Lawsuit challenges claims that Arkansas River is private property

Posted at 7:17 PM, May 22, 2018
and last updated 2018-05-22 21:17:40-04

Can a river be considered private property? Some landowners along a particular stretch of the Arkansas River in Fremont County seem to think so.

Roger Hill was fly fishing near their homes in the Texas Creek area back in 2012 when a woman who lives in a home on the Southern bank started yelling at him saying that he was trespassing.  Hill responded that he had a right to be in the river.

"She continued to yell at me and then started throwing baseball-sized rocks at me," Hill said. 

This took place just before his 71st birthday. Hill didn’t want to risk his life over some trout. So, we waded back to the northern bank and left. 

His experience was tame compared to what a couple of his friends endured a few seasons later. A property owner named Mark Warsewa saw them fishing near his property and yelled for them to leave.  Things escalated when his friends replied that they had a right to be in the river.

"Mr. Warsewa went in the house, got a 38 special gun, came back out took steady aim and fired at him, missed him by 10 to 15 feet," Hill said.

Warsewa later pleaded guilty to a misdemeanor menacing charge over the shooting. Anyone visiting this stretch of the river today will find several signs posted declaring the banks to be private property. Some no trespassing signs bear the image of the Fremont County Sheriff’s Office badge. 

"The Sheriff sees it based on some state court decisions that were not based on the fact that the river is navigable," Hill explained.

Navigable waters is an important legal distinction under federal law. It basically means that a person can navigate a river in a canoe.
Hill filed a lawsuit against Warsewa and Linda Joseph in US District Court in February claiming that the defendants deprived him of his right to navigable waters in the Arkansas River. This issue over navigability has not been raised in federal courts in Colorado before.

His lawyers argued that fur trappers and railroad companies both used the river to ship goods before Colorado became a state, and thus the river should remain forever free.

But earlier this month, Attorney General Cynthia Coffman intervened in the case on behalf of the defendants and asked the judge to dismiss the case.
Solicitor General Frederick Yarger and Senior Assistant Attorney General Scott Steinbrecher argue in their motion to intervene that the case should be dismissed because it lacks subject matter jurisdiction under the 11th Amendment.

Hill hopes the judge will give him his day in court, for safety sake.

"I hope we can solve this problem before someone gets killed over a principal over who gets to be where."

News 5 reached out to Mr. Warsewa for comment. He told us we were barking up the wrong tree and hung up the phone.
Spokespersons at the Fremont County Sheriff’s Office nor the Colorado Attorney General’s Office could not be reached for comment.