Appeal process deters chance at statewide water reform
If two water initiatives die before they have a chance to reach the ballot in November, do they make a sound? If they did, the sound you might hear is the collective sigh of relief from the Colorado oil and gas industry, the agricultural industry and other opponents of Initiatives 3 and 45.
The two initiatives, drafted by environmentalists Richard Hamilton and Phil Doe, were designed to restore water rights to the public. But their attempt fell short. They were only able to gather an estimated 20,000 to 30,000 of the required 86,000 signatures by the Aug. 6 deadline to get the initiatives on the ballot — and Doe and Hamilton are pointing fingers.
Originally granted to the people of Colorado by the state constitution, the public ownership of water has been “chiseled away and chiseled away and shaved away until there’s just nothing left,” Doe says. The initiatives they drafted would have re-established “the primacy of public ownership.”
If passed, Initiative 3 would not only have given the public unrestricted access to the natural streams it owns, it also named the government as its steward to protect that public ownership and granted citizens the right to sue the state to enforce the amendment. Public access includes basically all forms of recreation, be it fishing, tubing, boating or bird watching, in the water or on its banks up to the natural high water mark, according to Doe.
Initiative 45 would have amended an article of the constitution that says the right to divert water for beneficial uses cannot be denied. Doe and Hamilton wanted to add a caveat that would keep anyone from diverting water if it causes irreparable harm to it.
After it had been determined that the water initiatives addressed only one topic, a rule known as the single-subject requirement, Doug Kemper, executive director of the Colorado Water Congress, decided to appeal the matter to the Colorado Supreme Court. The judicial review process took 100 days, reducing the time remaining to collect signatures by more than half.
Although the proponents of the initiative could have collected signatures during the judicial review, it would have essentially been a gamble; if the Supreme Court found that the language of the initiatives didn’t meet requirements, the collected signatures would have become void.
“You can get signatures during that period, but at your own risk,” says Richard Collins, a constitutional law professor at the University of Colorado Boulder. “A confident lawyer familiar with this field could have looked at those two amendments … and been fairly confident that your side would win that appeal, and therefore the risk would not be too great.”
Because of their limited resources, however, Doe and Hamilton chose not to take that risk, and they argue that delays in the court cost the initiative its chance at the ballot.
“[The Supreme Court’s] only charge was to determine whether it met the single-subject requirement,” Doe says. “It provided [Colorado Supreme Court Justice Gregory] Hobbs an opportunity to fulminate over not whether it was a single subject but whether this was good for the state of Colorado. …That was not his charge — I mean he should be cashiered for what he did.”
The Supreme Court approved the initiatives, with Justice Hobbs as the only dissenter.
“I think Greg Hobbs played a very vicious political game there,” Doe says. “Why should they delay it for three and a half months? … They put us behind the eight-ball.”
Hobbs, who declined to comment on Doe’s accusation, has been one of the most vocal critics of the initiatives.
The justice argued in his dissenting opinion that the initiatives did not meet the single-subject requirement because they contained within them “surreptitious measures” that proposed “to drop what amounts to a nuclear bomb on Colorado water rights and land rights.”
The justice also wrote that he sees the initiatives as a threat to the agricultural industry and beyond. In reference to Initiative 45, he said, “Masquerading as a measure to protect the public’s control of water, it would prevent farmers, cities, families and businesses from making beneficial use of water rights that have vested in them over the past 150 years under Colorado’s statutes and constitution.”
Other critics of the initiatives, such as Kemper and other members of the Colorado Water Congress, argued that the agricultural industry could have been devastated by the initiatives because they allowed citizens to sue the state if they found any farmer’s use of water to be outside the public’s interest.
“The uncertainty that it creates in day-to-day activities is enormous, and the threat that it presents to municipal and industrial and commercial and especially agricultural water users is substantial,” Kemper adds. “It just takes our whole water rights system and kind of turns it upside down.”
However, Doe maintains that “there is not a word about our intent to take anything away from anybody.”
“This is a sharing type of initiative,” he says. “All we’re asking is that you have to share.”
It wouldn’t turn the world upside down, Doe argues.
“It would just say there are limits and the people who own it are going to set the limits,” he says.
Traditional agricultural uses would not be altered, he says.
The drafters of the initiatives say the real targets are those who destroy Colorado’s water supply by removing massive amounts of water from the water cycle or by polluting water. Not only can horizontal fracking contaminate groundwater, he says, it removes water diverted from streams from the water cycle completely by irreparably polluting it.
After failing to get the initiatives on the ballot this fall, Doe and Hamilton say they will regroup and form their next plan of attack. They say they will most likely resubmit the initiatives for the 2014 election and keep very similar language to streamline it through the courts the next time around.
“The public was precluded from having an opportunity to discuss the issue by a set of procedural anomalies or procedural hurdles that had nothing to do with the initiatives, but had to do with the process,” Hamilton says. “We do not live in a society where the government sits there and says what we can say to one another about important political issues.”
However, it looks as though Colorado citizens will have to wait until 2014 to have that discussion.
“We’ll stay at this until we win, and we will eventually win,” Doe says, “because I think the public is getting pretty tired of the 1 percent treating the rest of us like cattle, and the public’s resources like something that doesn’t matter.”