BOARD00725

• Board Meeting Date: 1/18/1973
• Description: Agenda or Table of Contents, Minutes, Memos
• Board Meetings - Doc Type: Meeting

by me and many other people. Over the years. almost everyone has con-
sidered that it is impossible to provide for the establishment of
minimum stream flows wi'chout amending the constitution. That's the
basic document. I can well recognize the fear of changing the consti-
tution. It has been stated that this might promote a lot of litigation I
Let me state that the constitution has been changed at almost every
general election in the history of this state without dire conse-
quences. The state hasn't gone to pot because we have changed the
constitution a number of times. constitutional changes have not
provoked all the litigation that has been spoken of. Ninety-nine
percent of all litigation is provoked by statutory laws passed by the
legislature. not by constitutional amendments.

The adjudication act that was passed in 1969 will keep lawyers busy
for the next twenty years. That was a statutory act. not a consti-
tutional amendment. I consider it impossible to achieve the purposes
of minimum stream flows without a constitutional amendment. The
constitution states that the ri9ht to divert the unappropriated waters
of this state shall never be denied. The courts have held consistently
that 'divert" means what it says. So how do we break that unbroken
line of cases? Not by changing the statutory law because that was
not the basis for the decisions. The cases were decided under the
constitution. If we are going to bre~t that unbroken line of cases.
we must change the constitution. It is just that simple.

In the next session. the legislature can consider only those matters
that the Governor places on his call. He has to advise the legislature
in January as to the items which can be considered. To initiate a
law. to take it through the lower courts first and then through the
Supreme Court by next January is virtually impossible.

'.

In any event. we are all trying to solve the same problem. Is it
desirable to attempt to preserve some values of our natural streams
and lakes? If we are all in agreement on that. we may be'only arguing
about methods. I think the legislature is looking for some guidance
from this board. It is extremely important as to whether we go the
constitutional route or the statutory route. Something like this has
been discussed for several years. I have come to the conclusion that
it cannot be done except by constitutional amendment. I informed the
Governor of my conclusions and ouggcstcd that he :employ a private law
firm to make recommendations. He employed the firm of Holland and
Hart. Their conclusion was substantially the same as mine. This is
the reason the Governor then went that route. There are honest dis-
agreements as to the best route to go.

I

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