# It looks like we might just get to put it to a vote (finally)



## watermonkey (Aug 11, 2009)

Awesome documents - everone here on the buzz should read these in their entirety. Let the games begin. Slave, thanks for posting this.


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## slavetotheflyrod (Sep 2, 2009)

You're welcome, monkey. 

Might I suggest we all take the time to make as many people as we can aware of this. And it also wouldn't hurt to school up on the federal Public Trust Doctrine so as to give accurate and intelligent responses to the inevitable questions.


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## the_dude (May 31, 2006)

thanks for posting this. i'm gonna put this on a couple of fly fishing message boards as well as email the docs to several fishing/rafting friends.


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## Roy (Oct 30, 2003)

I'd love to see this on the ballot! Get the fisherfolk involved and it might even pass. Just to save folks some time wading through it, I thought I'd paste what I believe to be the germaine section (5) from a boater's access perspective...




> (5) (A) ACCESS BY THE PUBLIC ALONG, AND ON, THE WETTED NATURAL PARAMETER OF A STREAM BANK OF A WATER COURSE OF ANY NATURAL STREAM IN COLORADO IS A RIGHT OF THE PUBLIC TO THE USE OF ITS OWN WATER IN CONCERT WITH PROVISIONS OF THIS COLORADO PUBLIC TRUST DOCTRINE.
> (B) THE RIGHT OF THE PUBLIC TO THE USE OF THE WATER IN A NATURAL STREAM AND TO THE LANDS OF THE BANKS OF THE STREAMS WITHIN COLORADO SHALL EXTEND TO THE NATURALLYWETTED HIGH WATER MARK OF THE STREAM AND IS IMPRESSED WITH NAVIGATION SERVITUDE FOR COMMERCE AND PUBLIC USE AS RECOGNIZED IN THIS COLORADO PUBLIC TRUST DOCTRINE.
> (C) *THE WATER OF A NATURAL STREAM AND ITS STREAMBED, AND THE NATURALLY-WETTED LANDS OF THE SHORES OF THE STREAM, SHALL NOT BE SUBJECT TO THE LAW OF TRESPASS* AS THE WATER OF NATURAL STREAMS AND THE BANKS OF THEIR STREAM COURSES ARE PUBLIC HIGHWAYS FOR COMMERCE AND PUBLIC USE.
> (D) PUBLIC USE OF WATER, RECOGNIZED AS A RIGHT IN THIS COLORADO PUBLIC TRUST DOCTRINE, SHALL NOT BE CONTROLLED IN LAW AS A SUFRUCT BUT SHALL BE A RIGHT OF THE PUBLIC TO PROTECT AND ENJOY ITS OWN WATER


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## BmfnL (May 23, 2009)

That seems much more far-reaching than last year's bill. Speaks magnanimously of the public domain. They will try to make sure that it doesn't get on the ballot. If it does we will have them bent over a stump.

Let us commence to laying plans for summer '12. There should be events and floats and parties and campaigns on the internetz.


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## slavetotheflyrod (Sep 2, 2009)

Atta Boy Dude.

Get to discussing this with friends and family. There are bound to be more than a few folks that will someday vote on this that at this very minute have no idea what the words Public Trust Doctrine mean. Discuss it with them, let them know that you're for it as a boater, fisherman, etc and why. If they get good information from a person they know that is for the initiative, they'll be that much more likely to vote for the initiative. Lets face it - some folks don't pay any attention to initiatives and some just vote no all the way down the ballot. 

At any rate there hasn't been any official anouncement that It's made the ballot yet.


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## Ole Rivers (Jul 7, 2005)

*Background and Reality Check*

Awareness of the "Colorado Public Trust Doctrine" here on the Buzz was first raised in my 10/23/10 post #11 in http://www.mountainbuzz.com/forums/...ss-dispute-resolution-task-force-33332-2.html

On 9/22/10, my Stream Access Dispute Resolution Task Force Public Comment that included the CPTD link was passed out hard copy and emailed to all the Task Force members, including Patrick, Lesley, Bob Hamel, David Costlow, Bruce Felts, Tom Kleinschnitz, the private interest rancher folks, Mike King (CO Nat Resources Director and etc. Since then, I have also raised awareness about the CPTD initiative with state Senators, Reps, Cattlemen's, Farm Bureau, Nathan, CDOW, you name em they know about the initiative and maybe even actually read it. Couple days ago, I sent the link to Slave, etc., he posted here and on the Drake, here we are and now you know about it, too. Public, Private and Government interests... the word's out.

The initiative sponsors, Richard Hamilton and Phillip Doe, have been around the initiative block. Google them. The language of this initiative and the answers to the initiative review board's questions and comments is well written, reasoned and substantiated. Read them thoroughly in the link provided. 

Now is the time to begin tracking the progress of this dealio because it's going to take a bunch of time, bagsa dough and organization for even the slightest chance of success. Reality check: unless a bunch of us volunteer, it's going to take, ohhhhh, sayyy, $250,000 or so just to pay a company to pay people to get the necessary 85,853 valid signatures on the petition for the initiative to be placed on the November 2012 ballot. THEN, there's the ad, commercial, etc. money.

I've been bookmarking/favoriting all kinds of related links to the overall PTD and the other procedures for a couple years now and, as you guys bring things up, I'll do my best to short circuit the process with that info because, bottom line, I want to go fishing, boating, photographing, commercing, navigating, recreating, looking around at the natural streams and its wildlife's scenic beauty (such as April Volker-heh, heh), gather scientific info or whatever the hell and wherever the hell I already have a damn right to do so under the existing ancient, Common and Federally supported, confirmed and settled Public Trust Doctrine so that the public can use and enjoy Colorado's natural streams and touch its bed lands incidental to that use. 

This Colorado Public Trust Doctrine initiative clarifies and confirms these rights in a Colorado Constitution Amendment.

Let's all pitch in 110% and get this bad boy signed, sealed and deeeee livered. This is the whole enchilada, folks.


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## Rex Piscatore (Jan 26, 2010)

Wow! If this passes, great! As a lawyer, I'm concerned about the practical effect on future judicial decisions if this makes the ballot with the requisite number of signatures, and then the voters reject it. (The battle will be more savage than that over Two Forks, for those who recall it) Riparian owners wishing to block access will argue that the Public Trust Doctrine does NOT exist in Colorado because the voters rejected it, and access rights will likely become, by additional errant precedent (ie; Emmert) even more restricted. I'm all in favor of getting the Public Trust Doctrine expressly adopted in Colorado, but I think we all need to understand, and find motivation in, the potential risks of attempting adoption and failing, so that a very concerted, SUCCESSFUL effort is mounted.
Kudos to those who obviously have worked so hard getting this proposal to this stage. Clearly, hundreds, if not thousands of hours invested already. 
WHERE CAN WE CONTRIBUTE our time and $$$ to make sure this succeeds?


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## Ole Rivers (Jul 7, 2005)

*Y3S*

Y3S, risks are inherent in proceeding. However, likewise for not proceeding, eh? Over the course of discussions such as this, we'll collectively choose to move forward or wait for a better time to fight. The sponsors have, in fact, tried a couple years ago but the Single Subject rule stopped it. This 2012 ballot initiative #3 has been carefully written to avoid that same fate. If the present initiative fails in any of the stages, just correct the mistakes and try, try again.

As for time and money contributions moving forward, organization must be started. Non profit formation, substantive and procedural legal, web site design, fund raising, social networking such as Facebook, etc needs volunteers and networking to make this work.

Various groups need to be enlisted such as Colorado Whitewater, Ducks Unlimited and Trout Unlimited. This time around, broad group support, rather than only CWW/AW needs to join together for this effort to succeed. Colorado Wildlife Federation, CMC, The Access Fund (climbers), wildlife watching folks such as Audobon, etc. come to mind. There's also a new sportsmen's group that has just been incorporated called, I believe, the Colorado Sportsmen's Advocacy Caucus that can be key to this effort if they'll sign on. Contact them to get them in the game.

And/or you can contact me pm or email (see my profile) to organize, etc. As you can tell from my previous posts here and elsewhere, my commitment, focus and involvement to access to/from and use natural streams with incidental touching of their bed lands by right of way that has always been confirmed by ancient, common and federal law, Constitution and the time honored modern Public Trust Doctrine is determined, ongoing and perservering.

*Y*our
*3*
*S*treams

Richard


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## coloradogem (Aug 5, 2009)

*Natural Stream definition*

Ole Rivers- thank you for the background, footwork, and heart involved in protecting our waters/rights- big and small.
Slave- right on for keeping the fire burning and posting! Thank you.


Is *"natural stream"* defined anywhere in context to this Public Trust Doctrine???

My concern/fear: any waterways/streams downstream of anything that has to do with "manmade" and not "naturally existing" .... such as a manmade lake/reservoire that is a result of a manmade dam creating a 'manmade stream' (not a 'natural stream') or a stream that is 'altered' or altered enough to make some of our favorite boating waters not qualify for access/use under this Trust.
Furthering this concern of definitions....if said natural streams would've still existed but not flowed in its current manner/levels or at its current behavior because of the upstream manmade influences- this too would exempt said streams from the qualifing definition of "natural stream".

Anybody have any thoughts or clarifications? 
Sorry for the anal probing of words and definitions.


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## Rex Piscatore (Jan 26, 2010)

*A peek at the arguments to be made by the other side*

Here is the link for the following Editorial printed last June 10 in in the Colorado Springs Gazette in response to the Public Trust Doctrine initiative: 

Water rights theft initiative on tap for 2011 - The Broadside - Colorado Springs Gazette, CO

Here is the abbreviated editorial, edited to fit in the allotted space:

*Water rights theft initiative on tap for 2011*

*Initiative to enshrine the “Public Trust Doctrine” in the Colorado Constitution threatens water rights and private property*

By Seth Richardson
Little attention has been paid to a draconian attempt to utterly destroy the water economy of Colorado being proposed for the 2011-12 ballot.
Titled “Use of Colorado Water Streams,” the initiative is another in a series of attempts by activists Richard Hamilton of Fairplay, and Phil Doe of Littleton, to overturn Colorado’s historic system of water appropriation and ownership upon which our entire economy depends...
Well, Hamilton and Doe are back at it again, and this time they have targeted Colorado’s constitutional water law system and its fundamental premise that once water is diverted from a natural river or stream and put to beneficial use through our system of prior appropriation, the water becomes the private property of the appropriator. This system, which differs substantially from the systems of water law used in water-rich states, evolved by necessity due to the topographic and hydrological conditions of the state, and it’s arid nature. Long before Colorado became a state, it’s Territorial Supreme Court recognized that traditional “riparian doctrine” legal concepts used throughout history in water-rich nations and states was simply inapplicable and unworkable in Colorado.
Colorado’s Constitution, Article XVI, Section 5, says, “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 critical language here are the final six words of the constitutional provision, which quite intentionally and substantially limit the nature of the rights enjoyed by the public in Colorado’s waters, and is in fact an express repudiation of the common-law public trust doctrine. Both the courts and the legislature have interpreted this language to mean that appropriation and diversion of Colorado’s waters to beneficial use is the meaning, intent and purpose of the Constitution, not public recreational use or even wildlife conservation. This ability to appropriate and divert water, and to make of it private, not public property, is the basis of our agricultural heritage and economy, and it is also the legal basis upon which our cities and towns have appropriated water for industrial and residential use. Hamilton and Doe want to destroy that complex and long-established system of water rights.
The proposed initiative intends to turn the system of water law that Colorado has used on its head, and make all water use in Colorado subject to what amounts to a dissenter’s veto by allowing any citizen to file a lawsuit challenging any act of the legislature or state policy that does not comport with that citizen’s idea of what proper stewardship of the public waters for the benefit of the people is, and it mandates that conflicts involving the “public’s resources and resource conservation values shall be resolved in favor of public ownerships and public values.”
And the proponents state that the Public Trust Doctrine “judicially fashions a public right to deal with inadequate legislation for the protection of important public values, including, but not limited to, federal land reservations, national recreational areas, wildlife preserves, forests and parks… Therefore, it may be concluded that the extent and range of the Public Trust Doctrine extends to may public “uses” and values, including, but not limited to, the protection of the natural environment, recreational uses of the elements of the public reservation, and the preservation of the public natural resources for the enjoyment and benefit of wild places and of wildlife.” Note the resort to judicial activism over the legislative process inherent in this plan. Their whole nefarious plot is to bypass the legislative process and throw every “conservation” decision into the courts.
In other words, this invocation of the public trust doctrine elevates protection of the natural environment and other similar values above even the necessity to provide water to cities for industrial and residential use. In short, this proposal would make every existing water decree, every reservoir, every city water system, every home faucet, and every person in Colorado subject to the whims and caprices of any person who is more interested in protecting the natural environment than in making rational decisions in balancing the environment and the needs of human beings with the limited water resources Colorado has. The State would be instantly buried in lawsuits challenging every water right and diversion project in existence, which would cost taxpayers untold billions of dollars in legal fees. This initiative would cause an economic disaster of unparalleled proportions for the state, and must be stopped.
Oh, and just “coincidentally” it also allows Hamilton and Doe, and their other fly-fishing and kayaking buddies to elevate their personal recreational use of Colorado’s waters over the needs of the rest of the population. Hamilton is an aquatic biologist, a registered lobbyist, and an avid flyfisher.
And that is the real purpose of this proposed amendment to our state Constitution; to secure to fishermen and recreational boaters not only an unlimited right to fish and boat wherever they like, but the ability to bury any water project or diversion of water in mountains of lawsuits and thereby not just prevent future water diversions, but, as they point out in their comments on the proposal, destroy the rights that have been long established. Their public trust doctrine invocation, if enshrined in our Constitution, would quite simply overturn every established water right in Colorado and make it subject to challenge by anyone who wishes to claim that it’s more important to preserve fishing and boating than it is to grow crops or provide water to thirsty human beings.
You see, Hamilton and Doe, along with fishermen and boaters statewide, object to the way Colorado has been interpreting its Constitution because it denies them the right to wade, float-fish, kayak, canoe or raft on every single foot of every single river, stream, creek or intermittent dry wash in Colorado whenever it pleases them to do so...They continue to try to push through constitutional amendments and legislation to open up private property to public recreation, and are quite frustrated at the failure of H.B. 1188 in the last session, which was supposed to be a slam-dunk for the commercial recreational rafting industry giving them permission to float through private property whenever they liked. That issue was scuttled and sent to the Colorado Water Congress for consideration and for a report to be provided to the General Assembly sometime in October on possible resolutions between the interests of recreational boaters and private property owners.
But compromise is not in the lexicon of water recreationists, including boaters and fishermen like Hamilton and Doe, they want it all, and nothing less than utterly unfettered access to every stream and creek in Colorado will satisfy them, in utter disrespect not only of 134 years of state history and legal interpretation, but in derogation of the fundamental U.S. Constitution-protected property and privacy rights of private property owners through whose lands water flows. They, unlike the United States Supreme Court, make no distinction between “navigable” waterways like the Allegheny or Susquehanna rivers and Fountain creek. They believe every waterway in the nation is a “public highway” and ought to be open for public recreation, no matter how unsuited the stream actually is for such purposes. They are recreational extremists who care nothing for private property rights, but care only for their selfish pursuit of pleasure.
The danger here to our entire state’s economy is very real, and it’s not too soon to begin the efforts to oppose this initiative. One suggestion is that a counter-initiative be filed for the same ballot that expressly repudiates the common-law “public trust doctrine” as applied to Colorado’s waters and which explicitly recognizes our historic Prior Appropriations Doctrine, and the Colorado Supreme Court cases interpreting it, as the supreme law of the land. A suggested draft is below. Anyone who wants to take up the banner of common sense and private property is free to use it:
“Supremacy of the Colorado Doctrine of Prior Appropriation
The Colorado Constitution Doctrine of Prior Appropriation of the waters of the State, which is essential to the economy and life of our state, which Doctrine was understood and accepted by the United States Congress and the President as a condition of Statehood, and which has been recognized, legislated and adjudicated for more than 134 years, as adjudicated and affirmed by the Colorado Supreme Court in the cases _Hartman v. Tresize_, 84 P. 685 (1905); _Stockman v. Leddy_, 129 P. 220 (1912);_ In Re German Ditch & Reservoir Co._, 139 P. 2 (1913); and _People v. Emmert_, 597 P.2d 1025 (1979), is the supreme law of the land and all water doctrines, common law or otherwise that are in conflict are hereby repudiated and repealed.”
© 2010 Altnews


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## Rex Piscatore (Jan 26, 2010)

*A peek, part two...*

The editorial in the Colorado Springs Gazette I copied above seems just shy of hysterical, but shows what we are in for in trying to win popular support to get the Public Trust Doctrine constitutionally adopted in Colorado. The other side will align all water appropriators against us, including agricultural and municipal interests, (who are typically often in opposition to each other), and they will feel so threatened by this that they will be willing to spend tens of millions, literally, which they do have at their disposal if they want to spend it, to defeat it, if it makes it to the ballot.


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## slavetotheflyrod (Sep 2, 2009)

Get used to it Rex. In the time to come between now and the election you're going to hear more about this initiative and much of what you hear from the opposition will be varying degrees of hysteria, fiction, and sensationalism. 

From what I've been able to find about the guys running this thing, this ain't their first rodeo. I do hope that they have a good, solid game plan to handle the public relations and media.


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## Ole Rivers (Jul 7, 2005)

*Natural Streams/Simple, Consistent and Clear Language*



coloradogem said:


> Ole Rivers- thank you for the background, footwork, and heart involved in protecting our waters/rights- big and small.
> Slave- right on for keeping the fire burning and posting! Thank you.
> 
> 
> ...


The definition for *"natural streams*" in the *Colorado Revised Statutes* is:

37-87-102. Definitions - *natural streams* and use thereof by reservoir owners.

(1) As used in this article, unless the context otherwise requires:

(b) *"Natural stream"* means a place on the surface of the earth where water naturally flows regularly or intermittently with a perceptible current between observable banks, although the location of such banks may vary under different conditions.


Article XVI, section 5 of the *Colorado state Constitution* states:

Section 5. Water of streams public property.

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.

Source: Entire article added, effective August 1, 1876, see L. 1877, p. 72.


In the 2012 #3 Initiative To Adapt The Colorado Public Trust Doctrine:
Section 5 of article XVI the constitution of the state of Colorado is amended to read:

SECTION 5.	WATER OF STREAMS PUBLIC PROPERTY - PUBLIC TRUST DOCTRINE. (1)	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. 
(2)	THIS COLORADO PUBLIC TRUST DOCTRINE IS ADOPTED, AND IMPLEMENTED, BY THE PEOPLE OF THE STATE OF COLORADO TO PROTECT THE PUBLIC‟S INTERESTS IN THE WATER OF *NATURAL STREAMS* AND TO INSTRUCT THE STATE OF COLORADO TO DEFEND THE PUBLIC‟S WATER OWNERSHIP RIGHTS OF USE AND PUBLIC ENJOYMENT.


Essentially, the Colorado Revised Statutes, Colorado state Constitution and 2012 Colorado Public Trust Doctrine ballot initiative #3 uses *simple, consistent and clear language* with each other, just our *simple, consistent and clear language* should be used with and when discussing or advocating for the initiative or, say, a relative legislative bill or a court case.

Take a look at "THE MONTELLO, 87 U. S. 430 (1874)" at THE MONTELLO, 87 U. S. 430 :: Volume 87 :: 1874 :: US Supreme Court Cases from Justia & Oyez 

Does this ruling answer your question/concern?

You might also check out "THE DANIEL BALL, 77 U. S. 557 (1870)" at THE DANIEL BALL, 77 U. S. 557 :: Volume 77 :: 1870 :: Full Text :: US Supreme Court Cases from Justia & Oyez where it states "ordinary condition" as for navigability. When determining navigable waters, which is central to the Public Trust Doctrine's right to use and enjoy natural streams, "ordinary condition" has to do with a natural stream's natural state at the time of statehood which, in the case of Colorado, is 1876. To best confirm (not "prove", "confirm") navigability, the most weighted way to do so is by "historical use" (next weighted is "modern use", then, say, "hydrology", etc.) of the natural streams at the time of statehood for commerce.

Remember always:
*"Navigable in fact is navigable in law."*

In part, The Daniel Ball states:

1. The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters.
2. The test by which to determine the navigability of our rivers is found in their navigable capacity. *Those rivers are public navigable rivers in law which are navigable in fact.*
3. Rivers are navigable in fact when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water.


The simple, consistent and clear language of the 2012 #3 Colorado Public Trust Doctrine initiative with the Constitution and Statutes is why we need to get the necessary 85,000+ petition signatures signed and this initiative passed.


*Y*our
*3*
*S*treams


Time to learn, focus and step up, folks. Will you?


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## outbackjack (Feb 10, 2010)

Curious to see how this plays out, who will raise the money and will AW or CW get involved???


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## Marco (Oct 16, 2003)

CW / AW have read the text of the proposed initiative (and Q&A) and are considering the appropriate action to take.


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## TakemetotheRiver (Oct 4, 2007)

How can we be a part of the process to acquire the necessary signatures?


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## mvhyde (Feb 3, 2004)

Give me a place to sign, I will sign


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## scagrotto (Apr 3, 2007)

Rex Piscatore said:


> Wow! If this passes, great! As a lawyer, I'm concerned about the practical effect on future judicial decisions if ... the voters reject it. Riparian owners wishing to block access will argue that the Public Trust Doctrine does NOT exist in Colorado because the voters rejected it


I don't doubt that you're right about the arguments that riparian owners will use, but I think it should be fairly clear that those arguments are false regardless of what happens with the initiative. I think it's well established (if not well understood) that the pubic trust doctrine already exists, so this is unnecessary in terms of creating a public trust. There's not much that can be done about gullible or stupid jurors, but I would hope that judges would examine the actual law, rather than (some) voters' perceptions of what they think the law should be.

The problem I do see, is that the phrasing suggests that the public trust is being created by the initiative, rather than being clearly codified by the initiative. The language should be changed to make it clear that this is simply codifying existing law that already grants these rights to the public, and that there is no new law and certainly no taking of any private property rights.


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## rivermanryan (Oct 30, 2003)

Granted, I haven't had time to read everything, but based on the editorial listed above, can't something be drafted that would not threaten Colorado's Prior Appropriation Doctrine? 

I believe that the doctrine favors our right to float, as all water in Colorado belongs to the people of Colorado until diverted for a beneficial use (even then, the water still belongs to the people, the private party just has a right to use the publics water - that's what a water right is).

As the water belongs to the citizens of Colorado, the citizens of Colorado should have a right to use the water (float, fish) in a non-comsumptive way. Water in Colorado is never owned privately, there are just private rights to use the water, which is the real property (the right, not the water).

I don't think we would win a fight over preventing water users from taking their water at their diversion points, but we should have a right to float and fish the water as it gets to those diversion points.

Tell me where there is a flaw in my logic. I would be against anything that would alter the Colorado Prior Appropriation Doctrine (as would most in the state), but I don't think that would be necessary to firm up our right to float the state's waters.


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## rivermanryan (Oct 30, 2003)

BTW, This thread really needs a new subject to locate more easily in the future. my 2C


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## Ole Rivers (Jul 7, 2005)

*The Initiative's Language*

*INITIATIVE TO ADOPT THE COLORADO PUBLIC TRUST DOCTRINE*

Be it Enacted by the People of the State of Colorado: 

Section 5 of article XVI the constitution of the state of Colorado is amended to read:

*SECTION 5.	WATER OF STREAMS PUBLIC PROPERTY - PUBLIC TRUST DOCTRINE.* (1)	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. 
(2)	THIS COLORADO PUBLIC TRUST DOCTRINE IS ADOPTED, AND IMPLEMENTED, BY THE PEOPLE OF THE STATE OF COLORADO TO PROTECT THE PUBLIC‟S INTERESTS IN THE WATER OF NATURAL STREAMS AND TO INSTRUCT THE STATE OF COLORADO TO DEFEND THE PUBLIC‟S WATER OWNERSHIP RIGHTS OF USE AND PUBLIC ENJOYMENT. 
(3)	THIS COLORADO PUBLIC TRUST DOCTRINE PROVIDES THAT THE PUBLIC‟S ESTATE IN WATER IN COLORADO HAS A LEGAL AUTHORITY SUPERIOR TO RULES AND TERMS OF CONTRACTS OR PROPERTY LAW.

THE INITIATIVE TO ADOPT THE COLORADO PUBLIC TRUST DOCTRINE. SPONSOR‟S ANSWERS TO THE C. R. S. 1-40 “REVIEW AND COMMENT” MEMORANDUM OF APRIL 12, 2010 AS PRESENTED TO THE INITIATIVE SPONSORS BY THE STAFF OF THE COLORADO LEGISLATIVE COUNSEL AND THE OFFICE OF COLORADO LEGISLATIVE LEGAL SERVICES. APRIL, 2010.

(4) (A)	THE PUBLIC CONFERS THE RIGHT TO THE USE OF ITS WATER, AND THE DIVERSION OF THE WATER UNDER SECTION 6 OF THIS ARTICLE, TO AN APPROPRIATOR FOR A BENEFICIAL USE AS A GRANT FROM THE PEOPLE OF COLORADO TO THE APPROPRIATOR FOR THE COMMON GOOD. 
(B)	THE USE OF THE PUBLIC‟S WATER BY THE MANNER OF APPROPRIATION, AS GRANTED IN THIS ARTICLE, IS A USUFRUCT PROPERTY RIGHT ASSOCIATED WITH THE USE OF WATER. USUFRUCT RIGHTS FOR THE USE OF WATER SURVIVE UNDER THE LEGAL CONDITION THAT THE APPROPRIATOR IS AWARE THAT A USUFRUCT RIGHT IS SERVIENT TO THE PUBLIC‟S DOMINANT WATER ESTATE AND IS SUBJECT TO TERMS AND CONDITIONS OF THIS COLORADO PUBLIC TRUST DOCTRINE.
(C)	USUFRUCT WATER RIGHTS SHALL NOT CONFER OWNERSHIP TO WATER OTHER THAN USUFRUCT RIGHTS TO THE APPROPRIATOR. 
(D)	USUFRUCT WATER RIGHTS, CONFERRED BY THE PUBLIC TO AN APPROPRIATOR FOR USE, MAY BE MANAGED BY THE STATE GOVERNMENT, ACTING AS A STEWARD OF THE PUBLIC‟S WATER, SO AS TO PROTECT THE NATURAL ENVIRONMENT AND TO PROTECT THE PUBLIC‟S ENJOYMENT AND USE OF WATER. 
(E)	A USUFRUCT WATER USER IS IMPRESSED UNDER THE CONDITION THAT NO USE OF WATER HAS DOMINANCE OR PRIORITY OVER NATURAL STREAM OR PUBLIC HEALTH WELL-BEING. 
(F)	WATER RIGHTS, HELD BY THE STATE OF COLORADO FOR GOVERNMENT OPERATIONS, SHALL BE HELD IN TRUST FOR THE PUBLIC BY THE STATE OF COLORADO WITH THE STATE ACTING AS THE STEWARD OF THE PUBLIC‟S WATER ESTATE. WATER RIGHTS HELD BY THE STATE OF COLORADO SHALL NOT BE TRANSFERRED BY THE STATE OF COLORADO FROM THE PUBLIC ESTATE TO PROPRIETARY INTEREST. 
(5) (A)	ACCESS BY THE PUBLIC ALONG, AND ON, THE WETTED NATURAL PERIMETER OF A STREAM BANK OF A WATER COURSE OF ANY NATURAL STREAM IN COLORADO IS A RIGHT OF THE PUBLIC TO THE USE OF ITS OWN WATER IN CONCERT WITH PROVISIONS OF THIS COLORADO PUBLIC TRUST DOCTRINE. 
(B)	THE RIGHT OF THE PUBLIC TO THE USE OF THE WATER IN A NATURAL STREAM AND TO THE LANDS OF THE BANKS OF THE STREAMS WITHIN COLORADO SHALL EXTEND TO THE NATURALLY- WETTED HIGH WATER MARK OF THE STREAM AND IS IMPRESSED WITH NAVIGATION SERVITUDE FOR COMMERCE AND PUBLIC USE AS RECOGNIZED IN THIS COLORADO PUBLIC TRUST DOCTRINE.
(C)	THE WATER OF A NATURAL STREAM AND ITS STREAMBED, AND THE NATURALLY-WETTED LANDS OF THE SHORES OF THE STREAM, SHALL NOT BE SUBJECT TO THE LAW OF TRESPASS AS THE WATER OF NATURAL STREAMS AND THE BANKS OF THEIR STREAM COURSES ARE PUBLIC HIGHWAYS FOR COMMERCE AND PUBLIC USE.
(D)	PUBLIC USE OF WATER, RECOGNIZED AS A RIGHT IN THIS COLORADO PUBLIC TRUST DOCTRINE, SHALL NOT BE CONTROLLED IN LAW AS A USUFRUCT BUT SHALL BE A RIGHT OF THE PUBLIC TO PROTECT AND ENJOY ITS OWN WATER. 
(6)	ENFORCEMENT AND IMPLEMENTATION OF PROVISIONS CONTAINED WITHIN THIS COLORADO PUBLIC TRUST DOCTRINE TO PROTECT THE PUBLIC‟S RIGHTS AND INTERESTS IN WATER IS

2
THE INITIATIVE TO ADOPT THE COLORADO PUBLIC TRUST DOCTRINE. SPONSOR‟S ANSWERS TO THE C. R. S. 1-40 “REVIEW AND COMMENT” MEMORANDUM OF APRIL 12, 2010 AS PRESENTED TO THE INITIATIVE SPONSORS BY THE STAFF OF THE COLORADO LEGISLATIVE COUNSEL AND THE OFFICE OF COLORADO LEGISLATIVE LEGAL SERVICES. APRIL, 2010.

MANDATED TO THE EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHES OF COLORADO STATE GOVERNMENT TO ACT AS STEWARDS TO PROTECT THE PUBLIC‟S INTERESTS IN ITS WATER ESTATE. ANY CITIZEN OF THE STATE OF COLORADO SHALL HAVE STANDING IN JUDICIAL ACTIONS SEEKING TO ENFORCE THE PROVISIONS OF THIS SECTION.
(7)	PROVISIONS OF THIS SECTION ARE SELF-ENACTING AND SELF-EXECUTING.

*Y*our
*3*
*S*treams


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## Ole Rivers (Jul 7, 2005)

*Is your language always CONSISTENT with the initiative?*



rivermanryan said:


> Granted, I haven't had time to read everything, but based on the editorial listed above, can't something be drafted that would not threaten Colorado's Prior Appropriation Doctrine?
> 
> I believe that the doctrine favors our right to float, as all water in Colorado belongs to the people of Colorado until diverted for a beneficial use (even then, the water still belongs to the people, the private party just has a right to use the publics water - that's what a water right is).
> 
> ...


Rivermanryan and all,

For this initiative to be clearly understood and succeed... 
*When you communicate with others, should your language always stay CONSISTENT with the language of the Initiative (and the Colorado state Constitution and the Colorado Revised Statutes)?*

Please re-read the Colorado Public Trust Doctrine initiative language, posted above.

How many times are each of the following words found in the initiative?

"Use"?

"Usufruct"? (This has just got to be my favorite word! )

"Float"?

"Fish"?

"Boat"?

"Kayak"?

"Access"?


"Public"?

"Citizen"?


*Y*our
*3*
*S*treams


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## Ole Rivers (Jul 7, 2005)

*"Usufruct"... my favorite word*



rivermanryan said:


> Granted, I haven't had time to read everything, but based on the editorial listed above, can't something be drafted that would not threaten Colorado's Prior Appropriation Doctrine?
> 
> I believe that the doctrine favors our right to float, as all water in Colorado belongs to the people of Colorado until diverted for a beneficial use (even then, the water still belongs to the people, the private party just has a right to use the publics water - that's what a water right is).
> 
> ...


Prior Appropriation rights are different than, yet mutually inclusive with, Public Trust rights.

Understand the word "usufruct" in relation to "ownership" and "appropriation" for consistent context within the initiative language (and the language of the answers given by the sponsors in the review board's questions and comment section).

Under the Colorado state Constitutional "Article XVI, SECTION 5.	WATER OF STREAMS PUBLIC PROPERTY - PUBLIC TRUST DOCTRINE. (1)	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." 

Especially, note "..., not heretofore appropriated." That is key language. Why? Research it in the controlling state SC rulings' language. Too long to put in here. However, very relevant to your question and to the initiative, Rivermanryan and all.

This includes in-stream or diversionary and consumptive or non-consumptive uses. The water appropriator, not being the water owner, can only divert and appropriate the water for its usufruct, or use, rights and then shall return the unused portion back to the natural streams for other water use. Therefore, no water is being *taken* from the appropriator.

btw, As for the "takings of private property" argument made by the usufruct rights holders, go to any legal case databases, such as plol.org , and research any of the "takings" findings. You will find, as I have, that "takings of private property without just compensation" cases either are defeated or, at best, are neutrally deferred down the road.

Further, for you legal types who get your kicks researching this stuff, look at the "reverse takings", as I call it, 2010 PPL Montana v state of Montana finding at

https://www.lexisone.com/lx1/casela...=hZeG.Zija.ZCaT.gabI&searchFlag=y&l1loc=FCLOW

where, upon appeal, the Montana state Supreme Court ruled that the usufruct *PRIVATE* interest PPL Montana hydroelectric company was *USING PUBLIC bed land PROPERTY without paying "just compensation"* back rent to the tune of $40,000,000. 

Private, pay the public, thenkyouverrymush. Love, Montana State Supreme Court 

"Takings from the private interest without paying just compensation" under the Colorado state and US Constitution Amendments will be the private interest's primary argument against this initiative. We all must clearly understand the private interest objection's weaknesses to defeat it and for the initiative to succeed.

*Y*our
*3*
*S*treams


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## scagrotto (Apr 3, 2007)

rivermanryan said:


> Granted, I haven't had time to read everything, but based on the editorial listed above


I hope your post doesn't suggest you're using the editorial as a legitimate source of information. I'm not positive it's the same person who wrote the editorial, but ever since the issues on the Taylor surfaced somebody using the name "Broadside" has devoted considerable time and effort posting to a wide variety of publications. I think he has a decent grasp of the actual law, but doesn't feel at all constrained by that reality when posting his opinions. At any rate, I think the editorial is long on fear mongering and hyperbole, and short on facts.




rivermanryan said:


> I don't think we would win a fight over preventing water users from taking their water at their diversion points, but we should have a right to float and fish the water as it gets to those diversion points.
> 
> Tell me where there is a flaw in my logic. I would be against anything that would alter the Colorado Prior Appropriation Doctrine (as would most in the state), but I don't think that would be necessary to firm up our right to float the state's waters.


I don't see any flaws. I think some of the wording should be changed, but as I said in my previous post, as I understand things this isn't changing the rights granted under the law. All it does is take the existing common law and case law and codify it in the constitution. The public has always had certain rights that existed before the time of statehood, and that includes a right to use streams as common highways, and to have the state, as a public steward, hold those rivers for the benefit of the public.



Ole Rivers;213640
For this initiative to be clearly understood and succeed...
[B said:


> When you communicate with others, should your language always stay CONSISTENT with the language of the Initiative?[/B]
> 
> How many times are each of the following words found in the initiative?
> 
> "Usufruct"?


I think we need to be consistent with the *intent* of the initiative, but I'd suggest staying away from language like "usufruct" and "servitude" as much as possible. The general public doesn't need a lot of legalese, so stick to the basics. The initiative does not create any new law or change existing law. What it does is clarify existing law about the public's right to use streams as common highways. That right is no different than rights on a public road or sidewalk passing next to, or through, private property. Because the public has always had these rights, nothing is being taken away from anybody, and the public's right to use the water doesn't prevent individuals from exercising their own rights to the water. It's those who oppose the initiative that are trying to take something from the rightful owners. They're trying to take the public's right to use waters that are owned by the public.


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## rivermanryan (Oct 30, 2003)

Thanks for the updated information and comments.

I am an engineer who knows just the basics of Colorado Water Law. I would like to see something in the spirit of this be successful, but I think it is the job of the boating community to be the devil's advocate to make sure it is written in a way that would pass and can easily be defended by critics attacks. I do believe if there is any preception that it would change the basics of prior appropriation doctrine or Colorado law, then it would do more harm than good. I do some an issue with 4e, as I think this does threaten the prior appropriation doctrine.

I probably assumed too much fact in the editorial posted, but it would be important to easily defend those type of attacks and assumptions.


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## glenn (May 13, 2009)

rivermanryan said:


> I do some an issue with 4e, as I think this does threaten the prior appropriation doctrine.


How so? I don't see how it interferes with with either water rights, scheduled releases commercial boating or the existing right to float.


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## TakemetotheRiver (Oct 4, 2007)

> The initiative does not create any new law or change existing law. What it does is clarify existing law about the public's right to use streams as common highways. That right is no different than rights on a public road or sidewalk passing next to, or through, private property. Because the public has always had these rights, nothing is being taken away from anybody, and the public's right to use the water doesn't prevent individuals from exercising their own rights to the water. It's those who oppose the initiative that are trying to take something from the rightful owners. They're trying to take the public's right to use waters that are owned by the public.


Well said.

As far as making the general public aware of the language and intent of the initiative, it would be very valuable to have someone in every town or at least every boating town in Colorado able and ready to write letters to their local paper stating the above. We see articles in various papers across the state because we have a vested interest and search them out. These letters to the editor need to be readily accessible to non-boaters, especially property owners who will only see the multi-million dollar ads taken out by the opposition depicting all of us like, well... Grif.


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## rivermanryan (Oct 30, 2003)

glenn said:


> How so? I don't see how it interferes with with either water rights, scheduled releases commercial boating or the existing right to float.


(E) A USUFRUCT WATER USER IS IMPRESSED UNDER THE CONDITION THAT NO USE OF WATER HAS DOMINANCE OR PRIORITY OVER NATURAL STREAM OR PUBLIC HEALTH WELL-BEING.

It seems to say that no water right has priority over natural stream flows. I take this to mean that in-stream flow water rights would automatically be senior to other water rights on the river, or even to the extreme that diversions could be limited to a certain amount that is deemed to not effect natural stream flows.

I am all for in-stream flow water rights that are given to the CWCB, but those rights are only good when in priority. I think many would be opposed to this if ISF water rights are automatically given #1 priority. This line may need more clarification.

Again, I am not at all opposed to the spirit of what is being proposed, I just want to make sure it is written in a way that it won't be defeated. As if it is on a ballot and defeated, we would be taking a few steps backwards with regard to our right to float.


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## glenn (May 13, 2009)

rivermanryan said:


> (E) A USUFRUCT WATER USER IS IMPRESSED UNDER THE CONDITION THAT NO USE OF WATER HAS DOMINANCE OR PRIORITY OVER NATURAL STREAM OR PUBLIC HEALTH WELL-BEING.
> 
> It seems to say that no water right has priority over natural stream flows. I take this to mean that in-stream flow water rights would automatically be senior to other water rights on the river, or even to the extreme that diversions could be limited to a certain amount that is deemed to not effect natural stream flows.
> 
> ...


I would think the public health and well being clause would cover existing water rights. Diversions provide drinking water and irrigation water for the health and well being of the public.


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## Rex Piscatore (Jan 26, 2010)

*More and more, I wonder if pursuing this is a good idea...*

Since I first became aware of this last week, I've been reading more about the substantive law concerning both the Public Trust Doctrine and the Colorado initiative process, and the more I read, the more I wonder whether pursuing this is a good idea. I'm concerned people are getting carried away with the positive benefits if the initiative is successful, and not really giving serious thought to the downside risk if that effort fails. 

Let me explain. First, Let me be crystal clear that I would love to see the Public Trust Doctrine adopted in Colorado through the initiative process. However, I perceive a huge downside risk if that effort is undertaken and fails. both the colorado supreme Court and the State legislature have basically taken the position that the Public Trust Doctrine does not exist or apply in Colorado. If that were not true, the initiative would not be necessary. They have taken that position despite a wealth of Federal precedent that seems to clearly say that Federal law pre-empts state law in this area, that Federal law has already adopted the Public Trust Doctrine and that it applies to all the states. For a nearly exhaustive discussion of the Federal law and its interplay with Colorado precedents, see: National Rivers: Colorado River Law, on river conservation, river access, paddling, canoeing, kayaking, rafting, fly-fishing, and Colorado river ownership. (Which is an article that seems to come largely from the National organization for Rivers ("NORS") website, found at: River History: Your river rights, for river navigability, river access, river conservation, canoeing, kayaking, rafting, paddling, whitewater, and fly-fishing. .


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## Ole Rivers (Jul 7, 2005)

Rex Piscatore said:


> Since I first became aware of this last week, I've been reading more about the substantive law concerning both the Public Trust Doctrine and the Colorado initiative process, and the more I read, the more I wonder whether pursuing this is a good idea. I'm concerned people are getting carried away with the positive benefits if the initiative is successful, and not really giving serious thought to the downside risk if that effort fails.
> 
> Let me explain. First, Let me be crystal clear that I would love to see the Public Trust Doctrine adopted in Colorado through the initiative process. However, I perceive a huge downside risk if that effort is undertaken and fails. both the colorado supreme Court and the State legislature have basically taken the position that the Public Trust Doctrine does not exist or apply in Colorado. If that were not true, the initiative would not be necessary. They have taken that position despite a wealth of Federal precedent that seems to clearly say that Federal law pre-empts state law in this area, that Federal law has already adopted the Public Trust Doctrine and that it applies to all the states. For a nearly exhaustive discussion of the Federal law and its interplay with Colorado precedents, see: National Rivers: Colorado River Law, on river conservation, river access, paddling, canoeing, kayaking, rafting, fly-fishing, and Colorado river ownership. (Which is an article that seems to come largely from the National organization for Rivers ("NORS") website, found at: River History: Your river rights, for river navigability, river access, river conservation, canoeing, kayaking, rafting, paddling, whitewater, and fly-fishing. .


A failed initiative doesn't set legal precedent so where's the downside risk?

As for the controlling laws, rulings, opinions underlying the PTD issue, read and re-read Emmert and its dissenting opinions, the legislative process history and timing behind the "beds and banks" inclusion into the "premises" definition of the 1979 (or so) trespass statute and how it relates to Emmert (which was ruled on at the same time period- 1979) and the AG opinion, which is only an opinion.

Read ALL of Eric Leaper's National Rivers web pages. In his 4 page paper, "Public Rights on Rivers in Colorado", that he handed out at one of the ill fated 2010 HB 1188 committee hearings and Stream Access Dispute Resolution Task Force meetings we both attended and commented, he writes about ballot initiatives:

*"Certain groups may be planning to gather signatures to place proposals on a future state ballot, for voter approval. If the proposals end up reconfirming public rights that already exist, that would be one way to remove remaining doubts among the public."*

Note: *"reconfirming"*, rather than "re-proving", is the key word.

This ballot initiative #3 clarifies, reconfirms and codifies, by Constitutional amendment, the Public Trust Doctrine for Colorado that the public has existing rights of navigation, commerce, fisheries, recreation, environmental, scenic beauty, etc., to use and enjoy public water and the incidental touching of the underlying bed lands for those uses. Colorado state government is, and has been, obligated under settled ancient, Common and Federal law and rulings to steward and manage that water and its use for all beneficial uses and purposes by and for the public interest.

A successful initiative educationally clarifies, reconfirms and codifies what we, in Colorado, as in all of the states under the Equal Footings Doctrine, the Doctrine of Supremacy and the ancient Laws of Nature, have enjoyed since ancient times.

Worrying about the effects of a negative outcome is unnecessary. If the initiative gets the signatures, makes it to the ballot and fails... ok, handle the objections, fix it and bring it back again... and again... and again til it succeeds.

To better clarify and understand the Public Trust Doctrine, watch the 30 minute video, "Champions of the Public Trust" at Champions of the Public Trust, Water Use in Wisconsin Video

*Y*our
*3* 
*S*treams


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## Rex Piscatore (Jan 26, 2010)

*More and more, I wonder if pursuing this is a good idea...V.2*

OleRiver, you sound like a nice guy...and I have great respect for where your heart is. Mine is there, too. 

However, if the effort to pass the initiative fails, it will almost certainly be seen by the legislature, law enforcement, and the courts in Colorado as confirmation of their existing belief, long held, that Colorado has repudiated the Public Trust Doctrine and as the result, we are likely to lose the limited access we now enjoy when floating on rivers flowing through private land. 

You can attempt to dismiss my concerns by telling me that if that happens (ie, concerted state legislative, judicial and law enforcement abrogation of our existing limited rights of access) we can keep trying the initiative process or just litigate in Federal court to finally obtain a binding Federal judicial declaration of our Public Trust Doctrine access rights.

However, my response to that will be that the initiative process in Colorado is already viewed by most observers as DOA, after the state legislature passed a measure exposing initiative proponents to punitive liability in HB 09-1326. See, “Citizen Initiative Rights are Dead in Colorado” at http://www.citizensincharge.org/blog/trevorf/opinion-citizen-initiative-rights-are-dead-in-colorado . I think it’s great that Mssrs. Hamilton and Doe are willing to expose themselves to that enormous potential personal liability associated with the initiative process after the adoption of HB 09-1326, but if they fail this time, and are driven into bankruptcy from defending themselves in litigation after the election, who will volunteer to sponsor that next initiative? 

If you think Federal litigation is the better way to go, then I believe you have a naive confidence in the speed and outcome of that kind of constitutional litigation. For example, regardless of how you feel about gun control, the fact remains it took the single purpose, well-funded NRA more than a hundred years to get a US Supreme Court decision deciding whether a Second Amendment right exists for individuals to keep and bear arms. That issue had been hotly debated for generations, with tens of millions in both litigation and lobbying expenses spent on both sides of that debate, but the Supreme Court always managed to side-step the issue until 2008 in the D.C. v. Heller case. There is no reason to believe the Supreme Court would act any quicker, if ever, in accepting and deciding a case concerning the applicability of the Federal Public Trust Doctrine in Colorado. And who is going to foot the bill for our side of that litigation? You? I know I don’t have the time or money, and as much as I care about the issue, I am not a single purpose being.

On the other hand, the threat, if this passes, that we can then float or wade through private property, and stop and fish anywhere up to the high-water mark, will galvanize all the ranching, farming, resort and private fishing and hunting clubs into a unified, well-funded opposition that will be hell-bent on grinding us into the ground and winning the litigation war of attrition. You think the people that have spent a lifetime, and hundreds of thousands of dollars, making stream improvements to the North Fork of the South Platte between Bailey and Grant are just going to ignore this initiative and hope it won’t pass? I’ll be willing to bet that they, and every other riparian land owner, will spend everything they are worth fighting this because they’ll feel they are defending their livelihoods and property. This will be an incredibly intense and vicious fight. I believe this initiative is a very high stakes gamble, and one that we should not take lightly. It is simply wrong to think that if this initiative is pursued, and we lose, that things will just stay the same, with no harm done. Things won’t stay the same, and I think it most likely we will lose the limited access we now have, waiting possibly generations, and most likely the rest of my life, for a positive Supreme Court decision.

I am not saying don’t pursue it. I’m saying don’t pick this fight unless the resources have been marshaled and are in place BEFORE the fight is picked, to make sure it is won! From the responses in this thread, it doesn’t look like that is at all the case. It seems the goal is merely to get it on the ballot, and to hope for the best. If that is the case, please don’t jeopardize my present enjoyment of river access, limited as it is, with such a cavalier approach.


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## Rex Piscatore (Jan 26, 2010)

*I'll Try again...*

OleRiver, you sound like a nice guy...and I have great respect for where your heart is. Mine is there, too.


However, if the effort to pass the initiative fails, it will almost certainly be seen by the legislature, law enforcement, and the courts in Colorado as confirmation of their existing belief, long held, that Colorado has repudiated the Public Trust Doctrine and as the result, we are likely to lose the limited access we now enjoy when floating on rivers flowing through private land. 

You can attempt to dismiss my concerns by telling me that if that happens (ie, concerted state legislative, judicial and law enforcement abrogation of our existing limited rights of access) we can keep trying the initiative process or just litigate in Federal court to finally obtain a binding Federal judicial declaration of our Public Trust Doctrine access rights.

However, my response to that will be that the initiative process in Colorado is already viewed by most observers as DOA, after the state legislature passed a measure exposing initiative proponents to punitive liability in HB 09-1326. See, “Citizen Initiative Rights are Dead in Colorado” at http://www.citizensincharge.org/blog/trevorf/opinion-citizen-initiative-rights-are-dead-in-colorado .I think it’s great that Mssrs. Hamilton and Doe are willing to expose themselves to that enormous potential personal liability associated with the initiative process after the adoption of HB 09-1326, but if they fail this time, and are driven into bankruptcy from defending themselves in litigation after the election, who will volunteer to sponsor that next initiative? 

If you think Federal litigation is the better way to go, then I believe you have a naive confidence in the speed and outcome of that kind of constitutional litigation. For example, regardless of how you feel about gun control, the fact remains it took the single purpose, well-funded NRA more than a hundred years to get a US Supreme Court decision deciding whether a Second Amendment right exists for individuals to keep and bear arms. That issue had been hotly debated for generations, with tens of millions in both litigation and lobbying expenses spent on both sides of that debate, but the Supreme Court always managed to side-step the issue until 2008 in the D.C. v. Heller case. There is no reason to believe the Supreme Court would act any quicker, if ever, in accepting and deciding a case concerning the applicability of the Federal Public Trust Doctrine in Colorado. And who is going to foot the bill for our side of that litigation? You? I know I don’t have the time or money, and as much as I care about the issue, I am not a single purpose being.

On the other hand, the threat, if this passes, that we can then float or wade through private property, and stop and fish anywhere up to the high-water mark, will galvanize all the ranching, farming, resort and private fishing and hunting clubs into a unified, well-funded opposition that will be hell-bent on grinding us into the ground and winning the litigation war of attrition. You think the people that have spent a lifetime, and hundreds of thousands of dollars, making stream improvements to the North Fork of the South Platte between Bailey and Grant are just going to ignore this initiative and hope it won’t pass? I’ll be willing to bet that they, and every other riparian land owner, will spend everything they are worth fighting this because they’ll feel they are defending their livelihoods and property. This will be an incredibly intense and vicious fight. I believe this initiative is a very high stakes gamble, and one that we should not take lightly. It is simply wrong to think that if this initiative is pursued, and we lose, that things will just stay the same, with no harm done. Things won’t stay the same, and I think it most likely we will lose the limited access we now have, waiting possibly generations, and most likely the rest of my life, for a positive Supreme Court decision.

I am not saying don’t pursue it. I’m saying don’t pick this fight unless the resources have been marshaled and are in place BEFORE the fight is picked, to make sure it is won! From the responses in this thread, it doesn’t look like that is at all the case. It seems the goal is merely to get it on the ballot, and to hope for the best. If that is the case, please don’t jeopardize my present enjoyment of river access, limited as it is, with such a cavalier approach.


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## Ole Rivers (Jul 7, 2005)

Rex Piscatore and all, 

In my research and direct discussions over the last couple of years with private, public and government people and interests, I have encountered the same issues you raise. No procedure, whether it is judicial, legislative, initiative, etc., is free of challenges or repercussions. if you re-read my earlier posts, you will note my cautionary words about how much money, for instance, needs to be raised simply to get the petitions signed. I have also been directly involved over in Utah and know that it took 8 years of litigation to get the Conatser ruling from the Utah state Supreme Court and the battles joined during the 2009 and 2010 legislative efforts, both in Utah and here in Colorado. I am intimately aware of the pitfalls, hazards and consequences of actions such as these. None of this is a walk in the park and any action will take more than a few boaters or fishermen or forum participants to have even a small chance to succeed. What I also know, however, is that if the status quo is maintained, the consequences of those inactions may be more detrimental, time, effort and dollar-wise to our shared interests than the actions we are contemplating here in this thread.

Whether to progress this initiative, a court litigation or legislative bill will be the choice of any individual affected, then collectively, to support and advocate for these highways, or roadways, or waterways of action or maintain the status quo in hopes of achieving their desired goals and outcomes. Of course, I can only advocate from my point of view, others will make their own choice for a course of action (or inaction). It is good, Rex Piscatore and others, that you are presenting another clear, well intentioned and rational pov, which is not necessarily for or against what I write, as I am doing also. Knowledge is power. People should, of course, read all points made in discussions such as this and act accordingly.


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