Below is an excerpt from Jonathan Thompson’s beautiful book about the people and the historic economies of the Four Corners area and the resultant water pollution, health problems, and climate effects left over from the extractive industries that flourished there. The book centers around the Gold King Mine spill in August 2015 and that is the context Thompson uses to explain the area’s history. He even introduces you to his grandmother and that’s quite a story in itself. River of Lost Souls is an important book. The reader ends up smarter about dealing with folks that disregard environmental issues in the name of economic gain.
Jonathan’s Note: Among the many things in the path of Florence, the tropical storm that battered North Carolina in September, were coal ash dumps. A lot of folks don’t know what those are, or why they are cause for concern. So I’m running this long excerpt from River of Lost Souls: The Science, Politics, and Greed Behind the Gold King Mine Disaster to shine some light on the issue of coal combustion waste.
To drive west out of Farmington is to travel through the borderland, where the northeastern edge of the Navajo Nation melds with the non-Indian world. It’s a cultural and economic mishmash. Here’s a sex store next to a plumbing supply shop across the highway from a sprawling automobile burial ground not far from a Mennonite church. Justalaundry, Zia Liquors, Family Dollar, and numerous little booths or shacks where Diné sell kneel down bread or tamales or piñon nuts to passersby. And the “quick cash” joints that have sprouted like weeds in Gallup, Farmington, and other reservation border towns, preying on the poor, the desperate, and the “unbanked” with their thousand-percent interest loans. It’s just an update of the exploitative pawn shops of yore. “It’s a border town, and tribes around it constitute economic colonies,” John Redhouse, who grew up in Farmington, told me, adding that things haven’t improved that much since the 1970s.
Trailers perched on cinder blocks, tires on a roof. An old man in a recliner, sipping a tumbler of warm whiskey, selling his junk. Down in the lush Jewett Valley a sign pointing to an old metal building reads: “RABBITS GOATS CHICKS AVON AT DOUBLEWIDE.” Just up the road, the Original Sweetmeat Inc., aka “Mutton Lover’s Heaven,” a slaughterhouse and butcher shop, sits alongside the highway and the Shumway Arroyo.
A few miles north looms the San Juan Generating Station, built in 1973 in the arroyo. Eight miles away, on the Navajo side of the river, sits the older, larger Four Corners Power Plant.
The Original Sweetmeats is owned and run by Raymond “Squeak” Hunt, a tall, gruff man prone to muttering inscrutable aphorisms, who deals mostly with mutton, or sheep (as opposed to lamb), and sells to a mostly Diné clientele. “You may think I’m one hard, mean son-of-a-bitch,” Hunt told me when I first met him in 2002, as he unloaded a trailer full of sheep, bound for slaughter. “But it hurts me every time I kill one of these animals.”
I wasn’t there for the sheep, though. I was visiting because Hunt is surely the most stubborn—if unlikely—thorn in the corporate side of Public Service Company of New Mexico, the operators of San Juan Generating Station and the supplier of electricity to the entire state. That doesn’t make him unique; hundreds of activists have agitated against the air pollution from the two coal plants’ smokestacks over the decades. But Hunt was one of the most ferocious fighters against a rarely noticed form of pollution spilling out of the plants: the slag, ash, and dust left over from burning coal, otherwise known as coal combustion waste.
Hunt has lived here, along the banks of the Shumway Arroyo, for much of his life. Prior to 1973 the upper reaches of the Shumway contained water only after rains. Once the arroyo reaches the San Juan River Valley near Hunt’s place, however, irrigation return and groundwater resulted in the arroyo’s transformation to a perennial stream. The stream was a source for both domestic and livestock water for early settlers of the Jewett Valley, including Hunt’s family.
When construction began on the large, mine-mouth, coal-burning power plant a few miles upstream alongside the arroyo, the arroyo changed. Coal power plants require vast amounts of water to function, and when SJGS went on-line in 1973, the plant dumped its wastewater and just about everything else into the Shumway. From that time on, the previously dry arroyo became a perennial stream from the plant to the river. Downstream users in Waterflow, in the meantime, continued to drink out of wells fed by the arroyo’s flows and their livestock kept drinking straight out of the stream.
Like the slightly larger Four Corners Power Plant, which was constructed a decade earlier, San Juan Generating Station’s smokestacks were subject to virtually no regulation. During its first decades of operation, Four Corners became notorious for the black plume of smoke—hundreds of tons of sulfur dioxide and fly ash each day—that it sent into the region’s previously crystal clear skies. One account says that one plant produced more smog than New York City. With the addition of SJGS, the air quality in the region deteriorated, vistas were cut short by smog, and the one thing that remained visible from far away were the plumes emitted by the stacks.
It did not take long for citizen groups from around the region to protest the deterioration in the quality of their air. General citizen pressure and lawsuits forced the 1977 Clean Air Act to include a policy preventing the degradation of air quality. In 1978, San Juan Generating Station installed controls to reduce smokestack emissions and Four Corners followed in 1980. Air pollution from the plants was significantly reduced. Other pollution was not.
When coal is burned the carbon reacts with oxygen to form carbon dioxide. But coal is a lot more than just carbon. It’s got sulfur in it, which becomes sulfur dioxide during combustion, the main cause of acid rain. It contains a host of other elements, most notably arsenic, mercury, and selenium, some of which waft from the stack as smoke and particulates. Most end up as solid waste of one form or another. Each year, power plants in the United States collectively kick out enough of this stuff to fill a train of coal cars stretching from Manhattan to Los Angeles and back three times. It’s stored in lagoons next to power plants, buried in old coal mines, and sometimes piled up in the open. It is the largest waste stream of most power plants, and a study by the Environmental Protection Agency found that people exposed to it had a much higher than average risk of getting cancer.
“Anybody who knows anything about coal ash chemistry knows that when you burn coal, what you have leftover is dramatically different from what you had originally,” Jeff Stant, a geologist with the Clean Air Task Force, told me back in 2002. Coal ash can contain seventeen metals. Some, like mercury or arsenic, are already toxic, others become more so during combustion.
Because every pound of pollution kept out of the air ends up in the solid waste stream, the pollution control methods in the stacks only made the problem on the ground worse. The solid waste consists of fine and dusty fly ash; a gravelly, gray material called bottom ash; and the relatively benign glassy clinkers or boiler slag. The stack scrubbers that pull sulfur dioxide and nitrogen oxide out of the smoke create perhaps the most malignant material, called scrubber sludge. All of that was typically piled up near the plant, where it could blow into the air, or get washed into an arroyo, or leach into the ground. In San Juan Generating Station’s case, the stuff was dumped right into or near Shumway Arroyo—an echo of the hardrock mining tailings that had been similarly dumped for decades one hundred miles upstream.
In the early 1980s, people who lived along the Shumway Arroyo and drank from wells began getting sick. Hunt suffered from muscle spasms, lost sixty pounds, and had a cornucopia of other problems. “I looked like a POW after World War II,” he said. His wife and kids got sick; his neighbors, too.
Though Hunt’s illness was never definitively traced to a specific cause, he and other activists are pretty sure some of the stuff in coal combustion waste made it into his water. Around the time Hunt got sick, researchers found extraordinarily high levels of selenium—which tends to be highly concentrated in coal combustion waste—in the Shumway Arroyo. His symptoms match those of selenium poisoning. His illness may have also come from ingesting too much lead, cadmium, arsenic, mercury, or sulfates, all of which are commonly concentrated in coal combustion waste.
Whatever the poison, it soon became clear that the water was tainted. Those who were sick sued the Public Service Company of New Mexico, which operates the plant; the company never admitted fault, but ultimately settled with the affected families. It also tightened up its waste disposal, becoming one of the first power plants in the nation to go to a zero discharge permit, which means it can’t release any water onto the land. After a lot of legal wrangling, Hunt settled, too.
Hunt, however, remains convinced that the power plant continues to sully the water in the arroyo. He says that water leaks from retention ponds, coal-washing, and dust-control spraying, and even if it’s clean, it picks up and remobilizes contaminants in the sediments of the arroyo, left by the dumping in the 1970s and ’80s. During the late 1990s and early 2000s, 1,400 of Hunt’s sheep, all of which had drunk from the Shumway Arroyo, got sick and died or had to be killed. Hunt blamed Public Service Company of New Mexico, or PNM, the state’s biggest electricity provider. The utility said negligence on Hunt’s part killed the sheep, with the help of minerals occurring naturally in the arroyo and the water. The utility and Hunt have been at loggerheads for years in very public ways. On their way home from work every day, the power plant’s employees have no choice but to see a giant billboard erected by Hunt on his property, bashing both PNM and New Mexico’s environmental regulators. A smaller sign above the big billboard reads: “WAKE UP you bunch of NUTS we ALL live DOWNSTREAM.”
Hunt’s fight isn’t limited to his own situation, though. He’s also worked to shine a light on the coal combustion waste issue in general. Despite the magnitude of the waste stream, and its potentially deleterious effects on human and environmental health, coal combustion waste disposal is regulated much like normal landfills are. The EPA has for decades worked on new rules, implementing some, letting others fall by the wayside.
“I hope you have a cast-iron stomach,” said Hunt as we walked over to the little stand by the road where a Diné couple was selling, along with jewelry, bowls of extremely hot chili and kneel down bread. The lamb sandwiches inside looked good at first, but after a tour of the slaughterhouse and witnessing a sheep get stunned, decapitated, and dressed, I opted for the chili. We sat in a shady spot next to the parking lot and watched a steady stream of customers go into the butcher shop and haul out racks of lamb and mutton, chops, and something a Diné man called b’chee, little strips of meat or fat wrapped up in sheep intestines that Hunt’s wife prepared.
After eating, as the afternoon clouds moved in along with a stiff breeze, we climbed into Hunt’s truck and he drove us to the south side of the river, toward Four Corners Power Plant. We followed a dirt road skirting Morgan Lake, in the shadow of the soot-stained smokestacks of the plant. Each year about nine billion gallons of water are brought up from the San Juan River to form this reservoir, then it’s circulated through the plant to cool the massive generators and for other purposes. The hot water is discharged back into the reservoir, so Lake Morgan is warm and steamy, even in winter, making it a popular, if surreal, windsurfing and fishing spot.
On their way home from work every day, the power plant’s employees have no choice but to see a giant billboard erected by Hunt on his property, bashing both PNM and New Mexico’s environmental regulators. A smaller sign above the big billboard reads: “WAKE UP you bunch of NUTS we ALL live DOWNSTREAM.” Photo credit: Jonathan Thompson
When early provisions of the 1970 Clean Air Act first were being implemented in the early 1970s, the smokestacks looming over Lake Morgan kicked out more than four thousand pounds of mercury each year, along with thousands of pounds of selenium and copper and hundreds more pounds of lead, arsenic, and cadmium, not to mention sulfur dioxide, nitrogen oxides, and other pollutants. Thanks to federal air pollution regulations, and to activists who push the government to enforce those rules, emissions have decreased considerably over the years. Now, with only two of five units still in operation, the plant puts out about 150 pounds of mercury and 520 pounds of selenium each year, along with varying quantities of other toxic metals. Most of these pollutants are then deposited in the surrounding water, on the land, and on homes. For years, rain and snow falling on Mesa Verde National Park—its backside visible from the shores of Morgan Lake—have contained some of the highest levels of mercury in the nation, and elevated levels have even been found on Molas Pass, just south of Silverton. The mercury is then taken up by bacteria in lakes and rivers, which convert it to highly toxic methylmercury, which then enters the food chain. Mercury messes with fishes’ brains, and even at relatively low concentrations can impair bird and fish reproduction and health. It’s not so good for people, either.
We continued out into the desert toward the Chaco River and the Hogback, and as we came over a rise an incongruous scene unfolded before us: a flat-topped, uniformly shaped mesa, its dusty soil gray and smooth, with eerie-looking deep-orange water pools on its surface. Nothing was growing there. I wondered if maybe it was this that I needed a strong stomach for, not the chili.
We were looking at the Four Corners Power Plant’s dump, made up of ash impoundment piles, decant water, and evaporation ponds, containing some forty years’ worth of accumulated coal combustion waste—tens of millions of tons of it—from three of the plant’s five generators. At the time, Four Corners was burning about 8.5 million tons of coal each year, some 3.3 million tons of which were leftover as coal combustion waste, dumped both here and back into the nearby mine. A trio of unlined sludge-disposal ponds sat less than five hundred yards from the Chaco River, which empties into the San Juan River a few miles away. Two miles upstream is the Hogback Outlier, a Chacoan-era pueblo. A crescent-shaped structure known as a herradura—a piece of AWUF associated with Chacoan roads—sits atop the Hogback nearby.
Darker clouds headed our way and the wind kicked up, whipping the fine, gray ash and dust off the top of the piles and into the air, reducing visibility to thirty feet or so. When the dust cleared we saw a sign stuck into the base of one of the piles. It read: “No Trash Dumping. Walk in Beauty.”
For people who worry about coal combustion waste and the way it’s regulated, this place is Exhibit A. “My first thought when I saw this,” Lisa Evans, an attorney for Earthjustice, told me, “was, this can’t be the United States.”
Like the Shumway Arroyo which runs past Hunt’s home, the Chaco River downstream from this complex of ponds and piles has contained extremely high levels of selenium, as does the groundwater beneath the ponds. When ingested, selenium can adversely affect reproduction in fish, birds, and mammals. Fish along this stretch of the San Juan River often contain elevated levels of mercury, lead, selenium, and copper. In 1992 a U.S. Fish and Wildlife biologist surveyed fish downstream on the San Juan River from the Four Corners Power Plant to Mexican Hat and found that a majority of them had lesions, damaged livers, deformities, or other signs of disease. While the culprit appeared to be bacteria, the particular strains need the fish to be otherwise impaired, by contaminants, for example, in order to invade.
When I returned to Hunt’s place in 2007, he gave me the same tour. Nothing had changed, but the spokesman for the plant’s operator, Arizona Public Service, assured me that they were no longer dumping their coal ash in the piles Hunt and I toured, and that the company planned to clean up the nasty piles and ponds and replace them with lined impoundments. Since then, the piles have been covered, and the old ponds removed. Dumping continues here, but under more controlled conditions. Ash is also dumped back into the nearby coal mine, which has been owned by a Navajo Nation-owned company since the end of 2013. This alleviates some of the problems associated with dumping, but doesn’t solve all of them, critics say. Chemicals can still leach into groundwater (though it’s less likely here, where it’s so arid), and unless the ash is covered, it can still blow around in the air, settling on nearby homes.
Arizona Public Service, which is owned by Pinnacle West Capital Corporation, sells electricity to nearly 1.2 million people across Arizona. The corporation raked in over $400 million in profit in 2015. At the same time, it lobbied hard to change state rules on net metering, which determine how much the utility must compensate homeowners for electricity generated by rooftop solar panels. They’ve managed to chip away at the incentives, thus discouraging people from installing their own panels and generating a bit of their own electricity.
As we drove back around the plant, seemingly to provoke the security guards, Hunt treated me to another rhetorical geode. “It’s just like asking Patty Hearst’s mother what happened…all you get is a bunch of excuses,” he said. “These are some nasty sons-a-bitches. It’s all about profit. They don’t care about anything or anyone, they just care about their profits.” As crude as the delivery might have been, it was hard to refute the concept.
When we arrived back at Original Sweetmeats, the after-work rush was on. We hung back by the truck and watched. It was late afternoon. The cottonwoods cast long shadows on the ground. “If I’m lucky, one day I’ll die of a heart attack,” Hunt said.
After a pause, he perked up to tell me about the petroglyphs that are pecked into the sandstone cliff band that runs up and down the San Juan for miles. I looked out at the valley, sliced up by the four-lane highway and the big transmission towers, and wondered why the Pueblo people would leave such a place, and I tried to imagine what the first Diné people, coming from the North, out of the cold mountains and across the parched high desert, thought when they came upon the silty river and the trees and the willows on its banks. It must have felt like home.
Up on the desert on either side of the valley, the plants chugged on, each burning twenty thousand tons of coal per day. They’ve brought jobs and industry to a once-impoverished and undeveloped place and keep the people in faraway cities cool in the unforgiving summer heat. They each send millions of dollars of property taxes and royalties to various governments. They also spew out thousands of tons of toxic waste each year. Power is not free.
An old pickup truck pulled into the parking lot, several cages holding roosters in the back. A large man tumbled out, wearing safety glasses and a dirty jumpsuit, his face spattered with some kind of black soot: a power plant employee, selling his chickens after work.
“Five dollars for the little ones,” he told a man and wife who were inspecting the birds. Then he turned to Hunt and me and told us about how he can no longer smell anything after years at the plant, and about how his friend who lived nearby had to clean his television screen daily to wipe away the buildup of fly ash.
“I won’t make it to sixty, I can guarantee that,” he said, matter-of-factly. His wife sat in the cab of the pickup, smiling and quiet.
The haze seemed to be getting thicker in the west, the sun taking on an orange glow. Under my breath, to no one in particular, I said, “Looks like it will be a nice sunset tonight.”
“(Thompson) combines science, law, metallurgy, water pollution, bar fights and the occasional murder into one of the best books written about the Southwest in years.”
— Andrew Gulliford, historian and writer, in The Gulch magazine.
The Farm Bureau is the public face, the oil and gas industry is the money behind it
Imagine you are a property owner. One day, you decide you want to use your land to develop a sand and gravel operation. You do your research, and you find out that your property is smack in the middle of a floodplain the county has designated. So the local authorities turn down your request for that sand and gravel operation. What do you do? You sue, arguing that the designation is causing you financial harm.
You will lose.
In fact, the Colorado Supreme Court sided with La Plata County in this very case in 2001.
Now, 17 years later, a constitutional amendment that appears on the ballot this November seeks to significantly strengthen a property owner’s rights in the event of a loss based on a government rule or regulation. It would also ease access to financial compensation in such cases. Critics argue that, if passed, the measure would lead to a flood of lawsuits that could bankrupt smaller and less affluent municipalities or have a chilling effect on proposing regulations in the first place.
The proposed amendment, which is backed by the oil and gas industry, is the latest salvo in the ongoing turf war between municipalities seeking local control to protect the safety and health of their communities and powerful industries and individuals alike seeking to benefit from the extraction of resources close to those communities.
Amendment 74, as it will appear on the Colorado ballot this fall, reads as follows: “Shall there be an amendment to the Colorado constitution requiring the government to award just compensation to owners of private property when a government law or regulation reduces the fair market value of the property?”
The Colorado Farm Bureau, a nearly 25,000-member-strong organization that represents the state’s farmers and ranchers as well as a variety of agriculture industry-related players, teamed up with the monetary muscle from the oil and gas sector and brought forward the initiative. The Bureau has also taken on the PR campaign to persuade voters, and it hails the measure as a leveling of the playing field, allowing individuals to seek compensation for what legalese refers to as a “regulatory taking” — the impact of a government action on their property value.
“As farmers, we think of things in acres,” said Marc Arnusch, a family farmer in the southeast corner of Weld County and a member of the Farm Bureau’s board of directors. “And just because I have 10 acres, it shouldn’t have to take a government action to take 9.5 of those acres away from me before a takings claim can be made. This [amendment] gives me as a farmer the right to seek just compensation through the court process and through government negotiation to satisfy me and keep me whole. Because nothing is more important to a farmer than his land. It is his livelihood.”
While the proposed amendment does not specify which kinds of private property would be affected and leaves such interpretations up to the courts, among the examples will most certainly be mineral and water rights as well as oil and gas resources.
“For property rights advocates, this is sort of a dream come true, because they know the upshot is that government will in most cases stop regulating because it is simply too costly to do so,” said Justin Pidot, a law professor specializing in property rights and environmental and natural resources law at the University of Denver’s Sturm College of Law. “They are deeply anti-government, anti-regulatory measures that are very consciously designed to prevent environmental regulations, public health regulations, zoning and the like.”
What does the law say right now?
Before diving deeper into the pros and cons of Amendment 74’s potential effects, a brief overview of existing property rights law — as provided by Pidot, a former deputy solicitor for land resources for the Department of the Interior during the Obama administration — serves as helpful guidance to understand the contradicting arguments swirling around the measure.
Basically, there are a couple of different situations in which property rights law comes into play. First: In what’s called a “physical appropriation of property,” the government simply seizes an individual’s property for public use. In this case, current state law mandates the government to pay the owner based on the property’s fair market value.
But it is the second area of this type of law that cuts to the core of Amendment 74. When lawyers speak of a “regulatory taking,” the government has enacted some sort of rule or regulation that negatively affected someone’s property value. And in these cases, rarely does the owner actually get compensated monetarily.
Pidot explained that the courts developed a standard in which they look at existing research showing that government regulations as a whole have positive and negative impacts on property values and overall creating a healthy balance. Cherry-picking one “bad” regulation would throw the whole system out of balance, Pidot said.
The legal doctrine that has evolved over time would require that a property owner experience a “very high set of losses” before compensation is warranted, he said. “The way the courts have described it is we are looking for a regulation that is the functional equivalent of the government taking title to your property entirely.”
But for farmer Arnusch, talk of a steady tide of regulations lifting all boats doesn’t count. He is staunchly opposed to governments taking away value from land in the first place.
Arnusch illustrated his point with a hypothetical scenario.
“For example, on my farm, if I wanted to put up a grain elevator…” he said. “If I had started down the pathway, defined the facility, it fit the code, I have my blueprints, I have hired a contractor, and then the government comes out and changes the code for my general vicinity, they have impacted me directly, because I was already so far down the track.”
And for that loss, the inability to reap maximum value from his land, Arnusch argued, he should be compensated.
Who’s to blame: zealous bureaucrats or faceless corporations?
Critics of Amendment 74 point out that other states have tried similar laws. Comparable efforts in Florida led municipalities – afraid of a flood of compensation claims – to severely dial back much of their regulatory prowess. Oregon voters in 2004 approved a similar amendment to the state’s constitution. Three years later, after angry property owners filed over 7000 claims totaling nearly $20 billion and local governments had to pay out $4.5 billion, voters amended the state constitution again, effectively retruning the bar for takings’ claims back to where it was before 2004.
And neither of these two states crafted as broad an amendment as the one the Farm Bureau and their allies in the oil and gas sector are now proposing, said Colorado Municipal League Executive Director Sam Mamet, a critic of the measure.
“It is the whole gamut of local government decision making and policy making that could be called into question here,” he said. “There was no care in drafting this, there was no thought to being more narrow, articulating certain exemptions, putting in some ability for the legislature to perhaps implement the measure by statute — and that is of major concern.”
Whether it is a liquor or marijuana license, street improvements or affordable housing, Mamet said local governments could come to a screeching halt because their prime worry would have to be about an individual or industry group depleting city coffers with a regulatory takings claim.
It is Mamet’s latter point that rings the alarm bells for Aurora City Councilwoman Nicole Johnston.
“If this passed, a whole new system of courts resolving property disputes could be required,” she cautioned. “There is no leveling of the playing field for the little guy or the small community, it’s basically those with deep pockets and resources can spend years in litigation to protect their interests. That puts the little guy and the smaller city and any municipality at a disadvantage.”
The elephant in the room: oil and gas fighting drilling setback measure
Councilwoman Johnston has a specific worry: that behind the farmers stands a mighty phalanx of oil and gas industry lawyers, just waiting to take down City Halls across Colorado that dare to wield local control to limit development of resources within their boundaries.
A brief flashback: In 2016, the Colorado Supreme Court ruled that municipalities do not have the power to impose fracking bans — as for example the cities of Fort Collins and Longmont did — but that it is up to the state to regulate such drilling. Various municipalities have continued to try to impose limits since.
Enter Proposition 112. Also on the ballot this fall, this measure asks Coloradans to enforce a 2,500-foot buffer zone between new oil and gas drilling operations and any occupied structure a municipality deems vulnerable.
Eric Sondermann, an independent political analyst in the state, called Amendment 74 “a bit of an insurance policy” for oil and gas and related agricultural groups against Proposition 112.
“The people who have most to risk on a new massive setback of oil and gas development is obviously the industry itself, but it is also the holders of mineral rights,” he said. “And the holders of those mineral rights are often farmers and ranchers.”
It comes as little surprise, then, that campaign finance filings show a multi-million dollar effort spearheaded by an oil and gas interest group called Protect Colorado to support the Farm Bureau. The issue committee invested more than $4 million into the signature-gathering process and has also spent money on pro-industry television ads. The result: The Farm Bureau earlier this year dropped a record 209,000 signatures on the Secretary of State’s desk, more than twice what was needed — which made Amendment 74 only the second such ballot measure since voters in 2016 approved an amendment that placed much stricter laws governing the signature-gathering process. Back then, the oil and gas industry and its allies contributed more than $3 million to proponents of that amendment — known as Raise the Bar — hoping that a higher bar for efforts to change the constitution would shield them from at least some citizen initiatives seeking to reign in drilling in the state.
Despite its substantial monetary support for Amendment 74 this year, Protect Colorado representatives were tight-lipped about the amendment, referring most questions about it to the Farm Bureau, and saying only that it is “a fair measure” for which they helped gather signatures.
Dan Haley, president of the Colorado Oil & Gas Association, in a statement hailed Amendment 74 as a “good government measure that makes sense for all of us.”
The fight over what rights property owners should have not only encompasses the PR arena, though. Court documents show that opponents of the amendment mounted a legal challenge, against it, saying the amendment was overly broad and violated the single subject rule for such measures. But the bid ultimately failed. The lawyer the Farm Bureau hired to defend its position was Jason Dunn, a Republican who works for Denver-based political power player firm Brownstein Hyatt Farber Schreck — and President Donald Trump’s nominee to become the next U.S. attorney for the state of Colorado. Dunn was also involved in finalizing the language of the proposed amendment.
The same court documents name Michelle Smith as a co-respondent beside the Farm Bureau’s executive vice president, Chad Vorthmann. Smith is an oil and gas operative with more than 35 years in the industry under her belt who has worked for organizations including the Colorado Chapter of the National Association of Royalty Owners as well as Denver-based Davis Oil Company and Anderman Oil Company. In 2015, the Denver Business Journal selected her to its “Top Women in Energy” class. Smith is an outspoken property rights advocate and a mineral rights owner herself.
Asked if Amendment 74 was in any way related to the proposed drilling setback measure, she said: “Not related, but property rights are property rights.” Smith then added that it would “only make sense” for a mineral owner to bring forward a case if you took away his or her right to drill.
Newspaper editorial boards across the state are chiming in, with the Grand Junction Daily Sentinel going as far as likening the fight over Amendment 74 to a “nuclear escalation hitting the initiative process.”
Such drastic language didn’t go unnoticed in the Capitol, either. Gov. John Hickenlooper’s office made what one of his advisors, speaking on the condition of anonymity, told The Colorado Independent were “a handful of calls” to see if a truce could be brokered and both measures would be withdrawn. The effort ultimately failed, and the mandated deadline to do so has since passed. The governor’s office declined to publicly comment on the issue.
Democratic gubernatorial candidate Jared Polis is opposed to Amendment 74. His Republican opponent Walker Stapleton’s spokesman has said the candidate supports the concept behind the measure, and his campaign website lauds Colorado’s farmers and ranchers, noting that many “use their property or mineral rights to produce energy” and so are able to benefit from a “diversified revenue stream.”
And so it will be up to Colorado voters this fall to decide the fate of Amendment 74 in this newest edition of property rights v. local control. Given the new Raise the Bar requirement that a constitutional amendment needs to gather at least 55 percent instead of a simple majority of yes votes, the measure still has a steep climb ahead, independent analyst Sondermann said.
But the war for the interpretative prerogative is well under way.
The Farm Bureau’s Vice President of Advocacy, Shawn Martini, cautioned against castigating the amendment in apocalyptical terms when really, he said, there was no reason to believe the courts would severely alter the historically narrow view they have taken when it comes to regulatory takings.
“For our members, this is much more broad than just mineral rights,” he said. “It cuts to the core of what makes agriculture successful, what makes most businesses in this country successful, and that is strong protections for private property. The government per the constitution is allowed to take away private property, but they are also required to provide just compensation for people who are impacted by this policy. And our members would like to see that right strengthened and push the court a little bit more to the center and to take a slightly more broad view of who can be compensated for a regulatory taking.”
DU law professor Pidot is having none of that no-big-deal argument.
“It seems quite odd to me for the proponents of a constitutional amendment to say, well it is not going to do very much,” he said. “The point of amending the constitution is people believe there is a severe problem that needs a severe response. We should take the measure seriously. It’s proponents believe that this will reshape our law in significant ways — and the question for us is, ‘Are those beliefs that we want to be reshaped?’”
The “minibus” appropriations bill is the result of a bipartisan, bicameral deal struck on [September 10, 2018] in a conference committee and is the first spending package to pass ahead of the end of the current fiscal year on September 30. “We are absolutely grateful to every member of Congress who supported this important funding bill,” said Julie Hill-Gabriel, Vice President of Water Conservation at the National Audubon Society. “Audubon and its more than one million members know that healthy water systems are vital to birds and to people. This legislation will help us build on the progress we’ve made in strengthening our water infrastructure.”
The bill advances programs that are important for birds and the places they need, including:
An extension of the System Conservation Pilot Program until the year 2022. As a key tool to address the prolonged drought in the West, this win-win program has provided anyone with Colorado River water rights the opportunity to receive a cash payment in exchange for conserved water that stays in rivers and reservoirs. Additional funding for the Bureau of Reclamation could also be used to increase the number of projects in this program that will reduce the threat of water shortages for the 36 million Americans who rely on Colorado River water.
With participation from ranchers, farmers, golf course owners and water system managers in seven states (WY, UT, CO, NM, AZ, CA, NV), this program allows for more water remaining in the seasonal habitats that birds like the Yellow-billed Cuckoo and Willow Flycatcher need to feed, rest and nest.
Increased funding for the Bureau of Reclamation’s WaterSMART Program, and other funding to address drought conditions in the West. WaterSMART invests in innovative, collaborative, and locally-led projects that conserve water across the West, and helps address the long-standing backlog of western water infrastructure needs. This means that organizations like state and local Audubon groups can continue to partner on projects such as lining canal walls, restoring native vegetation or clearing blocked streams, all of which contribute to the quantity and quality of water that people, birds and other wildlife depend on in an increasingly hot and dry West.
Funding for endangered species recovery and water quality control programs at the Bureau of Reclamation and Fish and Wildlife Service. These programs are critical for the recovery of endangered native fish species like the Colorado pikeminnow, humpback chub and razorback sucker, and for ensuring compliance with the Endangered Species Act for more than 2,500 water projects in the Colorado River Basin, including every Bureau of Reclamation project upstream of Lake Powell. This program helps ensure species that are lynchpins of local ecosystems and food chains are considered when water infrastructure projects are planned.
Important funding for construction of Everglades restoration projects through the U.S. Army Corps of Engineers. These projects will protect and restore wetlands in America’s Everglades, a unique ecosystem that is home to 70 threatened and endangered species and more than 300 native bird species like the Roseate Spoonbill. Completed restoration projects provide new options for managing water that can respond to toxic algae blooms in addition to intermittent flooding and drought. Audubon hopes to see the Army Corp direct some of its discretionary funds from this legislation towards Everglades restoration above and beyond the levels identified in this bill, including needed funding for Operations, Maintenance and Rehabilitation of Everglades projects.
A directive for the Department of Energy to pursue a “moonshot” goal for demonstrating energy storage technologies, critical funding for the Office of Energy Efficiency and Renewable Energy, and robust support for research and development supported by programs like the Advanced Research Projects Agency-Energy (ARPA-E). Each of these programs will help pave the way for important advances in storing and distributing electricity generated by renewable sources like wind and solar. Renewable energy, properly sited and managed for bird safety, is key to mitigating a changing climate, which is the greatest danger that birds face.
Importantly, the bill does not include harmful environmental riders from earlier versions of the legislation.
One excluded provision would have repealed the 2015 Waters of the United States (WOTUS) Rule. Repealing the Rule would reduce protections for wetlands and the one-third of North American bird species – including the Bald Eagle, Wood Stork, American Bittern and Prothonotary Warbler – that rely on wetlands for food, shelter, or breeding.
The bill also does not include a rider that would have banned spending funds to develop or issue regulations based on studies of the social cost of carbon. Climate change is the top threat that birds face, as it is both shrinking and shifting their ranges. Audubon supports research and policy that will reduce greenhouse gases such as carbon that are warming the planet.
