Colorado Water Stewardship Project Webinar

1. Colorado Water Stewardship Project Webinar Presenters: Steve Leonhardt, Burns Figa & Will Floyd Ciruli, Ciruli & Associates

2. Ballot Initiative Update;Hill v. Warsewa et al: Appeal Stephen H. Leonhardt, Esq. March 12, 2019

3. 2019 Ballot Initiatives

4. Initiative 3 • Repeal all of section 20 of article X of the Colorado Constitution (TABOR). • Title setting denied January 16, 2019, on the basis that the measure does not constitute a single subject. • Proponents’ Motion for Rehearing denied February 6, 2019. • Denied Rehearing as to single subject. • Motion for Rehearing regarding the fiscal impact abstract denied for lack of jurisdiction. • Currently on appeal in the Colorado Supreme Court

5. Initiative 22 • Increases the severance tax rates paid by the oil and gas industry. • The levied increase would be based upon gross income attributable to the sale of oil and gas severed produced in Colorado. • Would exempt severance taxes from TABOR limits • Distribution of proceeds • 22% to the Severance Tax Trust Fund • 22% to the Local Government Severance Tax Fund • 56% to the Severance Tax Stabilization Trust Fund • Title set; approved for petition circulation

6. Hill v. Warsewa– Stream Access Litigation • Sought declaratory judgment determining that a portion of the Arkansas River is navigable and is, therefore, property of the State, “to be held in trust for the public.” • Quiet title claim to determine ownership of the stream bed

7. Hill v. Warsewa– Stream Access Litigation • Roger Hill is a fisherman who “asserts that the doctrines of equal footing and navigability of title make the bed of the Arkansas River public land owned by the State of Colorado on which he may legally stand and walk.”

8. Hill v. Warsewa– Dismissal Order Entered 1/8/19 • Granted Warsewa and Joseph’s motion to dismiss for lack of standing. • Granted State’s motion to dismiss based on lack of standing; also noted 11th Amendment and sovereign immunity. • Denied Hill’s motion to remand to state court. • All other motions were denied as moot, including Hill’s motion to certify a question to the Colorado Supreme Court re: “the nature of the State’s title in navigable riverbeds.”

9. Hill v. Warsewa– Dismissal Order Entered 1/8/19 (Continued) • Mr. Hill lacked prudential standing to claim rights in the Arkansas River on private property. • Briefly addresses the 11th Amendment bar to litigation against State

10. Hill v. Warsewa Dismissal– Order Entered 1/8/19 Continued • “[T]he State does not want ownership of these sections of privately owned river beds, preferring instead to defer to riparian private property ownership concepts.” • Public Trust Doctrine is a matter of State Law. • “Colorado has rejected any generalized public trust doctrine.”

11. Hill v. Warsewa– Appeal Hill claims the District Court erred by: • Dismissing the case rather than remanding the case to state court for lack of federal subject matter jurisdiction. • Finding a lack of third party standing because Hill was asserting his own right, not the State of Colorado’s. • Finding that Hill asserted a generalized grievance because Hill experienced a harm distinct from the general public. • Not granting Hill’s motion for remand for lack of subject matter jurisdiction. • Not granting Hill’s motion to certify the nature of the State of Colorado’s titled in navigable riverbeds to the Colorado Supreme Court.

12. Potential Impacts • If standing were allowed, could see dramatic increase in litigation over • What streams are navigable for State title, and • What rights navigability creates or defeats • Precedent against challenging landowners’ ownership of the streambeds across their land. • Potential reopening of the question of a public trust doctrine in Colorado.

13. Colorado Has Shifted to the Left Since 2006Politics Will Change Policy Partisan Control Election Results Governor and Legislature • Why 2018? • Trump, checks and balances • Change in partisanship and demographics • New movements, like #MeToo • New leaders, Polis, Crow, State Senators • $23 to $100 million

14. Top Colorado Trends – 2019 Legislation, Court Cases, Initiatives Anti-growth – Decade of rapid growth; no Olympics, no Amazon, don’t care; less density; less gentrification Anti-hydrocarbon – Periodic anti-extraction industry sentiment but climate change makes more potent, renewable mandates, more local control, more regulation, set backs, moratoriums, severance taxes, higher rates Pro-weed – 2012 aggressive regulation shifts to support expansion, business aspects, banking Anti-TABOR– Surplus funds, new push for time outs like 2005, effort to lift TABOR caps, de-Gallagherization Anti-guns – Red Flag bill, other limitations (but cautious) More health care access and cost control – It’s a right but not single-payer yet (pilot program), an effort to lower costs, more transparency, more competition, drug costs, opioids crisis More education funding–Universal K, pre-K and debt relief, but less reform More worker benefits – Labor gets attention, paid leave, local minimum wage

15. Polis on Water – The Buzz, 1-16-19 Newly inaugurated Governor Jared Polis had a low-key and positive start on water. His natural resource transition included Hickenlooper’s in-house water expert, John Stulp. Water policy in his State of the State address was only one paragraph, but it succinctly supported the State Water Plan and advocated getting it funded. • State of the State on Water • “The lifeblood of our agriculture industry is water – which is why we must commit to a bipartisan and sustainable funding source for the Colorado Water Plan. Governor Hickenlooper, along with the leadership of John Stulp, did extraordinary work bringing together a coalition of Coloradans from all corners of our state to create the Water Plan. Now we’re going to do our part by implementing it. State of the State address, Jan. 10, 2019 • Dan Gibbs, DNR • Kate Greenberg, Dept. of Agriculture • Gail Schwartz, CWCB • Russ George, IBCC Colorado Gov. Jared Polis delivers his first State of the State address to a joint session of the Colorado General Assembly, Jan. 10, 2019 | Colorado Channel screen shot

16. Colorado Initiatives – 2018More Than $80 Million Spent • Why lost: Distrust of state government, parochialism, long ballot, complex, new voters with different mission, some negatives on most, few partisan cues • Reapportionment, state and federal (constitutional), Y & Z – PASSED – 71% • Taxes for schools - $1.6 billion, 73 – DEFEATED – 46% • Setback requirements for oil and gas development (2,500 ft), 112 – DEFEATED – 45% • Taking property for public use, 74 – DEFEATED – 46% • Sales tax for transportation, 110 – DEFEATED – 40% • Fix Our Damn Roads (bonds), 109 – DEFEATED – 39% • Candidate contributions ($1 million), 75 – DEFEATED – 34% • Payday loans interest restrictions, 111 – PASSED – 77%

17. Regional Voter Support for Urban Drainageand Flood Control Tax Increase Vote for Urban Drainage and Flood Control District • Ballot Language: • Maintaining early flood warning gauges to provide potential evacuation warnings, • Providing trails, wildlife habitat, and recreational access to residents by preserving thousands of acres of parks and open space in floodplain areas which protect the environment and private property, and • Removing debris, garbage and obstructions from streams, creeks and rivers resulting in reduced risk to the health and safety of residents, protecting property, and restoring natural beauty.

18. 2020 Presidential Campaign Begins August 2015 FOX Debate 2019-2020 Presidential Race Trial balloons, announcements (June 15, 2015 Trump Tower) Online funding, social and legacy media attention, polls 12 debates – 6 in 2019, June start, 2 days random selection, 1%, $60,000 Democrats more than 20 candidates, daring or careful? Iowa poll – Biden, Bernie, Beto Trump could win; Clinton, Obama won after bad midterm; it’s a choice, but not just with base (L to R) Christie, Rubio, Carson, Walker, Trump, Bush Huckabee, Cruz, Paul and Kasich, August 6, 2016 | Fox News/Facebook John Hickenlooper Good announcement. Can he make the debates? Breakout in Iowa, New Hampshire?

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