Green Politics

vs. Greenbacks

By Bob Ewegen

he time has come, the Sage Grouse said, to talk of many things – the environment, well-paying jobs, and the politics of greens.

At first glance, the Sage Grouse may seem a strange choice as the political boss of Colorado and other Western states.  But to hear bloviating right-wing pundits and their political minions, the chicken-sized bird is intent upon fowl play at the expense of the energy industry and the good-paying jobs it provides.

The Sage Grouse ranges from Montana to Arizona and California to Colorado.  It often shares its habitat with livestock, oil and gas drilling and even such new energy economy icons as wind-power turbines.  To the dismay of the oil and gas industry, the Sage Grouse has been proposed for listing as an endangered or threatened species – a status that would impose restrictions on energy companies who want to drill on its turf.

A federal judge in 2007 ordered that the government consider listing the sage grouse under the Endangered Species Act.  The howls of the energy industry lobby have twice postponed that decision, which is now scheduled for February 2010.

At first glance, this issue looks like an easy call for environmentalists, who tend to put the profits of the energy industry well after the welfare of wildlife on their lists of priorities.  But as usual, the issue isn’t quite that simple.

Some enviros want to stop drilling entirely in places like Colorado’s Roan Plateau, a treasure trove of relatively clean energy estimated to contain 8.9 trillion cubic feet of natural gas on its federally owned portions.  Other Coloradans supported a compromise plan for development of the Roan crafted by Harris Sherman, Gov. Bill Ritter’s natural resources chief.  The outgoing Bush administration rejected Sherman’s thoughtfully balanced proposals in favor of a more development-oriented plan drafted under the aegis of former Colorado Republican Governor Bill Owens.  Environmentalists rushed to file suit to halt that plan.

Then, Barack Obama was elected president and appointed former Colorado Sen. Ken Salazar Secretary of the Interior Department, which oversees the Roan and much else of America’s public lands.   Salazar was a supporter of Sherman’s plan.

Salazar, in turn, appointed Democrat Tom Strickland as Assistant Secretary of the Interior.  One of Strickland’s senior advisors is Michael Bean, a former attorney for the Environmental Defense Fund – where he spent a lot of time trying to protect the Sage Grouse.

Adding to the Greening of Interior, Salazar named noted environmentalist Will Shafroth, a  founding director of the Colorado Conservation Trust and Great Outdoors Colorado Trust Fund, as Deputy Assistant Secretary for Fish, Wildlife and Parks.

So, it’s game, set and match, right?  The Sage Grouse and other wildlife will be protected from the grasping hands of the natural gas lobby?

Uhh, not necessarily.  A couple of huge events have affected the political balance in the West since Sherman proposed his compromise for the Roan.

The first is the devastating economic downturn that Obama inherited from Bush – the worst since Herbert Hoover handed off a ravaged nation to Franklin D. Roosevelt in 1933.  That recession chilled the gold-rush mentality in Colorado’s energy industry and caused many rigs to shut down.  Falling prices and difficulty in financing had far more to do with that retrenchment than the modest regulations imposed on drillers by the Ritter Administration.  But Republican gubernatorial wannabes were quick to blame Colorado’s economic woes on Ritter and other advocates of balancing resource development with environmental concerns.

That’s obvious political bombast, to put it politely. But there are legitimate policy reasons to support responsible development of natural gas.  Most obviously, there is the growing consensus that the world’s climate is changing and that human activity plays a significant role in that change.   From the standpoint of greenhouse gases, coal is the clearly identified villain, with the much-touted “clean coal” so far proving about as much of an oxymoron as “safe sex.”

But natural gas only puts out half as much carbon dioxide per BTU of energy as its bituminous rival.  That’s because natural gas has an extra hydrogen molecule and thus when oxidized produces one molecule of H₂O – water  – for each molecule of CO₂.

Natural gas comes out even better when teamed with those heros of the climate change debate, solar power and wind power.  Solar can only be generated by day, wind comes mostly by night.  Both therefore need to be supplemented by reliable “baseline” electrical power.  There are ways to store solar energy for use at night or during cloudy periods, such as using mirrors to heat hot salts that can be used to generate steam at other times.  Wind energy, in turn, can be used to force water up the reversible turbines in such “yo-yo” hydroelectric facilities as Xcel Energy’s Cabin Creek Pumped Storage Project.   That water can flow back down again some hot afternoon to power your air conditioner.

Alas, we’re still a long way from having enough solar and wind energy capacity to replace fossil fuels entirely, even if we could store this clean energy for 24/7 use. For now, natural gas is the best choice to fill the gap left by wind and solar.  Besides its relatively cleaner burn, natural gas generators can come on line much faster than coal-fired or nuclear plants, so they can kick in extra kilowatts if the wind suddenly dies down.  And natural gas is readily adaptable to power automobiles, halving the CO₂ emissions of gasoline-powered vehicles.

Ritter, who has staked his re-election chances on his “New Energy Economy” initiatives, is keenly aware of the need for balance between environmental protection and responsible energy development.  Despite the hectoring of his Republican challengers over Ritter’s regulatory policy, Forbes magazine just rated Colorado as having the fourth best overall business climate of the 50 states.  Whatever the feds decide on the Sage Grouse’s status, there is room in our new energy economy for both wild life and responsible energy development.

These are trying times for the metropolitan Denver Rapid Transit District’s FasTracks rail transit project. The single most important environmental issue in Colorado faces mounting costs, shaky revenues and a fracturing political base. But it remains critical for Colorado’s future.
FasTracks was originally billed as a $4.7 billion project that would build a combined 119 miles of new rail transportation in six projects blending light rail, diesel commuter rail and electric commuter rail lines. Additionally, plans included two bus rapid transit projects from Denver to Boulder and to northern Adams County. Park-n-ride facilities and expansion of existing light rail stations were also envisioned.
Voters overwhelmingly approved FasTracks in 2004. I was a strong supporter and was nominated for a Pulitzer Prize in editorial writing for 138 editorials or columns I had written in The Denver Post in support of a balanced transportation system as a lynchpin of the metro area’s future. Have the current setbacks changed my mind?
Not a bit. When we look back from the start of the 22nd Century, I’m confident that Coloradans will see FasTracks as a decision every bit as wise as the decision by city fathers in 1870 to build a railroad spur to Cheyenne after the transcontinental route bypassed Denver for the gentler slopes of Wyoming. If we hadn’t made that investment in a 106-mile spur line, Denver today would probably be a modest regional center like Casper or Sterling. Cheyenne would be the economic engine driving the Rocky Mountain region.
Transportation decisions are the single most important elements in the growth equation because they determine where growth will occur and the nature of that growth. As Robert Caro noted in his epic work “The Power Broker,” such decisions, once made, are essentially irreversible. If multi-lane expressways are hurled willy-nilly into the prairies, those lands will soon become besprawled with low-density subdivisions. Even if rights-of-way are made within those freeways for rail lines later, the density will seldom support such energy-efficient transit.
That’s why FasTracks was so critical. FasTracks has been carefully planned by RTD and cooperating local governments to foster transit-oriented developments such as the “urban village” that now graces the former Cinderella City shopping center at Englewood station. Such gracious and energy-efficient life-styles simply aren’t compatible with the old “one-car, one-vote” way of thinking in Colorado.
But even necessary projects can have teething problems. FasTracks first ran into cost escalation as the economic boom in China and elsewhere sent costs of steel, copper, concrete and other construction materials soaring. That has been partially remedied by the current economic slump, which is bringing some of those prices down again. But a more enduring source of cost escalation was right-of-way and property acquisitions, which helped boost FasTracks to its current $7 billion estimate. Meanwhile, the economic slump was lowering projections for the revenue that would be collected by the 0.4 percent sales tax increase – from 0.6 percent to a full penny on every dollar – that voters approved to launch the project.
Higher costs and lower revenues are now forcing RTD planners to take a serious look at priorities. Barring a radical change in those numbers, there is no feasible way to build all six projects by their original completion dates in 2016.
Some RTD board members and FasTracks boosters have urged keeping all six projects on schedule by doubling down – asking voters for yet another tax increase in 2010 to finance the projects. If nothing else, you have to give those transit enthusiasts credit for giving us all a good laugh. Double a transit tax adopted just six years ago by assuring voters, Lucy Van Pelt style, “This time, we won’t move the football, Charlie Brown. This time, cash without accountability will work miracles!”
And, of course, voters will happily double the FasTracks tax in the teeth of the worst recession since the 1930s. Of course they will.
Hah, hah, hee, hee, har-de-har-har.
Well, that was fun. But now let’s go back to the real world and talk about what RTD will have to do after the 2010 election crushes the tax increase. Could it be that it’s time to set priorities?
In terms of the good they’ll do and the people they’ll carry, all rail lines are not created equal. FasTracks’ premier line is the one linking downtown Denver to Lakewood and the Jefferson County Space Flight Center – er, the county offices commonly known as the Taj Mahal – in Golden. RTD is already digging dirt on this line, which has strong federal support.
Next up is the line from Union Station to Denver International Airport. The Denver Regional Council of Governments has given it strong support and it’s likely to attract federal funding.
Third in priority and likely to make the final cut is the “Gold Line” to Arvada, in part because the strong private sector and local government support.
After those three, the numbers drop precipitously. Finishing just out of the money is the rail line along I-225 that would link the Denver Tech Center, already served by the Southeast light rail line build as part of T-Rex, with the revitalized former Fitzsimmons complex, a modern medical center and job creator that will be served by the line to DIA.
Prospects are even more doleful for the proposed rail lines to north Adams County and Denver-Boulder-Longmont. Boulder-Longmont is rightly the tail-end Charlie of the FasTracks plan because its costs are so high and projected ridership so low that it’s expected to cost taxpayers about $60 per person per trip.
Equally important, Adams County and Boulder-Longmont can be better served by bus rapid transit, at a fraction of the cost of rail and with greater frequency of service.
It’s unfortunate that some rapid transit advocates settle on rail as their preferred choice with an almost religious fervor. And at times, like along the congested I-25 South corridor, rail is clearly the best choice. But the key to rapid transit isn’t that it’s rail – it’s that it’s rapid.
Trains are rapid because they can bypass the car-strangled manner of our freeways on their own rights-of-way. But buses on dedicated Bus Rapid Transit lanes can be equally fast and much more flexible. Buses are equipped with a highly advanced technology called a “driver.”
And drivers can turn off the dedicated lanes and onto feeder streets where needed.
Basically, nobody takes a train from home or work or back. People drive their cars or, sometimes, take a bus to a park-n-Ride. Then they catch the train and get off at the train station nearest their destination. Then they usually have to catch a shuttle bus to get to their office.
Buses, in contrast, can circulate through a neighborhood or office park to pick up riders, whisk them in comfort down dedicated Bus Rapid Transit lanes, then drop them off near their offices or homes. One ride instead of three makes bus rapid transit usually much more rapid than train lines that require catching shuttles like those serving the Denver Tech Center or Boulder.
So if better bus service has to span the gap between the first trio of FasTracks projects and the later ones that will be built as the economy revives, so be it. The important thing is that the Denver area not lose its faith in a balanced transportation system, with trains, buses, vans and car pools helping end the Car Strangled Manner that has been our state anthem for so long.

David A. Fahrenthold of the Washington Post explains in his article Tastier Names Trouble for Seafood Stocks that numerous varieties of fish are currently on the threatened species list because someone decided to give them a less disgusting name. It would seem that the seafood environment has reached this level of degradation in part due to positive PR campaigns. (Is there nothing we can’t blame on marketing?!)

Here in Colorado we are well acquainted with the idea of wrapping an attractive name around something mentally repugnant and serving it to tourists as an exotic dish. After all, we play host to the Rocky Mountain Oyster, or the Prairie Oyster, a dish that is made out of bull testicles and has absolutely nothing to do with Oysters. Seriously though, can you blame the Cattlemen’s Associations for the that one? Who in their right mind would order Rocky Mountain Testicles?

The Slimehead has joined the ranks of depleted species because it underwent some PR reviews and came out with the appetizing name of Orange Roughy. Scientists named the prehistoric looking fossil fish for it’s distinctive mucus canals.

Mmmm… mucus canals over long grain rice in a tomato cream sauce. Yummy.

The fish was basically left alone and considered a by-catch of other commercial fishing enterprises until the name change occurred. Then the Slimehead became a popular food source and has been quickly over-fished. It’s currently dangerously depleted.

Other victims of good PR schemes are the Monkfish (previously known as the goosefish), the Uni (a sea urchin previously called a Whore’s Egg) and the Chilean Sea Bass (really the Patagoinian toothfish and not actually a member of the bass family.)

The biggest problem with these PR makeovers is their effect on the fish populations. Many of these previously untouched creatures have low reproduction and incredibly long lives making it very difficult for them to recover from over harvesting. Over-fishing is a serious threat to both the Oceanic environment and fisheries. If there are no more fish to pull from the ocean then there are no more fisheries. (This means no more money for you fisheries! Watch what you’re doing here!) While over-fishing is harmful for the more delicate species mentioned in the article, it is also harmful to fish who normally would be able to handle the threat due to their prolific reproduction.  The Cod is an excellent example. Cod should be capable of sustaining heavy fishing but their ocean floor habitat is being destroyed by the bottom trawlers sent to harvest them.

In the meantime the renaming of previously revolting fish is wrecking havoc on these previously ignored species, adding them to the already gigantic list of species that may get the government’s attention some decades down the road.

So I propose a new approach to environmental activism. Instead of battling for months and years to have the government list a species as endangered, and then battling for months and years to force them to designate critical habitat, and then battling months and years to force them to comply with their listings, let’s start an anti-PR campaign.

Let’s rename the depleted fish something really, really gross so they won’t get harvested and eaten.

Seriously, how many of you are going to woo someone over dinner with wine and a filet of Slimehead?

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By Bob Ewegen

With the Obama administration firmly installed in Washington, it’s time for the environmental movement to ask the question first raised in the 1957 20th Century Fox comedy starring Jayne Mansfield and Tony Randall: Will success spoil Rock Hunter?

Obama has after all, installed Ken Salazar as head of the Department of Interior.  Besides being a former U.S. Senator from Colorado and former state Attorney General, Salazar headed the Colorado Department of Natural Resources under former Gov. Roy Romer.  In that role he helped craft the Great Outdoors Colorado Amendment, which created a land conservation program and helped draft better rules to protect the environment from mining and oil and gas operations.

Salazar in turn quickly named former two-time  Democratic U.S. Senate candidate and former U.S. Attorney Tom Strickland as his assistant secretary for Fish, Wildlife and Parks.  Next, Salazar tapped Will Shafroth as Interior’s deputy assistant secretary for Fish, Wildlife and Parks.  That’s the same Will Shafroth who was a founder and executive director of the nonprofit Colorado Conservation Trust from 2000 to 2008. No one doubts his commitment to environmental causes.

So, we in the environmental movement can just kick back, turn our legal swords into plowshares, and relax with a cold Corona, secure in the knowledge that our nation’s land, air and waters are in good hands, right?

Well, not quite.  As an eastern Colorado farm boy, I don’t trust that plowshare thing.  Plowing up the fragile native grasslands produced the dustbowls discussed in an earlier article in this Journal, “Darkness at Noon: the Pinon Canyon struggle.”  As to beer, I’ll stick to Pabst Blue Ribbon, brewed by union craftsmen in the labor movement that has done so much to uphold true American values.  And at The Law Office of Misty Ewegen, we greeted the advent of my old friend Ken Salazar to the post of Suzerain of the West with a hearty cry of, “Congratulations!  We’ll see you in court.”

Sure, Ken has keen insights into environmental issues.  But as the landlord for much of the West, he serves many masters.  Equally important, changing policy in the federal government is like turning the rudder hard a’port on a supertanker.  The leviathan has so much momentum it will plow ahead for miles before responding to the new course.

That’s why our office, in cooperation with Peter Thompson of Thompson & Reilley, P.C.,  of Houston, Texas, filed suit against Salazar recently in U.S. District Court in Houston to force the Fish and Wildlife Service over which he presides to prepare a recovery plan for the Southwest Jaguarundi. Any notion that merely changing the guard in Washington will automatically change environmental policy in America can be dispelled by reviewing the history of this endangered cat.  Fish and Wildlife listed it as an endangered species in 1976, a fact I confirmed by hunting through old microfiche copies of the Federal Register at the Denver Public Library, an official regional despository for official federal documents.  The listing occurred long before they put the Register on computer so we had to find it the hard way, with the help of the tireless librarians.

The original 1976 listing came on the watch of Republican President Gerald R. Ford.  So surely, the environmentally sensitive administration of Jimmy Carter rushed to complete the recovery plan when they took over Interior’s helm in 1977?   Well, no.  Fish and Wildlife slumbered on into the Reagan years, 1981-89 and George H.W. Bush’s term.  Then Bill Clinton and Al Gore took over in 1993 – and still there was no recovery plan for the Jaguarundi.  The torpor continued under George W. Bush.

Finally, our clients WildEarth Guardians had enough and brought suit.   Misty is the lawyer end of this team, but as the guy who researched a lot of case law on this subject, I can testify that the federal courts in Texas take their responsibilities very seriously in these cases. So here’s a word to the Jaguarundi: Hang in there, little Fuzzball.  Relief is on the way.

Does the record of the Jaguarundi case and many others like it mean the Obama team will make no difference at all in how this nation meets its responsibilities under the Endangered Species Act and other legislation?  We can hope that isn’t the case.

The problem isn’t just bureaucratic inertia, it’s also the tendency of Congress to put megabuck bailouts of slipshod financial institutions and funding of overpriced aircraft ahead of the nation’s land, water and wildlife.   And frankly, the pressure from groups like WildEarth Guardians may be helpful to Obama on that front.

Master politician Franklin D. Roosevelt once listened to an impassioned plea from a group wanting federal action and answered: “Well, you’ve convinced me.  Now, what you’ve got to do is to go out and put some pressure on me.”

As FDR knew, smart politicians can use political pressure to help create the conditions that make reform the pragmatic, and seemingly inevitable, response to a political problem.  Likewise, court settlements in cases like the Jaguarundi signal Congress to fund the Interior Department’s budget to meet the responsibilities already imposed on the agency by the law.

So what’s the answer to the question: “Will success spoil Rock Hunter?”

It all depends on who you’re defining as Rock Hunter.  Certainly the environmental movement isn’t resting on its laurels but will continue putting the pressure on the president we helped elect that will help him do the job that in his heart he surely wants to do.   And this little law office will do its part, no matter how many old microfiche we have to pore over.

Suppose you were a judge.  Not just any judge but a member of the highest court in your state, specifically the Supreme Court of West Virginia.  You owe this august position not so much to your innate legal ability as to the fact that a wealthy coal magnate spent $3 million in the last election to smear your opponent with negative advertising.

Now, suppose your benefactor just happens to have some business before the tribunal where you now answer to the title of  “Your Honor” – a  little matter of a $50 million award for punitive damages.  Your colleagues are split 2-2.  If you recuse yourself, the trial court’s award will be upheld on a tie vote.  What to do, what to do?

“No problema,” said newly minted Justice (now, Chief Justice) Brent Benjamin, who refused repeated calls to recuse himself after being elected to the court in 2004 and cast the decisive vote in a pair of 3-to-2 decisions that threw out the $50 million jury verdict against Massey Energy, the coal company headed by free-spending Don Blankenship.  The $3 million Blankenship spent ensuring the defeat of incumbent Justice Warren R. McGraw thus saved him $47 million, a 1,667 percent rate of return on Blankenship’s investment in his own peculiar brand of  “tort reform.”

If you’re a fan of author John Grisham, you may recognize the plot of his latest legal thriller, The Appeal, which Grisham admits was inspired by the events in West Virginia.  And as rank as the fictional outcome or the real events may seem to fair-minded Americans, the same outrage could have been perpetrated in any of the thirty-nine states that still elect at least some of their judges in contested elections.

Justice at Stake reports more than $200 million has been spend on elections for state supreme courts alone in the last ten years.  West Virginia tried to rein in the influence of big money on its judicial elections by limiting contributions to such campaigns to $1,000.   But after Blankenship contributed the $1,000 maximum to Benjamin’s campaign directly, there was nothing to stop him from spending as much as he wanted on the negative campaign to defeat Benjamin’s opponent.

The U.S. Supreme Court has explicitly blessed such so-called “independent campaigns” as a protected form of free speech – as long as the puppet-masters paying the bills don’t coordinate directly with their puppets.   Say you want to elect challenger John Barleycorn over incumbent U.S. Sen. Virginia Trueheart, whose pro-consumer record is annoying to your bottom line.  As long as you don’t say “Vote for Barleycorn” or “Defeat Trueheart,” you’re free to wage as dirty and as expensive a campaign as you like.

That’s why every election brings those silly ads distorting candidates’ records and claiming: “Senator Virginia Trueheart voted against a bill to give electric blankets to every newborn puppy in America.  Call Virginia Trueheart and tell her to stop hating warm puppies!  This ad paid for by Citizens for Warm Puppies.”

Coloradans aren’t immune from such stupidities at election time. But at least in the Centennial state, such profiles in vilification spare our courts.   That’s because our voters adopted a merit selection system in 1966. As the Colorado Bar Association reports, when there is a judicial vacancy, interested attorneys may apply for the position. Their names and applications are sent to a bipartisan nominating commission in their district composed of four laypeople and three attorneys. The commission sends two or three recommendations to the governor who appoints one of the nominees to fill the vacancy. Once chosen, a judge serves a provisional term of two years and then his or her name is on the next general election ballot. After that first time before the voters, County Court judges are up for retention every four years, District Court judges are up every six years, Court of Appeals judges every eight years and Supreme Court judges every ten years.

To help voters decide whether to retain or not retain a judge, evaluations are done periodically by the State Commission on Judicial Performance, which is composed of six non-lawyers and four lawyers. These evaluations give voters something to go on, and the process also gives feedback to judges so they can improve their performance. Beginning with the 2010 election, evaluations of judges will be included in the “Blue Book,” published by the legislature and sent to every registered voter in the state.

This system is infinitely preferable to letting rich litigators rig the scales of justice by paying millions to elect judges predisposed to their side to the courts that will decide the manipulators’ cases.

As it happens, earlier this month the U. S. Supreme Court ruled in the case of  Caperton v. Massey Coal Co. and concluded that the U.S. Constitution’s due process clause can require a state judge to abstain when a party in a case before that judge has had a “significant or disproportionate” influence on placing the judge on the court through large campaign contributions.  Judges have been required to abstain if they have a direct financial interest in the outcome of a case ever since the 1927 U.S. Supreme Court ruling in Tumey v. Ohio.  Now, there will be at least some redress in outrageous cases like the one in West Virginia.   But the real answer is for the thirty nine states that still elect judges in contested elections to adopt merit systems like Colorado’s.

In this office, we are strong supporters of keeping Colorado courts fair and impartial in the face of efforts by politicians like former state Sen. John Andrews to bring the courts under the control of special interests.  Since retiring from The Denver Post last year, our director of research and communications, Bob Ewegen, has served as Journalist in Residence for the Colorado Judicial Institute, which fights to keep Colorado courts free from political pressure.  CJI also gives annual “Judicial Excellence” awards to honor outstanding judges in Colorado. It has also raised $195,000 to help provide advanced education and training for Colorado judges and judicial department personnel.

On Wednesday, June 17th, 2009, WildEarth Guardians filed a lawsuit in Federal District Court against Secretary of the Interior, Ken Salazar for failing to develop a recovery plan for two sub-species of jaguarundi. The two sub-species at issue are the Gulf Coast jaguarundi and the Sinaloan Jaguarundi.

Both are small, slender cats with tails that can range up to two feet long. These cats are often referred to as Otter-cats because their small ears and short legs give them an otter-like appearance. These cats are extraordinarily vocal, and have been recorded as having at least thirteen separate calls, including; a whistle, a purr, a scream, a chatter, a yap, and a bird-like chirp.

They are small for wild felids, only slightly larger than your average alley cat, making them hard to track in sightings and identify in road-kill situations. Their favored habitat are dense brush thickets, such as those found in the Rio Grande valley, as they provide excellent cover for hunting and safety from humans and dogs, these species primary threats to survival. As such, determining the number of survivors for either of these subspecies is terribly difficult for conservation scientists.

U.S. Fish and Wildlife Service Image (Public Domain)

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The lawsuit is asking the court order the Secretary, and therefore the Fish and Wildlife Service, to prepare and implement a recovery plan for these two sub-species of jaguarundi, within a reasonable date certain.

Congress created the Endangered Species Act for the express purpose of conserving threatened and endangered species and the ecosystems they depend upon.  1 . In the process of creating the Act, Congress defined “conservation” to mean bringing species back from the brink of or the threat of extinction to the point that they no longer need the protections provided by the Act.  2.  One of the methods the Act requires the Secretary and the Fish and Wildlife Service to utilize in accomplishing this conservation goal is the development and implementation of recovery plans.  3.

WildEarth Guardians has issued a press release on their website, along with a copy of the complaint, here.

Author: Misty Ewegen, Attorney at Law

______________________________

1 .  16 U.S.C. § 1531(b)

2.   16 U.S.C.§ 1532(3).

3.   16 U.S.C. § 1533(f

Colorado’s water rights are based on the prior appropriation doctrine, which uses a “first in time, first in right” set of rules to determine who has rights to water. Water users who appropriate water first (called Senior users) have a senior right (or priority to water) over those users who appropriate the water at a later date (Junior users). This doctrine came to Colorado during the 1859 Gold Rush and was added to the Colorado Constitution in 1876.

In order to establish a water right the user must first divert the water, and then must put it to a beneficial use. Agriculture, irrigation, industry (such as mining) and domestic uses have long been considered beneficial uses of water for the purposes of establishing a right. However, historically, water conservation has not been considered a beneficial use of water. Therefore, the owner of a right must either use their water, or they will lose their water. They cannot choose to conserve their water.

This incentive against conservation is a problem in Colorado, where the average yearly precipitation is 17 inches, determined by aggregating the significantly larger precipitation in the mountains, 40 inches or more, with the paltry precipitation of the San Luis Valley, less than a foot. Though the predominant water use in the State has historically been agricultural, the state’s growing population has caused more and more water to be diverted to serve it’s municipalities. The state’s water districts are increasingly challenged by their increasing need for water, and the difficulties inherent in conserving it.

Recognizing the importance of water conservation for both use and in stream flow for the maintenance of the state’s rivers and streams, the Colorado State Legislature established the Colorado Water Conservation Board in 1973. The Board was created to aid in the protection and development of the waters of the state for the benefit of Colorado residents. The Board was established to protect and preserve the state’s streams and rivers, but has not been particularly successful in acquiring donations of water rights for their in stream flow programs. The two primary reason for their lack of success are a lack of funding, and the fact that donations to the Board were not considered a beneficial use of water.

Until now.

The Colorado State Legislature is, and has been, in the process of considering several bills that would work together to remove or lessen the current water rights penalties preventing owners from donating their rights to the state’s in stream flow program. The passage of HB 1346 last year provided the Board with 1 Million dollars annually to support this in stream flow program, along with up to an additional $500,000.00 for water conservation centered around endangered or threatened species. House Bill 08-1280 declared donations to the Colorado Water Conservation Board to be a beneficial use of water, allowing the owner to donate their rights without forfeiting them. House Bill 09-1067, currently making it’s way through the legislature, will create an incentive tax credit of up to $250,000.00 per person for owners of water rights who donate those rights to the Colorado Water Conservation Board for use in their in stream flow programs.

These changes to Colorado’s water laws will benefit both state residents and visitors with higher stream and river levels, better quality of water, and more water for fish and wildlife. For the first time in over a century, water conservation is considered a beneficial use of water. People who hold rights to water no longer have to risk losing those rights if they responsibly choose to conserve this valuable resource.

Misty Ewegen is the founding Attorney of the Law Office of Misty Ewegen.

One of Colorado’s most important environmental dramas is playing out in Southeast Colorado. It pits the United States Army against a band of “embattled farmers” and ranchers whose determination rivals that of their forebears who faced another, red-coated, army in 1775.

The site of this modern struggle isn’t Concord Bridge but the hardscrabble grasslands surrounding the U.S. Army’s 240,000-acre Piñon Canyon Maneuver Site. The Army inflamed Southeast Colorado residents in 2007 by announcing plans to acquire as much as 418,577 more acres of fragile grasslands in southeastern Colorado to expand its training area.

Besides nettling the agricultural community, the Army also alarmed environmentalists and historic preservationists throughout Colorado. The original area considered for acquisitions includes the Comanche National Grasslands – an area that formed part of the great Dustbowl of the 1930s, an event now generally recognized as this nation’s greatest single environmental catastrophe.

The target area also included some irreplaceable parts of our national patrimony. The Picket Wire Canyon area contains 1,300 known dinosaur tracks and is estimated to harbor 20,000 more tracks as yet undiscovered from reptiles who frolicked in the area more than 70 million years ago. There are also prehistoric Indian pictographs, other artifacts and portions of the Santa Fe Trail in the region.

Finally, the Army irritated Colorado property rights activists by not ruling out acquiring some of the land by eminent domain. When even conservatives like former U.S. Sen. Wayne Allard urged the Army to buy only from willing sellers, the military began to downplay the idea of condemnation. In a more important, albeit belated, concession, the Army pledged to avoid going into the National Grasslands and to respect the priceless heritage of the Picket Wire Canyon area.

But as important as these concessions are, many residents remain determined to stop the Army from gaining even “one more acre” of land. As specialists in environmental law we share their concerns. But we also fear that absolute and unreasoning opposition to the Army’s plans could prompt a backlash if the Pentagon retaliates by threatening to reduce the role played by Fort Carson. If that happens, politicians and businesses eager to keep federal dollars flowing into Colorado might make unreasonable concessions.

Our family takes this issue personally. I grew up on a farm in Phillips County in Northeastern Colorado and endured some monster dust storms in the 1950s that replicated the “Darkness at Noon” horrors of the 1930s. My wife, novelist and Super-Mom Yvonne Montgomery, has roots in Southeast Colorado where her relatives still ranch within the Comanche National Grasslands.

The best portrait of the Dustbowl disaster that led to the formation of the grasslands is Timothy Egan’s “The Worst Hard Time.” Everyone who cares about our environment and the consequences of misguided government policies should read this book, which includes a close-up of life in Baca County in the 1930s.

Simply put, the federal government created this disaster by encouraging homesteaders to break up the natural grasslands and plant wheat. During World War I, the government even guaranteed a minimum $2 a bushel price – at a time when it cost about 35 cents to grow a bushel of the grain. One farmer citied by Egan found he could produce 15 bushels an acre on his half-section (320 acres) for a profit of about $8,000 a year. This was at a time when Henry Ford was hailed as a benefactor of labor for paying his factory workers $5 a day.

Lured by such prices and a few years of unusually heavy rainfall on the normally semiarid plains, farmers rushed to break up the grasslands. When the rains stopped and the prairie winds resumed, Colorado’s irreplaceable topsoil joined the mammoth dust storms that even reached New York and beset yachters in the Atlantic Ocean.

Belatedly changing course, the federal government bought back much of the land and resodded it – creating the Comanche National Grasslands among other preserves. But not all farmers or ranchers in the area were willing to give up. Some had been wise enough to graze their own land rather than plow it up and others resodded on their own. The result – shown clearly on a detailed map of the Grasslands – is a checkerboard pattern of public and private ownership.

That helps explain why so many ranchers are opposed to the Army’s buying land even from “willing” sellers. In some cases, a rancher may only own one section (a square mile) of land but lease two or three sections of adjacent land from the federal government. If the feds cancel those grazing rights, such ranchers might have little choice but to sell their land to the Army.

Probably the best idea of resolving this standoff was proposed by Ken Salazar before he left his U.S. Senate seat to take over the Interior Department. Salazar urged the Army to consider leasing land on terms that would protect the environment and allow ranchers to continue using the land for agricultural purposes. That’s more realistic than it sounds at first glance, because cattle don’t continually graze the same field and the military likewise has only a sporadic presence on such land. It is to be hoped that Colorado’s current senators, Mark Udall and Michael Bennet, will continue Salazar’s record of trying to reconcile legitimate environmental, agricultural and national defense needs in this priceless but fragile portion of Colorado.

<em>Bob Ewegen, a veteran of 45 years in journalism, retired last year from The Denver Post. He is now director of research and communications for the Law Office of Misty Ewegen.