Public Trust Doctrine: Part IV

In an ongoing effort to inform the public and water community alike, the following is the last in a four part 2013 series related to a potentially emerging Colorado Public Trust Doctrine (PTD) issue.
Part I in the series provided background information on the PTD. It was established that the PTD 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. The doctrine, however, has never been recognized in Colorado as it relates to water because the state already has a 150 year old system of laws that protect this resource. In Part II of the series we introduced one of the PTD main players as Richard Hamilton from Fairplay, CO. Earlier in the year Mr. Hamilton announced his plans to resurrect the PTD as an amendment to the Colorado Constitution during the 2014 election season. In Part III of this series we further explored this recreational issue. This series reminded readers that in the 2009-2010 timeframe there was much debate about river rights-of-way. At the time State Rep. Kathleen Curry of Gunnison was working on legislation 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. In March 2010 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. According to Doug Kemper, Executive Director of the Colorado Water Congress (CWC), the study was not conducted. Ultimately “everything became all about the River Access Dispute Resolution Task Force,” said Kemper. In this last of the series we examine the outcomes from the Task Force.

According to the American Whitewater website, on July 26, 2010, Governor Bill Ritter, Jr. issued Executive Order B 2010-010, thereby creating the Governor's River Access Dispute Resolution Task Force. The Task Force discussed historical sources of conflicts, historical solutions between boaters and landowners around the state, and ways to efficiently minimize and resolve future conflicts. The following are specific recommendations that the Task Force unanimously agreed to make to Governor Ritter regarding river access disputes in the State of Colorado:
·         Report publication of the Final Report in a readily accessible location.
·         Utilize the Governor’s office to encourage and foster an environment and attitude of good conduct and  respect.
·          Promote public education via publications by Colorado State Parks and Wildlife, official government websites, and information boards at public access points to inform the public at large about ways to avoid or resolve conflicts; recommend best practices for boaters and landowners; and address liability for unlawful trespass, unlawful obstruction of a waterway, and other prohibited activities.
·          Direct the Colorado Department of Natural Resources to design an official signage system modeled after   signs developed by State Parks for the Yampa River that clearly designate “No Public Access” and “Public Access.”
·          Engage law enforcement to raise their awareness of conflicts and their role in helping to resolve them.
·          Develop landowner liability legislation to clarify Colorado’s recreation use and premises liability statutes.
·          Create a River Access Dispute Mediation Commission.
·          Encourage funding opportunities to develop and implement dispute resolution tools.

Yet, in spite of the Task Force’s recommendations and as discussed previously, there are plans to resurrect the PTD as an amendment to the Colorado Constitution. In response to all of this the CWC has initiated a Colorado Water Stewardship Project to ensure that CWC members and water stakeholders from around the state are prepared for any PTD ballot initiatives that would disrupt ownership or management of Colorado's water resources. Specifically, the project will monitor any ballot filings or legal actions for a PTD, assess the public level of knowledge and support for the doctrine, and create and implement a communication and action plan to inform water stakeholders. Colorado Supreme Court Justice Gregory Hobbs says of the PTD, “the measure’s provisions propose to drop what amounts to a nuclear bomb on Colorado water and land rights.” It is for all of these reasons that the CWC opposes the PTD—stating they are disruptive, expensive, unnecessary, and unwise to the fair and responsible allocation and stewardship of Colorado's water resources. For more information on the PTD and/or the CWC’s Colorado Water Stewardship Project contact Meg Meyer at [email protected] or 303-837-0812 x2. If appropriate, the WIP will continue to provide coverage on this topic into 2014.