Initiative 103, Public Trust Resources, Denied by the Supreme Court Colorado Water Congress shifts focus to Initiatives 75 & 89

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From email from the Colorado Water Congress (Fiona Smith):

The Colorado Supreme Court published an opinion today declaring that Initiative 103 (Public Trust Resources) may not proceed towards the 2014 Ballot. A 4-3 majority holds that the Title Board lacked authority to proceed with a substituted designated representative when one of the proponents could not attend the rehearing. This decision validates a May 1 appeal by the Colorado Water Congress (CWC) and Coloradoans for Responsible Reform.

Initiative 103, by Phil Doe and Barbara Mills-Bria, proposed to establish an “inalienable right” of the people of Colorado to clean air, clean water (including groundwater), and the preservation of the environment and natural resources (called “Public Trust Resources”), as common property of all people, including future generations. It would require the state, as trustee of Public Trust Resources, to conserve and maintain them for the benefit of all the people. CWC and over 70 supporting entities from around the state opposed this Initiative on the grounds that it was unwise, unnecessary, expensive and disruptive to the responsible allocation and stewardship of Colorado’s water resources.

CWC will now shift its energy towards Initiatives 75 and 89, both of which are of concern to Colorado’s water community. A 5-2 Supreme Court majority decided today that Initiative 89 may proceed towards the 2014 Ballot. The Court similarly confirmed Initiative 75 last month. Each will require 86,105 valid signatures to be placed on the ballot in November.

Initiative 75 would strengthen “local control,” allowing local governments to adopt environmental regulations that override state laws, including the laws that limit and balance local governments’ regulation of water facilities. Initiative 89 would combine this local control theme with a Public Trust Doctrine, declaring “common property” in Colorado’s water and environment and obligating state and local government to conserve these resources as trustees. In his dissenting opinion today, Justice Gregory Hobbs cautioned that “Initiative #89 proposes to create an entirely unprecedented form of public trust duty requiring state and local governments to ‘conserve’ what are predominately privately held resources… [It] would upend the existing regulatory balance and thrust private property owners and governments into an uncertain future.”

The Colorado Water Stewardship Project, a special project of CWC, will continue to monitor Initiatives 75 and 89 and inform water stakeholders of the serious implications of amending the constitution to create a Public Trust Doctrine in Colorado.

From the Denver Business Journal (Cathy Proctor):

The so-called “public trust doctrine” measure, No. 103, had drawn opposition from the Colorado Water Congress, representing water users across the state, and the business-backed group Coloradans for Responsible Reform.

The high court ruled Monday that the Title Board, which reviews ballot proposals, made a mistake when it allowed the backers of No. 103 to have a substitute fill in during a hearing on the measure.

The court said that state law “does not allow designated representatives who are unable to attend a Title Board meeting to substitute alternates to serve in their place. Instead, the Title Board must delay its considerations until the next meeting at which both of the designated representatives who were so designated at the initial stages of the initiative process are able to attend the Title Board meeting.”

The ruling means that the proposal can’t be considered for the 2014 ballot because the Title Board is no longer meeting for the 2014 election cycle, said a spokesman for the Colorado Secretary of State’s office.

The backers of the proposal were Phil Doe and Barbara Mills-Bria. But Mills-Bria couldn’t attend a meeting of the Title Board because she as traveling to an out-of-state funeral, according to the court ruling.

The court said the Title Board should have postponed its hearing on No. 103 until Mills-Bria could attend rather than allowing a designee to fill in.

The proposal sought to establish a common property right to “clean air, clean water, including ground and surface water, and the preservation of the environment and natural resources.” It also would have required the state to conserve and maintain those elements for the benefit of all people.

The Colorado Water Congress said it opposed the initiative on the grounds that it was “unwise, unnecessary, expensive and disruptive to the responsible allocation and stewardship of Colorado’s water resources.”

The Colorado Water Congress said it would shift its resources to oppose Initiatives No. 75 and 89.

No. 75 is a proposal by the Colorado Community Rights Network that would allow cities to ban any for-profit business that community leaders don’t want to see in their towns.

No. 89, which says that Coloradans have a right to clean air, water and scenic values, is one of nine proposals that are backed by U.S. Rep. Jared Polis, D-Boulder.

The Colorado Supreme Court has rejected challenges to proposals No. 75 and No. 89, meaning supporters have until Aug. 4 to collect more than 86,105 valid signatures in order to have the initiatives placed on the fall ballot.

More 2014 Colorado November election coverage here.

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