Fish in Hot Water: Colorado’s Legal Mechanisms & Ramifications for Enforcing Fishing Closures
Stuart Foster • September 21, 2019

Fish closures have impacts that are beneficial, at least that is the hope.

Over the 2018 summer, Colorado’s Parks and Wildlife Commission (“CPW” or “the Commission”) asked anglers to shelve their waders and rods following voluntary fishing closures on various river sections statewide. Because of low water flows, high temperatures, and dry conditions statewide, CPW asked anglers to help protect the state’s overtaxed fish. These voluntary closures are commendable. But should people circumvent them, it could be devastating for both the fish and anglers alike. If anglers decide to shirk these voluntary closures, what kinds of legal mechanisms exist to enforce them? And, what potential legal ramifications exist for violators and Colorado? 


Fortunately, CPW has a tackle box full of statutory and regulatory authority for enforcing these actions. To better understand the legal mechanisms at play and the possible ramifications that exist, this post delves into the statutory mechanisms that CPW may utilize to effectuate fishing closures. It also explores CPW’s delegated regulatory authority to invoke fishing closures across the state. Lastly, it discusses potential legal ramifications for both violators and Colorado.


Statutory Mechanisms Affecting Fishing Closures in Colorado

In addition to asking for voluntary closures, CPW has a comprehensive legal apparatus in place to enforce fishing closures under Title 33 of the Colorado Revised Statutes. Title 33 sets the administrative responsibilities for Colorado’s wildlife, including licensing requirements for hunters, fishers, and recreators. It also sets rules and regulations governing the state’s wildlife programs. Moreover, Title 33 grants CPW with broad statutory authorityso that Colorado’s wildlife is “protected, preserved, and managed for the use, benefit, and enjoyment of the people of [Colorado] and its visitors.” 


For example, Section 33-1-106(1)(a), C.R.S., grants CPW the power, if necessary, to shorten or close seasons on any species of wildlife in specific localities or statewide. Additionally, Section 33-6-120, C.R.S. provides corresponding criminal penalties for fishing out of season or in a closed area. It permits the levying of fines, assessing license suspension points, and makes it a misdemeanor offense for any violation. 


Another statutory provision with related authority is Section 33-1-107, C.R.S. This section allows CPW to adopt rules and regulations for the management of agency-controlled lands, property interests, water resources, and water rights. To wit: CPW may restrict, limit, or even prohibit the time, manner, activities, or numbers of people that use these areas. Moreover, CPW may regulate in a manner that maintains, enhances, or manages property, vegetation, wildlife, and any object of scientific value or interest in any such area. 


CPW also has angling specific authority to regulate fishing licenses. Under Section 33-1-106(1)(e), C.R.S., CPW regulates when persons may apply for a permit, the length of time the permit is valid, where the permittee may fish, and more. This statutory provision also provides CPW with the power to draft rules or regulations to help meet its statutory obligations thereto. Additionally, CPW possesses similar criminal enforcement authority (under Sections 33-6-105, 33-6-106, and 33-6-107, C.R.S.) to suspend the privilege of applying for, purchasing, or using a license; levying of fines; or to bring criminal charges against violators. 


Another legal mechanism outside of Title 33 for enforcing fishing closures is the citizen petition provision under Section 24-4-103(7), C.R.S., of the State Administrative Procedure Act.This provision permits any interested person to petition CPW for the creation, modification, or removal of a regulation. And provides citizens with a nexus to participate in the rulemaking process; serving as a powerful device for individuals and groups alike to enforce these closures. 


Last but not least, the Endangered Species Act (“ESA”) creates an interesting interplay between federal and state law. The ESA provides an extensive framework of laws that help protect and conserve species listed as threatened or endangered. This includes the Section 9 “take” prohibition, which makes it unlawful for any “person” to “take” any listed endangered or threatened species as designated through regulation. The statutory terms, “person” and “take,” are broad. For example, the term “person” literally applies to everyone—from state and local government officials, private citizens, federal government officials, and more. In addition, the ESA imposes both civil penalties (up to $25,000) and criminal sanctions (a maximum $50,000 or imprisonment of up to one year, or both)for taking a listed species. With these sorts of extensive prohibitions and penalties in place, both federal, state, and local officials could utilize Section 9 to implement fishing closures on waters where listed fish species inhabit. 


Additionally, Section 7of the ESA requires federal agencies consult with the United States Fish and Wildlife Service to “insure that any action authorized, funded, or carried out by [them] is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat.” Although Section 7 applies only to federal agencies and federal agency actions, its reach is far wider. Because federal agencies are involved in the construction, development, permitting, licensing, or financing projects in Colorado, Section 7 could affect state and local agencies or private entities that require any sort of federal permit, authorization, or funds. Thus, making Section 7 an applicable statutory tool that could affect state entities requiring federal authorizations, permits, or funds to operate. 


To date, Colorado is home to seventeen animal species listed under the ESA—five of which are fish species. Therefore, the federal government (via the Fish and Wildlife Service) also has authority to impose fishing closures based on its authority under the ESA and other similar wildlife conservation and preservation statues. Additionally, the federal government—in the spirit of cooperative federalism—can partner with CPW to inform and enforce these fishing closures. Thus, providing CPW with, not only more tools in its tackle box, but a valuable and powerful ally. 


Through the comprehensive statutory regime in Title 33 and beyond, CPW has ample gear to help institute fishing closures throughout Colorado. Additionally, CPW may partner with, or rely on federal agencies to implement federal statutes (like the ESA) to help supplement its authority to effectuate these fishing closures around the state. Thus, demonstrating a robust set of statutory legal mechanisms at CPW’s disposal to implement fishing closures if need be.


Regulatory Mechanisms Affecting Fishing Closures in Colorado

The legislature has also delegated CPW the power to issue regulationsthat can help effectuate fishing closures. These regulations are extensive and forge an effective apparatus by which CPW may carry out these closures. CPW can regulate the dates and times of fishing, enact water specific or emergency closures, and other, more water body specific regulations. 


First, CPW may regulate the dates and hours when anglers may catch fish. The regulation starts from the position that fishing shall be open day and night, year-round. But an exception allows CPW to otherwise restrict the dates and hours of fishing through other regulations, thereby driving a truck through the regulation. Thus, CPW may limit or close fishing around the state.   


A second powerful regulation at CPW’s disposal permits the agency to prohibit fishing when in the process of adopting water specific regulations. Per 2 CCR 406-1:104(E), CPW may prohibit fishing “when necessary to: 


  1. Protect threatened or endangered species[;] 
  2. Protect spawning areas[;]
  3. Protect waters being used in Commission research projects[;]
  4. Protect new acquired access to fishing waters[; and] 
  5. To protect the integrity of sport fish, native fish or other aquatic wildlife populations.” 


This regulation holds a dual purpose. The regulation gives CPW time to craft and mold regulations to pinpoint the needs of fish and address them accordingly. It also allows CPW to prohibit fishing while it enacts these water specific regulations to benefit Colorado’s fish. Hence serving as a mechanism to effect fishing closures while CPW issues necessary regulations. 


Third, CPW also has the power to close fishing waters in times of emergency. Under the regulation, fishing waters may be closed for up to nine months. CPW may authorize an emergency closure after determining that water conditions have reached a level where fishing could cause unacceptable levels of fish mortality. (E.g., fish that become stressed because of low oxygen levels and increased food competition due to minimal flows and high temperatures—conditions that led to the voluntary closures over the 2018 summer.) The regulation enumerates five criteria for initiating an emergency closure:

 

  1. Daily maximum water temperatures exceed 74˚ F or the daily average temperature exceeds 72˚ F;
  2. Measured stream flows are 25% or less of the historical average low flow for the time period in question;
  3. Fish condition is deteriorating such that fungus and other visible signs of deterioration may be present;
  4. Daily minimum dissolved oxygen levels are below five (5) parts per million[] [; and]
  5. When a natural or man-caused environmental event such as wildfire, mudslides, oil spills or other similar event has occurred, resulting in the need for recovery time or remedial action for a fish population[.]”


Curiously, there were several riversthat would have been subject to emergency closures. (CPW instead opting for voluntary closures of affected waters.) If these sorts of “emergency” conditions persist, CPW would be justified in closing off sections of river to fishing. Therefore, this regulation serves both as a powerful legal mechanism to enforce fishing closures, and as a reality check if anglers choose not to follow them. 


Fourth and finally, CPW has also established specific management guidelines that afford further protection—explicitly for trout—for Colorado’s most pristine fishing waters, known as Wild Trout Waters and Gold Medal Waters.To be designated a Wild Trout or Gold Medal water, a water body must meet certain criteria. Wild Trout Water must be a habitat capable of sustaining a wild trout population, and with the primary fishery management objective of maintaining a wild trout population. Accordingly, Gold Medal Waters must produce a minimum trout standing stock of 60 pounds per acre, a minimum average of 12 quality trout per acre, and be accessible by the general angling public. 


Once designated as Wild Trout or Gold Medal waters, CPW must administer the waters according to four specific management guidelines. The first guidelines states that CPW should manage these waters in a way that promotes the preservation and protection of the trout and their aquatic habitat. Although the first guideline does not give CPW affirmative powers or regulatory authority, it serves as an important signpost for how CPW must manage these waters. 


In contrast, the second guideline serves as a more viable enforcement tool. It states that CPW may request mitigation from a person or agency that contributes to the loss or degradation of a Wild Trout or Gold Medal water. The regulation does not define or discuss what is meant by mitigation, or required of persons or agencies who are tasked with mitigating a water. But it is fair to surmise that it is not cheap. For example, the mitigation costs alone for the Northern Integrated Supply Project—as exhibited in the Draft Final Fish and Wildlife Mitigation and Enhancement Plan—hovered around $35 million. Thus serving as a powerful tool to not just recoup costs, but as a stick to ward off anglers who may choose not to tolerate CPW’s fishing closures. 


Under the third guideline, specific to Wild Trout waters, CPW may recommend special regulations to sustain or enhance wild trout to provide quality-fishing opportunities. This allows CPW to create and import special regulations that protect fish. These regulations could include restrictions, closures, or bans on fishing to sustain or protect wild trout populations. And, therefore, could help bolster CPW’s authority to enforce fishing closures across the state. 


The fourth management guideline for Gold Medal waters provides CPW with the authority to manage the fish in these waters. Principally, CPW can recommend regulations for the purposes of maintaining or exceeding the Gold Medal fish population criteria. Again providing CPW with authority to enforce fishing closures in these waters. 


CPW’s regulatory authority allows for more acute control of fishing closures in Colorado. In tandem with its statutory counterparts, these regulations act as a bulwark against anglers who choose not to abide by the voluntary closures that were in effect over the summer. And help to ensure that CPW is capable of putting further measures in place should these voluntary closures fail to alleviate the stress on Colorado’s fish species. 


Legal Ramifications for Violators & the State

Violators of these legal or regulatory closures and the state could face significant legal trouble. For violators of the law, the ramifications are quite plain: fines; loss of, or the privilege for applying for a license; and even criminal charges. These outcomes are certain. But should violators of either legal or voluntary closures push fish populations to the brink, CPW may be forced to restrict or prohibit fishing all together—a loss for all who love this activity and for those just learning to. And rather than voluntary fishing closures, anglers may soon have their favorite fishing holes locked up, with the key thrown away. 


For Colorado, the impact would felt in the pocket book: loss of revenue from anglers from in- and out-of-state, and from tax paying businesses that rely on fishing to turn a profit. Hunting, fishing, and outdoor recreation in general are big business in Colorado: contributing approximately $6.1 billion to the state’s economy. In 2017, 1,100,609 people hunted or fished in Colorado—supplying $218.7 million in funding for CPW to manage and improve the state’s outdoors. From an economic standpoint, it would appear, the closures are “bad for business.” (What with people not spending money to fish and all.) However, a short hiatus is better than a permanent loss of resource.  This rudimentary economics perspective, however, over-simplifies the problem: should fishing holes run dry the state will not only lose revenue, but a precious wildlife species (something that cannot be replaced by superior business acumen). Thus making voluntary closures good for both Colorado’s fish and economy. 


Moreover, should the situation surrounding the State’s fish become dire, the Federal Government could supplant Colorado’s control through further implementation of the ESA or other federal statutes. Should that happen, Colorado’s management over its wildlife would be vastly limited and the people of Colorado’s voice over how to conserve and preserve our resources could be quelled. And in a state with a proud outdoor recreation history and booming recreation-oriented economy, this would be a huge blow to Coloradans.


The startling prospects of sweeping fishing closures, including loss of fish species and loss of revenue and business in Colorado could come to fruition should we choose not to act and save our fish. Tightening our appetite for fishing and exercising discipline is the only way to ensure that this problem does not balloon into something uncontrollable. And while it may be tough, it is vital that we take this step: not just for the avid angler, but for those who fish only occasionally, or people such as myself who enjoy seeing fish at the aquarium or on the occasional rafting trip. 


CPW has broad statutory and regulatory authority to help protect Colorado’s fish. It is encouraging that CPW is seeking angler’s help to protect fish through cooperation and volunteerism. Should this cooperation or volunteerism fail, however, CPW is well equipped to protect the State’s fish through a comprehensive set of statutory and regulatory legal mechanisms. While the ramifications for violators and Colorado seem grave, through collaboration between state and federal government entities, as well as anglers, it is possible that voluntary closures may solve the problems facing our state’s fish. Conversely, should these voluntary closures fail, CPW is well suited to protect Colorado’s fish by employing the legal mechanisms at its disposal. 


Sources

Coyote Gulch, @COParksWildlife Announces Additional Voluntary Fishing Closures in Northwest Colorado, Coyote Gulch (Jul. 27, 2018), https://coyotegulch.blog/2018/07/27/coparkswildlife-announces-additional-voluntary-fishing-closures-in-northwest-colorado/.


Colo. Parks & Wildlife, 2018 Fact Sheet, https://cpw.state.co.us/Documents/About/Reports/StatewideFactSheet.pdf (last visited Nov. 11, 2018). 


Colo. Rev. Stat. § 33-1-101 (2018).


Colo. Rev. State § 33-1-106(1)(a) (2018).


Colo. Rev. Stat. § 33-6-120 (2018).


Colo. Rev. Stat. § 33-1-107 (2018).


Colo. Rev. Stat. § 33-1-106(1)(e) (2018). 


Colo. Rev. Stat. § 33-6-105 (2018). 


Colo. Rev. Stat. § 33-6-106 (2018). 


Colo. Rev. Stat. § 33-6-107 (2018).


Colo. Rev. Stat. § 24-4-103(7) (2018).


Endangered Species Act, 16 U.S.C. § 1538 (1973). 


Endangered Species Act, 16 U.S.C. § 1536 (1973).


Colo. Code Regs. § 406-1:101 (2018).


Colo. Code Regs. § 406-1:104(E) (2018). 


Colo. Code Regs. § 406-1:104(F) (2018). 

A Century in the Making: The Colorado River Compact Meets Record-Low Snowpack

By Weston Paul Rasmussen • April 15, 2026
Colorado currently faces its lowest snowpack ever recorded. Following an unseasonably warm winter and hardly any snowfall, the Natural Resources Conservation Service reports snowpack at twenty-two percent of a normal year. At the same time, the Colorado River Basin states—Wyoming, Colorado, New Mexico, Utah, Arizona, Nevada, and California—are approaching their third year of renegotiating the most important water apportionment agreement in the American West: the Colorado River Compact. Originally negotiated in 1922 by delegates from all seven basin states and then-Secretary of Commerce Herbert Hoover, the Compact has governed the Colorado River’s use for over a century. In 1922, as now, the delegates understood the stakes. The river bound the region together, and the inhabitants of the basin states—both human and otherwise—built their lives around the river’s resources. Against this backdrop, the delegates waded through maps and then-available hydraulic data to equitably distribute a river that had already been allocated beyond its natural supply. They ultimately agreed to split the river’s flow roughly even between the Upper Basin and Lower Basin, measuring that split at Lees Ferry, Arizona. This required the upper states to allow seventy-five million acre-feet of water to flow down through Lees Ferry over a ten-year rolling average period. After setting that number, the delegates ratified the Compact and ended the states’ perpetual bickering over the river’s use, for the time being. Unfortunately for the century that followed, however, the Compact allocated water based on data from an unusually wet period in the West’s history. In other words, the Compact—at its inception—presumed a higher supply of water than the river typically carries. Compounding the problem, the basin’s current population—forty million people—is nearly twenty times what the delegates predicted back in 1922. These key misestimations show that the basin states’ current water use is already unsustainable. Now add this year’s record-low snowpack to the equation. Rocky Mountain snowpack typically accounts for approximately eighty percent of Upper Colorado River flow. When spring and summer hit, low snowpack in Colorado, Wyoming, and Utah will result in less water melting into streams and rivers. Notably, Colorado’s streamflow forecasts for 2026 predict below average snowmelt across all major river basins, which will cause significant water-level drops in the nation’s largest reservoirs—Lake Powell and Lake Mead. These conditions create untimely challenges for Compact renegotiations. Today, as in 1922, the renegotiation battle is split between the three Lower Basin states of California, Arizona, and Nevada and the four Upper Basin states of Wyoming, Colorado, New Mexico, and Utah. But the process is deadlocked, and Arizona delegates already anticipate complete failure. With the current conditions of the basin’s water supply, the upper states will fall below their obligatory seventy-five million acre-feet allotment to the lower states within the next two years. Failing to deliver that allotment will trigger a legal tripwire, allowing the lower states to sue for a violation of the Compact. But a lawsuit would spark a complex legal battle that could drag on for years, and interstate litigation would place the Compact in the federal courts’ hands, which is an outcome none of the states want. To avoid hitting that tripwire and hailing seven states into contentious litigation, the lower states are pushing for mandatory cuts on Upper Basin water use during these particularly dry years. Top Upper Basin negotiators countered, however, that mandatory cuts are not on the table. This places the Compact on a dangerously short timeline. Without substantial intervention, water levels will continue their downward trend, and reduced runoff from the Upper Basin’s snowpack may trigger the legal tripwire as early as this summer. The race is on to renegotiate the Compact before that happens. But with litigation looming and snowpack at historic lows, one thing is clear: the Colorado River is running low on both time and water. Sources: Alan Gionet, New Report Paints Grim Picture of Water Use Problems with Colorado River , CBS News (Dec. 26, 2025, 10:10 PM), https://www.cbsnews.com/colorado/news/new-report-colorado-river-water-use-dire-problems/ . Colo. River Compact (1922), https://www.usbr.gov/lc/region/g1000/pdfiles/crcompct.pdf . Colorado Snowpack Products , Nat. Res. Conservation Serv., https://www.wcc.nrcs.usda.gov/ftpref/support/states/CO/products/#state=co&element=wteq (last visited April 1, 2026). How Much Snow for Colorado River Flow? , Geosciences and Env’t Change Sci. Ctr., https://www.usgs.gov/centers/geosciences-and-environmental-change-science-center/science/how-much-snow-colorado-river#overview (last visited March 15, 2026). Ian James, How Failing Negotiations Could Spiral into a Bitter Fight over the Colorado River , L.A. Times (Feb. 5, 2026, 10:29 AM), https://www.latimes.com/environment/story/2026-02-05/colorado-river-negotiations-failing . Jake Bolster and Wyatt Myskow, Colorado River Negotiators Are Nearly Out of Time and Snowpack , Inside Climate News (Feb. 4, 2026), https://insideclimatenews.org/news/04022026/colorado-river-record-low-snow-litigation/ . Maddie Rhodes, This Winter has the Lowest Snowpack so far in Colorado History , Fox31 Denver: Weather Headlines (Feb. 5, 2026, 11:44 AM), https://kdvr.com/weather/wx-news/this-winter-has-the-lowest-snowpack-so-far-in-colorado-history/ . Margaret Osborne, A Century Ago, this Water Agreement Changes the West. Now, the Region is in Crisis , Smithsonian Magazine (Nov. 28, 2022), https://www.smithsonianmag.com/smart-news/a-century-ago-this-water-agreement-changed-the-west-now-the-region-is-in-crisis-180981169/ . Mike Lee and Martin Heinrich, Colorado River Talks: Securing Water for the West , The Hill (Dec. 19, 2025, 10:30 AM), https://thehill.com/opinion/energy-environment/5654255-future-colorado-river-agreement/ . Record Low Snowpack Observed Across Much of Colorado Heading into 2026 , Nat. Res. Conservation Serv., https://www.nrcs.usda.gov/state-offices/colorado/news/record-low-snowpack-observed-across-much-of-colorado-heading-into-2026 (last visited March 15, 2026). Shannon Mullane, Colorado River Negotiations in Murky Waters after Historic Gathering of Governors in DC , The Colorado Sun (Feb. 3, 2026, 3:51 AM), https://coloradosun.com/2026/02/03/colorado-river-governor-negotiations-dc-water-congress/ . Steve Harris, How Did Compact Negotiators Split the Colorado River’s Flow in 1922? , The Rocky Mountain Voice (Oct. 9, 2025), https://rockymountainvoice.com/2025/10/09/how-did-compact-negotiators-split-the-colorado-rivers-flow-in-1922/ .

Up the Creek Without a Paddle: An Evolution of the Public Trust Doctrine and How It Influences Idaho’s and Montana’s Different Approaches to Public Recreational Access to Waters

By Frances Ducey Warden • April 14, 2026
Introduction The public trust doctrine (the “Doctrine”) evolved from a form of governmental authority over specific natural resources—primarily waterways—to compelling the state to manage certain common natural resources in trust for the public. Nowadays, the public trust doctrine is a method of environmental advocacy in the United States. The Doctrine spanned both an unsuccessful attempt to compel a state to limit fossil fuel use and a successful effort to restore waters in a depleting lake. Additionally, there is continued interest in using the Doctrine to increase recreational access. This post first explores the public trust doctrine’s evolution, from its origins in Roman law to its incorporation into English common law, and then to its transformation into the modern American public trust doctrine. It then explores how the public trust doctrine influenced water law in Idaho and Montana, and the two states’ different approaches to public recreational access to waters despite laws originating from the same doctrine. Overall, Idaho is more restrictive with public recreational access to waters. In contrast, Montana allows for broader public recreational access to waters. I. History of the Public Trust Doctrine Modern historians credit the origin of public trust doctrine to the Justinian Codex, which stated running water, the shores, and the sea are common property to the public. This jus publicum concept from Roman law survived, eventually taking root in English law. A similar concept is first found in the Magna Carta, which declared the Thames and Medway Rivers navigable waters and public commons for fishing or navigation. The Doctrine then formally took hold in English common law in the 17 th century when the King’s Bench held “sovereign ownership” applied to tidelands, and navigable waters were for public use. After the Revolutionary War, the thirteen original states succeeded the Crown in ownership of tidelands, becoming the new ‘sovereigns’ of America. In the early 19 th century, Arnold v. Mundy reaffirmed the Doctrine. The plaintiff claimed the defendant trespassed on his private oyster bed and took the plaintiff’s oysters. The defendant, in response, claimed he only took the oysters below the high water mark in a tidal, navigable river. The court, siding with the defendant, held navigable rivers, along with the coasts, were “common” to all the citizens for fishing, passing, and navigation. This holding also extended to the land under the water. Martin v. Waddell, another oyster farm dispute, affirmed Arnold’s holding. Three years after Martin, the Supreme Court held in Pollard’s Lessee v. Hagan that because new states were admitted to the union “on equal footing” as the original states, the new states received the same rights as the original thirteen states. Thus, any new state received an automatic transfer of title to lands underlying navigable waters at the time of statehood. Propeller Genesee Chief v. Fitzhugh then held that state ownership expanded to navigable, non-tidal waters and their beds. Later, the Supreme Court released The Daniel Ball test, the federal test for navigability. The Daniel Ball test states that waters are navigable when they are used as highways for commerce, over which customary trade and travel may be conducted. By the mid 19 th century, American law well established that states were presumed to hold title to both the beds, banks, and surface of navigable streams. In the late 19 th century, the Supreme Court decided the Doctrine’s seminal case: Illinois Central Railroad Co. v. Illinois. The Illinois legislature granted the Railroad 1,000 thousand acres of submerged land beneath the Chicago waterfront. Later, the legislature attempted to rescind the grant, leading to the lawsuit. The Court concluded a state cannot transfer lands under navigable waters to private parties, as it holds them in trust for the public for fishing, navigation, and commerce. Illinois Central not only affirmed state authority over submerged beds, but also established the idea the state was a trustee for the public of the submerged lands, and private parties could not “obstruct” the public’s access to fishing, navigation, or commerce. Shively v. Bowlby then followed, affirming Illinois Central’s holding. Shively also added that each individual state’s laws govern public trust waters. Once a concept of Roman and English law evolved into American’s modern public trust doctrine: under each state’s laws, the state, as trustee for the public, owns the beds of navigable rivers and tidelands. These trusts open to the public for commerce, navigation, and fishing. II. The Public Trust Doctrine Relating to Idaho's Recreational Access Idaho follows the public trust doctrine and allows recreational access to navigable waterways. However, if the waterway is non navigable, recreational access is not allowed, as it is deemed private property. Idaho’s constitution declares: “ all water originally appropriated for private use, but which after such appropriation has heretofore been … is hereby declared to be a public use, and subject to the regulations and control of the state.” The Idaho Supreme Court held in Callahan v. Price that Idaho holds title to submerged lands of navigable waterways. To determine what waters and submerged beds are under state control, Idaho uses the federal test of navigability. Originally, Idaho’s public trust doctrine only covered navigation, but has been expanded to recreation. Earlier caselaw out of the Idaho Supreme Court supported recreational access: Southern Idaho Fish and Game Association v. Picabo Livestock, Inc., upheld public access to the beds of navigable streams, and Kootenai Environmental Alliance, Inc. v. Panhandle Yacht Club, Inc., upheld the state has title to the beds of all navigable bodies of water below the natural high-water mark. However, earlier caselaw also upheld private ownership of non-navigable stream beds. Mesenbrink v. Hosterman reaffirmed the principle that riparian landowners also owned the beds of non-navigable bodies of water and treats unauthorized access to water as a trespass. In 1996, Idaho codified— and limited—the public trust doctrine in the Public Trust Doctrine Act (“PDTA”). The PDTA codifies Idaho’s waters as held in the public trust, and includes recreation as a suitable purpose. III. The Public Trust Doctrine Relating to Montana's Recreational Access Montana’s constitution enshrines the public trust doctrine: “ All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.” The Supreme Court of Montana, in Montana Coalition for Stream Access, Inc. v. Curran, decided against using The Daniel Ball test to determine public access to waters, and instead held that if a waterway was used for recreational boating rather than as highways for commerce, the water will still be considered navigable. Later in the opinion, the court decided the ownership of the streambed to be irrelevant, and the public can access public waters up to the high water mark. Further, the Doctrine, along with Montana’s constitution, do not allow a private party to “interfere” with public recreational access of the state’s waters. Montana Coalition for Stream Access, Inc. v. Hildreth soon followed, reaffirming Curran’s holding and cementing public recreational access to waters within Montanan law. In response to these decisions, the Montana legislature passed the Stream Access Laws (“SAL”) which codified the public’s right to recreate in waters regardless of public or private ownership of the land underlying the waters. Within the SAL, Montana divides recreational waters into two categories: Class I and Class II waters. Class I waters are types of navigable surface waters, determined either by the federal navigability test, or are waters capable of log floating or transportation of furs and skins. Class II waters are any other type of water, except for lakes. Galt v. State upheld these classifications, affirming both classifications of waters are for public recreational access. Overall, Montana’s recreational access can be summarized to allow recreation on any surface water without regard to public or private ownership or whether the surface water is navigable. Conclusion Differences in public recreational access to waters in Idaho and Montana stem from variations in their constitutions, case law, statutory codifications of the public trust doctrine, and the extent to which each state relies on the federal navigability test. Idaho’s constitution declares “water is originally appropriated for private use.” This is then followed by the language “waters after appropriation” are for public use. Through statutory interpretation, a reasonable person can determine that Idaho’s constitution prioritizes private ownership, as water is first mentioned for private use, and, following appropriation, can then be used for public use. In contrast, Montana’s constitution declares “all” waters are for public use, which is then followed by the language “subject to appropriation.” Montana’s constitution prioritizes public ownership, as ‘all’ water is first mentioned for public use, after which it can be “appropriated” for private use. Idaho follows the federal navigability test to determine public or private ownership of the waters, which then determines whether public recreational access is allowed. On navigable rivers, Idaho allows public recreational access, since the state owns the waters and submerged beds. On non-navigable rivers, Idaho does not allow public recreational access, since the littoral landowner owns both the waters and submerged beds. Montana disregards the federal navigability test to determine ownership of submerged lands. Both navigable and non-navigable rivers are open to public recreation, as to the ownership of the streambeds is irrelevant.  Additionally, Idaho codified the public trust doctrine in the PDTA, while Montana codified it in the SLA. On one hand, the PDTA explicitly limits the public trust doctrine. On the other hand, the SLA expands recreational access to waters, thereby expanding the public trust doctrine. Sources: Erin Ryan, A Short History of the Public Trust Doctrine and its Intersection with Private Water Law, 39 Vir. Envtl. L. J. 135, 137 (2020) Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (Cal. 1983) Cert denied, 464 U.S. 977. Ralph W. Johnson and Russell A. Austin Jr., Recreational Rights and Titles to Beds on Western Lakes and Streams, 7 Nat. Res. J. 1 (1967) The Public Trust Doctrine: What it is, Where it Came from, and Why Colorado Does Not (And Should Not) Have One: 16 U. Denv. Water L. Rev. 17 (2012). Justinian, the Institutes of Justinian 2.1.1 (Thomas Cooper trans. & ed. 1841). Arnold v. Mundy, 6 N.J.L 1 (N.J. 1821). Pollard’s Lessee v. Hagan, 44 U.S. 212, 222 (1845). Reed D. Benson, Burke W. Griggs, & A. Dan Tarlock Water Resource Management: A Casebook in Law and Public Policy at 521 (Foundation Press, 8th ed. 2021). The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870). Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 452 (1892) Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich L. Rev. 471, 478 (1970) Shively v. Bowlby, 152 U.S. 1, 26 (1894). 26 Idaho Const. Art. XV § 1. Callahan v. Price, 146 P. 732, 735 (Idaho 1915). Idaho Code § 58-202 (1996) (referencing The Daniel Ball Test). Newton v. MJK/BJK, LLC, 469 P.3d 23, 29 (Idaho 2020) (referencing Idaho Forest Indus., Inc. v. Hayden Lake Watershed Improvement Dist., 733 P.2d 733, 737 (1987)). Southern Idaho Fish and Game Association v. Picabo Livestock, Inc., 528 P. 2d 1295 (Idaho 1974) Ritter v. Standal, 566 P.2d 769 (Idaho 1977) Kootenai Environmental Alliance, Inc v. Panhandle Yacht Club, Inc., 671 P.2d 1085 (Idaho 1983) Mesenbrink v. Hosterman, 210 P.3d 516, 520 (Idaho 2009) (reaffirming Callahan v. Price, 146 P. 732, 735 (Idaho 1915)). Idaho Code § 58-1201(6) (1996). Idaho Code § 58-1203(3) (1996). Mont. Const. Art. IX. § 3(3). Montana Coalition for Stream Access, Inc. v. Curran, 682 P.2d 163, 169 (Mont. 1984) (quoting Lamprey v. Metcalf, 53 N.W. 1139, 1143 (Minn. 1893)). Mont. Code Ann. § 23-2-302(1) (1985). Mont. Code Ann. § 23-2-301(2) (1985). Mont. Code Ann. § 23-2-301(2)(3) (1985). Galt v. State, 731 P.2d 912, 915 (Mont. 1987) In re Adjudication of Existing Rights to the Use of all Water, 55 P.3d 396, 404 (Mont. 2002).