Denver: Public Trust lawsuit filed over the “rights” of the #ColoradoRiver #COriver

A heron at rest along the bank of the Colorado River. Photo credit Brent Gardner-Smith, Aspen Journalism.

From The New York Times (Julie Turkewitz):

If successful, [the lawsuit] could upend environmental law, possibly allowing the redwood forests, the Rocky Mountains or the deserts of Nevada to sue individuals, corporations and governments over resource pollution or depletion. Future lawsuits in its mold might seek to block pipelines, golf courses or housing developments and force everyone from agriculture executives to mayors to rethink how they treat the environment.

Several environmental law experts said the suit had a slim chance at best. “I don’t think it’s laughable,” said Reed Benson, chairman of the environmental law program at the University of New Mexico. “But I think it’s a long shot in more ways than one.”

The suit was filed Monday in Federal District Court in Colorado by Jason Flores-Williams, a Denver lawyer. It names the river ecosystem as the plaintiff — citing no specific physical boundaries — and seeks to hold the state of Colorado and Gov. John Hickenlooper liable for violating the river’s “right to exist, flourish, regenerate, be restored, and naturally evolve.”

Because the river cannot appear in court, a group called Deep Green Resistance is filing the suit as an ally, or so-called next friend, of the waterway.

If a corporation has rights, the authors argue, so, too, should an ancient waterway that has sustained human life for as long as it has existed in the Western United States. The lawsuit claims the state violated the river’s right to flourish by polluting and draining it and threatening endangered species. The claim cites several nations whose courts or governments have recognized some rights for natural entities.

The lawsuit drew immediate criticism from conservative lawmakers, who called it ridiculous. “I think we can all agree rivers and trees are not people,” said Senator Steve Daines of Montana. “Radical obstructionists who contort common sense with this sort of nonsense undercut credible conservationists.”

The office of Mr. Hickenlooper, a Democrat, declined to comment.

The lawsuit comes as hurricanes and wildfires in recent weeks have left communities across the country devastated, intensifying the debate over how humans should treat the earth in the face of global climate change.

Is the #ColoradoRiver a person? — The #Colorado Springs Independent #COriver

Homestake Dam via Aspen Journalism

From The Colorado Springs Independent (Pam Zubeck):

The Colorado River, which originates in Colorado, provides water to seven states and Mexico, and it should have rights of its own, according to a soon-to-be-filed federal lawsuit.

The lawsuit seeks status for the river as a person.

Colorado Springs has a huge stake in the Colorado River, as its Homestake Reservoir is located in the Colorado River Basin and supplies a significant amount of water to the city.

Here’s the release from the Community Environmental Legal Defense Fund (CELDF) (Mari Margil):

The Community Environmental Legal Defense Fund (CELDF) is serving as a legal adviser for the first-in-the-nation lawsuit in which a river is seeking recognition of its legal rights.

To be filed next week in federal district court in Colorado, the lawsuit Colorado River v. State of Colorado seeks a ruling that the Colorado River, and its ecosystem, possess certain rights, including the right to exist, flourish, evolve, regenerate, and restoration.

Further, the lawsuit seeks a declaration from the federal court that the State of Colorado – the defendant in the case – may be held liable for violating the rights of the River.

The Plaintiff in the action is the Colorado River itself, with members of the environmental organization Deep Green Resistance serving as “next friends” in the lawsuit on behalf of the Colorado River ecosystem. They are represented by Jason Flores-Williams, a noted Colorado civil rights attorney.

CELDF has been at the forefront of the growing movement to recognize the rights of nature, and has assisted the first places in the world to develop laws that establish legal rights of nature. This includes dozens of municipalities across the United States which have rights of nature laws in place, as well as the country of Ecuador.

Mari Margil, Director of CELDF’s International Center for the Rights of Nature, explained, “This action is the first of its kind in the United States, and comes as courts around the world are beginning to hold that nature and ecosystems possess legally enforceable rights. Recently, courts in India and Colombia held that rivers, glaciers, and other ecosystems possess rights of their own. Building on ongoing lawmaking efforts, we believe that this lawsuit will be the first of many which begins to change the status of nature under our legal systems.”

In 2008, CELDF assisted with the drafting of Chapter 7 of the Ecuador Constitution, which secures rights of nature, or Pacha Mama. CELDF is working in a number of other countries, including India, Nepal, and Australia, to advance legal frameworks that recognize legally enforceable rights of ecosystems and nature.

This fall, CELDF, with Tulane University Law School, will host the Rights of Nature Symposium. This will bring together rights of nature experts from around the world for a public conference in New Orleans on October 27.

About CELDF — Community Environmental Legal Defense Fund
The Community Environmental Legal Defense Fund is a non-profit, public interest law firm providing free and affordable legal services to communities facing threats to their local environment, local agriculture, local economy, and quality of life. Its mission is to build sustainable communities by assisting people to assert their right to local self-government and the rights of nature. http://www.celdf.org/.

@COWaterCongress: Colorado Water Congress 2017 Annual Convention

Credit: TechCrunch
Credit: TechCrunch

“We are more connected than we’d like to admit” — Travis Smith (from the film “The Great Divide“)

The Colorado Water Congress folks have released the Wednesday workshop schedule for the Annual Convention. Here’s the email from Doug Kemper:

Colorado water community:

Wednesday Workshops Program
I am pleased to announce the program for the Wednesday Workshops on January 25 at the 2017 Colorado Water Congress Annual Convention at the Hyatt Regency Denver Tech Center is now posted on CWC’s website. To view, click HERE. There are 25 opportunities for connecting with your colleagues as you learn about the latest happenings in Colorado water.

Annual Convention Program
The main program for the Convention is being built and should be ready next week. Our theme for the Annual Convention is Connectivity. We will go live with the new Colorado Water Congress Strategic Plan and link members with the future direction of our organization.

Flowing from the 2015 member survey, we learned that our outlook must be toward helping members feel connected to the Colorado Water Congress and engaged with our work to protect the interests of Colorado’s water community. And that is our goal!

The top thing that we will work on in 2017 is our communications. We will launch a new Communications Standing Committee at the Convention. Expressing your thoughts as to what you would like to see occur in this dynamic age of communications will be very helpful.

Annual Convention Registration
To receive the standard 10% early registration discount, register by December 31, 2016. Register for the Convention here – 2017 AC Registration

Hotel Registration
For room reservations at the Hyatt Regency DTC, please visit

Snowmass: Colorado Water Congress summer meeting “Rallying Our Water Community” August 20-22

Westin Snowmass Resort
Westin Snowmass Resort

From email from the Colorado Water Congress (Doug Kemper):

Excitement continues to build for our 2014 Summer Conference and Membership Meeting. It will be held at the Westin Snowmass Resort, August 20-22. Our theme this year is “Rallying Our Water Community.” To register please visit: Conference Registration.

We will know in a couple of weeks if enough signatures have been gathered to place Initiative 89, Local Government Regulation of the Environment, on the 2014 Ballot. Whether it does or not, the water community will need to develop a greater public presence on these issues. Our conference is designed to help develop your advocacy skills and knowledge base.

We want to ensure we are focused on our member’s priorities when the Water Congress Board sets our priorities this fall. Summer Conference activities are designed to give you the opportunity to provide direct input to our leadership. We hope that you will take this chance to engage with us.

Our exciting program will again include a session with the Water Resources Review Committee. Additional honored guests include both Republican and Democratic candidates for the U.S. Senate, U.S. House Third District, and Attorney General. Don’t miss this chance to catch up with colleagues and meet new community members during our POND networking activities.

Highlights of our unique program sessions include:

Strategies for Finding Your Voice
Do you have adequate tools to advocate on behalf of Colorado’s water community? Practice conveying your message with other attendees and workshop leaders.

Senator Udall, Congressman Gardner, Congressman Tipton, and Former State Senator Tapia
We are pleased to host candidates for some of our top political offices as they address issues of keen importance to Colorado’s water community.

Costs of Doing the Right Thing
As we plan for our water allocation in the future, we rarely examine the full social and economic costs, including burdens on individual ratepayers. This panel will examine those costs, along with a brief overview of other economic challenges currently faced by Colorado water providers.

Mono Lake
For 100 years, the L.A. Aqueduct has been the source of legend and controversy. Today, drought imperils much of California’s water supply. How is Los Angeles handling the drought within the confines of a Public Trust Doctrine?

Mitigation for Transbasin Diversion
Past Aspinall Water Leaders will discuss historic transbasin water projects and their mitigation. What can we learn from the past?

We are looking forward to seeing you in Snowmass, August 20-22. Additional conference information and registration can be found at: Conference Information.

More education coverage here.

Colorado Water Congress: Initiative 75 withdrawn! #COpolitics

Click here to go to the CWC Colorado Water Stewardship Project web page.

Water Lines: Water, democracy and private property rights

Flood irrigation in the Arkansas Valley via Greg Hobbs
Flood irrigation in the Arkansas Valley via Greg Hobbs

From the Glenwood Springs Post Independent (Hannah Holm):

Which is more important: The public’s enjoyment of healthy streams, or preserving private property rights and agriculture? Do we really have to choose?

Questions swirling around proposed ballot initiatives that assert public rights to Colorado’s water and environment reflect broader tensions between public and private rights that are inherent in our democracy, as well as changing public values regarding natural resources.

The U.S. Constitution barely mentions water, but the Colorado Constitution has an entire article (16) on “Mining and Irrigation,” which provides the underpinnings of Colorado water law. In summary:

• Water in streams is owned by the public: “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state …”

• At the same time, individuals’ rights to take water out of a stream to use it are assured: “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” Further details explain that “priority of appropriation shall give the better right…” In other words, first in time, first in right.

• Rights of way have to be provided to move water from a stream to where it’s needed: “All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water … upon payment of just compensation.”

These provisions reflect the necessity of access to water from streams for life and livelihoods in semi-arid Colorado and, according to legal scholar David Schorr, a desire to prevent that access from being controlled by a privileged few. This is a very democratic kind of desire.

Over the last 100-plus years, public values related to water have become more complicated. We all still want to drink water and eat food, but water in streams for recreation and a healthy environment have also become high priorities. And sometimes water taken out of streams to serve those long-established values of domestic use, agriculture and industry, and the livelihoods related to them, ends up leaving streams depleted and unhealthy.

The constitution clearly provides for taking water out of streams, but gives no direction about when water should be left in. The General Assembly passed laws allowing water rights to be filed for environmental and recreational purposes, but most of these rights are very junior to others and vulnerable to going unmet.

Proposed ballot initiatives to establish public rights in water and the environment seek to reverse the priority of these values. Initiative 103, “Public Trust Resources,” which focused on water, was derailed from its track to the ballot by the Supreme Court, but Initiative 89, “Local Government Regulation of Environment,” was cleared for signature collection.

Initiative 89 would amend Colorado’s constitution by asserting that Colorado citizens “have a right to Colorado’s environment, including its clean air, pure water and natural and scenic values.” It directs the state and local governments to protect these resources, and says that when local and state laws conflict, the more restrictive or protective would govern.

In his dissenting opinion, Justice Gregory Hobbs argued that the new public right to the environment “would override existing private and publicly held property rights,” and would require state and local officials “to act adversely to the interests of private parties …”

In addition to reflecting the ever-present tension between public and private rights, the dispute also reflects polarization between parties primarily interested in preserving the status quo and those seeking enhanced environmental protections.

Longtime environmental advocate and vice president of the Upper Gunnison River Water Conservancy District Steve Glazer, speaking at the Colorado Water Workshop in Gunnison in June, urged both sides in the conflict to “listen to each other more, and move together instead of apart” in order to find solutions that don’t sacrifice one set of values to serve the other.

From The Durango Herald (Sarah Mueller):

Douglas Kemper, executive director of Colorado Water Congress, joined Bruce Whitehead of the Southwestern Water Conservation District, and elected leaders to educate the council on two initiatives that could change the state’s prior appropriation system for managing water claims. Prior appropriation is a way of water allocation that controls who uses how much water, the types of uses allowed and when those waters can be used.

The secretary of state’s website said any person can draft a statewide initiative to amend the state constitution. If proponents of the ballot measure gets enough signatures, about 86,105, all voters in the state would decide the issue. The Colorado Supreme Court affirmed initiatives 89 and 75.

The Water Congress, a nonprofit group providing leadership on water issues, created a stewardship project that tracks, what it believes are, “public trust doctrine” initiatives that would change how Colorado allocates water. The group opposes public-trust initiatives. Switching to a public-trust system would mean the government would decide how to allocate water rights instead of who came first, according to Kemper.

Initiative 75 would give local governments the power to approve laws that would establish the fundamental rights of residents, communities and nature. It would give local governments expanded power over businesses, such as allowing local laws to establish or eliminate the rights of corporations and other businesses operating in the community to protect the rights of people, communities and nature.

“Those are some pretty far-reaching powers,” Kemper said. “Basically, it says those local laws would be superior to international, federal or state law.”

Initiative 89 declares that Colorado’s environment is the common property of all Coloradoans, including the clean air, pure water, and natural and scenic values. It makes state and local governments trustees of the environment and requires them to protect the environment.

Colorado Supreme Court Justice Gregory Hobbs Jr. wrote in a dissenting opinion on Initiative 89 that the initiative would create a new common property right that would override existing private and publicly held property rights.

“Initiative 89 would upend the existing regulatory balance and thrust private-property owners and governments into an uncertain future,” Hobbs wrote…

State Rep. Mike McLachlan, D-Durango, urged city councilors to draft a resolution opposing these initiatives. The Southwestern Water Conservancy District has issued a resolution in opposition to public trust initiatives.

More 2014 Colorado November election coverage here.

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

sloanslakebeforesunrise

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.