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 Stephen H. Leonhardt, Esq. Burns Figa & Will, P .C. 6400 S. Fiddlers Green Circle, Suite 1000 Greenwood Village, CO 80111
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 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, 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. D ENV . W ATER L. R EV . 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 of 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
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