Initiative to enshrine the “Public Trust Doctrine” in the Colorado Constitution threatens water rights and private property
By Seth Richardson
Little attention has been paid to a draconian attempt to utterly destroy the water economy of Colorado being proposed for the 2011-12 ballot.
Titled “Use of Colorado Water Streams,” the initiative is another in a series of attempts by activists Richard Hamilton of Fairplay, and Phil Doe of Littleton, to overturn Colorado’s historic system of water appropriation and ownership upon which our entire economy depends. Hamilton and Doe have been trying for some years now to force Colorado to accept a system of environmental enforcement that would make virtually all public land and resource ownership and management subject to an overriding and constitutionally-mandated “public trust doctrine” that would tie the hands of the General Assembly and subject the state to endless, expensive litigation over every niggling conservation decision it might make from any citizen who decides to take issue with a legislative decision, no matter how minor or petty, if the citizen thinks that the decision violates the ambiguous and vague “public trust.”
In 2007, Hamilton and Doe attempted to create a new state Department of Environmental Conservation with sweeping powers to control all use of public lands. The essential component of the initiative was revealed by this provision: “Conflict between economic interest and conservation stewardship responsibilities to, and for, the public’s resources and resource conservation values shall be resolved in favor of public ownerships and public values.” In other words, in any case where the state might find it reasonable or prudent to dispose of or manage public property, or allow its use in ways that any citizen disagreed with from a conservation standpoint, the initiative would have forced the courts to come down on the side of conservation in every single instance.
Fortunately, the ballot issue was thrown out by the Colorado Supreme Court because it violated the single-subject requirements of the Constitution by both attempting to impose a public trust doctrine and create a new state agency at the same time.
Well, Hamilton and Doe are back at it again, and this time they have targeted Colorado’s constitutional water law system and its fundamental premise that once water is diverted from a natural river or stream and put to beneficial use through our system of prior appropriation, the water becomes the private property of the appropriator. This system, which differs substantially from the systems of water law used in water-rich states, evolved by necessity due to the topographic and hydrological conditions of the state, and it’s arid nature. Long before Colorado became a state, it’s Territorial Supreme Court recognized that traditional “riparian doctrine” legal concepts used throughout history in water-rich nations and states was simply inapplicable and unworkable in Colorado.
Colorado’s Constitution, Article XVI, Section 5, says, “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.”
The critical language here are the final six words of the constitutional provision, which quite intentionally and substantially limit the nature of the rights enjoyed by the public in Colorado’s waters, and is in fact an express repudiation of the common-law public trust doctrine. Both the courts and the legislature have interpreted this language to mean that appropriation and diversion of Colorado’s waters to beneficial use is the meaning, intent and purpose of the Constitution, not public recreational use or even wildlife conservation. This ability to appropriate and divert water, and to make of it private, not public property, is the basis of our agricultural heritage and economy, and it is also the legal basis upon which our cities and towns have appropriated water for industrial and residential use. Hamilton and Doe want to destroy that complex and long-established system of water rights.
The proposed initiative intends to turn the system of water law that Colorado has used on its head, and make all water use in Colorado subject to what amounts to a dissenter’s veto by allowing any citizen to file a lawsuit challenging any act of the legislature or state policy that does not comport with that citizen’s idea of what proper stewardship of the public waters for the benefit of the people is, and it mandates that conflicts involving the “public’s resources and resource conservation values shall be resolved in favor of public ownerships and public values.”
And the proponents state that the Public Trust Doctrine “judicially fashions a public right to deal with inadequate legislation for the protection of important public values, including, but not limited to, federal land reservations, national recreational areas, wildlife preserves, forests and parks… Therefore, it may be concluded that the extent and range of the Public Trust Doctrine extends to may public “uses” and values, including, but not limited to, the protection of the natural environment, recreational uses of the elements of the public reservation, and the preservation of the public natural resources for the enjoyment and benefit of wild places and of wildlife.” Note the resort to judicial activism over the legislative process inherent in this plan. Their whole nefarious plot is to bypass the legislative process and throw every “conservation” decision into the courts.
In other words, this invocation of the public trust doctrine elevates protection of the natural environment and other similar values above even the necessity to provide water to cities for industrial and residential use. In short, this proposal would make every existing water decree, every reservoir, every city water system, every home faucet, and every person in Colorado subject to the whims and caprices of any person who is more interested in protecting the natural environment than in making rational decisions in balancing the environment and the needs of human beings with the limited water resources Colorado has. The State would be instantly buried in lawsuits challenging every water right and diversion project in existence, which would cost taxpayers untold billions of dollars in legal fees. This initiative would cause an economic disaster of unparalleled proportions for the state, and must be stopped.
Oh, and just “coincidentally” it also allows Hamilton and Doe, and their other fly-fishing and kayaking buddies to elevate their personal recreational use of Colorado’s waters over the needs of the rest of the population. Hamilton is an aquatic biologist, a registered lobbyist, and an avid flyfisher.
And that is the real purpose of this proposed amendment to our state Constitution; to secure to fishermen and recreational boaters not only an unlimited right to fish and boat wherever they like, but the ability to bury any water project or diversion of water in mountains of lawsuits and thereby not just prevent future water diversions, but, as they point out in their comments on the proposal, destroy the rights that have been long established. Their public trust doctrine invocation, if enshrined in our Constitution, would quite simply overturn every established water right in Colorado and make it subject to challenge by anyone who wishes to claim that it’s more important to preserve fishing and boating than it is to grow crops or provide water to thirsty human beings.
You see, Hamilton and Doe, along with fishermen and boaters statewide, object to the way Colorado has been interpreting its Constitution because it denies them the right to wade, float-fish, kayak, canoe or raft on every single foot of every single river, stream, creek or intermittent dry wash in Colorado whenever it pleases them to do so. They have all been trying for decades to overcome the rulings of the Colorado Supreme Court, which has consistently ruled against recreational access to private property on rivers and streams, beginning as far back as 1905, when the Court overturned a state law giving fishermen permission to trespass on the beds and banks of streams flowing through private property that had been stocked with fish at public expense. Colorado, and it’s courts, have long acknowledged the fact that Colorado’s rivers are not of the same size, class or character of the great river highways of this nation like the Ohio or the Mississippi, and that our rivers are entirely non-navigable. Colorado doesn’t have any rivers that qualify as navigable under federal tests for navigability, and this incenses boaters and fishermen, who are used to being able to go wherever they like in pursuit of recreation.
They continue to try to push through constitutional amendments and legislation to open up private property to public recreation, and are quite frustrated at the failure of H.B. 1188 in the last session, which was supposed to be a slam-dunk for the commercial recreational rafting industry giving them permission to float through private property whenever they liked. That issue was scuttled and sent to the Colorado Water Congress for consideration and for a report to be provided to the General Assembly sometime in October on possible resolutions between the interests of recreational boaters and private property owners.
But compromise is not in the lexicon of water recreationists, including boaters and fishermen like Hamilton and Doe, they want it all, and nothing less than utterly unfettered access to every stream and creek in Colorado will satisfy them, in utter disrespect not only of 134 years of state history and legal interpretation, but in derogation of the fundamental U.S. Constitution-protected property and privacy rights of private property owners through whose lands water flows. They, unlike the United States Supreme Court, make no distinction between “navigable” waterways like the Allegheny or Susquehanna rivers and Fountain creek. They believe every waterway in the nation is a “public highway” and ought to be open for public recreation, no matter how unsuited the stream actually is for such purposes. They are recreational extremists who care nothing for private property rights, but care only for their selfish pursuit of pleasure.
The danger here to our entire state’s economy is very real, and it’s not too soon to begin the efforts to oppose this initiative. One suggestion is that a counter-initiative be filed for the same ballot that expressly repudiates the common-law “public trust doctrine” as applied to Colorado’s waters and which explicitly recognizes our historic Prior Appropriations Doctrine, and the Colorado Supreme Court cases interpreting it, as the supreme law of the land. A suggested draft is below. Anyone who wants to take up the banner of common sense and private property is free to use it:
“Supremacy of the Colorado Doctrine of Prior Appropriation
The Colorado Constitution Doctrine of Prior Appropriation of the waters of the State, which is essential to the economy and life of our state, which Doctrine was understood and accepted by the United States Congress and the President as a condition of Statehood, and which has been recognized, legislated and adjudicated for more than 134 years, as adjudicated and affirmed by the Colorado Supreme Court in the cases Hartman v. Tresize, 84 P. 685 (1905); Stockman v. Leddy, 129 P. 220 (1912); In Re German Ditch & Reservoir Co., 139 P. 2 (1913); and People v. Emmert, 597 P.2d 1025 (1979), is the supreme law of the land and all water doctrines, common law or otherwise that are in conflict are hereby repudiated and repealed.”
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