Originally Posted by soggy_tortillas
This is Colorado. It's not Missouri and it's not Georgia (some of the others you cite are Alaska, Montana, and Illinois), and each state clearly has it's own constitutions and policies. .... Upon researching, that is the information I came up with on COLORADO'S navigability report.
You have indeed identified the issue: Whether the state government of Colorado has to heed federal court decisions that involved rivers in other states, or whether it is free to close the rivers in Colorado if it so chooses.
To summarize the issue in a nutshell, American Whitewater says “most whitewater streams” do not meet the federal test for navigability, (without citing anything,) and that there is a “possibility that a Colorado court might find a particular stream navigable under some sort of standard,” although “the prevailing presumption is that all of the state’s streams are non-navigable.” Marko likewise says public rights are determined by states, citing a decision about dam building (not river running) that said, “States retain residual power to determine the scope of the public trust over waters within their borders.” NOR materials cite federal decisions about whitewater rivers in West Virginia, Georgia, Wisconsin, Montana, Oregon, Alaska, and other states, confirming that whitewater rivers, navigable only by canoes or kayaks or shingle bolts, are navigable for Commerce Clause purposes under federal law, which includes an easement “for the benefit of the public, regardless of who owns the riverbed.” NOR says those federal decisions apply in all fifty states (including Colorado, of course,) so that state governments are not free to close the rivers within their borders after all.
That's the issue, in brief. Regarding what to do about it, river users should not use themselves as guinea pigs on rivers where their rights are denied by sheriffs or landowners. Instead, they should dialog with sheriffs and landowners about public rights on rivers, and run the river again when they will not get cited, arrested, or shot at.