Colorado Public Radio August 28, 2003

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sometimes see their eyes glaze over. And you probably do too in your exposure to the public. Why -- how do you tell the public that this in- stream flow issue is big enough and it's important to the average citizen? Justice Hobbs: Well I want to tell you right now, everyone who's listening, and we try to document it in the "Water Guide," what a radical break Colorado water law was in the first place because in the eastern United States and in England, the only people that could use the water resource were those who owned land along the bank of the stream. When Colorado became a territory in 1861, it's obvious that people had to take water out of the stream and take it across the land of another to their place where they could use it. Well our law has constantly recognized that since 1861. Now the idea that you can keep it there and prevent people from taking water out of the stream was another radical innovation upon a radical innovation. The great historian, Prescott Webb, in his book, "The Great Plains," said settlers up against the and lands are innovators. And I think we continue to be innovators in Colorado and in the West. We have an old doctrine; we keep shaping it like the river shapes itself. Dan Drayer: We reported the Supreme Court ruling on the use of water for kayak parks and you abstained from voting on the decision. And because of that, the vote was a tie among the justices. Why didn't you vote? Justice Hobbs: I didn't vote because one of the attorneys, in fact it was the attorney for Golden who was bringing one of the pioneering cases to establish that not only could the Water Conservation Board get in- stream flow for fish and protection of environment to a reasonable degree, a city could get an in- stream flow right for kayaking and boating. That was a pioneering case. I would have loved to participate. But 11 years ago, when I represented the Northern Colorado Water Conservancy District, I pointed out in a brief in a similar claim by the City of Fort Collins that there was no statute allowing this. And a key difference between this case that I was arguing 11 years ago and the state in- I- stream flow law is the legislature passed a statute. So I disqualified myself. We have a judicial cannon of ethics: if it looks like you have a conflict of interest, you should step down. And the Northern District was in this Golden kayaking case. So a classical no- brainer for me, I recused myself, as it's called. I did not participate and the three justices split 3 -3 in the absence of a statute as Colorado Public Radio - Colorado Matters Show Host Dan Drayer August 28, 2003 Excerpt of Interview with Colorado Supreme Court Justice Gregory Hobbs Palle 2