‘A river runs through us’
On a beautiful Colorado day an unsuspecting river land owner and rancher sitting on his deck enjoys the sound and shimmer of the ripples of water reflecting from the sun. An uninvited fisherman appears …you tell him “This is private property and you can’t fish here!” In a determined certainty, as you are familiar with decades old Colorado law, you tell him that this is your ranch and is private property and he is trespassing. He responds “No I won’t leave; the state owns the water and the river and I can fish anywhere I want.”
Thus, the conflict of the ages has begun in Colorado, the potential of a “takings” of the ownership of the bottom of rivers in Colorado, from the deeded land owner, to the state.
A 2018 lawsuit, based on a conflict on the Arkansas River between a fisherman, whose admitted lifelong ambition is to fish on private land, against the objection of the landowner for repeated trespassing by the fisherman. With the fisherman backed by outside interests (including The National Organization for Rivers, Back Country Anglers, The Rocky Mountain Canoe Club, and others) along with a “free” lawyer from the law school from the University of Colorado at Boulder, the legal process is winding its way through the Colorado court system awaiting a ruling from the Colorado Supreme Court.
A ruling in favor of the fisherman, will allow a lower court to hear the argument for “navigability” of this stretch of the Arkansas at the time of statehood in 1876. “Navigability” meaning that the river was historically and continues to be used for commerce and therefore belongs to the state. This argument is based in the Federal Commerce Clause, specifically the “navigability for title clause”. The courts determination would be the equivalent of dropping an “atom bomb” on established water and private property rights of the roughly 7,600 river landowners in Colorado.
The Colorado Supreme Court, as well as other lower courts have ruled several different times (1897, 1905, 1912, 1913, 1979 and 2010) on cases that the river bottoms in Colorado are owned by the adjacent property’s landowner, and that no rivers in Colorado meet the intended definition of “navigability”.
The State of Colorado, led by state Attorney General Phil Wiser, is on the side of the landowner and has joined to defend the suit. The state, historically through the administration of Colorado Parks and Wildlife Division, has provided literally thousands of miles and shorelines of public fishable rivers, lakes, and reservoirs stocking them from state fisheries.
It is ironic that the section of the Arkansas River where the dispute between the trespassing fisherman and the landowner occurred is adjacent to approximately 67 miles of public river for access to anyone paying a fee with a state administered fishing license.
RIVER LANDOWNERS WILL SUFFER
A ruling against the landowner and the state will produce confusion and significant headaches for the State of Colorado. For literally decades the river landowners in Colorado have bought and sold these properties relying on their values determined by long settled Colorado law that the land under rivers belong to the landowner. River landowners will feel the immediate effect of up to a 40% reduction of the value of their property according to a highly recognized local farm and ranch appraiser. The loss of privacy, issues with trespassing beyond the edges of the river, conflicts with grazing cattle and public safety, issues with pollution from human waste and trash left by the public where no state maintained sanitary facilities are available, are just some of the potential nightmares of the ruling. The loss of tax revenue owed to the counties based on loss of taxable value, as well, with over 100,000 miles of rivers, the loss of acreage of the actual physical footprint of the river to the tax rolls, will cost local governments across Colorado in the millions annually. Will the counties where deeded private property is now magically owned by the state under a new court ruling owe decades of river landowners back taxes levied on acres of land under their rivers that they supposedly never owned?
Will the hundreds of Colorado landowners who spent thousands and sometimes millions to improve their fishing habitats get their money back? By improving the stream flow by moving rocks and carving out deep holes in the stream bed, river landowners are required by federal, state and local governments to apply and receive pricey permits from up to 20 different agencies. Thus, in the permitting process, receiving confirmation by all levels of the government via requiring the landowner to sign their signature on the permit line as “landowner.” This action confirms the stream bed’s private ownership, by the very government that may ultimately take the property and improvements away.
The trespassing fisherman and his Boulder lawyer have run a significant public relations campaign to support their land grabbing claim. The most recent, a one-sided propaganda piece written by Ben Ryder Howe of the New York Times, tells it all in the headline ”Does this fisherman have the right to be in a billionaire’s backyard?” is a blatant attempt to pit the “haves with the have nots,” by the article’s New York based author who likely knows nothing of Colorado or Colorado law.
Of the approximately 7,600 state wide Colorado river landowners that I know in this area, none are billionaires, they span political lines, many are multi-generation Colorado ranchers, some retired, like me just trying to live on our properties in peace while raising a few cows, protecting and cherishing our land and the rivers that run through it. Newly imported urbanites are coming to the rural areas like ants to a picnic. Some think they can take our property by demand with fancy lawyers, led by an 80-year-old urban-based Colorado Springs fisherman, with “no skin in the game” fueled by his lifelong ambition to trespass on other people’s property, property that he could have owned, if he so chose.
Unfortunately, this is just another threat to the rural areas of Colorado, dragging with it the growing political attacks on agricultural properties in this state. Are we headed for the ultimate interest of the global elite and politicians, exemplified by the Dutch government in the Netherlands recently seizing 3,000 multi-generational farms from private landowners, supposedly to reduce methane emissions?
Freedom and liberty are still worth fighting for. Fortunately, our wise forefathers like James Madison, in Amendment V of the Constitution of the United States, wrote the “Takings Clause” which states “…nor shall private property be taken for public use, without just compensation.” As this case on the Arkansas River continues according to the New York Times Reporter “like a slow-moving missile” quietly through the courts, 7,600 Colorado river landowners will soon understand the threat and will join together to support and battle for our private property rights in Colorado and stated so clearly in the United States Constitution.
West is a Colorado rancher and river landowner.