HomeMy WebLinkAbout20121283.tiff RESOLUTION
RE: EXPRESSION OF OPPOSITION FOR PUBLIC TRUST INITIATIVES 3 AND 45
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, on April 16, 2012, the Colorado Supreme Court approved the ballot titles
and submission clauses for Proposed Initiatives 2011-2012 #3 and 2011-2012 #45, commonly
known as the "Public Trust Initiatives 3 and 45" (referred to herein as "Initiative 3" or
"Initiative 45"). The initiatives are now being circulated for signatures, and
WHEREAS, copies of the approved ballot and submission clauses for both initiatives are
attached hereto, and
WHEREAS, Colorado Supreme Court Justice Gregory J. Hobbs, Jr., issued dissenting
opinions in both cases. Justice Hobbs is known as one of the most preeminent authorities on
law of water in the western United States, and
WHEREAS, according to Justice Hobbs, Initiative 3 would do the following:
"First, Initiative [3] would subordinate all existing water rights in Colorado created over
the past 150 years to a newly created dominant water estate, the purpose of which is 'to protect
the natural environment and to protect the public's enjoyment and use of water.' This provision
would create a super water right for such purposes. Under current Colorado law,
environmental and recreational uses are subject to appropriation in priority by the Colorado
Water Conservation Board for in-stream flow and lake level water rights under
Section 37-92-102(3), C.R.S. (2011), and by local governmental entities for recreational
in-channel water rights under Sections 37-92-103(10.3), 37-92-102(6)(b),and 37-92-305(13),
C.R.S. (2011).
Second, Initiative [3] would subject the 'lands of the banks of the streams within
Colorado' to a newly created 'navigation servitude for commerce and public use' extending to
'the naturally wetted high water mark of the stream.' This provision would vest in the public
possessory rights to the beds and banks of the stream now owned by local public entities and
private landowners in Colorado.
Third, Initiative [3] would create a new property right of 'access by the public' to 'any
natural stream in Colorado.' This provision would vest a recreational easement in the public
across all private property in Colorado through which even a trickle of water runs. It would
abrogate the right of private property owners throughout Colorado to prohibit trespass onto and
across their land.
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EXPRESSION OF OPPOSITION FOR PUBLIC TRUST INITIATIVES 3 AND 45
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These three subject matters separately and together propose to drop what amounts to a
nuclear bomb on Colorado water rights and land rights. Masquerading as a measure to protect
the public, Initiative [3] contains surreptitious measures that would strip members of the public,
cities, farms, and families throughout this state of their most valuable economic interests," No.
12SA8 -- In the Matter of the Title, Ballot Title and Submission Clause for 2011-2012 #3 --
Ballots and Elections-- Single Subject-- Clear Title, and
WHEREAS, according to Justice Hobbs, Initiative 45 would do the following:
"[Initiative 45] states that its purpose is 'to protect natural elements of the public's
dominant water estate by holding unlawful any usufruct use of water causing irreparable harm to
the public's estate.' To that end, it requires all water use appropriators 'to return water
unimpaired to the public, after use, so as to protect the natural environment and the public's use
and enjoyment of waters.'
. . . whatever the words 'public's dominant water estate' may mean, the initiative also
deletes a fundamental provision of section 6 of article XVI of the Colorado Constitution: the
provision in effect since 1876 that appropriation of the public's water resource acts upon
'unappropriated waters of any natural stream.' This deletion would subject 'any water within the
State of Colorado' to the appropriation system. This would include non-tributary groundwater,
the allocation of which is currently within the plenary power of the General Assembly. See
Colorado v. Sw. Cob. Water Conservation Dist., 671 P.2d 1294, 1319 (Colo. 1983). The
General Assembly has employed its plenary authority to provide for the vesting of non-tributary
groundwater in the overlying landowner. See Bayou LandCo. v. Talley, 924 P.2d 136, 148-49
(Cob. 1966). Further, the deletion of the words 'unappropriated waters' allows the appropriation
of already appropriated water in order 'to protect the natural environment and the public's use
and enjoyment of waters.'
In addition, the requirement that water be returned to the stream 'unimpaired' would
radically transform Colorado into a riparian water law state, as the basis of riparian water law is
that water use may cause only a minimal impact upon quality and quantity. See Tyler v.
Wilkinson, 24 F.Cas. 472, 474 (C.C.D.R.I. 1827)(No. 14,312); Pyle v. Gilbert, 265 S.E.2d 584,
587 (Ga. 1980) (enunciating the modified riparian reasonable use doctrine). In United States v.
Gerlach Live Stock Co., the United States Supreme Court explained that the common law
riparian doctrine, based on the idea that running waters were 'common to all and property of
none,' developed 'where lands were amply watered by rainfall.' 339 U.S. 725, 744-45 (1950).
Land, not water, was the primary natural asset in these areas, so water access became a right
'annexed to the shore.' Id. at 745. Each riparian right owner faced strict limits in how he or she
could use the stream water, as each downstream user had 'the right to have the water flow
down to him in its natural volume and channels unimpaired in quality.' Id. (emphasis added).
This doctrine, also called the natural flow theory, 'was a logical rule at a time when the
primary use of water was to turn mill wheels because it insured that all mill sites would have
equal access to necessary power.' A. Dan Tarlock, Law of Water Rights and Resources
§3.12[1] (1989). But the rule was 'inefficient because all but the last riparian on the stream must
let the full flow of the stream drain to the sea.' Id.
2012-1283
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EXPRESSION OF OPPOSITION FOR PUBLIC TRUST INITIATIVES 3 AND 45
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Were Colorado to adopt such a rule, of course, the full flow of our streams would drain
not to the sea but to the reservoirs, fields, and cities of our neighboring states. We thought the
U.S. Supreme Court put this possibility to rest in Kansas v. Colorado, 206 U.S. 46 (1907).
There, Kansas sought to enjoin Colorado diversions from the Arkansas River, under the theory
that Kansans were entitled to the river's unimpaired flow. 206 U.S. at 48. The Court held that
Kansas was not entitled to the whole of the river's flow, but only to an 'equitable apportionment
of benefits between the two states resulting from the flow of the river,' as determined by the
Court. Id.at 118. Initiative #45 would in effect overturn this decision." No. 12SA22 -- In the
Matter of the Title, Ballot Title, and Submission Clause for 2011-2012 #45 -- Ballots and
Elections-- Single Subject-- Clear Title."
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that, for the reasons stated herein, it hereby expresses its opposition
for Public Trust Initiatives 3 and 45.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 21st day of May, A.D., 2012.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: �''"--7r14
Sean P. Co. ay, Chair
Weld County Clerk to the Board E L°
q . 'illiam '. Ga �-, Pro- em
BY:Deputy CI=r' to the h Boar 361 (1� O?��i! ,
eyec "41114-
W t cgs)/
APP VED ORM:
David E. Long
/-'iunty Attorney G7 .
Dougl s Rademac r
Date of signature: c)":213-1,g
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