6 minute read
Fighting the Good Fight
Can I walk up there? Can I float down there? Can I actually access that spot at all?
The right to walk and wade is a brass-tacks question for anglers seeking to float a fly down that intriguing little run just around the bend.
Public waters access is a major issue for Backcountry Hunters & Anglers. We’re a North American nonprofit headquartered in Missoula, Montana, and we focus on making sure anglers, hunters and everybody else is able to continue fishing, hunting and experiencing the backcountry.
Right now, we’re working on a couple of important issues for fly fishers out west.
Colorado: Whose Right of Way Is It, Anyways?
The Arkansas River, as it flows through southern Colorado, is a classic mountain river. It’s burly, it’s clear, and it has a lot of trout in it. One particular spot just east of Salida, Colorado, has become a flashpoint for a major public access case that could reshape stream access in Colorado—for good.
Colorado’s stream access laws are restrictive. You can’t touch bottom on any private land while floating or wading without being accused of trespassing, and private fishing clubs and tough enforcement of private stream lines have become the norm. But at the Arkansas River near Texas Creek, a legal case posits that the entirety of the Arkansas River should be open to the public and legal to fish. That argument could turn Colorado’s current laws on their head.
Roger Hill, an 80-year-old angler and former nuclear weapons scientist, filed a lawsuit in 2018 over Colorado’s opaque stream access laws. He argues that access to one of his beloved fishing spots deserves to be public. Mark Warsewa owns the land adjacent to the stretch of the Arkansas River that Hill likes to fish, and he maintains that he owns the river bed in dispute as well. This has been a contentious relationship, with Warsewa throwing rocks at Hill from a bluff and, at one point, shooting at Hill and a companion with a pistol for fishing that spot—an action that earned him 30 days in jail.
Based on newspaper accounts from the early 1870s, before Colorado gained statehood in 1876, the stretch of river in question was used to float logs and railroad ties— which supports the argument in Hill’s lawsuit that the river was “navigable at the time of statehood because it was regularly used and was susceptible to being used in its ordinary condition … as a highway for commerce, over which trade and travel are or may be conducted.”
This is the federal test of navigability for title, meaning that the title of the stream bed was granted to the state at the time of statehood. In most states, this would mean that the waterway would be held in the public trust and for use of the public.
BHA has filed an amicus brief in the case on Hill’s behalf. “For anglers, waterfowlers and other sportsmen,” our brief states, “access to streams and waterways is the most important factor in our participation in—and the perpetuation of—our storied outdoor traditions. Our access opportunities, however, are far from guaranteed. Efforts are underway to change existing stream access laws, which vary widely from state to state, to bar us from fishing, wading, floating or otherwise utilizing these important resources.”
The boiled down version of this is “We back up where you put in,” and that’s why we’ve also been active in another stream access battle just a short drive down I-25 in New Mexico.
Public Rights Upheld in the Land of Enchantment
At BHA we like working in partnership with other groups that believe as strongly as we do in public access.
The New Mexico Constitution, which is based in part on Spanish and Mexican law stemming from the state’s colonial era and differs somewhat from other state constitutions, declares that all waters belong to the public. The state Supreme Court spelled out that right to access in 1945 in the Red River Valley decision, where the Red River Valley Co. was blocking public access to a reservoir. That law was never changed, but in the intervening years, New Mexico has treated waters that run through private property as, in fact, private.
After a state attorney general reminded residents of their right to stream access in a 2014 opinion, a small group of landowners began a battle to reduce or eliminate public access opportunities for anglers and other members of the public. They pushed a bill through the legislature giving the State Game Commission authority to give individuals with waterways running through their properties a certificate of non-navigability, along with “no trespassing” signs to post. The Game Commission established the new regulations in 2018, and portions of five waterways were subsequently closed to public access.
Things changed in 2020. That’s when the New Mexico chapter of Backcountry Hunters & Anglers, along with the New Mexico Wildlife Federation and the Adobe Whitewater Club of New Mexico, filed suit to ask the court to nullify the Non-Navigability Rule as unconstitutional. And in March 2022, the New Mexico Supreme Court ruled on behalf of all anglers’ and also voided closures on several waterways in the state.
It’s taken a long time, but we’re proud to have been part of a coalition that opened up public waters access in New Mexico to all anglers. Our work won’t stop there. We are dedicated to keeping those public lands, waters and wildlife available and accessible to everyone, just like we’re dedicated to protecting our backcountry from forces which seek to privatize or monopolize the places we hold dear.
The next time you’re popping a fly for smallmouth, tying on 6x to get that wily brown in gin clear water to take, or plopping down a Chubby Chernobyl in high water, remember that access to the waters you’re enjoying isn’t just granted: There’s a long battle line that runs throughout history to get there, and you’re in it.
So when push comes to shove, we hope you’ll join up us to keep public waters in public hands.
Learn more about Backcountry Hunters & Anglers via backcountryhunters.org, become a BHA member, and consider making a donation to support our work on behalf of our North American public lands and waters.
Backcountry Hunters & Anglers
Backcountry Hunters & Anglers seeks to ensure North America’s outdoor heritage of hunting and fishing in a natural setting, through education and work on behalf of wild public lands, waters, and wildlife.