FromThe Grand Junction Daily Sentinel (Dennis Webb):
Coming from water-abundant Ohio, Andy Mueller used to have trouble explaining his line of work to relatives on trips back east.
“When I used to say ‘I’m in water law,’ they’re like, what, are you a sewer lawyer?
“I think that’s one of the unique characteristics about the West, is the scarcity of water is what drives our communities and the value of a reliable water supply is so critical to vibrancy of a community on the Western Slope,” Mueller said.
These days, Mueller is in water policy, as the new general manager for the Colorado River District, a taxpayer-funded, 15-county entity based in Glenwood Springs. Such work is a little easier to explain back east, and even among western Coloradans, describing what the river district does can be difficult. But Mueller says that at its core, the district advocates for water users on the Western Slope.
While historically, water has been depicted as something that has driven a wedge between communities, “I think it should be something that ties our communities together,” Mueller said. “We all need it, we all depend on it, we all want it in one way or the other. If we can work together (on water) we’re much stronger.”
Mueller was an undergraduate student pursuing his history degree at Kenyon College in Ohio when he took a class on history in the American West and became intrigued about the region.
“I remember thinking, I wanted to get involved in that,” he said.
Mueller, 49, moved out west to get his law degree at the University of Colorado, having been attracted to the school because of its reputation for natural resources law. Almost immediately after becoming an attorney he was able to take over a practice in Ouray in which he focused heavily in areas such as water and hard-rock mining, working with clients across western Colorado including farmers and ranchers, Ouray County, developers, logging companies and others.
“I really learned from my clients what it meant to live on the Western Slope and it was a really good experience,” he said.
In 2006 he was appointed as Ouray County’s director on the Colorado River District board, eventually serving nine years on the board, including two as president. One of the key accomplishments during his board years was the cooperative Colorado River agreement reached between the district and other Western Slope entities and Denver Water. After decades of expensive legal battles, the agreement provided a path for Denver Water to develop water while addressing Western Slope concerns such as the need for river restoration.
“We were able to really get some significant commitments from Denver to participate in very important projects for our headwaters communities in terms of the health of our river systems,” Mueller said.
He eventually relocated his law practice to Glenwood Springs, joining a firm there. Meanwhile, longtime river district general manager Eric Kuhn made the decision to retire.
Mueller said he was pretty upfront when he applied to replace Kuhn that he couldn’t fill Kuhn’s shoes.
“He’s really a giant in the intellectual world of water policy but I have other skills and talents I think will serve the district well,” Mueller said.
Mueller said the district has two charges — to protect the Western Slope and Colorado’s share of the river.
“That’s a very significant charge for a little government agency like ours,” he said, noting that there are other well-funded water entities out there looking after the interests of millions of people the river serves in places including Phoenix, Las Vegas and Southern California.
For Mueller, a major issue facing the district is the increasing variability of climate and the changes that result. Growing seasons are lengthening, which can benefit agriculture, but also mean more water consumption. At the same time, recent droughts have meant decreased flows into Lake Powell, which Upper Basin states rely on for meeting obligations to downstream states that already use more water than they’re entitled to under an interstate compact.
“The biggest issue we have as a river district is helping the basin as a whole try to bring the system into balance,” he said.
Mueller said it’s important to do drought-contingency planning and look to conservation while keeping in mind how to accommodate projected growth and development.
The district has been involved in initiatives such as analyzing pilot projects for limited rotational fallowing of agricultural land for farmers who are compensated in return. The goal is to explore alternatives to buying and permanent drying of agricultural lands to meet municipal water needs should drought lead to a water supply crisis. But Mueller said it’s important that agriculture be protected and that Eastern Slope cities and farmers also do their part to head off shortages.
“If our agricultural community is going to step up and contribute, so should everyone who depends on Colorado River water,” he said.
Mueller and his wife, Kara, are raising two high-school-age girls in Glenwood Springs. Mueller enjoys water recreationally as a rafter and fly-fisherman, and also hunts elk, mountain bikes and skis. He said it was hard giving up his law career, but it was worth doing so to get to work with a talented staff at the river district. He sees his new job as a logical progression after 23 years of advocating for Western Slope families as an attorney.
“Now I get to (advocate) for the entire Western Slope and that’s why I’m excited about this job,” he said.
Less water in the stream means less comes into large and critical impoundments such as Lake Powell, which Mueller said is already being “equalized” with Lake Mead. The latter is being drawn down by overuse, not just drought.
“They’ve been draining the savings account at Lake Mead for them (users), and, the way it works, they’ve also been draining Lake Powell,” Mueller said. “ … It isn’t the drought draining Lake Powell as much as it is the overuse and the lower supply of water going in.”
Colorado must be aware of that because of its requirements under the Colorado River Compact to deliver a set amount of water right below Glen Canyon Dam.
“There’s accounting that goes on. Every year, we know exactly how much water is delivered. At a point in time … we can see very clearly, we have a significant risk of not being able to deliver that water,” Mueller said. “When we can’t deliver that water, we will get a call, or a curtailment, coming up the river.”
He said it appeared as though most of those present Jan. 19 have pre-compact water, or senior rights, that are not obligated to be called out. Most municipalities have rights junior to the compact — but they also have the right of condemnation through an involuntarily “buy and dry” process.
“Those (municipal) fire hydrants and those faucets, my guess is, are going to get water in the time of curtailment. That’s the municipal preference in our state constitution,” Mueller said.
To-date, the state hasn’t actually had to determine how this consideration would be applied — in fact, mum’s the word at the state level, Mueller added.
“The reality is, many of the Front Range providers would have rights junior to the compact,” Mueller said. These providers divert about 650,000 acre-feet a year to the Front Range out of the Colorado River Basin, including, at times, the Upper Gunnison.
The Front Range is constantly on the lookout for additional supply, but that’s not the only thing to keep in mind, Mueller said. Front Range providers will continue to supply current municipal needs in that populous part of the state.
The question becomes: What happens in the event of a curtailment when municipalities have the right of condemnation?
“They have the right to come over and buy ag rights. They don’t even have to build a pump. They can just run the water down the stream into Lake Powell. They can dry up the agricultural — buy and dry involuntarily,” Mueller said.
Locals under the Uncompahgre Valley Water Users Association are not necessarily safe from condemnation just because the association is under a right held by the federal government, he said.
Although municipalities cannot condemn against federal property, it’s not certain whether the U.S. Secretary of the Interior would ultimately be comfortable with not delivering water to the lower basin, where the greater population provides a congressional delegation many times the size of the Western Slope’s, Mueller explained.
“The question really is, how do we prevent that from happening?” he said.
“We don’t have the answer yet, but we are studying a number of different mechanisms where we can use voluntary efforts by our agricultural producers on the Western Slope, combined with voluntary efforts of ag users who depend on transmountain diversions on the Eastern Slope; industrial providers on the East Slope, and municipal providers on the East and West Slope, to voluntarily curtail their uses ahead of time and bank that water somewhere and then be able to prevent a curtailment from ever occurring.”
These, Mueller explained, are “thoughts,” not absolutes.
GRAND JUNCTION – The Colorado River District says it stands behind the recent hiring of Zane Kessler as communications director, despite concerns from some of the more-conservative counties in the district about his past political activities regarding oil and gas leases in the Thompson Divide area.
Scott McInnis, a Mesa County commissioner and Glenwood Springs native, represented the Western Slope and Colorado’s 3rd District as a Republican in Congress from 1993-2005.
He said at a special river district meeting in Grand Junction last week that he wants to ensure Kessler is “riding for the River District brand,” and not that of his former employer, the Thompson Divide Coalition.
“It’s important that we all ride for the same brand,” McInnis said. “But sometimes its hard to change brands.”
Kessler was executive director for the TDC from 2012 until earlier this year when he took the communications job as part of the river district’s external affairs team.
In his previous role, Kessler championed the TDC’s efforts to either buy out leaseholders or have the Bureau of Land Management cancel several oil and gas leases in the Thompson Divide area west of Carbondale.
Most of the canceled leases were on lands within Garfield and Pitkin counties, but three leases were partially in Mesa County, covering about 3,800 acres.
A broader BLM review of 65 leases in the region resulted in other leases outside the Thompson Divide in Mesa County near De Beque being modified with new restrictions. Other leases were reaffirmed in full.
In addition to lobbying for the leases to be canceled, the coalition also advocated for the White River National Forest to close off the Thompson Divide area to new leasing as part of its 20-year oil and gas leasing management plan approved in 2014.
McInnis said the efforts by the Thompson Divide Coalition lead to restrictions on oil and gas development throughout the whole White River National Forest.
“What happened is, their efforts then expanded to the new White River National Forest policy and [now] they are not going to allow any more drilling,” McInnis said in a phone interview. “That’s a huge forest.”
Root of the issue
At the Dec. 6 meeting, McInnis and a posse of other county commissioners from Mesa, Moffatt, Rio Blanco, and Hinsdale counties, called Kessler’s allegiances into question.
Their concerns track to a comment Kessler made in a Sept. 6 Glenwood Springs Post Independent article about his departure from the TDC that he may continue to volunteer for the organization, if the opportunity arose.
In the article, Kessler was quoted by Post Independent reporter John Stroud as saying, “I will continue to be active with the coalition in a volunteer capacity.”
McInnis then called Stroud to confirm that the quote was accurate, and Stroud assured him it was, according to both Stroud and McInnis.
McInnis said at the Dec. 6 meeting that Mesa County had “deep differences” with the TDC. And he said he’s worried that the coalition might next turn its attention to the Colorado River and that he was upset no one had called Mesa County to ask about Kessler.
Kessler started as communications director for the River District on Sept. 5. He reports to Chris Treese, the district’s external affairs manager. Like Treese, Kessler is a registered lobbyist for the river district, which was formed in 1937 to protect and develop Western Slope water interests.
The district’s board is made up of representatives from 15 Western Slope counties, appointed by the commissioners in the member counties for three-year terms. Member counties include Delta, Eagle, Garfield, Grand, Gunnison, Hinsdale, Mesa, Moffat, Montrose, Ouray, Pitkin, Rio Blanco, Routt, Saguache, and Summit counties.
GM backs decision
Outgoing Colorado River District General Manager Eric Kuhn, who is in the process of handing duties over to new GM, Andy Mueller, assured McInnis and the others that he was comfortable with the hiring process and the ultimate decision to hire Kessler.
Kuhn acknowledged in a Sept. 8 memo to river district board members that he had received a call from a “very concerned county commissioner” about the Kessler hiring, in apparent reference to McInnis, who later said he called both Kuhn and Treese.
“Both Chris [Treese] and I have confirmed that Zane has severed his ties with Thompson Divide and works exclusively for the River District under Chris,” Kuhn wrote in that memo.
He said the district received 25 applications for the position. Eight candidates were interviewed by a committee of five district employees, and Kessler was the unanimous choice, he said in the memo.
“”I was quite emphatic 1n my defense of our hiring process,” Kuhn told his board. “It was competitive. It was not arbitrary. There are no political litmus tests. We don’t ask what political party they belong to or who they voted for, or anything else of that nature. Where we had concerns, we vetted those issues.”
McInnis was perturbed by Kuhn’s reference to a “political litmus test.”
“This has nothing to do with partisan politics,” McInnis said in a phone interview after the meeting last week. “I don’t care whether he is a Democrat, a Republican, unaffiliated. I care about who he led. He was the four-star general for the Thompson Divide, and we had a rough history with them, coming into Mesa County, uninvited,” McInnis said.
“While I am no longer working for the coalition, I look forward to continuing to work with diverse, Western Slope interests to protect western Colorado water for the welfare of the entire district.”
Contacted after the river district meeting last week, Kessler declined to talk on the record, but offered in a follow-up statement via email: “I have one job nowadays: to advocate on behalf of the Western Slope’s water interests and the water interests of every county in the district.”
According to Thomas Divide Coalition board member Chuck Ogilby, the coalition is in a quiet mode, and there are no plans to expand their mission beyond preserving the Thompson Divide area.
“Our mission was solely based on the Roaring Fork valley and the environments right around the Thompson Divide lands,” Ogilby said. “It was a very singular mission and continues to be.”
But McInnis thinks otherwise.
“My understanding is that discussions have taken place, and that the Thompson Divide intends to remain a coalition to take on other causes,” McInnis said in an interview. “And it seems to me the most logical cause they’re going to take on, not today, but they’ll be there, is the Colorado River.”
And he noted, “If there is anything that is sacrosanct over here on the Western Slope, it’s water, and that Colorado River.”
Pressing the issue
The same day that Kessler’s letter appeared, on Sept. 12, McInnis and fellow Mesa County Commissioner Rose Pugliese sent a letter to about 50 people, including all of the river district’s board members, according to McInnis.
“Mr. Kessler, as an anti-oil and gas activist, has led the effort, for many years, to cancel oil and gas leases on public lands, including retroactive action to existing leases,” McInnis and Pugliese wrote. “These cancellations will have a broad and far reaching detrimental impact on energy related needs and jobs on the Western Slope.”
They said Kessler’s prior positions on behalf of the coalition “conflict with many of the River District’s goals and positions, and are harmful to the critical water rights the River District is charged with protecting for the multi-use concepts of energy, development, agriculture, to name a few.”
During the ensuing weeks, letters critical of the hiring decision were also sent from commissioners in Moffat, Rio Blanco and Hinsdale counties.
The three commissioners in Rio Blanco County advised the river district in a Sept. 25 letter, “If your decision to hire Mr. Kessler was made based upon a change in direction and philosophy by the CRD Board, we are even more concerned. A biased anti-energy, pro-environmentalist approach to public lands decisions would have a significant detrimental effect on the citizens of Rio Blanco County. It is our hope that the hiring of Mr. Kessler is not an indication of a change in direction or philosophy by the CRD Board. If it is, we are extremely concerned.”
On Oct. 3, Kuhn responded to the Rio Blanco commissioners in a letter, saying, “None who interviewed Zane and none who have had the opportunity to work with him had any question that he is a consummate professional who understands what it means to be an advocate for his employer.”
He also noted that the river district’s two attorneys once both worked for Front Range water interests, and that had not kept them from loyally serving the district.
“The River District has never hired nor failed to hire because of a candidate’s past associations, and I hope we never will,” Kuhn wrote. “Our two attorneys both represented and were closely associated with major Front Range municipalities immediately before joining the Colorado River District.”
But the issue did not die down. In fact, it morphed to include other concerns about the river district.
On Nov. 9, Kuhn sent a memo to the board informing them that Mesa Commissioner Pugliese was asking about the size of the district’s staff of 25 people, their salaries and benefits, and the district’s offices.
“I have to share with you that, to me, the most troubling implication of these questions and this controversy is the suggestion that the River District Board is not properly executing its fiduciary responsibilities,” Kuhn told his board.
On Nov. 13, the three Mesa County commissioners sent a letter to Tom Alvey, the president of the river district board, assuring him it was not a political issue and that they thought the river district staff was now using the suggestion of a “political litmus test” to “spin” the situation and “avoid answering the legitimate inquiries” made by Mesa County.
Then, on Nov. 22, Pugliese raised the issue of whether Mesa County should even stay in the river district.
“I am still trying to determine if it is beneficial for Mesa County to stay in the River District, and if staff is really representing the interests of our Mesa County constituents,” she wrote.
All that led to the Dec. 6 special meeting in Grand Junction, where McInnis reiterated his concerns to river district board members and staff, including incoming GM Mueller.
“If we don’t have the toughest, smartest, shrewdest voice in that state capitol, we are going to find an internal rift, and we’re going to find we’re losing a lot of ground,” McInnis said.
Mueller responded by saying he took McInnis’ comments to heart.
“We will be examining all of our staff members and expecting that they will all be the best,” Mueller said. “And I do mean the best team for everybody in the room. We will be reviewing our personnel hiring process.”
He added, “I do think that getting input from our constituents is important when we’re engaging in critical hiring.”
Kessler did get some support at the meeting from other constituent county commissioners.
Rachel Richards of Pitkin County said she considered it “a vendetta meeting,” and warned the other commissioners about “wrongful interference” with the district’s employment practices.
“It seems like an attack on all the citizens of the Crystal River Valley, the ranchers, agriculturalists, the outfitters, the fishermen, everyone who came together to become the Thompson Divide Coalition,” Richards said. “Zane Kessler might seem like a figurehead to that group, but I’ve never seen as much unanimous support by a huge diverse community as I saw behind the Thompson Divide Coalition.”
Merritt Linke, a commissioner from Grand County, added, “He is obviously good at what he does. … Maybe we can accept that someone on this staff knew what they were doing, and he is going to be able to ride for the brand.”
Even McInnis said during the post-meeting phone interview that he had respect for Kessler’s professional abilities and the job he did for the Thompson Divide Coalition.
“It mushroomed into this large, very well-politically connected, very well-financed, strong organization under the leadership of Zane,” McInnis said. “I’ve never questioned Zane’s ability to organize something. He did a good job with them — it’s just the wrong goals — but anyway, he did a good job.”
He also said he was satisfied with the outcome of the special meeting.
“The river district is going to take a close look at their personnel policies in January, and if they need tightening up, tighten them up,” McInnis said.
Timeline and links to public documents
Below are links to public documents provided by the Colorado River District in response to requests from Aspen Journalism. The documents are listed by date.
(Note: “CRWCD” is short for Colorado River Water Conservation District, the organization’s full name).
5.1.17: CRWCD posts a job description for the new position of communications director.
9.5.17: Zane Kessler starts his new job as communications director at CRWCD.
9.6.17: Glenwood Springs Post Independent article, “Kessler leaving Thompson Divide Coalition for Colorado River District job.”
9.8.17: memo from Kuhn at CRWCD to board on the hiring of Kessler.
9.12.17: letter to editor from Zane Kessler, published in GSPI.
9.12.17: letter from Mesa County to CRWCD board members and others.
9.13/14.17: CRWCD meeting minutes from meeting GJ w/ Kessler in attendance and Kuhn discussing hire practices.
Editor’s note: Aspen Journalism is collaborating on the coverage of rivers and water with the Glenwood Springs Post Independent, The Aspen Times, the Vail Daily, and the Summit Daily News. The Post Independent published a version of this story on Tuesday, Dec. 12, 2017.
The Colorado River Risk Study, commissioned by the Colorado River District and other West Slope parties, forecasts that if another drought like 2002-04 recurs,Lake Powell, now about half full rather than full as it was then, could fall below power generation levels or be drained unless Drought Contingency Plans (DCP) can be put in place.
Should the worst happen, Colorado and its sister Upper Division states (Utah, Wyoming and New Mexico) that are party to the Colorado River Compact of 1922 would be hard pressed to meet compact obligations to the Lower Division states (California, Nevada and Arizona).
The Risk Study is now in Phase II, which is a technical process to learn if federal and state Colorado River computer models can be used conjunctively to better predict what could happen in the state of Colorado. Other partners in the study are the four West Slope Basin Roundtables (Colorado Basin, Gunnison, Yampa-White and South- west) and the Southwestern Water Conservation District– with assistance from the Colorado Water Conservation Board.
At its quarterly meeting on Oct. 17, the Colorado River District Board received an update on the work. John Carron of Hydros Consulting, the study contractor, said the takeaways from the study so far are:
• Should a drought on the order of 2002-04 recur with Lake Powell at its current half-full level, hydroelectric power generation is jeopardized;
• Hydrology, demands and future development levels matter — the higher the consumptive use in the Upper Division states, the higher the risk to existing users;
• The most successful Drought Contingency Planning requires joint participation by both Upper and Lower Division states;
• Drought Contingency Planning is essential;re-operations of reservoirs, such as Flaming Gorge, to move water down to Powell reduces the risk, but in more severe droughts (e.g., 1988-1993 and 2001-2005),demand management (reduced water use) would be necessary in addition to any
• Some of the volumes of demand management that the model is forecasting are large and may not be feasible, thus the need to consider the trade-offs and alternative strategies;
• Demand management combined with a water bank could limit the impact by spreading conservation over many years and providing greater control over conserved water — a must- have condition.
The four West Slope Basin Roundtables called for the Risk Study at a joint meeting held in December 2014 in order for the West Slope to better under- stand the risks to current water users of future water development and how development, basin by basin, might look against the risk. As Colorado River water is also used on the Front Range of Colorado, drought risk is important to Front Range Roundtables and their future development, but they opted not to participate in the study.
How we got here
Even though there had been some good snow years in the years 2000- 2013, it was clear that dry conditions and overuse of the Colorado River were driving down reservoir levels at Lakes Powell and Mead.
In July 2013, then U.S. Interior Secretary Sally Jewell asked the seven Colorado River basin states if they were prepared to deal with a continuation of these conditions. The answer was no, and the challenge was for the basin states to develop their own DCPs or have the work done for them.
The Upper Division states and the Lower Division states each started work on DCPs for their regions.
Against this backdrop, the four West Slope Basin Roundtables commissioned the Risk Study. In the meantime, Colorado’s Water Plan, released in 2015, calls for actions that will minimize the risk of compact curtailment, embodied in Point 4 of the Seven Point Framework of the plan.
The Upper Basin DCP
The Upper Basin States have a three-pronged DCP, that 1) entails moving water stored in Flaming Gorge, Aspinall and Navajo Reservoirs to Lake Powell as the first line of defense against critical Powell elevations being breached, and modifying releases from Powell to Mead; 2) institutes demand management (reduction of use); and 3) augments river flows through cloud seeding and phreatophyte (primarily tamarisk) reduction.
An agreement between the four Upper Division states and the U.S. Bureau of Reclamation is in the works on how to re-operate the reservoirs. The demand management piece will be controversial among the states and within each state; details are still to be worked out. One policy contention in Colorado is that municipal water users, including those on the Front Range, share the burden of reduced use – and that the reduced uses not all fall on West Slope agriculture.
Demand management in the Upper Basin would be the last action to implement in the “worst of the worst droughts,” General Manager Eric Kuhn said. “The goal is to limit it to that.”
General Counsel Peter Fleming said a Colorado River District policy issue would be implementing demand management at the same time as new and increasing water uses are being developed in the River District, the state of Colorado and throughout the Upper Basin.
Kuhn said that for Colorado, the Seven Point Framework in the 2015 Colorado Water Plan addresses that — calling for any new transmountain diversion to not increase the risk of curtailment, because of Compact or Lake Powell low levels, on current water users.
“It is a major milestone that the state has adopted that in its plan,” Kuhn said. “This is an issue for the Front Range as well. Existing users do not want to see the risk to their projects increase due to new diversions.”
The Lower Basin DCP
The overall goal of DCP in the Lower Division states is to erase the so-called “structural deficit” that over time has showed those three states depleting about 1.2 million acre feet (maf) annually more than their compact entitlement of 7.5 maf, due to use and evaporation. A section of the 2007 Interim Guidelines that pertains to the three states calls for reduction of water use equal to about half of the structural deficit once Lake Meads falls below certain thresholds. Current Drought Contingency Planning specifies further cutbacks would achieve the 1.2 maf goal.
The Lower Division states are nearing finalizing their DCP. As Mother Nature would have it, big rains in California helped to reduce depletions in the Low- er Basin to 6.6 maf this past water year.
More than three dozen people gathered at the sheriff’s office conference room in Meeker last Friday morning to continue addressing why we’re experiencing such bothersome summer algae blooms in the ecological heart of our community—the White River. Led by Rio Blanco Commissioner Si Woodruff, with Commissioner Jeff Rector at his side, the past meetings were acknowledged and the county laid out their proposal for moving forward. The proposal was that an action oriented advisory group, smaller than the whole group gathered Friday, be established which could better focus on needed actions.
In addition, the county proposed that the White River and Douglas Creek Conservation Districts (CDs) take the lead in coordinating and facilitating meetings and electronic communications and serve as the fiscal agent to pursue and manage finances including grant applications and management for addressing the algae and overall health of the river.
Callie Hendrickson, executive director of the CDs, explained the discussions the CDs had held with the county and presented a possible scope of work to be carried out…
The advisory group proposed by the county initially includes representatives from the U.S. Geological Service (USGS), the county, the Colorado River Water Conservation District, the Towns of Meeker and Rangely, Meeker Sanitation District, Rio Blanco Water Conservancy District, Colorado Parks and Wildlife, and the CDs. Interested vested stakeholders, non-governmental organizations and members of the general public are expected to be included at some point as well.
The assembled group Friday accepted the county proposal without objection. The advisory group itself met Friday afternoon.
The county’s concept was also to turn to the USGS to do much of the needed further research. USGS scientist Ken Leib of Grand Junction, who has been attending the county river algae meetings, gave a presentation to the whole group on what such a research effort should look like. Leib reviewed much of the information on the river conditions that have already been collected, and the further research and data gaps USGS would try to complete.
Hendrickson facilitated a round-robin collection of important pieces individuals at the meeting would like to see included in further study and action. Several group members urged that the advisory group not delay pursuing actual remedial actions regarding the algae that make sense in the short term while conducting longer term research.
The state of Colorado moved in federal court this week to dismiss a lawsuit from an environmental group and five of its members who are seeking to declare the Colorado River ecosystem a “person” and represent its interest in court.
In a filing from the attorney general’s office on Tuesday, Oct. 17, Colorado told the U.S. District Court in Denver that Deep Green Resistance and its members do not have jurisdiction to sue the state in federal court under the 11th Amendment, do not have standing in the case due to lack of a specific injury, and do not state a claim “upon which relief can be granted.”
“The complaint alleges hypothetical future injuries that are neither fairly traceable to actions of the state of Colorado, nor redressable by a declaration that the ecosystem is a ‘person’ capable of possessing rights,” the state told the federal court.
Colorado said the questions of “whether the ecosystem should have the same rights as people, and who should be allowed to assert those rights in federal courts, are matters reserved to Congress by the Constitution.”
Jason Flores-Williams, a Denver-based attorney, is representing Deep Green Resistance and its members.
“I think they are just doing their job,” Flores-Williams said Saturday morning when asked about Colorado’s motion to dismiss. “It’s how the legal system works. And it’s appropriately the correct legal move. However, I would say, you can dismiss a case, but you can’t dismiss the reality of current conditions. Either the rights of nature are going to be recognized, and we’re going to start moving in a direction toward real solutions, or they will be dismissed and we will continue going down the road we’re going down, which is highly problematic.”
The case — Colorado River Ecosystem a/n/f Deep Green Resistance v. the State of Colorado — is being heard by U.S. District Court Judge Nina Wang, and a status conference is set for Nov. 14. The case number is 1:17-cv-02316.
The Sept. 25 civil action from Deep Green Resistance asked the court to declare that “the Colorado River ecosystem is a ‘person’ capable of possessing rights,” including “the rights to exist, flourish, regenerate, and naturally evolve.”
The complaint asks that members of Deep Green Resistance be allowed to “serve as guardians, or ‘next friends,’ for the Colorado River ecosystem.” And it asks that they be able to file lawsuits to “force the state of Colorado to take certain actions, as violations of the rights of the Colorado River ecosystem.”
In its complaint, Deep Green Resistance argues that “the Colorado River Ecosystem is essential to life – human and non-human – in the American Southwest. Threats to the Colorado River Ecosystem are threats to life. Because threats to the Colorado River Ecosystem are threats to life, the Colorado River Ecosystem must possess the ability to protect itself from threats to its survival.”
But the state of Colorado rejected the idea of an ecosystem, or the “next friends” in this case, having rights to sue.
“No environmental statute or other law authorizes the ecosystem to bring a suit on its own behalf,” the state said in its motion to dismiss.
In reference to a prior case law, the state also said “there is no hint that ‘person’ includes inanimate objects, like the soil, water, and plants that, together with animals, create an ecosystem.”
In regard to the issue of personhood, the state told the court that Citizens United v. Federal Election Commission “does not provide an instructive analogy in this case.”
In its complaint, Deep Green Resistance cited the Citizens United case and told the court because “ordinary” corporations have “been repeatedly recognized as a ‘person’ for purposes of constitutional protection and enforcement” then the Colorado River deserves the same status and should be allowed to “hire a law firm, actively participate in its representation or testify in court.”
The complaint also said “the Colorado is 60 to 70 million years old and has enabled, sustained, and allowed for human life for as long as human life has been extant in the Western United States, yet the Colorado has no rights or standing whatsoever to defend itself and ensure its existence; while a corporation that can be perfected in fifteen minutes with a credit card can own property, issue stock, open a bank account, sue or defend in litigation, form and bind contracts, claim Fourth Amendment guarantees, due process, equal protection, hold religious beliefs and perhaps most famously invest unlimited amounts of money in support of its favorite political candidate.”
But the state said even if the Colorado River ecosystem had “person” status, it wouldn’t cure the river’s ills.
“There is no suggestion — even a speculative one — that declaring the ecosystem a ‘person’ would address the alleged injuries,” the state said.
For the river
The plaintiffs include Deep Green Resistance, a subcommittee of DGR called Southwest Coalition, and five Deep Green Resistance members: Deanna Meyer of Sedalia, Colo.; Will Falk of E. Heber City, Utah; Susan Hyatt of Moab, Utah; Jennifer Murnan of Longmont, Colo; and Fred Gibson of Colorado Springs, Colo.
Meyer is an animal-rights activist who has worked on protecting prairie dogs in Boulder and Castle Rock. Falk worked for a year as a public defender in Wisconsin after law school and is now an attorney, writer and activist living near Park City.
The Southwest Coalition’s tagline on its website is “Defending Mountains, Basins, Deserts, Prairies and Rivers of the Southwest.”
The first goal listed in the group’s published strategy document is “to disrupt and dismantle industrial civilization; to thereby remove the ability of the powerful to exploit the marginalized and destroy the planet.”
Deep Green Resistance told the court in its Sept. 25 complaint that it is a “worldwide, membership-based, grassroots organization” and “engages in a diversity of tactics to protect ecosystems” including “activist training programs” and “civil disobedience to confront ecological violence.”
Meyer, in a July 2015 interview posted on You Tube and Deep Green Resistance’s website, described the technique she and Brian Ertz of Wildlands Defense used in 2015 to inflict economic punishment on real estate developers by creating bad PR for them around killing prairie dogs.
“We need to radicalize people,” Meyer said at about 54 minutes into the 2015 interview. “We need to get people to do things much differently.”
She said “the yoga and the praying and the whatever, the petitions, and all that, it’s not going to do a damn thing. You’ve got do something that’s going to hurt these developers, or killers, or profiteers.”
With Meyer in the interview is Brian Ertz of Wildlands Defense of Idaho.
Meyer once served on the Wildsands Defense board, and worked part time for Wildlands Defense, after she and Ertz accepted a settlement payment in June 2015 from the developers of the Promenade mall in Castle Rock, Alberta Development Partners, LLC.
In November 2016, Meyer sued Ertz over the proceeds of the settlement, which were to be put toward preserving prairie dog habitat, in Meyer v. Ertz in U.S. District Court in Denver (16CV2897). The case was settled in February 2017.
As part of the case, Katie Fite, who worked for nine years as a senior wildlife technician at the Idaho Department of Fish and Game before co-founding Wildlands Defense, filed an affidavit on Jan. 8, 2017, describing Meyer’s time with Wildlands Defense.
Meyer “talked about wanting to get people stirred up so they would go out and stand in front of the bulldozers, with hazy aim,” Fite said. “Over time, I realized Meyer seemed to be enthralled with highly controversial advocacy methods promoted by Deep Green Resistance (“DGR”) and its founder, Derrick Jensen.”
Jensen, in a December 2015 interview about his radio program, said he was interested in Colorado River issues, but only from the perspective of the river.
“When I ask to interview somebody about the natural world, the question I always ask them first is ‘are you biocentric?’ Jensen said. “Because I’m not really interested in how the Colorado River is going to be used for irrigation in Arizona. If somebody wants to talk about that, they can talk about that on mainstream news. I’m really interested in the Colorado River’s perspective.”
Both Meyer and Ertz have been interviewed by Jensen on his Resistance Radio program. Jensen is also the author of a book called “Deep Green Resistance: Strategy to Save the Planet.”
In its Sept. 25 complaint, in which Jensen is not named, Deep Green Resistance lays blame for the depleted state of the Colorado River on the state of Colorado.
“One reason the Colorado River rarely reaches the sea is the compacts and laws that regulate how much water can be diverted from the river allow humans to take more water from the river than physically exists,” the complaint from Deep Green Resistance said. “The state of Colorado takes more water from the river than any of the other jurisdictions, save California.”
But the state, in its motion to dismiss, denies culpability for the condition of the Colorado River.
“Any injury that might result in the future from alleged ‘overallotment’ of water from the Colorado River cannot be fairly traceable to the state,” Colorado’s motion said.
The state also said Deep Green Resistance was asking the court “to make sweeping declarations that would fashion new law out of whole cloth.”
“It asks the court, rather than Congress or the executive branch, to declare that the ecosystem is a ‘person whose rights — whatever they might be — can be defended in court by self-declared representatives,” the state said. “Such a declaration has the potential to alter the fabric of American domestic and foreign policy.”
Peter Fleming, the general counsel for the Colorado River District, described the lawsuit from Deep Green Resistance in a mid-October memo to the district’s board of directors, who represent 15 Western Slope counties.
He notes that in addition to seeking “personhood” for the river ecosystem, Deep Green Resistance was also alleging “that the State of Colorado can be held liable for violating the River’s rights.”
“The premise of this lawsuit is certainly unique in Colorado (as well as the nation) but it is not completely without precedent,” Fleming wrote. “As noted in the complaint, Ecuador has amended its constitution to recognize the rights of ecosystems. Likewise, jurisdictions in Colombia and India have found rivers to have certain rights that warrant protection.”
But Fleming said, “if successful, the lawsuit would be precedential not only in Colorado but throughout the country” and that “a ruling granting the requested relief could totally upend environmental litigation.”
He also addressed the claim of “next friend.”
“A key question would be why any specific group of individuals should be entitled to serve as an ecosystem’s “next friend” as opposed to any other group of individuals, organizations, municipalities, or states,” Fleming wrote. “The fights over the right to be appointed ‘next friend’ status alone would be chaotic – not even taking into consideration the unique claims that could be asserted.”
He said the state attorney general’s office “will be taking the lead on Colorado’s behalf,” but “will receive lots of help from others in opposing the lawsuit” and that he had “already offered the River District’s help.”
In a post on the Deep Green Resistance website about the Colorado River lawsuit, Falk, one of the “next friends,” weighs the chances of his group’s complaint succeeding.
“We may win in court and corporations will have to respect the Colorado River’s rights to exist, flourish, regenerate, and naturally evolve,” Falk wrote. “We will also gain a foothold for other ecosystems to assert their own rights. We may fail in court, but that does not mean the fight is over.
“In many ways, our failure would simply confirm what we already know: the legal system protects corporations from the outage of injured citizens and ensures environmental destruction. If we fail, we must remember there are other means — outside the legal system — to stop exploitation.”
Editor’s note: Aspen Journalism is collaborating with The Aspen Times, the Glenwood Springs, Post Independent, the Vail Daily and the Summit Daily News. The Times published a shorter version of this story on Saturday, Oct. 21, 2017.
GLENWOOD SPRINGS — A group of water leaders in Colorado, most new to their posts, appeared before the board of the Colorado River District on Tuesday in Glenwood Springs.
Becky Mitchell, executive director of the Colorado Water Conservation Board, and Kevin Rein, state hydraulic engineer for Colorado, both of whom took their current positions in July, introduced themselves to the river district board, which includes representatives of 15 Western Slope counties.
Mitchell said it was important for the state to develop a long-term source of funding for new water projects in both the Denver metro area and the Western Slope, but she said the various river-basin plans in the state needed to be prioritized before a funding question is put to voters.
“We don’t want to take some ballot measure up that won’t pass,” said Mitchell, who was promoted to her new position at CWCB after working on the 2015 state water plan. “We want to make sure we get everything prepared so we have the most chance for success, because this is such an important issue.”
Rein, who serves as the state’s water-law enforcer, said he intends to continue the policies and practices of his predecessor, Dick Wolfe, and that he hopes to administer water rights and respond to water court applications with consistency and transparency.
“It all comes down to balance for me,” Rein said, in trying to administer water rights against competing demands.
Jayla Poppleton, who has been the executive director of the Colorado Foundation for Water Education since January, also went before the river district board Tuesday, describing her organization’s new brand positioning.
Created by the state Legislature in 2002 to inform citizens about water, the organization is changing its name to Water Education Colorado, and its new logo is based on the layout of the state’s eight river basins.
Andrew Mueller, who starts as new general manager of the river district on Dec. 1, was also at the meeting.
An attorney at a law firm in Glenwood Springs, Mueller once lived in Ouray and represented Ouray County on the Colorado River District’s board from 2006-2015. He was hired in September upon unanimous consent by the river district’s board.
At the district’s next quarterly board meeting in January, Mueller will officially replace Eric Kuhn, the district’s current general manager, who is retiring after 37 years.
Kuhn has a deep understanding of Colorado River issues, and he and John Carron, an engineer with Hydros Consulting Inc., presented to the board the latest findings of an ongoing “risk study” focusing on ways to keep enough water in Lake Powell in the face of another sharp drought.
Also presenting at Tuesday’s meeting was Mark Harris, the general manager of the Grand Valley Water Users Association, which diverts water out of the Colorado River in De Beque Canyon, at the red-roofed roller dam.
Harris was before the river district’s board seeking financial support for the second year of an experimental program that pays irrigators to fallow fields or crops, lower their consumptive use, and leave water in the river to help keep Lake Powell operational.
The association is one of the big three diverters in the Grand Valley, and provides water to 25,000 irrigated acres on the north side of the valley from Palisade to Mack via the 55-mile-long Government Highline Canal.
In 2017, the association compensated 10 large irrigators, whose names have not been disclosed, to fallow a total of 1,252 acres of irrigated land on parcels ranging from 60 acres to 240 acres.
The 2017 program, which concludes this month, will result in 3,200 acre-feet of water not being used for irrigation.
The association funded the program with $1,039,000. Of that, it put $145,000 in an infrastructure fund, used $169,000 for program management, and paid $725,000 to irrigators. (That works out to about $225 per acre-foot of “conserved consumptive use” to the irrgators.)
Major funding sources for the program included The Nature Conservancy, the state of Colorado, and Denver Water. The association intends to run the program again in 2018.
Harris said the association continues to learn about how such a fallowing program in the Grand Valley might work in the face of a drought or other challenge to complying with the Colorado River compact, which requires Colorado and other states in the upper Colorado River basin to provide a set amount of water to California, Arizona, and Nevada, even in dry years.