A Little Push-Back

by Greg Walcher on June 26, 2016

In May, Colorado Governor John Hickenlooper signed into law a bill designed to give the federal government something it has needed for a very long time, a shot across the bow. Federal attempts to own and control the water in western states have been a raspberry seed in our wisdom tooth for years, but when the Forest Service actually tried last year to confiscate ski areas’ water rights, they pushed too far. This time Colorado pushed back.

Mountain streamIt isn’t often that legislation on subjects as complex as water pass both Houses of the Legislature unanimously (actually never before). Until now. The Colorado Water Rights Protection Act, as is normal in complex legislative situations, was somewhat “watered down” in order to gain such unanimous bi-partisan support. Nevertheless, it sets a very important precedent in modern water law.

First, the measure re-asserts basic Colorado law, enshrined in the State’s Constitution. Namely, that waters of Colorado belong to the people of Colorado, that they are adjudicated by State water courts, appropriated under State law, and administered by the State engineer. That may seem unimportant because it isn’t new, but it has been many years since the Legislature has said, in essence, we still have no intention of changing our system just because the federal government now considers itself all powerful.

That is more than symbolic. The restatement of principles reminds federal agency landlords that they, too, serve the public and must operate under the law. Moreover, it signals the State Attorney General, and State agencies, that they are not only cleared, but encouraged, to take legal action when Colorado water rights are threatened by federal overreach.

The “watered down” part was a little disappointing to many of us who for years have fought these power plays from the Forest Service, BLM, and Park Service. Specifically, the legislation acknowledges that there is such a thing as federal “reserved water rights,” something Colorado and other western states have never really officially agreed to. It just means that when Congress “reserved” federal lands for specific purposes (like national forests or parks), it implicitly reserved the appurtenant water, as much as needed for the purposes of the forest or park. That may seem innocuous, but the Forest Service has tried to use reserved water rights as a tool to take water from long-standing uses, so our history makes us skeptical of the idea. Worse, the bill disclaims any effect on something the feds call “bypass flow” requirements. That refers to national forest rules requiring water rights owners (like ditch companies) to leave some portion of their water in the stream for environmental purposes, which were not part of the original court decrees. That is a taking of private property for public purposes, without the “just compensation” required by the Bill of Rights.

That’s all water under the bridge, battles westerners have fought with these federal agencies for 30 years. But when the Forest Service tried to extort actual ownership of the ski areas’ water rights, as a condition of allowing them to continue operating on the national forests, it was too much. The ski areas sued, the Forest Service lost, tried again, but backed down over the Christmas holiday last year (because the agency knew it would lose again). Now the State has officially said “no more of that.”

This new law makes clear that if any federal agency wants to own water rights in Colorado, it must apply and go through the same water court process as anyone else. It can certainly do so, but in line and with the priority system that applies to all water users. That can be a time-consuming and expensive process, so this is meant to be a financial incentive for the feds to work with us, not against us.

Some observers already say there are no teeth to this. After all, if the feds didn’t care what Colorado wanted last year, why would they care now? Why not just ignore State law, generally considered subordinate to federal law anyway? But in fact there are some teeth in the new law, symbolism aside.

Since the actual administration of water systems and enforcement of water court decrees is done by the State Engineer, this bill requires that office to refuse enforcement of improper federal water claims. So the feds can no longer rely on the State to help subjugate its own citizens. Perhaps more to the point, such federal overreach in the future might find serious obstacles – not just political opposition from ditch companies and water districts, but legal opposition from the State itself.


(A version of this column originally appeared in the Grand Junction Daily Sentinel May 6, 2016)

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Who Will Be Next?

by Greg Walcher on May 9, 2016

Twice I have written about the growing attempt to silence debate about climate change. Both times I’ve been bombarded with comments from readers with a different opinion, some of them in a very bad mood about it. One wonders if they appreciate the irony of their right to dissent – a right that some of them would apparently deny those who disagree with them.

Irony aside, this discussion is not about climate change, not really. In fact, many of us are less than certain about the science of climate change. Clearly the Earth’s climate does change, and it seems clear that mankind has some ability to impact that change. It is also true that there are historical swings in the climate ranging from ice ages to very hot periods. The Grand Valley was once under water, and tropical rain forests existed in some of today’s deserts. Does that mean we should ignore all evidence that man’s activities may be causing serious damage to Earth’s life system? On the contrary, it suggests that we ought to be even more careful, and study the evidence more thoroughly.

That isn’t good enough for some political activists. Al Gore and other global warming alarmists do not want people to study the issue; they find it intolerable for one simple reason. The policies they advocate do not enjoy widespread public support, even among voters who share the concern about climate change. It is simply not clear to many Americans with three central questions. Is the globe warming, is man causing it, and is it harmful?

thought_police_01The answer to the first question is yes, so the other two questions are the focus of the debate – a debate one side does not want to have. That’s why sixteen state attorneys general announced, at a March 29 press conference with Gore, that they planned criminal charges against “climate deniers,” starting with Exxon-Mobil. U.S. Attorney General Loretta Lynch, asked whether the Justice Department might also prosecute climate skeptics, confirmed that she had asked the FBI to investigate that possibility. My column explaining that many climate skeptics feel threatened, drew fire from letter-to-the-editor writers and blog commenters who called it an exaggeration. They claim such prosecution will only be directed at Exxon-Mobil.

Yet this month the first round of subpoenas in the first such prosecution was issued – not just to the oil company, but to at least one non-profit think tank whose scholars have studied the issue for years. That subpoena, issued to the Competitive Enterprise Institute (CEI), demanded copies of all documents related to its research on the issue going back 20 years – not just communications from Exxon, but also lists of its members and donors. Citizens who contribute to such groups might be forgiven for worrying that they may be next. And if they worry enough to stop donating altogether, well that may accomplish at least part of the goal, too.

Does a subpoena that broad seem like overkill to anyone else? Even the IRS can only demand records going back 7 years. It must be extraordinarily difficult to find, sort, and produce 20 years of records in an organization that has moved several times and changed leadership at least twice in the intervening years. Anything relevant to the Exxon investigation would be outdated anyway, since Exxon discontinued contributions to such non-profits over a decade ago. So what does an attorney general, pledged to using “use all the tools at our disposal,” hope to accomplish by targeting non-profits and their donors? Just one thing – to silence debate, stop research, and end discussion on what they call “the most consequential issue of our time.”

These attorneys general are being called rogues by some, heroes by others. On the climate issue itself, they may turn out to be right. But here’s why this is not really about climate change. There are lots of issues where reasonable people disagree, and the freedom to do so is America’s founding principle. That includes the freedom to publish articles, conduct studies, raise money, associate with like-minded people, and give money to the causes of your choice.

Whether government policy is based on science or not, do we really want to go further down the road toward federal-enforced thought conformity? Do we want big brother’s thought police dictating not only what we say, but what we think?

Many policy debates do involve disputes about science – endangered species, forest management, genetically modified foods, abortion, and many others. Does that mean no debate is permitted, that we must simply adopt whatever policies are recommended by scientists? Ban soda pop, abolish automobiles, eliminate video games, and cancel Duck Dynasty? Would we similarly prohibit involvement in health care issues by anyone who is not a doctor? Or allow only lawyers to express opinions on crime and justice issues, and only economists on budget and tax matters?

Or do Americans have spirited debates, and make policy by a vote of the people?

A version of this column original appeared in the Grand Junction Daily Sentinel April 29, 2016

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99 and 44/100ths Percent Pure Guesswork

May 9, 2016

University of Delaware climatologist Dr. David R. Legates recently wrote that he felt the same pressure as many colleagues who disagree with the supposed consensus that climate change is both manmade and dangerous. He mentions the usual professional criticism by environmental pressure groups, and also what he calls harassment from media, government, and his own […]

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When is a Decision a Decision?

May 9, 2016

You can’t sue somebody for doing something that did not actually hurt you. However outrageous someone’s behavior might be, unless it directly hurts you in some way, courts will say it is none of your business. That is one of the oldest principles of law, referred to by lawyers and judges as “standing.” You do […]

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A Fine Feathered Frenzy

May 9, 2016

A new book called Nature Unbound (Independent Institute) recounts the story of a landowner whose property was surrounded on all sides by federal (BLM) land. The 1.5 mile driveway leading to the property had been maintained by the family for generations, but had become overgrown with trees on both sides. He sought BLM permission to […]

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Need More Water, Not More Meetings

May 9, 2016

Several recent events have drawn national attention to something Westerners deal with all the time – water. We have always known that problems of both water supply and water quality can affect millions of lives and cost billions of dollars. Water is usually not the hottest topic in politics, but the record-breaking drought in California, […]

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Off With His Head!

March 28, 2016

When Thomas Jefferson was sworn in as the nation’s third President in 1801, much of the civilized world was shocked. The aristocracy of Europe, still mocking the quaint American concept that common people could govern themselves, never thought they would see it. It was said that never before in world history had a government left […]

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Oh the Buzzin’ of the Bees

March 28, 2016

Bees and honey have been important to my family for generations, though I’m not sure which is more important to us. My granddad was an apiarist (beekeeper), with hives in the high mountain clover of Garfield, Eagle and Routt Counties, and he made a living selling honey during the Depression and World War II. My […]

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I’d Like to (Be Paid to) Study That!

March 11, 2016

Someone once told me that if a golfer tries imagines the hole is larger, he will putt better. I’m not sure if that’s true, but the National Science Foundation gave researchers at Purdue University $350,000 to find out. The study was inconclusive, which means two things: we still can’t putt very well, and Purdue needs […]

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Advice Before Consent

March 11, 2016

Supreme Court Justice Antonin Scalia’s death sparks another political battle over the high court, whose balance of power hangs on one vote. Several vitally important rulings have recently been decided by a 5-4 majority, so battle lines are already drawn. President Obama sees a chance to turn the court into a liberal majority, and Republican […]

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