Hill v. Warsewa

20CA1780 Hill v Warsewa 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1780

Fremont County District Court No. 18CV30069

Honorable Lynette M. Wenner, Judge

Roger Hill,

Plaintiff-Appellant,

v.

Mark Everett Warsewa, Linda Joseph, and the State of Colorado,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE TOW

Richman and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Alexander N. Hood, Denver, Colorado; Mark S. Squillace, Boulder, Colorado, for

Plaintiff-Appellant

Kirk Holleyman, P.C., Kirk B. Holleyman, Denver, Colorado, for Defendants-

Appellees Mark Everett Warsewa and Linda Joseph

Philip J. Weiser, Attorney General, Scott Steinbrecher, Assistant Deputy

Attorney General, Daniel E. Steuer, Senior Assistant Attorney General, Denver,

Colorado, for Defendant-Appellee the State of Colorado

Burns, Figa & Will, P.C., Stephen H. Leonhardt, April D.Hendricks, Greenwood

Village Colorado, for Amicus Curiae Colorado Water Congress

Michael J. Gustafson, City Attorney, Colorado Springs, Colorado, for Amicus

Curiae City of Colorado Springs

Law of the Rockies, LLC, Kendall Burgemeister, Gunnison, Colorado, for

Amicus Curiae Upper Arkansas Water Conservacy District

Hayes Pozanovic Korver LLC, David S. Hayes, Denver, Colorado for Amicus

Curiae Taylor Placer, Ltd., Crystal Creek Homeowners Association, Inc.,

Jackson-Saw/Taylor River Ranch, LLC, and Wilder Association

1

¶ 1 Roger Hill appeals the district court’s judgment dismissing his

complaint against Mark Everett Warsewa, Linda Joseph

(collectively, the Warsewa defendants), and the State of Colorado

asserting claims for quiet title and declaratory judgment. We affirm

in part, reverse in part, and remand the case for further

proceedings.

I. Background

¶ 2 The Warsewa defendants own a parcel of land over and

through which the Arkansas River passes. For several years, Hill

has attempted to fish on a particular bed of the river that is located

on the Warsewa defendants’ land. Hill maintains that “the disputed

portion of the bed of the Arkansas River is public land owned by the

State of Colorado and held in trust for the people of Colorado by

virtue of it being navigable for title when Colorado became a state.”

¶ 3 The navigability of the river at the time Colorado became a

state is essential to Hill’s claim. Under what is known as the

“equal-footing doctrine,” each state, upon attaining statehood,

“gains title within its borders to the beds of waters then navigable.”

PPL Mont., LLC v. Montana, 565 U.S. 576, 591 (2012). If the water

was non-navigable at statehood, the United States retained title. Id.

2

The United States thus retained the authority to grant title to the

beds of non-navigable waters to private landowners. See Hanlon v.

Hobson, 24 Colo. 284, 288, 51 P. 433, 435 (1897).

¶ 4 Navigability is a matter of federal law, and encompasses those

rivers that were “used, or [were] susceptible of being used, in their

ordinary condition, as highways for commerce, over which trade

and travel are or may be conducted in the customary modes of

trade and travel on water.” PPL Mont., 565 U.S. at 591-92 (quoting

The Daniel Ball, 77U.S. 557 (1870)). Navigability is determined not

for an entire river but, rather, on a segment-by-segment basis. Id.

at 593.

¶ 5 The Warsewa defendants disagree with Hill’s claim that the

river was navigable upon statehood. They maintain that the

riverbed is their private property

1

and have repeatedly taken steps

— including both shows of force and threats of prosecution for

trespass — to prevent Hill from using it.

¶ 6 Hill brought claims against the Warsewa defendants seeking

(1) to quiet title to the land in question, decreeing that it is “owned

1

It appears undisputed that Warsewa and Joseph’s title can be

traced back to an original federal land grant.

3

exclusively by the State of Colorado in trust for the public;” and

(2) a declaratory judgment under C.R.C.P. 57 to bar the Warsewa

defendants from excluding Hill from the riverbed. Hill named the

State of Colorado as an “interested party” in the suit.

¶ 7 The Warsewa defendants removed the action to federal district

court based on federal question jurisdiction. In federal district

court, Hill amended his complaint to name the State of Colorado as

a defendant. The State of Colorado shares the Warsewa defendants’

position that the riverbed at issue is private property belonging to

the Warsewa defendants. All defendants filed motions to dismiss

due to lack of prudential standing, lack of Article III standing, and

failure to state a claim for relief. The federal district court granted

the motions to dismiss, finding that Hill lacked prudential standing

because he was asserting the rights of a third party.

¶ 8 Hill appealed the federal district court’s dismissal to the Tenth

Circuit. The Tenth Circuit held that “[t]he district court erred by

concluding that [Mr.] Hill lacked prudential standing to bring his

claims,” but remanded the case for a determination whether Hill

had standing under Article III. Hill v. Warsewa, 947 F.3d 1305,

1308-11 (10th Cir. 2020). On remand, the federal district court

4

held that Hill lacked constitutional standing as well. Rather than

dismiss the action, the federal district court remanded the case to

the state district court.

¶ 9 Back in state court, all defendants moved to dismiss the case

for lack of standing under C.R.C.P. 12(b)(1) and for failure to state a

claim for which relief can be granted under C.R.C.P. 12(b)(5).

Accepting both theories, the district court granted the motions to

dismiss.

¶ 10 Hill now appeals, arguing that the district court erred by

dismissing his complaint.

II. Rule 12(b)(1) Motion

¶ 11 Hill contends that the district court erred by finding he lacked

standing to sue because he failed to “sho[w] a personal legally

protected right that is his to assert in a judicial forum” for both his

claims. We agree with the district court as to Hill’s quiet title claim.

However, we conclude that Hill has standing to pursue his claim for

declaratory judgment.

A. Standard of Review and Applicable Law

¶ 12 When considering a district court’s dismissal for lack of

subject matter jurisdiction under C.R.C.P. 12(b)(1), we review the

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district court’s legal conclusions de novo and its factual

determinations, if any, for clear error. See Monez v. Reinertson, 140

P.3d 242, 244 (Colo. App. 2006). The plaintiff bears the burden of

proving jurisdiction. City of Boulder v. Pub. Serv. Co. of Colo., 2018

CO 59, ¶ 14. A party’s standing to bring a claim is a question of

law that we review de novo. Ainscough v. Owens, 90 P.3d 851, 856

(Colo. 2004).

¶ 13 A standing question involves two considerations: (1) whether

the party seeking judicial relief has alleged an actual injury from

the challenged action, and (2) whether the injury is to a legally

protected or cognizable interest. Wimberly v. Ettenberg, 194 Colo.

163, 168, 570 P.2d 535, 539 (1977). The district court found that

Hill sufficiently alleged an injury in fact, and appellees do not

contest this finding. Thus, our analysis focuses only on whether

Hill has sufficiently alleged an injury to a legally protected interest.

An interest is legally protected if the individual “has a claim for

relief under the constitution, the common law, a statute, or a rule

or regulation.” Ainscough, 90 P.3d at 856.

6

B. The Quiet Title Action

¶ 14 Hill sought to quiet title in the state, requesting that the

district court declare that “the state of Colorado holds title to the

subject real property in trust for the public.”

¶ 15 C.R.C.P. 105 governs quiet title actions and requires that the

proceeding “completely adjudicate the rights of all parties to the

action claiming interests in the property.” Keith v. Kinney, 961 P.2d

516, 519 (Colo. App. 1997). In a quiet title action, the plaintiff “has

the burden of establishing title superior to that claimed by the

defendant.” Hinojos v. Lohmann, 182 P.3d 692, 697 (Colo. App.

2008). Accordingly, a party seeking to quiet title must show that it

has an interest in the property itself. Buell v. Redding Miller, Inc.,

163 Colo. 286, 290, 430 P.2d 471, 473 (1967); see also Hinojos, 182

P.3d at 697 (“[T]he plaintiff may not capitalize on the weakness of

the defendant’s claim to title, but can succeed only by establishing

the strength of his or her own claim to title.”).

¶ 16 Hill does not allege that he has title. Instead, he alleges that

the State of Colorado possesses the valid claim to title to the

property in question. Hill lacks standing, however, to pursue any

claim the state may have to quiet that title. See Cuddy v. Whatley,

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157 Colo. 562, 563, 404 P.2d 533, 534 (1965); see also Meyer v.

Haskett, 251 P.3d 1287, 1292 (Colo. App. 2010) (“Courts routinely

deny defendants the standing to assert a third party’s right.”

(quoting People v. Palomo, 31 P.3d 879, 885 (Colo. 2001))).

¶ 17 Seeking to overcome this obstacle, Hill argues that by virtue of

the equal-footing doctrine, the State of Colorado took title to the

land at issue and holds it for the benefit of the public. As a result,

he contends, he (along with all other members of the public) has the

right to access the property — a right which he claims is, in

essence, an easement.

2

He argues that Colorado courts have

routinely permitted individuals to sue to enforce public easements.

But Hill’s argument assumes too much.

¶ 18 True, in developing the equal-footing doctrine, the United

States Supreme Court has noted that states, upon their admission

2

Hill incorrectly asserts that the Tenth Circuit “found” that his

interest was an easement. The first reference Hill cites was merely

a restatement of his argument. Hill v. Warsewa, 947 F.3d 1305,

1306-07 (10th Cir. 2020). The second is, at most, analogizing his

claim to that of an easement holder. Id. at 1310. In any event,

whether a purported interest in property is an easement is a matter

of state law, and we are not bound by the federal courts in such

matters. First Nat’l Bank in Fort Collins v. Rostek, 182 Colo. 437,

441 n.1, 514 P.2d 314, 316 n.1 (1973).

8

to the union, took title to the navigable waters and their beds in

trust for the public, see PPL Mont., 565 U.S. at 604 (citing Shively v.

Bowlby, 152 U.S. 1, 49 (1894)). But while the equal-footing

doctrine is a product of federal constitutional law, “the States retain

residual power to determine the scope of the public trust over

waters within their borders.” Id.

¶ 19 Put another way, “[s]tate law determines whether the public

effectively has an easement over these lands for public trust

purposes, whether the state may dispose of the lands through

grants to private parties, whether private landowners have always

held the lands, or whether some other regime is effective.” In re

Title, Ballot Title, & Submission Clause for 2011-2012 No. 3, 2012

CO 25, ¶ 39 (Hobbs, J., dissenting). Significantly, we are aware of

no statute or published decision of a Colorado appellate court —

nor does Hill direct us to one — that establishes that any right a

member of the general public may have to the use of public land

rises to the level of an easement or any other interest in the

property sufficient to seek to quiet title.

¶ 20 Moreover, Hill’s reliance on Turnbaugh v. Chapman, 68 P.3d

570 (Colo. App. 2003), is misplaced. In Turnbaugh, the plaintiff was

9

suing to enforce an easement expressly created by a plat. Id. at

571. And, significantly, there is no indication that the plaintiff in

Turnbaugh was permitted to quiet title to the property to which the

easement attached on behalf of the public entity holding the

easement.

¶ 21 Because Hill himself has no claim to title and has not shown

that his claim to public access rises to the level of an easement, he

does not possess a legally protected interest. He therefore has

failed to carry his burden of establishing that he has standing to

seek to quiet title. Thus, the district court did not err by dismissing

this claim under Rule 12(b)(1).

C. Declaratory Judgment

¶ 22 Hill also sought a declaratory judgment that the Warsewa

defendants “have no right to exclude . . . Hill from wading in the

Arkansas River at the subject location.” In connection with this

declaratory relief, Hill sought injunctive relief barring the Warsewa

defendants from “threatening, assaulting or battering” him and

from excluding him from the riverbed.

¶ 23 “A declaratory judgment action is appropriate ‘when the rights

asserted by the plaintiff are present and cognizable ones.’”

10

Wainscott v. Centura Health Corp., 2014 COA 105, ¶ 17 (quoting

Farmers Ins. Exch. v. Dist. Ct., 862 P.2d 944, 947 (Colo. 1993)); see

also Bd. of Cnty. Comm’rs v. Bowen/Edwards Assocs., Inc., 830

P.2d 1045, 1053 (Colo. 1992) (Standing requires “an existing legal

controversy that can be effectively resolved by a declaratory

judgment.”).

¶ 24 Hill argues that, because the river was navigable at statehood,

the riverbed is public land owned by the State of Colorado. Thus,

he, as a member of the public, is not trespassing by wading on the

riverbed. He therefore requests a declaratory judgment to that

effect, as well as injunctive relief preventing the Warsewa

defendants from treating him as a trespasser. Here, unlike in the

quiet title claim, Hill is alleging an interest that is his own — the

right to wade and fish in the river at the location in question. He

further contends that, pursuant to section 18-4-504.5, C.R.S. 2021,

he could not be considered a trespasser for entering or remaining in

or upon the banks and beds of a navigable river. Thus, he seeks to

11

clarify his rights in order to be free from threats of physical

violence.

3

¶ 25 Our supreme court has said that the “core purpose of

declaratory judgments [is] to clarify rights in advance of the

commission of wrongs.” S. Ute Indian Tribe v. King Consol. Ditch

Co., 250 P.3d 1226, 1247 (Colo. 2011). This is precisely what Hill

seeks to achieve. Therefore, he has sufficiently alleged a legally

protected or cognizable interest “under the constitution, the

common law, a statute, or a rule or regulation.” Ainscough, 90 P.3d

at 856.

¶ 26 Appellees argue, however, that even if the river were

considered navigable, Hill would not have a right to access as a

member of the public “because there is no public trust doctrine in

3

Hill also seeks to avoid what he contends is unwarranted

prosecution. He alleges that Warsewa threatened that Hill was

“getting a summons,” and that Warsewa placed a note on Hill’s

windshield stating, “You can and will be charged with trespassing!”

The note further asserted that Warsewa was an employee of the

county and that he would have the sheriff “run” Hill’s plate number.

It is not at all clear that these allegations alone would demonstrate

a sufficiently reasonable possibility of prosecution to permit him to

pursue declaratory relief. See Metal Mgt. W., Inc. v. State, 251 P.3d

1164, 1175 (Colo. App. 2010). We need not decide this issue,

however, as Hill’s allegations regarding the threats of physical

violence are sufficient.

12

Colorado.” This may (or may not) be the case. See City of Longmont

v. Colo. Oil & Gas Ass’n, 2016 CO 29, ¶¶ 61-62 (noting that

Colorado had no provision similar to one in the Pennsylvania

Constitution declaring that the state’s natural resources “are the

common property of all the people” (quoting Pa. Const. art. I, § 27));

People v. Emmert, 198 Colo. 137, 141, 597 P.2d 1025, 1027 (1979)

(declining to adopt a public trust theory regarding the riverbeds of

non-navigable waters).

4

But a court cannot dismiss a claim for lack

of standing based on the merits of the underlying substantive claim.

See Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77,

¶ 7 (Standing is a jurisdictional prerequisite that “must be

determined prior to a decision on the merits.”). We therefore do not

consider the question of whether Hill would actually prevail on his

contention that he has a public right of access to the riverbed.

¶ 27 Appellees also contend that “Hill asserts only a generalized

grievance held in common with the public that is insufficient to

confer standing.” Initially, we acknowledge that the prudential

4

We note, however, that we are aware of no Colorado appellate

decision that has addressed the issue of whether — and, if so, how

— the public trust doctrine applies to the beds of navigable waters.

13

prong of our standing test (i.e., that the plaintiff’s injury must be to

a legally protected or cognizable interest) is aimed at ensuring that

“the claim not be an abstract, generalized grievance that the courts

are neither well equipped nor well advised to adjudicate.” City of

Greenwood Village v. Petitioners for Proposed City of Centennial, 3

P.3d 427, 437 (Colo. 2000) (quoting Sec’y of State of Md. v. Joseph

H. Munson Co., 467 U.S. 947, 955 n.5 (1984)).

5

But Hill does not

present an abstract or generalized challenge to the government’s

actions; instead, he presents a specific request for a declaratory

judgment to prevent the Warsewa defendants from barring his use

of the riverbed, and alleges concrete injuries (or at least threats of

injuries) that have actually occurred and that he is seeking to avoid

in the future. The district court observed that “[w]hatever right

5

That being said, as our supreme court has also acknowledged, our

prudential standing analysis is not necessarily informed by federal

cases cautioning against “generalized grievance[s]” because the

federal analysis is concerned with the constitutionally rooted

jurisdictional limitations on the federal courts to only entertain

certain “cases” and “controversies.” Conrad v. City & Cnty. of

Denver, 656 P.2d 662, 669 (Colo. 1982) (citations omitted). Indeed,

as the Tenth Circuit pointed out, the “generalized grievance”

analysis in the federal court is relevant to constitutional, rather

than prudential, standing. Hill, 947 F.3d at 1311. Because our

district courts, unlike the federal courts, are courts of general

jurisdiction, the analysis is not interchangeable.

14

[Hill] might possess in accessing the disputed riverbed he shares

with all members of the public.” While this may be true, there is no

indication that all members of the public have been threatened with

physical harm and prosecution for trespass. Thus, Hill’s claim is

not a generalized or abstract claim, but a particularized one.

¶ 28 Because Hill’s declaratory judgment claim sufficiently alleges

an injury to a legally protected or cognizable interest, we conclude

that the district court erred by dismissing this claim under Rule

12(b)(1).

III. Rule 12(b)(5) Motion

¶ 29 Having determined that the district court erred in dismissing

Hill’s claim for a declaratory judgment under Rule 12(b)(1), we next

consider whether the district court erred in dismissing the claim

under Rule 12(b)(5).

6

A. Standard of Review and Applicable Law

¶ 30 A motion to dismiss for failure to state a claim under Rule

12(b)(5) “is designed to allow defendants to ‘test the formal

6

Because we conclude that dismissal of the quiet title claim was

proper under C.R.C.P. 12(b)(1), we need not address whether it was

also proper under C.R.C.P. 12(b)(5).

15

sufficiency of the complaint.’” Coors Brewing Co. v. Floyd, 978 P.2d

663, 665 (Colo. 1999) (quoting Dorman v. Petrol Aspen, Inc., 914

P.2d 909, 911 (Colo. 1996)). To survive a motion to dismiss under

Rule 12(b)(5), a plaintiff must state a plausible claim for relief.

Warne v. Hall, 2016 CO 50, ¶ 42.

¶ 31 In ruling on a motion to dismiss under Rule 12(b)(5), a court

considers the facts alleged in the complaint, taking them as true

and viewing them in the light most favorable to the plaintiff. Begley

v. Ireson, 2017 COA 3, ¶ 8. We review de novo a district court’s

ruling on a motion to dismiss under Rule 12(b)(5). See Denver Post

Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011).

B. Analysis

¶ 32 After its lengthy analysis of the Rule 12(b)(1) dismissal, the

district court rather summarily addressed the Rule 12(b)(5) motion.

The court concluded that Hill failed “to show how the common law

and constitutional law on which he relies for the substantive

conclusion that the riverbed is public property also provide a

private cause of action for the enforcement.” The court appears to

have conflated the question of the plausibility of the claim with the

16

“injury to a legally recognizable interest” prong of the standing

analysis.

¶ 33 Again, Rule 12(b)(5) merely requires that Hill state a plausible

claim for relief. We conclude that he has.

¶ 34 If, as Hill alleges, the relevant segment of the river was

navigable at statehood, then the Warsewa defendants do not own

the riverbed and would have no right to exclude him from it by

threats of physical violence or prosecution for trespass. In support

of his claim, Hill proffers numerous factual allegations that the river

was used for commerce at or near the time of statehood, including

floating beaver pelts, logs, and railroad ties down the river. We

certainly cannot, at this early stage, know whether Hill will be able

to establish that the river segment was navigable at statehood. But

we cannot say it is not plausible.

¶ 35 Moreover, as noted, the question of whether, and to what

extent, the public trust doctrine should apply to the bed of a

navigable river has never been resolved — or, as far as we can tell,

even addressed — in Colorado. Nor has Hill’s claim that he is

entitled to access to the riverbed based on English common law

17

been resolved or addressed. Thus, it cannot be said that the law as

it stands now unequivocally bars Hill’s claim.

¶ 36 Because Hill states a plausible claim, the district court erred

by granting the motion to dismiss the declaratory judgment claim

pursuant to Rule 12(b)(5).

7

IV. Conclusion

¶ 37 The judgment is affirmed in part and reversed in part. The

case is remanded for further proceedings consistent with this

opinion.

JUDGE RICHMAN and JUDGE GROVE concur.

7

Of course, in light of our resolution of the standing issue related to

Hill’s quiet title claim, we reiterate that Hill cannot, under the guise

of declaratory judgment, seek any declaration regarding the State of

Colorado’s title or ownership of the riverbed — only that the

Warsewa defendants do not own it.