Stream Access tossed by CO Supreme Court
General Topic
Colorado Supreme Court Throws Out Stream Access Case in Blow to Public Fishing
Thoughts on this one?
Interesting, this same situation case was upheld recently here in NM. I.e. one can legally access navigable waters that run thru private as long as they got into it somewhere via public.
Sounds to me like he needs to just go ahead and go fishing. If they don't charge him he gets to fish. If they do charge him then he'll then have standing to pursue his case.
My thought is that judges don’t seem to rule by law. If the judge was a fisherman then the judgement would have had a different outcome. Would the law be different if the fisherman was kayaking instead? Our legal system is now a joke and there seems to be too many people making mountains out of mole hills. I have a hunting spot owned by a timber company that now does not allow hunting all because some well off asshole bought a house and land next to the company land and made up a lie to smear hunters. This guy bought up a piece of land that abutted his just to distance himself from hunters. I met the guy when I was scouting and he was a flat out dick. The future doesn’t look bright.
I must say, there are a lot of hunters I would not want next to my land either. The bad ones (such as trespassers) spoil it for all the rest.
He can fish the water. But not trespass on the land. He could use a kayak but can’t step out. The land owner does not own the water. But he owns the land under it. I used to own a piece with land on both sides of the water and I owned under the water also. It was measured and I paid for it as part of the acreage. And it was taxed also
But I never worried about people fishing. And for that matter was never impacted by hunters either. I guess I was lucky.
The judge was simply following Colorado law that has been in place for nearly 150 years. If he was kayaking he would be fine as long as he didnt touch bottom. Same law in Wyoming.
Wonder if BHA did a GoFundMe for this guy too?
My attorney told me recently that before Polis started appointing judges he could look at the facts, and predict the outcome of a case 85% of the time. With Polis appointments, all bets are off, the facts, and the law don't matter.
It’s not just Colorado. As Jaq points out, no different in Wyoming.
I respectfully disagree.
The judge made the correct ruling.
If the judge did not uphold the law. And awarded as the gentleman asked.
That would be more in line with the Marxist, or chaotic type decisions we see being made around the country by progressives.
If he awarded damages and took long held rights from the deeded owner. That would spell chaos on countless properties. Every owner would then want compensation for the land they bought and paid taxes on for possibly decades. It would have been a mess.
It’s the law in many states. And he made the right decision. With monumental consequences if he ruled the other way.
If those type of beliefs and rights go away then it’s a path to allowing the courts and law to confiscate not only land but any of our property. Buildings, money, 401 retirements. Guns.
Before anyone comes unglued and Jaq puts on his keyboard warrior vest.... I realize what the law says I am just stating my opinion. I feel that if a person were to wade and/or be inside the "The regular high water mark" aka inside the banks of a navigable body of water, then there should be no issue. This is another common sense issue that needs to be judged accordingly.
It then depends on the definition of navigable waters. In Illinois, for example there are only a few water’s designated as navigable. Most of the streams and midsize rivers in Illinois are off limits without permission
In Texas, the state of Texas owns the water AND the riverbed to the high water mark.
I Colorado, a person owns the land, regardless of if a “river runs through it”.
There is a big difference between this and corner hopping. As stated, this is the law of the land in Colorado and has been for over 100 years. There is no grey area. It’s black and white. Plenty of case law to back it up. Doesn’t matter if the judge was president of the Colorado fly fishing assoc. He would have ruled the same way.
AND, you CAN still fish the whole river as long as you don’t SET FOOT on their property. Pretty simple.
“Pretty simple.”
Apparently not for some.
John Wesley Powell foresaw the abuse of water in the arid west when he first explored the region. He advocated for the Gov to protected water rights and access for the public. With the rules in place and perpetuated a Landowner/investor/business could claim/buy/homestead the limited areas with water and essentially get 10-1000 times the area and control over the rest of the public land in the area for "free"
Unfortunately his advice was unheeded by the public, and attacked by the lobbyist. Still is to this day
"Who owns the judges?"
This right here. I think we wouldn't be surprised to find out how many robe-wearers have sold their souls to the almighty dollar...
When a rancher owned the long section of North Platte River below Grey Reef, he had cell cams positioned in certain popular runs. When people dropped anchor or got out to pee, etc.., he emailed the pics to the Sheriff.
I was fishing at the Lusby takeout one afternoon when two deputies and a game warden were flagging boats over and writing tickets. They told me stories of excuses they heard (diarrhea, cramps, didn't know, women had to pee). Didn't matter.
Fortunately, after a few years of aggravation on all sides, he sold the river access on that section to the State. Now everybody can fish it properly. That's how the system should work in streambed ownership states like CO and WY. Those laws go back to the 1800s and have survived hundreds of court challenges.
It could be clearer legally. Our current norm isn't really spelled out. Hop a corner and spend a couple seconds in a few inches of airspace and it's illegal. Spend 2 hours in the same ranch's airspace rowing your raft and casting PMDs at trout and you are fine.
Maybe it's good colorado is blue.
In AK you're good up to the high water mark, but here in old NY, if the land owner owns both sides of a stream, you can't even drop anchor in that stretch.
Now the anglers should pressure the state for more river access in what they call "access deserts".
In WI you own up to the water and the land under it. You cannot stop someone from wading and fishing it though. They also have the right to exit the stream onto your land to go around an obstruction. They tried high water mark but it got overturned. I like the water access we have, I also like running into landowners that are pissed I am on there water. Some have thrown rocks in around you. Now with cell phones, I will turn them in for harassment.
I am probably the odd one out on this. I can 100% get behind making corner crossing legal. But I don't agree that someone can access your property by a river, stream, channel or whatever it is. Even if you don't anchor or touch bottom. It just doesn't seem right to me.
Similar to private properties that border landlocked public land, the value of properties in Colorado that have fishable rivers running thru them carry a high premium and are taxed accordingly. I don't see Colorado River access laws changing any time soon.
As an avid fly fisherman, I have mixed feelings on this. I grew up fishing a private stretch of the Elk River near Steamboat. It was exceptional fishing because of the limited access. Unfortunately the ranch sold, and we lost our access. I don't begrudge the new owner, though. He paid $3 million for only 300 acres all because of the river that runs thru it. If I would have had the money at that time, I would have bought it and limited access too.
Matt
Glunt@work makes a very good point. If occupying the air above the landowner's stream without touching bottom isn't trespassing in Colorado then why is occupying the air above his corner trespassing?
The stream bed is private, the water is public. So, is the airspace above the water public or private? I suppose it could be argued both ways.
Matt
Funny thing is, I can access it by water and fish it even hunt it as long as what I am after lands in the water, but I cannot trap it. You cannot anchor a trap to the bed of the water if it is private.
The Colorado Supreme Court has indicated that the general rule in Colorado is that such streambeds are privately-owned by the owners of the adjoining lands.3) This rule is based upon the common law principle of ”Cujus est solum, ejus est usque ad coelum” - that is, he who owns the surface of the ground has the exclusive right to everything that is above it4) - and has been codified in the Colorado Revised Statutes.5)
I guess I am confused. Can you fish out of a canoe in Colorado as long as you don't touch the stream bed or bank? Or is the stream access off limits all together
"...As a consequence of the decision at first instance in 1977 the Colorado State legislature enacted a redefinition of "premises" to include the bank and bottom of a river but not the surface water. The intent of this legislative amendment was to ensure that anyone floating over the top was not criminally trespassing.
In 1983 the Colorado State Attorney General issued a memorandum explaining the amendment. The opinion said, “one who floats upon the waters of a river or stream over or through private property, without touching the stream banks or beds, does not commit a criminal trespass.” (AG Alpha No. NR AD AGALA, 1983.)"
Thats part of the explaination from the Frying Pan Anglers web site.
If a river or stream were to be "navigable" as the fisherman was arguing, full public access would theoretically be allowed. I think, if I'm understanding it right, the court said the fisherman doesn't have standing because deciding if the State owns the riverbed isn't his fight to fight.
The State hasn't ever designated any river as "navigable". Many rivers were of course used to travel, transport products, etc. but no official designation was made.
