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Along Came a Texan ...
Stealing Rivers in Colorado
by PHILLIP DOE

“Unlike the Eastern States, we have large areas threaded by a single stream of water… If the local laws should permit these arteries of wealth and health to be monopolized by the few who chance to control their banks, to the entire exclusion of all other and adjacent land owners, they would be doing a great wrong under the shadow and protection of the law.”

–George W. Haight in Riparian Rights, 5 Overland Monthly 561, 566 (1885)

"A river is more than an amenity…. It is a treasure. It offers a necessity of life that must be rationed among those who have power over it."

–Oliver Wendell Holmes, Jr. (1841-1935), U.S. Supreme Court justice, New Jersey v. New York, 4 May 1931

Recently, another Texan came to Colorado to buy his piece of the state. His intent is to turn two miles of the Taylor River and the adjoining 2000 acres of ranch land into a private, kitschy fishing resort. An additional three miles of meandering meadow streams and six ponds also invite the fortunate few to glory in the splendor of the grass privatized. Building lots start at $2.9 million, of which 26 are planned along with separate restored ranch cabins for guests.

But commercial rafters floating by have fired our Texan’s discontent. They disturb the tranquility of his wealthy patrons who have come north, presumably, to taste the unsullied natural riches of a state where over 65 percent of the land is publicly owned. Texas is the living opposite in terms of public ownership and may help explain why we are so richly rewarded with Texans in every season.

The Texan in charge is Lewis Shaw, CEO of Jackson-Shaw, developers “of mixed-use, office and industrial product, as well as high-end boutique hotels.” But let’s just call him Tex. Well, Tex threatened to call in the sheriff and have the Teva-wearing crowd arrested for trespass if their rafts didn’t stop invading the natural splendor he’d acquired as a private emolument.

Erstwhile Democratic representative Kathleen Curry, from Gunnison, rushed to extinguish the anger before it grew to something significant. (In one of those unforgettable how’s-that-again-moments, she said she was resigning from the Democratic Party because she could no longer support its principles. Hell, I was thinking about resigning because the party seems to have lost its principles.)

She introduced a bill that will allow commercial rafters to continue to run rivers they had run traditionally. It is a status quo bill aimed at short-circuiting the important, long festering and larger issue of public access to Colorado’s rivers.

A hearing was held on the bill, HB1188, a couple of weeks ago. Only the marijuana bill earlier in this year’s session drew more standing-room-only spectators in distinctive garb, the guy standing next to me was clothed in a cut away kayak.

One of the ranching and private property mavens testified early on that if rafters were allowed river access through private property we would be just like the old USSR, a state run by a bunch of commies. He may be the same guy, or his dress-alike twin, who, in a hearing several weeks earlier advocated robbing the public of its open-space money from lottery proceeds for weed control on private land. Weed control, argued he, was an important aspect of the war on terrorism. Yikes, they’re everywhere, even in the weeds.

I went home to see what I could learn that might clarify the strange hullabaloo I’d witnessed earlier in the day. Going straight away to the state Constitution, I discovered, sure enough, the weed guy was right, our Constitution was written by a bunch of commies. There in bold print, glaring out at me like a coded message from the KGB was the declaration:

“Water of streams is public property. The water of every natural stream…is hereby declared to be the property of the public, and…dedicated to the use of the people…” Article XVI, section 5

How do you slink around such unadorned language? How do you make river and stream private property in the face of such seemingly straightforward talk? Well, the evidence suggests it takes a lot of cross-eyed lawyers, particularly the robed variety.

In 1979 the Colorado Supreme Court managed to give a sucker punch to common sense in the PEOPLE v. EMMERT, 597 P.2d 1025, Aug. 13, 1979. The Court ruled that three fisherman, attempting to escape the workaday world in a time honored fashion, were indeed in trespass and were guilty of a third degree felony for floating a stream and touching its bottom.

The court did not answer the seemingly relevant question of how someone could be in trespass on something it owned? Neither did it address the essential question of how you can separate the vessel from the thing itself, can a river be a river without banks and a bottom? Are they not essential to each other? Is a glass of water dependent on both of its parts to be a glass of water? Heraclitus, with his belief in the unity of opposites, would certainly have answered in the affirmative.

But I needed modern confirmation, so I tested the glass-of-water conundrum on my 5 year old grandson, and in so doing ruined several years of hard work dedicated to convincing him I was somebody that knew right from left, up from down. He simply gave me one of those squinty-eyed looks of a five-year old, turned his back on me with preschool disdain, and told his mother that I was teasing him again.

The 1979 opinion is breathtaking in the way it reduced the definition of public from the concept of “we the people” to private irrigators:

“We here reaffirm, therefore, that section 5 Article XVI of the Colorado Constitution was primarily intended to preserve the historical appropriation system of water rights upon which the irrigation economy in Colorado was founded, rather than to assure public access to water for purposes other than appropriation.”

Compared to the clear language of the Colorado Constitution, this interpretation is a mind-mangling doozy. More importantly it’s a complete corruption of the historical record. Colorado water law, called the right of prior appropriation, came into being from the case of YUNKER v. NICHOLS (1 Colo. 551, 555, (1872). It is cited at the Colorado Constitutional Convention of 1876-1877 as the basis for ARTICLE VXI, Section 5.

Arguably, this 1872 opinion is a common sense attempt to recognize our shared interest in the equitable use and enjoyment of water in an arid land. Chief Justice Moses Hallett, himself a failed miner before returning to the law, was very much concerned with eliminating monopoly ownership of rivers, the hallmark of riparian rights under English common law. Hallett observes that water law in an arid land is a law of nature and, as such, is dominant over property and contract law: … “rules respecting the tenure of property must yield to the physical laws of nature, whenever such laws exert a controlling influence.”

The public’s enjoyment of that which it owns would be one such instance of what Hallett terms the supremacy of natural law, as would river access for water supply diversions. For, says he, “…all lands are held in subordination to the dominant rights of others, … and this servitude arises, not by grant, but by operation of law.”

An 1890 report of the U.S. Senate validates the concept of public ownership as the cornerstone of Colorado water law: “Embedded deeply in constitution and statute, Colorado has recognized as fundamental the principle…(of) the public nature and property of all natural water.” Sen. Rep. 928, 51st Cong., 1st Sess. 74 (1890)

Then, too, there is the long-standing declaration by the U.S. Supreme Court that our rivers and streams are public highways. A river highway used for public recreation is still a highway, and perhaps even more valuable from a public use standpoint because of its rarity and irreplaceable nature. We can make I-70s by the hundreds, but we can’t make a Taylor River, not one.

Indeed, in the Court’s first water decision, we have Justice Taney (yes, that Justice Taney) declaring:

“…the shores, and rivers, and the bays and arms of the Sea , and the lands under them,…held as a public trust for the benefit of the whole community, to be freely used by all for navigation and fisheries.” Martin V. Waddell, 10 L Ed. 997 (1842).

By way of explanation, he goes on to say that,

“When the revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable water, and the soils under them for their own common use…”

Equally relevant to the issue at hand is the Court’s 1892 decision in Illinois Central R. Co. v. State of Illinois, 146 U.S. 387 (1892) 13 S. Ct. 110. It seems the Illinois state legislature had transferred title of much of the Lake Michigan shoreline fronting Chicago to the Illinois Central Railroad. The railroad had in mind monopoly of Chicago commerce it seems. The transfer, in fee simple, was eventually struck down, with the Court ruling that the legislature had not the authority to make such a sale, for the land under the shore was held “…in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have the liberty of fishing therein freed from the obstruction or interference of private parties.”

What goes on here? Want a little more fuel? The supremacy clause, Article VI, clause 2, of the U.S. Constitution says,

“…the Laws of the United States…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Yippee ki yay! What to do? How do we reclaim for the public that which is theirs by law? Feel lucky? Want to go to the legislature for redress? Forget it. They just punted on HB 1188. Senator Al White, (R-Steamboat Springs) an obdurate protector of Colorado’s traditional ranching and farming interests, introduced an amendment to 1188 that refers the bill to the Colorado Water Congress for study and recommendations, with a report due back to the legislature in the fall.

Funny thing about the CWC, it is the lobbying arm of these same traditional water interests. Its director, a Uriah Heep of a man, is already on record as opposing the legislation, as shabby and worthless as it is. He also fears the language in the bill may inadvertently bring to the fore the decided federal issue of rivers and streams as public highways. Uriah may be a step ahead of Tex and the private property gang who want monopoly ownership of rivers for the moneyed class.

The Guv, recovered from his recent bicycle spill, is attempting, in familiar fashion, to dog paddle the middle of the stream for both sides so “that this doesn’t become some kind of ballot Armegeddon.” (Roughly 23 initiatives have been submitted to the Secretary of State for potential ballot inclusion in the November election—4 from the rafters, 19 from the private property owners.)

Still, he has some understanding of what’s at stake here when he says: "The sad thing about this is our rivers are this beautiful resource in Colorado.” Unfortunately, he exposes the awful limits of his understanding when he adds, “We don’t want this to become a tool to battle about rights."

Wrong Governor, the issue is about rights. Whose river is it–the people’s or the moneyed few who would buy the surrounding land with the intent of monopolizing the “beautiful resource” as a result, allowing a few commercial rafters, perhaps, to float through now and then with their noisy flock so as to maintain an uneasy status quo?

What can we do to reassert the public’s right? Well, the legislature and the Guv look to be lost causes. We could rely on the United States Supreme Court to overrule the malfeasance of our state courts–a dicey business, not from the standpoint of the law, of course, but from the politics involved. The Roberts court’s recent decision equating money with free speech—the more money the more free speech–doesn’t give one confidence that we groundlings have the same number of rights as those with a bagful of money like Tex.

A more direct approach would be to go directly to the people through a ballot initiative reestablishing in the state constitution that the rivers and streams of the state are held in public trust for the people. The Court’s Central Illinois Railroad decision would provide legal ballast, as would a number of other Court decisions, a few of which have been cited here.

Moreover, something like a public trust doctrine limiting the legislature’s power to dispose of the public’s water was a central issue at the constitutional convention of 1876-77 and could be invoked again. Some at the convention argued that the waters of the state should be state owned. But others were staunchly opposed, as David Schorr has shown in his wonderful paper, Appropriation as Agrarianism, Tel Aviv University Law School, Paper 74, 2008 p.43. Among them was H.P.H. Bromwell, a former U.S. Congressman and populist firebrand. According to a report in the Denver Daily Times, Bromwell was afraid of monopoly ownership of rivers if the state were given ownership, for the legislature would be under constant pressure from lobbyist for the moneyed class. His opinion was that if the “capitalists get hold of all the water, they will have the people by the throat.”

Bromwell supported public ownership as a hedge against monopoly ownership, and it was his side that carried the day.

Other western states have a public trust doctrine enshrined in their constitution. Their effectiveness has been unequal depending on the strength of the statute, with Washington’s probably providing the best template.

Also, most western states have public access laws much more liberal than Colorado’s. Montana law, for instance, allows public access to all rivers up to the historic high water mark. Utah, that hotbed of communism, established public ownership of and access to all rivers of the state as the result of a recent state supreme court decision.

Neither law is popular with big landed interests, but the Montana law has survived for about 3 decades, and the mob has not destroyed its rivers. The opposite has taken place. With ownership and access the public has become more and more interested in restoring and protecting that which they recognize as their own.

As to the claim of the high rollers that Snuffy Smith floating by will destroy their tranquility and the river, let me say that hundreds of people pass by my house each day, some walking, some riding, some loud, some speeding, but, all in all, they are a pretty decent bunch. Some even slow down to smile and wave. The high rollers can expect the same.

Ol’ Ben Franklin is supposed to have remarked that, “in rivers and bad government, the lightest things swim at the top.” He wasn’t talking about the brown trout fisherman pursue. It’s time we cleaned up our rivers and our government.

PHILLIP DOE lives in Colorado. He can be reached at: ptdoe@comcast.net

 

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