Public Trust Doctrine: Part II

In an ongoing effort to inform the public and water community alike, this is the second in a four part 2013 series related to the Colorado Public Trust Doctrine issue.
Hailing from Fairplay, Richard Hamilton has announced plans to resurrect the public trust doctrine as an amendment to the Colorado Constitution during the 2014 election season. He said it will be "exactly the same" as a ballot proposal that he tried, but failed, to get on the 2012 ballot. Last year he collected only 35,000 of the 86,000 signatures needed to make the ballot. His argument remains, "The use of the public's water is for the public's good." This is true. However, the Colorado Constitution provides the water in rivers and streams belongs to the public, until it is put to beneficial use. That has been accomplished historically by going to state water courts for water rights. The Constitution gives preference for water first to domestic use, second to agriculture, and third to manufacturing. Mr. Hamilton seeks to change the water priority system by giving preference, instead, to returning, "water unimpaired to the public, after use, so as to protect the natural environment and the public's use and enjoyment of waters." But who's to define unimpaired and what constitutes the public's enjoyment of water? This vagueness could spur groups to make a case that recreational activities, for example, are paramount over other consumptive uses. Could the heart of this issue, then, be unresolved recreation claims?
In the 2009-2010 timeframe, for example, there was much debate about river rights-of-way. According to a January 8, 2010 Colorado Independent article, “the stories have reached almost rural-myth status in Colorado’s high country: rocks being thrown at paddlers, wires strung across rivers at head height, even occasional shots fired.” The problem? Some private landowners don’t like it when rafters or kayakers float through their property. This is because some recreationist cause and leave damage to the land. Interpretation of Colorado law says boaters have a right to navigate rivers and streams crossing private land—as long as they don’t touch the riverbank, though intermittent use is allowed. Some landowners, however, have interpreted a 1979 Colorado Supreme Court ruling to mean land rights extend to the river itself. Others have simply taken the law into their own hands. At the time, State Rep. Kathleen Curry of Gunnison was working hard on legislation to remove the ambiguity with a bill that would allow licensed outfitters to not only raft, kayak or fish on rivers and streams crossing private property, but also make contact with the riverbank without trespassing. On March 27, 2012 it was reported that Curry’s bill passed the House, but it got hung up in the Senate, where opponents gutted it by turning it into a study. After that, there is not much in the news. So what is the status of this study and could its findings satisfy the public trust doctrine movement?
For additional background and according to the Colorado Water Congress (CWC) website, the public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use. As discussed earlier, over the past several years activists have sought to pass ballot initiatives imposing a public trust doctrine on water in Colorado. The doctrine would subordinate existing agricultural, commercial, and municipal rights in water to a new, undefined public use. It would require state agencies and courts to reconsider and even transfer water rights to these new uses. This would destabilize agricultural, environmental, municipal, and recreational water supplies by upsetting the predictability of established water rights. In addition, it would require great costs to replace water supplies, as well as raising questions of state liability for taking vested property rights. In this regard, the public trust doctrine is inconsistent with the Colorado Constitution, existing state laws, and over 150 years of Colorado case law and water allocation.
The Colorado Water Congress opposes public trust initiatives on the grounds they are disruptive, expensive, unnecessary, and unwise to the fair and responsible allocation and stewardship of Colorado's water resources. As part of the CWC leadership role in water issues affecting the state, the CWC is pursuing a Public Trust Special Project to prepare for and address potential public trust ballot initiatives in Colorado. The objective is to communicate to members and project participant’s critical issues surrounding the basis for Colorado water rights and the impacts that a public trust doctrine would have, while also encouraging these constituents to carry the message to their civic leadership networks, employees, members, and the public at large.

The CWC is seeking contributions to start up the Public Trust Special Project. Contact Meg Meyer at [email protected] or 303-837-0812 x2 to make your much needed financial contribution.