To properly understand issues surrounding stream access in Colorado, there are two things critical to know about Colorado becoming a state in 1876: 

 

First, upon statehood Colorado rejected the “riparian doctrine,” common in eastern states for allocation of water, and instead enshrined the “prior appropriation doctrine” in the Colorado Constitution.  Under this latter doctrine, the waters of the state are considered property of the public, dedicated for use by diversion and appropriation.  The Colorado Supreme Court has twice ruled that this provision of the Colorado Constitution does not allow individuals to enter privately owned lands to fish (Hartmann 1906) or float (Emmert 1979) in/on non-navigable streams crossing such private land.  The Court made these rulings based on the common law “ad coelum” doctrine that the owner the land enjoys exclusive control over everything above and below the ground.  The ad coelum doctrine has also been codified in Colorado’s statutes.

 

Second, under the “equal footing doctrine” each state joining the union can acquire title to navigable streambeds at the time of statehood and hold it in “public trust.”  Whether a stream is navigable is a fact-specific determination, made on a segment-by-segment basis, and is not simply satisfied by floating a log down a stream.  Colorado did not take title to any streambeds based on navigability in 1876, and has never, for almost 150 years now, asserted ownership of the bed of any streams on such a basis.  The Colorado Supreme Court has stated that “the natural streams of this state are, in fact, non-navigable within its territorial limits.”  Title to the bed of streams all around Colorado has instead been transferred from ownership by the United States to private individuals and entities pursuant to various homestead acts, consistent with such streams being non-navigable. 

 

These two factors set the stage for a century and a half of Colorado’s distinct system of water and property rights — a system built on private ownership, defined rights, and a market where those rights could be purchased, sold, and enforced. 

 

What That Means Today.

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Countless landowners have relied on the certainty and stability of their title to streambeds across the state based on the Colorado system.  They paid for that land, they are assessed for it, and they pay property taxes on it. Those taxes fund state and local services, including schools, roads, and public safety.  This framework has been challenged in court, but time and again the judicial system has upheld Colorado’s model.  

 

Despite this history, activists now want to take that certainty of title away from private landowners and impose a public trust over the rivers.  This would not only take valuable property rights from 

landowners (with a cumulative value in the billions of dollars) but could also jeopardize Colorado’s complex system of appropriative water rights.  As one former Colorado Supreme Court Justice put it, imposing a public trust would “drop what amounts to a nuclear bomb on Colorado water rights.”

 

Colorado Is Not Montana.

 

Sometimes activists point to Montana as a model, where stream access laws are broader. But the law is different in Montana.  The Montana Supreme Court has interpreted Montana’s constitution as allowing public access over privately owned lands.  Colorado’s has not—that’s a bell that can't be unrung without triggering a taking requiring just compensation to landowners and would unwind 150 years of settled expectations, property transactions, and constitutional principles.

 

Bottom Line.

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There is an abundance of access to rivers and lakes in Colorado via private lands, with further access available through permission from and agreements with private landowners.  Colorado’s water-based recreation industry is thriving.  Changing the status quo will upset the current legal balance that reasonably accommodates recreation and respects private property, all at a significant cost to the taxpayers of Colorado.