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Ballot Issues

2023-2024 Proposed Ballot Initiatives

More than 300 proposed initiatives were filed for the 2023-24 period. Initiative 272 was of particular interest to the water community but was recently denied title setting on the grounds that the initiative contains multiple subjects and the Title Setting Board lacks jurisdiction to set title.  The CWSP Committee is also monitoring Initiatives 291-293, and Initiative 77.

Public Trust Doctrine

The Public Trust Doctrine is the concept that Colorado’s environment is the common property of all Coloradans. Governments are to act as trustees of air, water, natural, and scenic values for the benefit of all the people.

The Doctrine would:

  • Impose governmental control upon Colorado’s water rights system.

  • Subordinate all water rights to a new, undefined public use without just compensation.

  • Undermine municipal, recreational, environmental, and agricultural water supplies.

  • Require enormous costs to replace lost water rights.

  • Raise questions of state liability for taking vested property rights.

The Public Trust Doctrine holds no legal authority in Colorado, and is inconsistent with (i) the Colorado Constitution, (ii) existing state laws, and (iii) over 150 years of Colorado case law and water allocation. The Colorado Water Congress opposes public trust initiatives on the grounds they are unwise, unnecessary, expensive and disruptive to the fair and responsible allocation and stewardship of Colorado’s water resources.

Hill v. Warsewa

The Colorado Water Stewardship Project has been monitoring the Hill v. Warsewa (Case No. 18-cv-01710-KMT).  The case centers around Roger Hill, who filled a complaint on May 31, 2018 with the state district court in Fremont County.  The complaint included a declaratory judgment claim, seeking determination that a portion of the Arkansas River was property of the State of Colorado, "to be held in trust for the public."

On June 6, 2023 the Colorado Supreme Court issued a unanimous opinion on the case: Justice Hart's short opinion simply corrects the error and inconsistency in the Court of Appeals' decision in 2022. If Hill cannot quiet title to establish State ownership of the riverbed across Warsewa's property, neither can he obtain a declaratory judgment that is premised on State ownership. The Court concluded that Hill has no "legally protected interest" - no substantive right to be redressed by the procedural mechanism of a declaratory judgment. The opinion quotes the assertions in Hill's complaint that the State owns the riverbed in "trust for the public," and explains that "proof of the State's ownership of the riverbed is a necessary prerequisite to his claimed right to fish" in the river crossing Warsewa's property.

The opinion does not address the public trust doctrine, except in the opening paragraph noting the issues extensively discussed in briefing that are "ultimately irrelevant" to the one question the Court decided. However, Hill argued the public trust doctrine gave him a "legally protected interest" in showing State ownership, and the Court did not buy that argument for an end-run around his inability to quiet title for the State.

The end result of this decision is the complete dismissal of Hill's lawsuit. While it's possible Hill may try to file another suit on a narrower theory that doesn't depend on State ownership or a public trust, the decision should put an end to private claims of navigability as a means to litigate the public trust doctrine in Colorado. Only the State of Colorado can bring claims of ownership based on navigability at statehood; others cannot force such claims upon the State. - Steve Leonhardt, Burns, Figa & Will P.C.