Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. Far from being a repudiation of the Ft. Collins case, SB 216 as amended in the legislative process became a codification of that decision. The Legislative Statement for SB 216 explains: SB 216 is designed to ensure that decrees for recreational in- channel diversions, as recognized by the Colorado Supreme Court in the City of Thornton v. City of Fort Collins case, are integrated into the state prior appropriations system in a manner which appropriately balances the need for water based recreational opportunities with the ability of Colorado citizens to divert and store water under our compact entitlements for more traditional consumptive use purposes, such as municipal, industrial and agricultural uses. SB 216 Legislative Statement (emphasis added). The Legislative Statement further provides: "Finally, nothing in S.B. 216 is intended to create a water right which did not previously exist by virtue of state Supreme Court interpretation of Colorado statute...." Clearly, and despite arguments that would come in later RICD litigation, SB 216 did not create new water rights. All of the case law on recreational in- channel diversions developed prior to SB 216 remains relevant even after the statute. In another irony of this water battle, legislative icon Lewis Entz would lose his bid for reelection in 2006, in large measure due to his opposition to recreation water rights. His district included areas of the State in which recreation, including water -based activities, are an increasingly important part of the economy. Those areas overwhelmingly voted against his reelection. IV. State Appeal of the Golden Decision to the Colorado Supreme Court. The State Engineer and the CWCB filed their appeal of the Golden case with the Colorado Supreme Court in 2001. The importance of this case is demonstrated by the number of parties filing amicus briefs: 46 in total, roughly evenly split between support for Golden and support for the State. A. Motion to Disqualify Justice Hobbs. In preparing for the Supreme Court, attorneys for Golden faced a difficult question: what to do about the participation of one of the members of the Court, Justice Gregory Hobbs. Until his appointment to the bench in 1996, Justice Hobbs served as general counsel to the Northern Colorado Water Conservancy District, and his former law firm continued as the District's legal counsel. He represented the Northern District in its opposition to the City of Fort Collins' filing for recreation water rights. In the Golden appeal, the Northern District filed an extensive "amicus" brief with the Supreme Court in support of the CWCB. The CWCB's opening brief in the Supreme Court, and a number of the amicus briefs filed in support of the CWCB's position, literally lifted portions of the brief Justice Hobbs wrote in opposition to the Fort Collins' application. Eric Wilkinson, general manager of the Northern District, also served as a member of the CWCB board and had produced a briefing paper for the board expressing considerable skepticism about recreation water rights . Despite these red flags, it was not easy for Golden to ask a well respected Supreme Court Justice to disqualify himself. There were intense discussions among Golden and all of the amicus parties supporting its position, as well as consultation with former justices regarding whether a motion to disqualify should be filed. Opinion was equally divided. Many expressed concern over the effect it might have on future 31 Eric W. Wilkinson, Recreational Instream Flows: Questions, Concerns, and Statutory Considerations, October 23, 2000. CLE INTERNATIONAL ■ PAGE K -12 ■ COLORADO WATER LAW