2012 Colorado November election: Initiatives 3 and 45 clear the single subject requirement for the ballot


From the Associated Press via The Coshocton Tribune:

The Colorado Supreme Court has approved the titles for two proposals that critics say would change the way Colorado has handled water rights since 1876. The court announced Monday that each proposal properly asks voters to consider only one issue.

Proponents want to amend the constitution to highlight a clause that spells out that unappropriated water in natural streams is public property. A related proposal would spell out in the constitution that water rights can be constricted to prohibit uses that would harm the public’s ownership in the water.

Update: Doug Kemper, Executive Director of the Colorado Water Congress, sent along the Colorado Supreme Court rulings attached to email:

Initiative 3
Initiative 45

From Kemper’s email:

The Court held that Initiative #3 and its Title contain a single subject because they relate to “the public’s rights in the waters of natural streams.” According to the Court, the other subsections are necessarily and properly connected to subsection (2) because they explain the proposed doctrine’s relationship to existing contract, property, and appropriative rights and provide how the new regime will be enacted and enforced. The Court also found that the Titles clearly expressed the initiative’s single subject.

In his dissent, Justice Hobbs agreed with us that Initiative #3 has at least three separate subjects: (1) subordinating existing water rights to a newly created dominant water estate; (2) subjecting the lands of the banks of streams to a newly created navigation servitude for commerce and public use; and (3) creating a new property right of access by the public to any natural stream in Colorado. Because of this, he would have overturned the Title Board’s action in setting the titles.

Similarly, the Supreme Court held that Initiative #45 contains a single subject, concluding that “public control of waters” is one subject and all of the initiative’s provisions properly and necessarily relate to that subject. The Court also held that the Titles fairly and clearly expressed the subject of Initiative #45, because a “yes” vote will expand public control of the state’s water while a “no” vote will reject the proposal’s revisions to the existing constitutional framework.

Again, Justice Hobbs rejected the majority’s opinion and agreed with us that Initiative #45 will enact at least three multiple discrete subjects. He found that it will subordinate existing water rights in Colorado created over the past 150 years to the newly-created public’s dominant estate in water; allow non-tributary groundwater to be appropriated by anyone without consent of the overlying landowner; and impose riparian water law on the State of Colorado and on water rights that have already been appropriated. Justice Hobbs would also have overturned the Title Board’s decision on Initiative #45 because it, too, contained multiple subjects.

We will be discussing our next steps related to the proposed ballot initiatives in the next few days. Please remember that, to our knowledge, no signatures have been collected as yet for either initiative. So today’s rulings do not mean that the initiatives will be on the ballot. Additional information related to the ballot initiatives will be forthcoming.

More coverage from Eric Brown writing for The Greeley Tribune. From the article:

On Monday, the court approved titles to Initiatives 3 and 45. Those proposed pieces of legislation collectively seek to apply the public trust doctrine to Colorado water rights through a constitutional change, and would override the state’s current prior-appropriation system — law that states those who own older water rights have a higher priority in using them. Additionally, more than 130 years of case law that have helped define how water is used in Colorado would be thrown out the window if the initiatives are eventually voted into law, opponents say.

The Supreme Court said in its decision this week the proposals properly ask voters to consider only one issue. That’s been one source of debate in recent months regarding the proposals.

In a strong dissent, Justice Gregory J. Hobbs Jr. 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.

Hobbs, one of the nation’s leading authorities on water law, added: “It would deprive Colorado of its interstate allocation of waters of the Platte, Arkansas, Rio Grande and Colorado Rivers by imposing a predominantly non-consumptive water regimen upon the State and its water users, resulting in the free flow of waters across our boundaries for the use of others, devastating Colorado’s economy and way of life.”

With the Supreme Court’s approval Monday, the initiatives could be on the ballot in November, if sponsors can get enough petition signatures.

Update: From The Pueblo Chieftain (Chris Woodka):

The ruling means the sponsors of the initiative may collect signatures to place the titles on the ballot. They must collect 86,000 signatures by July…

The initiatives are sponsored by Richard Hamilton of Fairplay and his Littleton attorney, Phil Doe. They seek to apply the public trust doctrine to Colorado water rights. Initiative 3 concerns “public rights in the waters of natural streams,” while Initiative 45 concerns “public control of waters.”[…]

Initiative 3 ignores the potential for the state to assume control of land alongside streams if a public right of use is applied, and ignores how common law measures have been interpreted in other states. Initiative 45 would subordinate water rights adjudicated in Colorado over the past 150 years, Hobbs wrote in the dissent. Passing the initiatives could create a “super water right” for environmental and recreation purposes, he said.

More 2012 Colorado November election coverage here.

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