repeatedly chased mr hill and his fishing buddies off they threw rocks at mr hill they threaten a trust suit against mr hill they should then shot a handgun at mr hill's friend just by this very real dispute the district court refused to analysis i'm sorry it's a case analysis and individual defendants it's confusing and we dealt with this in the st footnote in our opening brief and there's certainly certainly no case on point but but if we believe that it means generalized grievance but it seemed to me to be clearly resting its conclusion on preventable standing which is not a matter of subject matter jurisdiction if found but well your honor it said prevent standing but it misclassified general generalized prevents immunity now we believe that it's inappropriate to to order the issues in that way we believe that this court has a federal court which must be satisfied with subject matter jurisdiction in the district court at the federal court that must st satisfy  subject under duress stiction cannot skip over the subject matter jurisdiction issues and go to these other preliminary issues without a st finding that for some reason the subject matter jurisdiction issues are hard and i'm absolutely puzzled by that and i don't understand that on multiple grounds sign of him being one case and there writing cases it's as long as you don't reach the merits you can choose whatever threshold ground you want to choose in fact there are some cases that were cited i think by opposing counsel th should must come st and that's exactly what the th circuit did in doubt one and we would suggest that's exactly what this court must do and what the district court erred in not doing your honor moving on  grievance is a such as a question of subject matter jurisdiction that should result in remand if this court agrees we don't think there is a generalized grievance here however because the district court confuse a generalized right with a generalized harm sure mr hill may be resting his right to access the disputed river on any public right but he's resting his standing on very up personal injuries to him he's had rocks thrown at him he had a note left form saying that that if he returned he would face super trust us ok those are harms specifically directed at him this is not a generalized grievance if it is a generalized grievance that's a problem with subject matter jurisdiction and that must result and remain on the state court moving on to rd party standing there are the question there is whether mr hill has a right to the river that he's alleging on his own or whether this whether he's alleging the state's right this all of the oh please over and over and over again keep saying that mr hill is alleging the state's right he has not he  repeatedly in his complaint in all the pleadings below said that he has a right that there is a public right of access to this stream that's independent of the state's title he is not attempting to assert the state's title rivers state of colorado so far that's that's a question for the merits and certainly my client has a high bar on the merits to prove that this this specific location was navigable at statehood  claim and i think the most important thing for this court to understand and we should be very clear the that what that would mean if the if this court were to agree with the district court and refuse to decide whether mr hall has a right  river or not again mr hill might lose if and when he reaches the merits but that's not what's the question before you is whether mr hill can have that decision is not why going back to judge backroads point the public trust doctrine which is a matter of state law and and the equal footing doctrine which is a matter of federal law both that's this in i mean as a matter of law this is a state matter i mean the question you know you're going to have to determine whether that let's assume that there navigable waters they are in the state has them well he doesn't have i mean the fact that they threw rocks at him he may have some claim for you know for for violation of assault but that doesn't have anything to do with what he's trying to get here he's trying to get a right to use this land here and so that's the point i mean what it is not clear to me at all that these that these are if the only repositor the public has a right to those riverbeds that that that is separate from the state's title he it's no different than an easement holder having a right over a few title interest ok yes the two may may decide that mr hill does not have that right all that's before this court is whether mr hill gets back to but if it's a rd party standing issue it's not necessarily a merits issue it's an issue of whether he's invoking someone else's right so one would have to determine whether in fact he has rights him self i mean one can't just just as he says it doesn't make it true and if as a matter of law there is no right that he could have i mean if the only two derivative rights th mean the only true sources of rights that could exist as it will reach to that river bed would flow to the state one as a matter of federal law or the other under the public trust doctrine and he has nothing your honor with all due respect  we disagree and all that at this standing stage all he has to do is make a non frivolous legal argument that he has that right and he has made that non frivolous legal argument every other state to consider public trust doctrine no you're on it any difference it doesn't and i think using the word public trust trust doctrine just confuses the issue i point this court to the ever case there the colorado supreme court said  looking out whether there was a constitutional right under the colorado constitution to access all rivers in the state of colorado and the emer court very carefully just as hobbs said st this is a non navigable nd no public right under the constitution but that that meant something now the courts in colorado have never said what the rights are with respect to navigable rivers what these public rights are with respect to navigate workers but should not decide that that should be left to the state courts and if this court feels that it needs to reach that issue we've asked that you certify that issue the nature of a public right in state on navigable river beds to the colorado supreme society case where they clearly st said that that the plaintiff was not alleging or right of his own here we are ultimately a court might find that my client doesn't have a right but it's enough that he's alleged t write well in the wilderness society the environmental environmentalist groups were claiming that they had a static interest right in the federal government owning those roads but that's separate from a right to those  for the state of colorado with me at counsel table is kirk halim and who represents the homeowners i hope to reserve about six minutes for him to address the court this morning this case is not about anyone's favorite fishing hole this case is about who decide or they don't you agree with that i'm sorry repeat the question if if if in eighteen whatever colorado came into the union this river was colorado would be the owner of the bed of the river that's correct all right and either they either did or they did either the the room was or wasn't nothing to colorado to do at this point they don't have to go out and and prove their their title to this land well i think they would because title as alleged in the complaint title is currently held by will who right to assert title in this land is the state's constitutional right and as judge john said he was perfectly correct the plaintiffs here are trying to get something that isn't there right the rights and this is a depend on the plug on the the public right doctor it could the state could allow that if the state adopted the public trust to have or not in the that's correct in the very st interest instance the right in these state lands is guaranteed by acquisitions in kemmerer call that a rd party can't assert constitutional rights of someone else and i just want to make sure i understand i'm i'm getting an understanding of this i mean at least as i saw it coming in here that part of the issue is yes whose rights these are one argument would be essentially that even if colorado whatever reason is being wishy washy about what they want to assert if there is a right here it's federal common law they create some right that burdens public title or state title in these lands p p o montana very clearly says that the equal footing doctrine does not apply after statehood and the state is free to govern allocate those lands according to state law and then the oregon land board versus corvallis says very clearly again no equal footing after state law and more importantly we don't determine title in n the sake of argument that their underlying claims are legally what's wrong with their argument well so i think they go a little too far i think the law professors actually get it right in their brief where they say what the court has to assume is of the public to assert the state's constitutional right in title will should we assume there are theory about the public trust doctrine being operative in colorado no because it's contrary to several different  cases on a federal basis there is no federal common law that would be contradictory to oregon landlord or valises i guess they're going to ask you what why aren't those barretts based arguments why do those pertain directly to stand because the  merits of this case is navigate belittle did they float logs did they float canoes does out of stablish navigate delivery for title the standing question here is does a member of the public have standing under the equal footing to assert the state's rights under the equal footing doctrine and the answer is no there is no law that provides that stand in via our acquisitions and corvallis is that really the issue that is a standing issue if it's a floating shit joy that wouldn't even touch the the river bottom so if it's navigable they can float logs down the river float this stuff down the river  even though it goes through the the property of private owners so it's not really an issue of of who owns the river bed at all it's why rouge navigable then the next question is is there is  you're already right on the part of this guy to go fishing that would be a few merits question that would be yes the right to go fishing if you can establish if you had standing to get there to assert the state's title it's not in there to be a state's title either the state has title or doesn't have titles and what flows from that but it's current that the title is currently it's undisputed in the complaint that title is currently held by private landowners no it's not undisputed can it was prior to that the admission into the into the statehood the state would still own those land there that land unless they convey to you quickly deed out to the individual and it's our position that because that title is guaranteed by that equal footing cause of the constitution that that is the state's exclusive right to assert and any attempt to try to establish  don't have it he's now established anything it's a fact that he's got to prove if you can prove it he loses and they can throw rocks at him or whatever else they want navigable because we can assume that right correct in and so even if it is then the question is even if there is a right who's got it correct and if the state's rights in the state's position in the state's position  e hypothetical question let's say there's a property dispute there's a house you say it's your house closing helsel says it's his house and with whoever's house it is there utility followed klein saying that i want to quiet title to my easement and as part of that i want to buy theory is that it's your house not his house  my own right to the east right so i would not be thrown out of court based on the rd party doctor and right because i'm succeeding to quieten my own title of that he's even though the house itself that gets to the nd point if your claim of use is derivative of the state's title or the other land owners title than under wilderness society there is no prudential standing to assert that claim and that's exactly what the plaintiffs were trying to do there they were adamant that they were asserting their own interests in this court said no obviously they are asserting the rights of the federal government because their claims depend on the superiority of federal title if the federal government didn't have title in that case wilderness society would lose their just kill admits the same thing in his reply page seventy seven in order to declare the homeowners can't exclude hill the court must find the state holds title right and so what he's saying is i want to go i have a right as a member of the public because colorado owns this property and i mr hill as a member of the public have an easement to go in fish in that issue that was not the case in  ith rd party doctrine how is he not asserting his own right you both to to be protected through the public both characterization today of control is wrong the court dismissed on prevention standing with regard to the public easement and made mention said perhaps the plaintiffs could establish a pretty prescriptive easement which again is establish in this case it is prevalence the right to assert the constitutional property right of the state of colorado under the equal footing doctrine is the holder of that right the state and only the state under  if you had to get to the question of the public trust doctrine you don't need to accept hill's assertion of that being true either because under the applicable federal law  i'm tana and the other case oregon vs paralysis salmon gravel federal common law does not apply to determine the rights in the state title land that is given to it by the only for title doctrine state law applies and under well settled colorado law there is no basis whatsoever for hill to have a right to any easement in the state and they were all denied proving it doesn't exist otherwise people wouldn't be trying to get it on the the ballot well is that a preview on that but is that a question of rd party standing or are we talking now about the marriage whether or not there is a public trust doctrine this is about rd party standing what is colorado law and what  colorado to see what is colorado's law but it's not a partially an issue this is not an issue of what's collar colorable law this is an issue that hill there's absolutely no basis for this property right claim that he claims this is frivolous there's no grounds for supposing he could prove it that stretch of the river was navigable at the time colorado came into the union it doesn't matter he would have no rights under colorado law to use it because of the of the lack of public trust doctrine also all the other cases cite in the brief the lack of any colorado law to support his claim he has no ownership interest as a district court judge found he did not claim an ownership use interest this is a use right such as the northern new mexico land water users claimed and it was held that did not give them standing under the quiet title act this is a situation where at best hill is going to get perhaps collateral rights if the state were to exercise its rights in obtaining title but they would not be legally cognizable rights in hill if this is a case such as in the walker case where one of its few exceptions was the individual does not have a right to compel the state to bring a criminal prosecution even if that person might benefit from the criminal prosecution here bill is trying to get the state to exercise it constitutional right so that he can benefit from it he has no right to do that i believe my time is up i think thank you  your honor very briefly i would just like to read exactly the common law that mr hill says would apply as brought into colorado by statute and described by the united states supreme court in illinois central it is a title held in trust for the people of the state that they may enjoy the navigation of the waters carry on commerce over them and have liberty to fish there on that is the public right that mr hill it sa applies that it's a public right that a court may have bench will be fined applies that is not the question before this court the question before this court is whether mr hill can make that argument at all i want to be very clear that if he does not  if he has not given the opportunity his rights heard he will have no idea whether he has a right to fish or not and that means headed back to the riverbed that means going back and going fishing potentially being arrested and having rocks thrown at him again i hope that's sound which you're saying you were hard at how would you like me to address a question you can answer that question your honor i want to be very clear your honor that this is not a policy case that was jim duff out of nothing mr hill out of middle or hill goes out there and gets arrested that's mr hill's problem right and then mr hill is back in court arguing about whether he has a public right or not and instead he's tried to bring a declaratory judgment action out of respect for their courts and their ability to announce the law and he's been turned away thank you thank you