway rules apply , including for wade fisherman.

I grew up in northern Michigan and the navigable definition was widely a debated term that effected many of the smaller spring fed streams. I always considered it to mean that if I could float it with my canoe (oar vessel) without having to portage then I could wade the stream so long as I didn't exit the stream.

The recreational definition identified in one of the court rulings appears to provide some clarify (wish I was confident enough in the legal system to say confirmed rather than identified)

From Michigan website link below:

"Thus, the recreational use test adopted in Kelley v Hallden has been overruled by the Bott cases and the commercial use/log floatation test continues as the controlling legal test of navigability."

"On a navigable (public) stream, the public has the right to float the stream, to wade on the submerged soil and to fish therein, but this right does not extend to trespass upon the private uplands of abutting landowners. Part 731, Recreational Trespass, 1994 PA 451, MCL 324.73101 et seq., provides an exception to this general rule; a wading fisherman may enter upon the upland to avoid a hazard or other impediment obstructing passage within the stream. On a non-navigable (private) stream, the public can neither wade nor float. They should, as a matter of right, feel secure in making a portage around any dam or other obstruction in a navigable (public) stream unless physically prevented from doing so by the riparian owner. The banks of such a stream so far as they are necessary to the exercise of the right of passage and navigation are subject to the public easement."

http://www.michigan.gov/documents/Water97e_142928_7.pdf




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This is an emotional subject, but there are volumes of case law that support Hill's position.

Could laws change in CO, the short answer is "yes." You only have to look at the grassroots efforts in Utah: http://utahstreamaccess.org/

It has taken some time, but within the last 2 months they have had one of their lawsuits affirmed by the Utah Supreme Court related to a navigability claim on the Weber River (similar to the claim on the Ark). They have another suit waiting for a decision at the Utah Supreme Court related to the breach of the public trust. This is the big one which would throw out the current law and likely usher in stream access laws similar to Idaho (enter a river at a public access point and stay below the high water mark).

The point is CO anglers would need to get organized to make a change. There would be support for such an initiative in CO, as numerous CO companies have made significant donations and time to further the Utah effort.
 

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Somewhere on this topic I saw someone explain from fedreal law? That riverway land is navigable up to high water mark! I know it's not that way currently in this state! In a court of law who wins when considering state and federal laws differ? Personally it should be floatable! If I had the money to buy riverfront land on a good stretch of water I wouldn't want people walking thru the property I own and paid the hefty price for because of said waterfront!
 

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The Denver Post article is interesting, and Roger Hill may be onto something with his argument. I feel his credibility lacks though because instead of going to court and fighting the battle and getting the law changed, he decided to go ahead and shirk the law by trespassing repeatedly on the private land. He is a perfect example of why private landowners don't want the general public tramping around on their property. What's to stop someone from deciding "well, i can walk up the river, why can't I walk up the hill too?".

*I don't own any land along a river, but there sure are a lot of private rivers I'd love to fish...
 

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Discussion Starter #11
Some good points here. There are other states that have walked the walk. I respect those states with their decisions concerning their land and use. I am a Colorado resident and what I see done in one state may not be ideal for another. Lots of differences between states. Size, population, tourist numbers, economy, taxes, etc., all play a part in decisions. We are diverse as states, so can be our laws.

I can't just post an opinion on this without the "why". This post is long but has some information concerning Colorado Law and also Federal Law. Look it up. Inform yourself in your opinion. It only makes your voice stronger.
____________________________
Reasoning for my opinion:

Navigable Waters of the United States. State and National Control
Author(s): Merritt Starr
Source: Harvard Law Review, Vol. 35, No. 2 (Dec., 1921), pp. 154-181
Published by: The Harvard Law Review Association

II. STATE DOMINION, OWNERSHIP AND CONTROL OF WATERS
SUBJECTS CONTRASTED WITH NAVIGATION

The sovereignty and dominion of a state and the obligation of its laws extend over all the waters within its boundaries, subject to modification by paramount laws of the United States*. The shores and beds of navigable waters in the original states were not granted to the national government, but were reserved to the states. And upon the admission of new states to the Union the beds of navigable rivers within their boundaries passed to the states, so that they have the same rights, sovereignty, and jurisdiction over the shores and beds as have the original states. The status of this land is determined by the law of each state**.

*People v. WVelch, I4I N. Y. 266, 36 N. E. 328 (I894)

** Pollard v. Hagan, 3 How. (U.S.) 2I2 (I845) (followed ever since); Shively v.Bowlby, I52 U.S. I (I893); United States v. Chandler-Dunbar Co., 209 U. S. 447 (1908 ) The land, however owned, is subject to the same public trusts and limitations as lands under tide waters on the borders of the sea. Ill. Central R. R. Co. v. Illinois, I46 U. S. 387 (I892)***

***"the consequent right to use or dispose of any portion thereof when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may he necessary for the regulation of commerce with foreign nations and among the states."

U.S. Supreme Court
Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892) Illinois Central Railroad Company v. Illinois Nos. 419, 608-809 Argued October 12-14, 1892 Decided December 5, 1892146 U.S. 387

The federal government gave up its stake in Colorado's submerged lands on 1 August, 1876 outside of navigation concerning commerce
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People v Emmert
Colorado Supreme Court; 2 July, 1979
Ruling for favor of private property
Language in Colorado's Constitution is much different than other states. The submerged land can be "appropriated".

This is going to play a critical role against foot access. CSC identified the fact that submerged lands in Colorado can be appropriated under the Colorado Constitution. If the Feds abide by their own writings, the land under the water is state domain and can do as seen fit as long as it doesn't impact commerce via navigation. This would in fact trigger Congressional rules and regulations that supersede state authority. If the fed rules that this appropriation was in violation of the public trust, then the fed never gave control of these lands to the state for its use and the fed essentially discards writings and agreements concerning relinquishing powers to Colorado when becoming a state. This could be argued as a breech of contract and fraud by the Federal Government with concerns to the Colorado Territory. (Never would happen but a legal case nonetheless. lol)
______________________________

Colorado attorney general in 1983 opinioned "floating did not constitute trespass". This is a not a legal ruling; Float but no contact rule. This opinion could be discarded and the touchy compromise between floaters and owners will swing 100% in favor of the land owner on many waterways. Rivers will have to be defined individually "navigable" using federal definitions and Maritime law. More lawsuits to make this happen.
______________________________

Opinion:

So I ask myself, "Does the submerged land, legally appropriated and having been made exclusively private, create a substantial impairment of the interest of the public?"

I answer, "Only if it interferes with using the water as a means of transportation."

Why: The river is a whole, not separable, without creating substantial impairment for use as a medium of transportation (Federally protected). I, hesitantly, will go as far to say that portage due to life risking hazards, injury, and equipment failure are grounds for trespass. Outside of that, any other contact, excluding incidental, with the bank or bottom or anchoring constitutes criminal trespass. The right to fish while floating? Absolutely. Legal floating means legal fishing as the property owners do not own the wildlife.

Floating aside, all other activities can take place on any piece of public property; therefore, having no substantial impairment to the public with concerns to recreation.

So as much as I agree that residents in Colorado need clarification on "navigability", I think it should be thrown out of fed court and allowed to ride in state court. Case after case has shown that feds gave up their interest in these contested lands upon Colorado becoming a state. However, feds maintained interest in terms of "commerce" for good reasoning. I agree with this portion as it's in the best interest of the People.

One thing is for sure, this lawsuit is going to take years. And I also fear that the activist 10th will take this opportunity to diminish the 4th Amendment, deny the 5th Amendment, and ignore over 142 years of Colorado sovereignty, law and precedent. The feds will once again wrest control away from the state in what is clearly a state issue. This will erode the fundamental rights granted to the state, constitutes a direct attack on Colorado's Constitution and reduces our voices as state residents. The implications are far greater then being able to fish.

If the outcome favors Mr. Hill, in time, the grass will no longer be greener on the other side of the fence. The very reason people drool over that water will be raped into the same quality as current public water. So the gain will be short lived but a right to this private property has been lost forever.
 

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I feel his credibility lacks though because instead of going to court and fighting the battle and getting the law changed, he decided to go ahead and shirk the law by trespassing repeatedly on the private land. ...

Not sure where you read in the article that he repeatedly shirked the law by repeatedly trespassing on the gun toting firearm menacing and discharging landowners property.

I did read that Hill tried to reason with him by citing law regarding navigable rivers Luke.


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Tthepikester wasn't the only one thinking, "Not this DB again!" :biggrin1:

I see this land issue as a no issue.

The land belonged to no one before we arrived and it should belong to no one now or when we pass. (which no one will own any of it when this planet is done with us)

Yes I bought a home(well I am borrowing it from a bank til its paid for, which it will never be paid for cuz I have to pay taxes on it til I die then someone else will lease it/rent it/buy it til they die and so on and so on...)

Just because man made laws doesn't make it "right".

Speaking of laws, why do we have to obey this one when "man" (our government representatives and such) don't have to obey the laws or our constitution?!? (sorry! got sorta political there) ignore it but I am not deleting it >:D

Landowners got it for free(initially), squatting and making "improvements", put up a shack and fence it in with "No Trespass" signs. Big whoop. Now they can sell, lease, set trespass hunting/fishing fees, put into conservation for millions of dollars to their profit.

I am all for lessening their property taxes for the "x" amount of land between the high water mark..(this is the biggest complaint I have heard from landowners, "we pay taxes on that" (cry me a river) :tongue: ) BTW we should NOT give back pay for it cuz they have profited off it for years that they "owned" it.

It is not like they are using the land anyway, they CAN"T! It's under water. HAve you ever seen a cow with a snorkel? The riverbed belongs to the river. The river belongs to the people. And the land that the river flows over came from above..be it Natl Forest(mountain tops) to the neighbor above this landowner and so on(this is called erosion and sediment)...lol :D

They act like they own the water from Mother Nature herself but yet I can not collect rain water off of my own roof! WTF!!! (that does not mean Welcome To Fruita) I get water rights (it's not ownership) so save it(your argument)!

*the collecting of rainwater may have been changed to where we can save it now ... not sure 100%

So there you have it, my opinion. I may not be right but I am not wrong.




























Oh yea,

If I owned some prime river property, stay the f*ck out!!! LOL!!:thumb:
 

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Hey SS,

You still around or have you made your way out of the Good Ole USA? :D
 

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If the law changes regarding access, I would think that the Takings Clause would force compensation. The state is already strapped for cash. How would reparations be funded?
 

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Not sure where you read in the article that he repeatedly shirked the law by repeatedly trespassing on the gun toting firearm menacing and discharging landowners property.

I did read that Hill tried to reason with him by citing law regarding navigable rivers Luke.


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From the article:
"Colorado Springs fisherman Roger Hill has had repeated run-ins with Mark Warsewa, whose property spans the Arkansas River between Texas Creek and Cotopaxi. Hill likes to wade from public land nearby and fish in the river near Warsewa’s place."

"Warsewa, who learned of the lawsuit Friday, said he doesn’t have issues with rafters or fishermen floating the Arkansas River through his property. He does have problems with fisherman walking on the river just past the riverbank below his home."

I'm sure if Hill was staying on the public land there wouldn't have been conflict. Sounds to me like a case of two cranky old men who both behave like idiots...

Here's a map of Warsawa's property, Hill trespasses across at least two other properties just to get to that one.
 

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Doesn't anyone remember when Colorado changed the high water mark law? Youngins.

This topic has come up over and over and as Pathway says we got no bank and the land owners have lots of bank and many are attorneys to boot. Gratis.

We lost then, we will lose again. This is a topic that could be well funded to at least keep suits going.

But the only precedent in CO history went to the landowner as owning the recreation rights while floating on that water. So we have to be careful as we may lose our ability to legally fish while floating over private ground.
 

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Discussion Starter #19
People v. Emmert
Colorado Supreme Court 1979

As cochise pointed out, this is why I have serious reservations about the current lawsuit. And why it will take an activist court to rule outside the landowners favor. What is gained may be a crumb of what we currently enjoy. People have pointed out MT, UT, NM...but these sates may not have had rulings on P.P. and the respected states Constitutions may be written differently when is come to "public trust" land. For example: Colorado State was granted sections 16 and 36 in every township/range. This is why you see all that state trust land checkered on the eastern plains. Think you can hunt all that property? No. Think you can walk on all that property? No. Can the state lease it out? Yes. Sell it? Absolutely! Can you get a ticket for walking on it? Oh hell yes! This is readily used land by the people, owned by the people, yet it can be discarded at the states discretion but somehow submerged waters are "special".

I also own the National Rivers Book, Colorado version and actually just recently loaned it out. Trust me when I say be careful how you use it as it's full of contradiction. Nothing I dislike more is when one side holds it's self to a different standard of evidence, but, it's a recruiting tool.

Tthepikester wasn't the only one thinking, "Not this DB again!" :biggrin1:

Landowners got it for free(initially)
The government may have handed out some deeds to encourage settlement but the payment and dues where far short of FREE. Deaths of mothers, fathers, sons, and daughters..... Hunger, disease, suffering....and now 150 years later you're offended so you want to just take it back and assert long abandoned rights? What do you think triggered the Mexican- American war? LOL Besides, there are so SO few of these ranches still owned by original grant families it's not even worth the time I took to write the sentence or even address the point. On the other hand, go ask the current land owners from Leadville to Salida to Pueblo to Great Bend, KS just how "free" was their property. Ask Mr. Warsewa how "free" his land was.

People made the law by way of the people. So until the people decide it is not right, it is right. Go break one and let me know how that reasoning of yours works out. LOL

Remember, this has nothing to do with water rights.
 

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Luke the Dog;2048401 Here's a map of Warsawa's property said:
That’s the point Luke, if he waded in, is he really trespassing ?

According to “some” states no. Colorado? I’m not sure.

It almost sound like he set this up by wading in. Either that or there’s a helluva good hole to fish in there!

Hmm


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