Introduction

On June 30th, 2014, the Colorado Supreme Court handed down its decision in In re Proposed Initiative 2013-2014 #103, reversing the Title Board’s action in this matter and holding that designated representatives cannot substitute an alternate if they are unable to attend a Title Board meeting. Rather, the Court found that the Title Board must delay its considerations until the next meeting which both designated representatives attend.

Background

Proposed Initiative #103 (“Initiative”) sought to establish the public trust doctrine for Colorado’s natural resources as a new section in Article XVI of the Colorado Constitution. If enacted, the proposed initiative would have potentially jeopardized Colorado’s water rights system by imposing the public trust doctrine on Colorado.

The public trust doctrine “operates to protect lands of communal value in perpetuity for the free and unimpeded access by the public under a trust held by the sovereign” (in this case, the State of Colorado). This “doctrine recognizes and seeks to ameliorate the interference of private ownership with public access to trust resources. The effect of the public trust doctrine is to convert the private owners of trust resources into permanent custodians of those resources under an easement held by the government in favor of the general public.” While several state courts throughout the U.S. have recognized and applied the public trust doctrine since the early nineteenth century, the Colorado Supreme Court has consistently declined to adopt the public trust doctrine.

Taking Initiative #103 to the Dance

Colorado law requires representatives be designated at the earliest stages of the initiative process and that each designated representative appear at any title board meeting, which the representative’s ballot issue is considered. When originally submitted, the Initiative listed two of the respondents in this matter, Phillip Doe and Barbara Mills-Bria, as the designated representatives. These individuals appeared at the first meeting in which the Title Board considered the Initiative and submitted affidavits required to serve as designated representatives. The Title Board accepted the affidavits and set a title for the Initiative.

Petitioners in this matter filed a motion for rehearing to challenge the Initiative on the grounds that it impermissibly addressed more than one subject and that the Initiative’s title was confusing, misleading, and failed to reflect its proponents’ true intent.

The Title Board scheduled hearing on these motions for next meeting, which was also the Title Board’s last regularly scheduled meeting for the current election cycle. However, Ms. Mills-Bria was unable to attend the meeting because she was attending a family member’s funeral out of state. At the suggestion of an employee of the Secretary of State’s office, respondents Mills-Bria, Doe, and Sandra Toland “submitted signed and notarized forms and affidavits to the Title Board purporting to substitute Toland for Mills-Bria as a designated representative for the proposed initiative. The Title Board accepted these forms, permitted the substitution, and then considered and denied the petitioners’ motions, affirming its prior decision to set title.”

Following denial of their motions for rehearing, the petitioners then filed for review in the Colorado Supreme Court. In addition to the claims in their motions for rehearing, the petitioners contested the Title Board’s “jurisdiction to rule against their motions because Mills-Bria, one of the designated representatives, was not present at the rehearing motion.

Stand By Your Initiative

The Court declined to consider whether the Initiative contained multiple subjects or was impermissibly vague because the majority found in the first instance that Toland’s substitution for Mills-Bria as a designated representative was improper under Colorado law.

Relying on section 1-40-106(4)(a)’s explicit requirement that “each designated representative appear at any title board meeting at which the designated representative’s ballot issue is considered” and finding no statutory provision that would authorize the substitution that occurred here, the majority found that the Title Board lacked authority to act in Mills-Bria’s absence. The statutes were not silent on the issue of substitution because the General Assembly contemplated the exact situation here, in which a designated representative might not be able to attend a given Title Board meeting. Rather, the statutes provide the remedy of delaying proposed initiative consideration until the Board’s next meeting. The majority was not swayed by respondents’ arguments that they had reasonably relied on the representation of the Secretary of State’s office employee that such a substitution was permissible. Rather, the majority found that the General Assembly had withheld all authority from the Title Board to proceed in the absence of any designated representative. The majority declined to take up respondents’ argument that a need for substitutions may arise in some future case where a designated representative’s inability to attend a Board meeting might not be temporary, as those circumstances were not before the Court here.

Consequently, the majority reversed the Title Board’s action and returned the measure to the Title Board for further proceedings consistent with the majority’s opinion.

Changing Designated Partners to Keep the Initiative at the Dance

In her dissent, Justice Márquez argued that the majority erred in reaching its decision because there is no explicit statutory prohibition against substitution of a designated representative and, in such cases, the Court has an obligation to “‘construe constitutional and statutory provisions governing the initiative process in a manner that facilitates the right of initiative.’” (citing Armstrong v. Davidson, 10 P.3d 1278, 1282 (Colo. 2000)). Justice Márquez also contended that the remedy cited by the majority was inadequate here in at least two ways. First, this remedy placed Mills-Bria “in the position of having to choose between missing a family member’s funeral or effectively abandoning a proposed initiative.” Second, this remedy is inadequate in those circumstances where, as here, the Title Board schedules an initiative for consideration at the Board’s last meeting in an election cycle. According to Justice Márquez, a designated representative who cannot attend the meeting for legitimate purposes is effectively left without a remedy. Lastly, Justice Márquez argued “by prohibiting the formal substitution of a designated representative, the majority actually hampers the ballot title process by postponing the consideration of a proposed initiative.” In this view permitting formal designated representative substitution prior to a Title Board meeting – as happened here – promotes efficiency and ensures continuity in the entire process.

Conclusion

When Colorado voters head to the polls this November, they will not confront the question of whether Colorado should adopt the public trust. While Colorado’s ranchers and water rights owners can rest easy this election cycle, they will need to remain vigilant against future such attacks on Colorado’s appropriative water rights systems, as the Initiative’s proponents are likely to renew their bid to impose the public rights doctrine after losing their turn to do so this November due to a procedural technicality.

 


Sources:

In re Proposed Initiative 2013-2014 #103 (No. 14SA137), 2014 CO 61 (Colo. 2014).

Designated Representatives, Colo. Rev. Stat. § 1-40-104 (2013).

Title Board – Meetings – Ballot Title – Initiative and Referendum, Colo. Rev. Stat. § 1-40-106(4)(a-d) (2013).

Hope M. Babcock, “The Public Trust Doctrine: What a Tall Tale They Tell,” 61 S.C. L. Rev. 393, 396-97 (2009).

Stephen H. Leonhardt and Jessica J. Spuhler, “The Public Trust Doctrine: What It Is, Where It Came From, and Why Colorado Does Not (and Should Not) Have One,” 16 U. Denv. Water L. Rev. 47, 63-64 (2012).

Sheridan Block, Colorado: Public Trust Proposal Blocked from Ballot (July 7, 2014), Ouray Plaindealer, available at http://www.ouraynews.com/articles/2014/07/07/colorado-public-trust-proposal-blocked-ballot.


Utah is the second driest state in the nation. The Wasatch Front (“Front”) is an eighty-mile stretch centered around Salt Lake City that encompasses 90% of the state’s population. The Front is expected to nearly double in the next thirty years. The self-proclaimed “Greatest Snow on Earth” in the picturesque Wasatch Mountains has sufficiently quenched the Front’s thirst until this point, but population projections are spurring innovative water delivery approaches, namely the Central Utah Water Project (“Project”).

The Project is a trans-basin diversion bringing water from the Colorado River Basin in the eastern part of the state to the western slopes of the Wasatch Mountains. It is the state’s largest and most comprehensive water resource undertaking with projected costs in excess of $3 billion. The project will allow Utah to develop a major portion of its allocated share of Colorado River water (Utah is annually allocated roughly 1.4 million acre-feet) for beneficial use in the state’s epicenter.

The Project was authorized by Congress back in 1956 under the Colorado River Storage Project Act and was supposed to be constructed by the Bureau of Reclamation. However, construction stagnated due to engineering complexities, complicated environmental analysis, and a lack of consistent federal funding. Accordingly, in 1992, the Central Utah Water Conservancy District (“District”) assumed planning and construction responsibilities with oversight from the U.S. Department of Interior. Progress has remained steady since then.

The Project’s most ambitious section, the Bonneville Unit, includes 10 reservoirs, a power plant, more than 200 miles of aqueducts tunnels and canals, and 300 miles of drains. Most of this transferred water is collected from tributaries of the Duchesne River, fed by the Uinta Mountains (the longest east-west running mountain range in the country and home to the state’s highest peak). This would-be Colorado River bound water instead winds up in either the Jordanelle Reservoir, not far from Park City, or Utah Lake, adjacent to the city of Provo. The Jordanelle Reservoir and Utah Lake feed water into Salt Lake and Utah counties, the state’s most populous.

The District expects the Bonneville Unit’s completion in the next seven years, but the thriving Front is already dependent on the fruits of its labor. At the base of the Jordanelle Reservoir’s 300-foot dam lays a concealed hydroelectric plant that was completed in 2008 and provides electricity to 9,000 homes. In addition, the Jordanelle Reservoir provides water to more than one million people in the nearby Salt Lake area. Utah Lake supplies both water and power to the greater Provo area in Utah County. Utah County’s population alone is expected to grow 800,000 by 2050.

However, the Project’s imported water is not only for the Front’s thirsty municipalities; it will serve a variety of purposes. According to the Bureau of Reclamation, the Project will also serve industrial use, irrigation, fish and wildlife conservation, recreation, and improved flood control capability and water quality control. For example, the Bonneville Unit will provide late season irrigation water for 26,000 acres of farmland along the Duchesne River, and the Bottle Hollow reservoir (also part of the Bonneville Unit) was constructed to provide fishing, recreation, and wildlife activities to compensate the Ute Indian tribe for economic loss resulting from decreased stream fishing. Other Project units will provide both municipal and irrigation water to small communities and rural areas in central and eastern Utah, outside the Front.

This ambitious water resource strategy will likely inspire similar projects across the Mountain West in coming decades. As the region continues on the path of unprecedented growth, getting water to burgeoning communities is becoming an absolute necessity. Many states will look to the successes and failures of Utah’s Project in addressing their own water needs and planning for the near future’s extraordinary demands.

 

The title image features the Wasatch Front near Salt Lake, Utah. This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license to Milonica who does not endorse this blog.


Sources:

U.S. Department of the Interior, Central Utah Project Completion Act Office, http://www.cupcao.gov (last visited Oct. 24, 2014).

Amy Joi O’Donoghue, Thirsty? Tour Highlights Central Utah Water Projects, Deseret News, Sept. 4, 2014, available at http://www.deseretnews.com/article/865610259/Thirsty-Tour-highlights-Central-Utah-Water-projects.html.

U.S. Department of the Interior- Bureau of Reclamation, Central Utah Water Project, http://www.usbr.gov/projects/Project.jsp?proj_Name=Central+Utah+Project (last visited Oct. 24, 2014).


Reep v. State

Reep v. State, 2013 WL 6835003 (N.D. 2013) (holding the anti-gift clause of North Dakota’s constitution precludes construing a state statute as a grant of the State’s equal footing mineral interests under the shore zone to private upland landowners).

Eleven named owners of land next to navigable waters in North Dakota (“upland owners”) sued the State of North Dakota (“State”), seeking declaratory judgment that they, not the State, owned the minerals under the shore zone.  The landowners appealed to the Supreme Court of North Dakota (“Court”) from the district court’s grant of summary judgment in favor of the State.

When North Dakota joined the Union in 1889, the equal footing conferred onto the State constitutional rights to the land and mineral interests under its navigable waters from high watermark to high watermark.  Although this conferral included the right to allocate its property interests, the equal footing doctrine required North Dakota, by virtue of its sovereignty, to hold its shore zone interests in trust for the public.  The anti-gift clause found in N.D. Const. art. X, § 18 further protected the public trust by precluding the State from gifting its mineral interests to any private entity.

At issue in this case was N.D.C.C. § 47-01-15, which provides that private landowners next to navigable waters “take to the edge of the lake or stream at low watermark.”

The upland owners argued the district court’s holding was contrary to the Court’s decision in State ex rel. Sprynczynatyk v. Mills which they construed as holding that upland owners next to navigable waters have full interests in the shore zone under N.D.C.C. § 47-01-15.  The upland owners further contended that the State’s public trust and equal footing obligations did not relate to the proprietary privileges of ownership of subsurface mineral interests under the shore zone.  The upland owners further contended that the statute did not violate the anti-gift clause.

Conversely, the State argued that its rights to shore zone mineral interests extended from high watermark to high watermark under the equal footing doctrine.  The State claimed N.D.C.C. § 47-01-15 was a rule for construction, clarifying the extent of a grantor’s conveyance to the grantee, rather than granting public mineral interests to private entities.  The State further contended that a construction of the statute as a grant of the mineral interests to private entities would violate the equal footing doctrine and the anti-gift clause of N.D. Const. art. X, § 18.

The Court first examined Mills to determine whether N.D.C.C. § 47-01-15 is, as the upland owners contended, an absolute grant of shore zone interests to private landowners next to navigable waters.  In so doing, it reiterated the statutory interpretation in Mills, wherein the Court determined the word “takes” in N.D.C.C. § 47-01-15 was ambiguous statutory language for a rule of construction, and not a grant of ownership.  Examining the more specific use of the word “ownership” in Champlain v. Valentine, coupled with the introductory clause in N.D.C.C. § 47-01-15, the Court found a legislative intent that the statute does not grant a riparian landowner absolute ownership of the shore zone.  Rather, the Court agreed with the district court that N.D.C.C. § 47-01-15 is a rule of construction for determining the boundary for grants of riparian land.  The Court emphasized that its construction avoided an interpretation that would grant a private party a gift in violation of the state constitution’s anti-gift clause.

Having concluded that the upland owners’ reliance on Mills was misplaced, the Court turned to the law governing the State’s ownership of mineral interests under the shore zone.  Examining the public trust doctrine, the Court acknowledged a newly admitted state’s power to allocate its mineral interests but emphasized that power as subject to the public trust doctrine.  The Court discussed some states’ allocation of ownership of the shore zone to the upland owner to the ordinary low watermark, and other states’ decisions to extend an upland owner’s title only to the ordinary high watermark.  The State in this case claimed its mineral interests extended to the ordinary high watermark under the equal footing doctrine and that its ownership was thereafter governed by State law, including the anti-gift clause of N.D. Const. art. X, § 18.

The Court turned next to the adoption of the anti-gift clause in 1889 and its development through subsequent case law.  It determined that unlike previous cases, this case did not raise an issue about the State engaging in an industry, enterprise, or business.  It proceeded to examine a holding in Arizona Ctr. For Law v. Hassell, which determined statutory provisions substantially relinquishing Arizona’s equal footing interest in navigable riverbeds violated Arizona’s anti-gift clause.  It also cited Solberg v. State Treasurer, which held that a statute directing the State to release a reserved mineral interest to a prior owner violated the anti-gift clause because the statute had the effect of transferring State property as a gift.

The Court found that the precedent in Hassell and Solberg favors a determination that N.D.C.C. § 47-01-15 did not allocate the State’s equal footing mineral interests in the shore zone to upland owners.  The Court noted that this construction was in keeping with the Court’s presumption that statutes are written in compliance with state constitutions and in favor of public interests over private interests.  However, the Court further concluded that N.D.C.C. § 47-01-15 would allow an upland owner to take the State’s full interest to the low watermark if the State contractually grants or conveys parts of its equal footing interests to upland owners by deed.  The Court underscored that receipt of grants or conveyances from the State is subject to the restrictions of the public trust doctrine and is invalid where the deed provides otherwise.

The Court finally examined whether the upland landowners presented any factual support to show a grant of mineral interests by the State or a successor to the State, and found that they had not.  It therefore concluded the district court did not err in concluding the State owns the mineral interests under the shore zone.

Consequently, the Court affirmed summary judgment for the State, but stressed that its decision does not preclude an upland owner from taking to the low watermark if it can establish a chain of title wherein the State granted its equal footing interest to the upland owner.

 

The title picture is of Wild Rice River in North Dakota licensed under the Creative Commons Attribution-Share Alike 2.5 Generic License to Tim Kiser, who in no way endorses this blog.

 


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law and was published in the Water Law Review, Volume 6 in 2001. 

Park County Water Pres. Coalition v. Columbine Assoc.

“Subject-matter jurisdiction concerns ‘the court’s authority to deal with the class of cases in which it renders judgment.’. . . [W]e have held that subject-matter jurisdiction vests in the water court upon the timely filing of the application and publication of the resume notice.” Park County Water Pres. Coalition v. Columbine Assoc., 993 P.2d 483, 488 (Colo. 2002) (citations omitted).

“The reasonableness of the notice is determined by applying an inquiry standard-whether the notice is sufficient to reveal to potential parties the nature of the claim being made, so that such parties can determine whether to conduct further inquiry into the full extent of those claims so a determination can be made whether to participate in the proceedings.” Id. at 489-90 (citation omitted).

“‘Consequently, alleged deficiencies invalidate the resume only if the resume taken as a whole is insufficient to inform or put the reader on inquiry of the nature, scope, and impact of the proposed diversion.”‘ Id. at 490 (citation omitted).

 

Click here for a PDF of the entire article: 6 U. Denv. Water L. Rev. 116 2002-2003.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111 2000-2001.


WATER WARS ALONG THE SOUTH PLATTE RIVER: FEW PRISONERS LEFT TO TAKE

University Club Luncheon Series
Denver, Colorado    March 14, 2013

Tom Cech is the current Director of One World One Water (“OWOW”) Center for Urban Water Education and Stewardship at Metropolitan State University of Denver (“MSU”) in Denver, Colorado. Originally from Nebraska, Cech received his B.S. in Math Education and went on to receive his Masters in Community and Regional Planning from University of Nebraska.  Highlights in his accomplished career include serving as Executive Director of the Central Colorado Water Conservancy District and educating future water experts at the University of Northern Colorado and Colorado State University in various water resources courses.  Cech has also published articles and textbooks on water resource issues that have been translated into Portuguese, and he is in the process of completing a history of the Colorado Water Conservation Board and the Colorado State Engineer’s Office.

Cech’s presentation at the University Club Lecture Series included discussion of (i) the OWOW Center, (ii) water resource course offerings at MSU, (iii) historical cultural water issues, (iv) historical issues of Colorado water, and (v) potential water supply issues for Colorado in the future.

The OWOW Center and Water Resource Course Offerings

OWOW is a new program at MSU designed to educate students on how to protect and preserve limited water resources.  MSU undergraduates have the option of completing a minor in Water Studies  (known as the Pilot Water Studies Minor) by taking at least 21 credit hours of course work in water resources and stewardship.  Classes offered include: Water Essentials, Introduction to Water Law and Administration, Water Conflict Resolution, Limnology, Multicultural Water Issues, as well as other elective courses, internships, and capstone projects.

Historical Cultural Water Issues

After providing a brief introduction to the OWOW Center, Cech continued his presentation by discussing significant historical water issues.  Resolution of water disputes has been around since the beginning of time.  Some notable moments in cultural water appropriation began in Babylon when King Hammurabi created the “Code of Hammurabi.” These laws, created between 1795 B.C. and 1750 B.C., are the first examples of prior appropriation.  The Stele of Hammurabi, a large stone statute the size of an adult human with the Code of Hammurabi etched into it, tells us the law that, “if a man has released waters and so has let the water carry away the works on his neighbor’s field, he shall pay 10 gur of corn for every bur (of land) flooded.”  Many years after Hammurabi, farmers and villages in Iran and Iraq developed Qanats, whereby a massive aqueduct system was excavated underground to bring water from the mountainous regions to irrigate the farmland.

Cech further discussed resolution of historical water disputes in the years of Anno Domini, when Moorish farmers established the Water Court at the Cathedral of Valencia in Spain to settle disputes between local farmers.  Since its inception in 961 A.D., seven elected members have met every Thursday at eleven o’clock in the morning to render judgment.  The court is not a traditional western court, but holds hearing without oaths of affirmation, written records, or even lawyers.

In 1300 A.D., with the development of tin mining, England began using canals to divert water for mining operations.  This process would become very important more than 500 years later when the Gold Rush brought settlers to Colorado.

Historical Issues of Colorado Water and Supply

In 1876, Colorado became a state and adopted the Doctrine of Prior Appropriation to ease the burden of the limited supply of water.  In nineteenth century Colorado, miners constructed hundreds of canals along the South Platte River and throughout Colorado.  The Doctrine of Prior Appropriation gave priority dates for irrigation ditches, but set no dates for wells.  This doctrine plays a very important role in establishing water rights in Colorado and continues to evolve and be a source of guidance for the growing disputes.  Cech also briefly discussed Theodore C. Henry who was responsible for constructing numerous irrigation canals throughout Colorado in the 1880s and was appointed by the Colorado governor to review irrigation laws and recommend changes.

Colorado has a rich history involving water law, as the oldest operational ditch in Colorado, the San Luis People’s Ditch, was built in 1852. While the last 161 years of Colorado water law pales next to Hammurabi’s water laws, Coloradans have also developed their own water courts for dealing with quarrels over water rights.  Greeley, Colorado houses one of the many water courts have expanding throughout the United States.

Potential Water Supply Issues for Colorado in the Future

The common consensus in arid regions is that there is growing need with a limited supply of water.  With continued drought conditions and increasing population, water experts are working to find ways to prioritize various uses.  Without more quantities of water, supplying every growing need will not be possible.  There are an estimated 5 million people in Colorado with a 2030-projected growth to 7.1 million.  The Denver metropolitan area is home to approximately 2.4 million people and is estimatee to expand to 3.9 million by 2030.

While the South Platte River Basin supplies most of the water to the Front Range population, many communities have been forced to develop pipelines to bring much needed water to citizens.  Yet transportation of water is not enough, the effects of global warming have created conditions that require water users to adapt and reevaluate water uses in order to be more efficient.

Conclusion

Cech’s brief overview of the history of various water laws around the world and the development of Colorado’s water law was informative and well presented.  While there is constant controversy about where the water is going to come from and who gets to use it, if history dictates truth, then humanity will find the best possible outcome, even if it means sacrificing a lawn or two.

 

Cech can be reached at tchech@msudenver.edu.  For more information on OWOW please visit, http://www.msudenver.edu/owow/.