Salida Arkansas River

Arkansas River Walk, downtown Salida.

A divided panel of the U.S. Court of Appeals for the Tenth Circuit on Thursday overturned a lower court’s dismissal of a fishing rights case in which the plaintiff asked judges to consider the conditions at the time Colorado was admitted to the union.

Roger Hill preferred to fish at a particular spot on the Arkansas River, but property owners Mark Everett Warsewa and Linda Joseph contended that they own the riverbed up to the location in question. Hill alleged that Warsewa and Joseph chased him away, threw rocks at him and even shot at one of his friends.

Arguing that the river was navigable at the time of Colorado’s statehood, Hill filed suit and cited contemporary accounts of commercial use of that segment in 1876. Therefore, he concluded the state holds the waterway in a trust for public use.

The district court decided that Hill had no standing to sue because he did “not show that his claim is more than a generalized grievance based on a desire for the general public, including himself, to be able to fish in certain spots.”

Writing for the majority, Judge Paul J. Kelly, Jr. found the district court erred, and the case should instead move forward on constitutional grounds.

“We take no position on whether Mr. Hill has demonstrated constitutional standing and we do not reach any of the merits issues presented by this case,” Kelly added.

Judge Robert E. Bacharach, dissenting, believed that the general nature of Hill’s complaint meant that the federal courts lacked jurisdiction.

“I would tell the district court that it was right to regard the claim as a generalized grievance and that the only error was in dismissing the case rather than remanding it to state court,” he wrote.”

The case is Roger Hill v. Mark Everett Warsewa, et al.

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