Originally Posted by soggy_tortillas
Yes, but how do you get around the fact that on two separate occasions the Colorado Supreme Court has stated (not written) that the majority of streams/rivers in Colorado are non-navigable?
The Court actually wrote that there are no navigable rivers in Colorado in two water rights cases in 1912 and 1913, but both cases were about water rights, not navigation rights, so the remarks were only dicta
(remarks about issues that were not litigated in the case.) Remarks in decisions that are dicta do not set precedent, as you can verify for yourself elsewhere on the internet. Even if the remarks had not been dicta
(i.e., even if the Court would have ruled that there are no navigable rivers in the state after hearing factual testimony about navigation on rivers, and legal argument,) such a decision would still not affect which rivers in Colorado are navigable for Commerce Clause purposes under federal law, which is determined by federal law, not state court decisions.
The U.S. Supreme Court has confirmed that rivers that are navigable in fact are navigable in law, i.e., if they are physically navigable they are legally navigable, with no official designation needed. Federal courts have confirmed that rivers are physically and legally navigable if they are usable for canoes or kayaks or shingle bolts. So the rivers in Colorado that are usable in these ways are already legally navigable now, under federal law.