HomeMy WebLinkAbout20140927.tiff RESOLUTION
RE: EXPRESSION OF OPPOSITION FOR PUBLIC TRUST DOCTRINE BALLOT
INITIATIVES
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, several initiatives have been proposed in recent years that would amend
the Colorado Constitution to impose a public trust doctrine on Colorado water law, and
WHEREAS, it appears likely that such an initiative will again be proposed in 2014, and
WHEREAS, the main users of Colorado water are farms and ranches, a public trust
initiative could interfere with farmers' rights to use their water, thus harming agriculture in Weld
County, and
WHEREAS, because Colorado cities and special districts have acquired critical water
supplies for their residents, a public trust initiative could jeopardize the reliability of cities' water
supplies for local residents, and
WHEREAS, secure and reliable water rights are essential to business, jobs, and the
economy; therefore, a public trust initiative could create uncertainty and hurt the economy, and
WHEREAS, a public trust initiative will:
1) Take private property rights without compensation, disregarding
the resulting financial liability imposed on the State through the
Colorado Constitution;
2) Allow uncontrolled access to streams and rivers across private
lands, thereby damaging sensitive streambeds and banks, leading
to dangerous and unsafe conditions, and causing conflicts with
property owners;
3) Interfere with existing interstate compacts allocating Colorado's
water supplies across the states;
4) Inhibit the historic operation of, and prevent future improvements
to, existing water projects that have been maintained for more
than 150 years; and
5) Impede new projects to store water during years of drought.
WHEREAS, a hearing before the Board was held on the 24th day of March, 2014, at
which time the Board deemed it advisable to continue said matter to the next consecutive
hearing date, to allow the full Board an opportunity to vote on this item, and
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y 2014-0927
BC0046
EXPRESSION OF OPPOSITION FOR PUBLIC TRUST DOCTRINE BALLOT INITIATIVES
PAGE 2
WHEREAS, in his dissenting opinion in the Matter of the Title, Ballot Title and
Submission Clause for 2011-2012 #3 -- Ballots and Elections -- Single Subject -- Clear Title,
Colorado Supreme Court Justice Hobbs stated that a public trust initiative would "drop what
amounts to a nuclear bomb on Colorado water rights and land rights," and "would strip members
of the public, cities, farms, and families throughout this state of their most valuable economic
interests."
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 to
public trust doctrine initiatives, and deems them unwise, unnecessary, disruptive to the fair and
responsible allocation and stewardship of Colorado's scarce water resources, and an
unwarranted taking of vested property interests.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 26th day of March, A.D., 2014.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO '-ATTEST: 0'� �o C �C ;� u \cam ��,//����� ila leaky—
Doug Dougla Rademacher; Chair
Weld County Clerk to the Boar ,� �a
4 %!1M tQLUL ��L-�.K/lls'
.py, arbara Kirkmeyer, Pro-Tem
De.tty Clerk to the Bo.'�
i w can P. Conway
VED O?M: �' `, �I -iZ"r �----
Mike F em•n
County Attorney
41, lliam F. Garcia
Date of signature:
2014-0927
BC0046
« THE TRIBUNE « TUESDAY, MAY 22,2012 (( A3
Weld commissioners formally
• • •
oppose public water initiatives
T'R'- ` �' destroy private property or-appropriation system, like river beds would be
rights,commissioners said. which gives a higher prior- owned by the people of the
Weld County commission- "This is probably the ity for water use to those state, so they could cross
list errs on se onday joined the most damaging initiative I with older water rights. through private property
formally have seen in my lifetime," They would also allow any- at any time to arress it.
opposed two public water Weld County Commission one to use the state's water Earlier this month, the
initiatives that,if placed on Chairman Sean Conway and leave it up to the public Greeley City Council and
the ballot in November and said. He said the change to determine if the water is the Central Colorado Wa-
voted into law,would dray- would beparticularlytough being used for the common ter Conservancy District
timely change water use in for Weld County,which re good.
the county and state, lies heavily water for • passed f similar resolutions
Initiatives 3 and- 45, riculture and energy ag- That mealans citizens' of opposition.
sponsors
which seek to pro- could file a much it if they is If 8 ,00 can get
Colorado constitution the diction—two of its largest believe too water is about. 86,000 signatures
by economic drivers. being used, Weld County on a petition by late sum-
applying a public trust doe- • The citizen-sponsored Attorney Bruce Barker told mer, the two initiatives
tine to water rights,would proposals would displape commissioners Monday. will appear on the ballot in
impact every resident and Colorado's decades-old - It also means that things November.
EXHIBIT
A
aoiy- 09,21
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.
2012-1283
rxrnnn a
EXPRESSION OF OPPOSITION FOR PUBLIC TRUST INITIATIVES 3 AND 45
PAGE 2
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 (Cob. 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
arnnn'
EXPRESSION OF OPPOSITION FOR PUBLIC TRUST INITIATIVES 3 AND 45
PAGE 3
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: � c
Sean P. Co. ay, Chair
Weld County Clerk to the Board
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BY: h .�..;�,
Deputy CI r to the Boar'�ab� i� /�;2aikt? ,
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VEDASCeti
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David E. Long
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Attorney
D��s Rademac r
Date of signature: C)"o13'-/A
2012-1283
BC0043
Public Trust Initiatives Summary
Initiative#3-The Adoption of the Public Trust Doctrine
Modifies Article XVI,Section 5 of the Colorado Constitution.
Key Provisions: THE PUBLIC CONFERS THE RIGHT TO THE USE OF ITS WATER,AND THE
DIVERSION OF THE WATER TO AN APPROPRIATOR FOR A BENEFICIAL USE AS A GRANT
FROM THE PEOPLE OF COLORADO TO THE APPROPRIATOR FOR THE COMMON GOOD.
THIS COLORADO PUBLIC TRUST DOCTRINE PROTECTS THE PUBLIC'S INTERESTS IN THE
WATER OF NATURAL STREAMS AND TO INSTRUCT THE STATE OF COLORADO TO
DEFEND THE PUBLIC'S WATER OWNERSHIP RIGHTS OF USE AND PUBLIC ENJOYMENT.
THIS COLORADO PUBLIC TRUST DOCTRINE PROVIDES THAT THE PUBLIC'S ESTATE IN
WATER IN COLORADO HAS A LEGAL AUTHORITY SUPERIOR TO RULES AND TERMS OF
CONTRACTS OR PROPERTY LAW. A USUFRUCT RIGHT IS SERVIENT TO THE PUBLIC'S
DOMINANT WATER ESTATE. A USUFRUCT WATER USER IS IMPRESSED UNDER THE
CONDITION THAT NO USE OF WATER HAS DOMINANCE OR PRIORITY OVER NATURAL
STREAM OR PUBLIC HEALTH WELL-BEING.
THE RIGHT OF THE PUBLIC TO THE USE OF THE WATER IN A NATURAL STREAM AND TO
THE LANDS OF THE BANKS OF THE STREAMS WITHIN COLORADO SHALL EXTEND TO
THE NATURALLY-WETTED HIGH WATER MARK OF THE STREAM AND IS IMPRESSED
WITH NAVIGATION SERVITUDE FOR COMMERCE AND PUBLIC USE AS RECOGNIZED IN
THIS COLORADO PUBLIC TRUST DOCTRINE.
Status:
Submitted—5/4/2010
Title Board Hearing— 12/21/2011
Initiative#45—Limits on Water Diversion
Modifies Article XVI,Section 6 of the Colorado Constitution.
Key Provisions: THE RIGHT TO DIVERT ANY WATERS WITHIN THE STATE OF COLORADO
TO BENEFICIAL USES SHALL NEVER BE DENIED,BUT MAY BE LIMITED,OR CURTAILED,
SO AS 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. REQUIRES THE WATER USE APPROPRIATOR 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. THE PUBLIC
CONFERS THE PRIVILEGE FOR THE USE AND DIVESION OF ITS WATER TO ANY
APPROPRIATOR FOR THE COMMON GOOD. ENFORCEMENT AND IMPLEMENTATION OF
USES OF WATER SHALL BE PROTECTIVE OF THE PUBLIC'S RIGHTS AND INTERESTS,ARE
MANDATED TO THE EXECUTIVE,LEGISLATIVE,AND JUDICIAL BRANCHES OF
COLORADO STATE GOVERNMENT TO ACT,AS STEWARDS,TO PROTECT THE PUBLIC'S
INTERESTS IN ITS WATER ESTATE.
Status:
Submitted— 11/17/2011
Review and Comment Hearing— 12/1/2011
Title Board—12/21/2011
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