The Public Trust W orkshop Colorado W ater Congress Annual - - PowerPoint PPT Presentation

Stephen H. Leonhardt, Esq. Burns Figa & Will, P .C. 6400 S. Fiddlers Green Circle, Suite 1000 Greenwood Village, CO 80111

The Public Trust W orkshop

Colorado W ater Congress Annual Convention January 2 0 1 3

The Public Trust Doctrine

• vs. Colorado W ater Rights

The Colorado Constitution: Foundation For W ater Rights

Article 1 6 , Section 5 of the Colorado Constitution provides: The water of every natural stream, not heretofore appropriated, within the State

• f 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, subject to appropriation as hereinafter provided.

The Colorado Constitution: Foundation For W ater Rights

And Section 6 states: The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as betw een those using the w ater for the sam e purpose. . . These provisions rem ain unchanged since statehood and provide for security, stability, and predictability of w ater rights in Colorado

I nitiatives 3 and 4 5 ( 2 0 1 2 )

I nitiative 3 Proposed to am end Article 1 6 , Section 5 to adopt a “Colorado public trust doctrine” that would protect public ownership interests in the water of natural streams while giving “the public’s estate in w ater in Colorado . . . legal authority superior to rules and term s of contracts or property law ” (including existing water rights). Also sought to create public stream access rights.

I nitiatives 3 and 4 5 ( 2 0 1 2 )

I nitiative 4 5 Proposed to am end Article 1 6 , Section 6 to require diversions be limited or curtailed “to protect natural elements of the public’s dom inant w ater estate” and that water diversion rights “require the water use appropriator to return w ater unim paired to the public, after use, so as to protect the natural environment and the public’s use and enjoyment of waters.” Hobbs, J.: Like dropping a “nuclear bom b” on Colorado w ater rights

Roots of the Public Trust Doctrine

Traditional Doctrine Common law restraint on government preventing the sovereign from defeating public access to navigable waters and lands beneath them I llinois Central Railroad Co. v. I llinois 146 U.S. 387 (1892) State holds title to lands submerged under navigable waters in trust for the people of the state, and m ay convey title to lands beneath navigable waters, but m ust retain sufficient control to assure the public trust is not im paired

Roots of the Public Trust Doctrine

I llinois Central Railroad Co. v. I llinois Every grant of lands beneath navigable waters is subject to the state’s inalienable pow er to revoke its conveyance for trust purposes Rem ains to the states to define “navigable” and the scope of private rights in public trust lands I n absence of federal law , state constitutions and law s are the source of any Public Trust Doctrine in the United States

Roots of the Public Trust Doctrine

PPL Montana, LLC v. Montana ( “PPL Montana”) 132 S. Ct. 1215 (2012) Upon statehood, State gains title to beds of navigable waters within its borders and may allocate them according to state law. U.S. retains title to lands not navigable at tim e of statehood Clarification of “Navigability in Fact” Test Test is navigability in fact at the time of statehood; portages and other interruptions defeat navigability “Navigation” = Com m ercial use of river

Roots of the Public Trust Doctrine

PPL Montana, LLC v. Montana ( “PPL Montana”) Public Trust Doctrine rem ains a m atter of state law and States retain residual pow er to determ ine scope of the public trust over w aters w ithin their borders Significance for Colorado PPL Montana is affirm ation of legal basis on which Colorado courts have long held that the Colorado Constitution provides no basis for a public trust in w ater and no public trust m ay be im posed on w aters and rights of the State

For m ore inform ation on this, and other points in this presentation, please see the forthcom ing article: Stephen H. Leonhardt & Jessica J. Spuhler, The Public Trust Doctrine: W hat I t I s, W here I t Cam e From , And W hy Colorado Does Not ( And Should Not) Have One, 1 6 U. DENV. W ATER L. REV. 4 8 ( 2 0 1 2 ) .

Colorado’s Rejection of the Public Trust Doctrine

People v. Em m ert 597 P.2d 1025 (Colo. 1979) Colorado Supreme Court held the unappropriated water in the State is for “use of the people” not by navigation (i.e. right to float) but by appropriation The only State protection is for appropriation, not protection from use or for preservation. There is no right to float in Colorado, only a right to appropriate

Colorado’s Rejection of the Public Trust Doctrine

Colorado and the “Right to Float” Proponents also argue for application of the Public Trust Doctrine to state’s stream beds on basis streambeds are owned by the state and held in the public trust, and therefore public should have access Colorado Suprem e Court has recognized drafters

• f State Constitution knew natural stream s

w ithin CO w ere non-navigable and therefore stream beds are not property of State but are rather ow ned by Riparian landow ners

California’s Public Trust Doctrine and W ater Rights

Marks v. W hitney 491 P.2d 374 (Cal. 1971) Upheld a claimed public trust easement over certain tidelands for which California had issued a patent. Court held any patent of tidelands was subject to an im plied public trust easem ent Such public trust easement is not limited in scope to the traditional uses of “navigation, commerce, and fisheries” – public trust is a public right changing to accom m odate w hatever use/ non-use a review ing court finds appropriate

California’s Public Trust Doctrine and W ater Rights

City of Berkeley v. Superior Court of Alam eda 606 P.2d 362 (Cal. 1980) State had conveyed fee simple title to lands under waters navigable at high tide; lands were filled and developed; State subsequently asserted public trust against private ow ners California Supreme Court held parcels not filled in (deemed “still physically adaptable for trust uses”) rem ained burdened by the public trust – meaning lands were never really conveyed free of the public trust and exercising trust could not constitute a “taking” because the governm ent cannot “take” w hat it has alw ays had

California’s Public Trust Doctrine and W ater Rights

National Audubon Society v. Superior Court ( Mono Lake Case) 658 P.2d 709 (Cal. 1983) City of Los Angeles obtained permit in 1940 for water rights to streams feeding Mono Lake; built two aqueducts and began diverting nearly 100,000 acf/ year California Supreme Court held City’s permit must be reconsidered in light of effects of diversions on “ecosystem ” of Mono Lake – because tributaries from w hich City diverted fed a lake that w as navigable for fishing purposes First application of Public Trust Doctrine to appropriative w ater rights

California’s Public Trust Doctrine and W ater Rights

California W ater Rights After Mono Lake Public Trust Doctrine m ay restrict new w ater rights or even m odify existing rights in non-navigable w aters that “affect” a navigable w aterw ay California citizens m ay sue to enforce the public trust in water for the protection of ecological resources California’s public trust doctrine does not extend to groundwater, absent some impact on the public use of navigable waters State W ater Resources Control Board has broad authority to supervise appropriators

California’s Public Trust Doctrine and W ater Rights

The “Hum an Right to W ater” 2 0 1 2 CA A.B. 6 8 5 Codifies a hum an right to “safe, clean, affordable, and accessible” w ater for “hum an consum ption, cooking, and sanitary purposes” in California Passed in response to United Nations Report and general public concern over polluted groundwater in many agricultural communities Creates duty for SW RCB and other state agencies to consider w hether new policies, regulations, and grant criteria prom ote the “hum an right to w ater” ( another layer on Public Trust Doctrine “balancing test”)

Other W estern State Trends

Haw aii

Haw aii Constitution Article 1 1 , Section 1 : For the benefit of present and future generations, the State. . . shall conserve and protect Haw aii's natural beauty and all natural resources, including land, w ater, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation. . . All public natural resources are held in trust by the State for the benefit of the people Extends the Public Trust Doctrine to both surface w ater and groundw ater State Health Departm ent m ust consider the trust w hen issuing perm its pursuant to the Clean W ater Act

Other W estern State Trends

Montana Public Trust Doctrine has strong connection to public access to State’s streams and rivers “Recreational Use Test” = Determ ines w hich w aters are subject to recreational uses State does not recognize public ow nership of the beds/ banks of non-navigable stream s, just the water itself, but incidental use of privately ow ned beds/ banks of w aterw ays is allow ed

Other W estern State Trends

I daho I daho Code Ann. Sections 5 8 -1 2 0 3 ( 1 ) , ( 2 ) ( b) -( c) The Public Trust Doctrine takes precedence over vested water rights but is “solely a lim itation on the pow er of the state to alienate or encum ber the title to the beds of navigable w aters” and does not applies to appropriation PPL Montana made clear Public Trust Doctrine is creature of state law, so I daho’s preference for protection and exercise of private w ater rights

• ver any later asserted public interest in those

w aters does not violate federal law

Other W estern State Trends

Arizona San Carlos Apache Tribe v. Superior Court ex rel.

• Cnty. of Maricopa, 9 7 2 P.2 d 1 7 9 ( Ariz. 1 9 9 9 )

Arizona’s Public Trust Doctrine is a “constitutional lim itation on legislative pow er to give away resources held by the state for the trust of its people.”

• Ariz. Rev. Stat. Ann. Sections 3 7 -1 1 0 1 ( 5 ) , ( 9 )

Lim its the public trust doctrine to navigable w ater as defined under the Equal Footing Doctrine and to the three traditional uses of com m erce, navigation, and fishing

Colorado’s Pre-2 0 1 2 Public Trust I nitiatives

1 9 9 5 Public Trust I nitiative 8 9 8 P.2 d 1 0 7 6 ( Colo. 1 9 9 5 ) Proposed the State must adopt strong public trust doctrine; require majority voter approval for changes to WCD boundaries or continued existence; require election of WCD directors; water rights may be decreed to be public and protected by CWCB Outcom e Title Board determined it was a single subject, “concerning the public’s interests in state waters.” Supreme Court reversed, deciding title violates the single subject requirement because text reveals two separate and distinct purposes Two objectives must be accomplished by separate initiatives The fact that all paragraphs involve “water” is too general to constitute a single subject

Colorado’s Pre-2 0 1 2 Public Trust I nitiatives

I nitiative 1 7 ( Ham ilton / Doe 2 0 0 7 ) 1 7 2 P.3 d 8 7 1 ( Colo. 2 0 0 7 ) Proposed the formation of the Colorado Department of Environmental Conservation (dept. responsible for protecting “public

• wnerships and values” in lands, water, public resources and

wildlife)

• Dept. must resolve conflicts with economic interest to favor “public
• wnerships and public values”

Outcom e Supreme Court reversed Title Board decision, finding that title violated single subject requirement because it (i) created the Colo.

• Dept. of Envt’l Conservation; and (ii) created a “public trust standard

for agency decision-making,” similar to the “public trust” standard proposed in Hamilton’s earlier initiatives

Colorado’s Pre-2 0 1 2 Public Trust I nitiatives

I nitiative 8 4 ( Daniel Hayes 2 0 0 8 ) Would require developers to prove that there is a sufficient water supply before getting approval for a new development The State Engineer would be required to provide determinations including whether irrigation water priorities are reasonably fulfilled, and to require such priorities be fulfilled before approving the development Outcom e After initially fixing the title, the Title Board reversed on rehearing, finding that the title violated the single subject requirement because it (i) requires developers to prove there is a sufficient water supply; and (ii) mandates that appropriations for agricultural purposes be given priority over non-agricultural appropriations, including those for domestic use, regardless of their seniority

Colorado’s 2 0 1 2 Public Trust I nitiatives

I nitiative 3

• Would. . .

Declare unappropriated water to be “property of the public” Add provisions to adopt a “Colorado Public Trust Doctrine” Give public’s estate in water “legal authority superior to rules and terms of contracts or property law” Overturn People v. Emmert to grant right to float without liability for trespass

Colorado’s 2 0 1 2 Public Trust I nitiatives

I nitiative 3 Colorado Supreme Court upheld title set by Title Board. . . Majority: Initiative’s provisions all related to the public’s right in the w aters of natural stream s via the proposed adoption of a Colorado Public Trust Doctrine as a new water rights, property rights, and stream access regime Dissent: I nitiative has 3 subjects: (i) subordination of all existing w ater rights to a newly-created dominant estate; (ii) vest in the public possessory rights to beds and banks of stream s

• wned by private landowners; and (iii) vest a recreational

easem ent in the public across all private property in the state that has water on it Outcom e Proponents failed to collect a sufficient number of signatures

Colorado’s 2 0 1 2 Public Trust I nitiatives

I nitiative 4 5

• Would. . .

Extend right to diversion from waters of “natural streams” to “any water within the state” Then, provide for limitation/ curtailment of diversions to “protect natural elements of the public’s dominant water estate” Require water diversion rights “shall require the appropriator to return water unimpaired to the public after use” to protect the environment and public’s use and enjoyment of waters

Colorado’s 2 0 1 2 Public Trust I nitiatives

I nitiative 4 5 Title Board issued split decision; Colorado Supreme Court upheld title

• set. . .

Majority: Subject “public control of waters” accurately described Initiative’s scope because I nitiative’s prim ary features w ould extend public control of Colorado w ater through a publicly controlled “dom inant w ater estate” Dissent: I nitiative has 3 subjects: (i) subordination of all existing w ater rights to a newly-created dominant environmental/ public use estate; (ii) allow non-tributary groundw ater to be appropriated by anyone w / o consent of

• verlying landowner; and (iii) im pose riparian w ater law by

requiring appropriator to return water to stream unimpaired Outcom e Proponents failed to collect a sufficient number of signatures

Colorado’s 2 0 1 2 Public Trust I nitiatives

I m plications of Proposed I nitiatives Radical extension of Public Trust Doctrine (beyond California’s doctrine) because Initiative 3 would sever doctrine from “navigability” requirem ent Dram atic increase in litigation over Colorado water rights because both initiatives would force reconsideration of previously-decreed rights Grant of near-unrestricted pow er to judiciary to re-determine vested property rights

Colorado’s 2 0 1 2 Public Trust I nitiatives

I m plications of Proposed I nitiatives Enable state-required transfers of private rights to public use, w ithout ow ner’s consent and w ithout com pensation to owner Subject state to enorm ous liability for takings claim s related to water rights andother private property Create enorm ous costs for property owners and state - to the tune of billions of dollars

Future Colorado Public Trust I nitiatives

I nitiatives’ proponents intend to m ove forw ard w ith future initiatives The Public Trust Doctrine is inconsistent w ith the Colorado Constitution and existing state law s Voters, policym akers, law yers, and property

• w ners should be aw are of the likely legal effects
• f such constitutional proposals