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Sports >  Outdoors

Does this fisherman have the right to be in a billionaire’s backyard?

By Ben Ryder Howe New York Times

Colorado’s natural beauty – groves of aspen shimmering in fall, snowcapped 14,000-foot peaks bathed in alpenglow – has much to lure outdoor enthusiasts, from college-age tubers to private jet owners.

For the wealthy in particular, there is world-class skiing and shoulder-rubbing in glitzy redoubts like Telluride, plus an attraction no other state can provide: the power to control some of the most storied rivers in the West.

According to federal law, the beds of navigable waterways are owned by states, which hold them in trust for the public. But in Colorado, a series of unusual rulings has given landowners leeway to bar the public from riverbeds adjoining their property – and the water covering them, even if people float onto it after entering legally elsewhere.

Colorado has more than 100,000 miles of rivers, some accessible to the public without a landowner’s consent. In recent years, however, thanks to a population surge stressing the state’s prized natural resources – in addition to wealth concentrations unseen since the age of railway barons – complaints about haves and have-nots along its waterways have risen, bruising the image of a sportsman’s paradise.

Roger Hill, an old-school dry fly fisherman, is particularly angry and seeking to do something about it. In 2018, Hill, 81, a retired nuclear weapons scientist, filed a lawsuit asking the state to clarify its notoriously muddy stream-access laws vis-à-vis one of his favorite trout fishing grounds. To the ire of many landowners, who see it as a threat not only to their privacy but to their property values, that suit has been progressing through the state court system like a slow-moving missile.

A victory against the landowners would “have staggering implications for settled agreements governing the use of our state’s rivers,” according to a statement from the office of Colorado’s attorney general, Phil Weiser.

Weiser, with legal support from powerful agricultural and real estate interests, has sought to have the suit thrown out. Advocates for landowners argue that the West’s natural resources are being “loved to death.” Colorado has one of the largest outdoor recreation economies in the nation.

“It doesn’t take a genius to figure out that this can have an impact throughout the entire economy here,” Hill said.

He hopes the lawsuit will give anglers access to all navigable rivers in Colorado, including stretches long set aside for the exclusive use of invitation-only clubs and others that would essentially function as open driveways to sprawling private estates.

“It’s all very simple. I just want to stand in the water,” Hill said. “The landowners are going to scream this is a taking. And my reply is you’ve already taken something from me. I have looked at waters I had every legal right to fish for 40 years.”

Extreme weather and hot tempers

In a state crisscrossed by iconic waterways, the Arkansas River does not stand out – except on weekends, when it may be the liveliest river in the West.

On a recent Saturday, commercial rafts full of squealing passengers dodged fishing lures and idling kayakers along Browns Canyon, a swift-running section near the mountain sports mecca of Salida. Elsewhere in the state, scorching temperatures had triggered the closing of several rivers. (“It’s grim,” one outfitter told Steamboat Pilot & Today, a Colorado newspaper. Instead of once a decade, heat-wave shutdowns “are starting to happen every year.”) On the Arkansas, however, boats were backing up to brave the Class 3 rapids along sections known as “Raft Ripper” and “Widowmaker.”

Adam Caimi, owner of Monumental Expeditions, a local group, was careful to pilot his boat not only around the midstream boulders but away from unwanted contact with the shore.

“I can float this section because of agreements with landowners,” Caimi said. Some owners prohibit rafters from stepping on land. “If any of them changed their mind and said, ‘Don’t come through here,’ I’d be done.”

Colorado is not the only Western state where relations between the general public and the wealthy have frayed over recreational access to water. Sales of “amenity ranches,” purchased as country escapes rather than for their productive capacity, have soared, with 2021 the hottest year for Western land sales in a generation.

“The stars aligned,” said Eric O’Keefe, editor and founder of The Land Report, a quarterly publication tracking luxury real estate sales in the heartland. The West has seen “a phenomenon that will be virtually impossible to replicate,” he said.

New ownership has brought new attitudes toward strangers pursuing activities such as hiking and four-wheeling on land that may have previously been public, or treated as such.

“An amenity ranch is bought for solitude and hunting and fishing and horseback riding, or whatever the person who owns it wants to do,” said Hal Herring, a Montana author and podcaster and a longtime champion of public access. “And they have zero incentive to let me go anywhere on it. I mean, why would they?”

At the same time, the exploding popularity of the outdoors, fueled in part by the limits of the pandemic, has brought a new term to what has long been an etiquette-obsessed sport: combat fishing.

“I tried to take my son fishing last spring,” said Flora Jewell-Stern of Denver, a member of the first all-female team to win the state’s prestigious Superfly tournament. “There was nowhere to park for three miles. And it was a Wednesday.”

For advocates of public access, an upside to the conflict has been the formation of an increasingly assertive alliance of rafters, hunters, kayakers and other river users. Many see themselves as defending more than just pastimes.

“There’s a bigger issue here, which is the privatization of the commons,” Herring said. “This is an issue of our time.”

“In the United States, people have access to the water, land and wildlife,” said Land Tawney, executive director of Backcountry Hunters and Anglers, a sportsman’s group that has seen record growth in part because of its support for public access. “That is unique in the world. People need to step up and defend what is rightfully theirs.”

Landowners have become more organized, too.

“We have to pay for conserving these lands,” said Lesli Allison, executive director of the Western Landowners Alliance. “The public wants access, but it’s not willing to pay. Private landowners are holding that cost.”

Both sides condemn a lack of leadership on an issue of everyday importance to rural Americans. Many landowners feel besieged by the $700 billion outdoor recreation industry, whose high-tech tools, including highly maneuverable and all-but-unsinkable rafts, enable increasingly audacious forays into remote areas. It is not uncommon to hear both sides say they are David and the other is Goliath.

‘Somebody is going to get killed’

“I am a troublemaker at heart,” Roger Hill said when I visited him in May. Although he comes off as avuncular rather than abrasive in person, many would agree.

Hill grew up in rural Oklahoma, then went away to college, a rarity in his family. An autodidact and iconoclast (“Just a little too religious for me,” he said of his rural background), he ended up with a doctorate in theoretical physics and a job he hated with the military, based in Colorado Springs, Colorado. After retiring early, he began to spend much of his time trout fishing, and thinking about places he would like to.

On my visit, Hill and I spent a day driving along the Arkansas River. As a pod of tubers floated by, he pulled over and pointed out where, in 1979, he caught his first trout on the river.

“I learned that if you’re friendly and ask people, ‘What’s working for you?’ they’ll give you a fly that works, tell you how to fish it and all that,” he said. He also learned that property owners generally didn’t care if he waded along their property. “Nobody ever said anything,” he said.

Over the years, however, it became harder.

“Not all spots on the river are created equal,” he said. “There are long stretches of the Arkansas that you can fish eight hours a day every day of the year and not catch 10 fish.” Along sections favored by trout and Mr. Hill, “No Trespassing” signs sprouted up as real estate developers bought and subdivided the adjacent land.

“Properties along rivers are luxury items,” he said to me, indicating several stretches of river he can no longer wade. “A few wealthy doctors own this,” he said of one.

In 2012, the situation turned contentious in Cotopaxi, a remote town of several hundred in the high shrub land, as Colorado’s boom spread to untouched parts of the state. Hill and a companion were casting in the shadow of a subdivision perched on a bluff overlooking the Arkansas.

What they were doing was legal – at least according to their interpretation of the law. Hill, who practiced real estate after retiring from theoretical physics, recalled that he had been careful to enter the river on land owned by the government, and he had spoken with owners of several adjacent condominiums, who stipulated only that he not kill fish (“Just about everyone is catch-and-release now anyway,” he told me) or hold “beer parties.”

He said he was chest-high in the water when Linda Joseph, an owner he had not spoken to, emerged on the bluff and instructed him to leave.

Hill and his companion left, but two weeks later they returned, after more than trout. Hill had been researching Colorado’s river access laws and had a theory to test. This time, Joseph’s husband, Mark Warsewa, confronted the two fishermen and shouted them away.

A year later, according to subsequent legal filings, several anglers returned a third time, and Warsewa shot at them, missing but earning himself 30 days in jail. A lawyer for Warsewa and Joseph did not respond to request for comment.

“At that point, I said this is insanity,” Hill said. “Somebody is going to get killed in a dispute over who has the right to fish where.”

‘They don’t want to see rafters’

Hill subsequently sued Warsewa for access to the Arkansas, and later added the state of Colorado. His case rests on the premise that the state, not Warsewa, “holds title to the bed of the River in trust for the people of Colorado.”

It’s an argument dating back to the settlement of the West, when, as states joined the union, the federal government gave them ownership of any river deemed navigable. Such rivers, defined as waterways used at the time of statehood as “highways for commerce,” were required to be public. Hill, relying on historical evidence, has argued that the Arkansas was such a highway.

Colorado, however, has never defined navigability for its rivers, leaving the public’s rights in limbo. In 1976, David Emmert was arrested for tubing along a private stretch of the Colorado near Vail. The case rose to the State Supreme Court, which sided with the landowner, a rancher who had strung barbed wire across the river and reported Emmert for trespassing.

“We hold that the public has no right to the use of waters overlying private lands for recreational purposes without the consent of the owner,” the court stated.

Clouding matters further, the state’s attorney general then issued an opinion that merely floating through private land was not a criminal offense, leaving many water users confused as to what was off-limits.

“We’re a total outlier,” said Mark Squillace, an environmental law professor at the University of Colorado who is representing Hill. “Standing in the bed of the river is something the U.S. Supreme Court has explicitly guaranteed, and the idea that Colorado would try to deny those rights, which are enjoyed by the citizens of every other state, is pretty shocking.”

Hill would like the state to clarify its position in the face of his historical evidence, which mainly consists of newspaper clippings from the 1870s demonstrating that the Arkansas was at the time flooded with timber used for railroad construction.

“There’s no doubt it’s navigable,” he said.

The attorney general has argued that Hill lacks standing; the State Supreme Court is reviewing the case, potentially paving the way for a trial this fall.

In the meantime, an ambiguous détente exists between landowners and river users. Even unintentional contact with a riverbed claimed by a landowner – brushing against a rock – risks a civil charge of trespassing. Increasing the potential for conflict, landowners are not required to post their property boundaries.

Advocacy groups have stepped in to settle disputes, while professional fishing guides, acting as middlemen, negotiate access to private water for upward of $500 per day. Much of the friction involves prized sections of river where developers have sought to create enclaves. A well-funded nonprofit, the Creekside Coalition, has raised money to combat the Hill lawsuit.

“You see it on rivers like the Taylor,” Caimi said. “Somebody comes along and builds a bunch of million-dollar homes, and then they decide they don’t want to see rafters anymore.”

The group Backcountry Hunters and Anglers has vocally supported Hill. Along with habitat destruction, Tawney called privatization the top threat to his members:

“The Fish and Wildlife Service did a survey, and one of the things they asked was, What is the No. 1 issue that could prevent you from hunting and fishing? Why did you hang it up? The answer was not that their guns are going to be taken away. They’re worried about access.”

The defendants have their own supporters, including Colorado’s potent water lobby. As it does throughout the West, scarcity makes water a precious commodity in Colorado, and the state’s many water users, from ski resorts to marijuana farmers, view potential disruptions with alarm.

“The main concern is that Colorado not open the door to the public trust doctrine,” said Steve Leonhardt, a lawyer representing the Colorado Water Congress, a lobbying group. The public trust doctrine, a legal principle arguing that some resources are too important not to be stewarded for the public, has been used in California and elsewhere to challenge long-settled water-use agreements.

“It’s one that the water community views as a threat,” Leonhardt said.

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