Colorado Residentail Property Owners and their Cloudy Right to Precipitation Capture

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Tulsa Law Review Volume 46 Issue 2 Geoengineering Article 5 Winter 2010 Colorado Residentail Property Owners and their Cloudy Right to Precipitation Capture Ryan S. Hansen Follow this and additional works
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Tulsa Law Review Volume 46 Issue 2 Geoengineering Article 5 Winter 2010 Colorado Residentail Property Owners and their Cloudy Right to Precipitation Capture Ryan S. Hansen Follow this and additional works at: Part of the Law Commons Recommended Citation Ryan S. Hansen, Colorado Residentail Property Owners and their Cloudy Right to Precipitation Capture, 46 Tulsa L. Rev. 323 (2013). Available at: This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact Hansen: Colorado Residentail Property Owners and their Cloudy Right to Pr COLORADO RESIDENTIAL PROPERTY OWNERS AND THEIR CLOUDY RIGHT TO PRECIPITATION CAPTURE A man from the west will fight over three things: water, women and gold, and usually in that order. 1. INTRODUCTION Until July 1, 2009, all Colorado citizens faced fines and jail time for capturing precipitation on their residential property.2 In April 2009, however, Colorado's governor signed into law two statutes that incrementally deviated from the State's traditional appropriation system of water rights by permitting a certain class of residential landowners to use precipitation that collects on their rooftops. Colorado's unique water laws and the statute's passage garnered plenty of national attention in two of the country's largest newspapers and on one of the nation's most listened to radio programs.4 These new laws now permit a certain class of Colorado residential landowners to capture precipitation on their property before it collects into the State's groundwater or surface water supply by giving less deference to the water rights doctrine of prior appropriation. 5 Colorado's new law permitting a certain class of residential landowners to capture rainwater on their property was inevitable and prudently legislated, but the law should have encompassed all residential landowners and not only a certain class of such residential landowners on the basis of traditional theories of property, social policy, enforceability, and utility. Part II of this Comment provides a brief historical background concerning classical theories of property and how such theories apply to Colorado water rights.. Additionally, such theories are discussed in their relation to the recently enacted Colorado law at issue 1. Goldwater, Barry, Your Show Inbox - Water Quotes, article fas.aspx?storyid=91152&catid=364 (last updated May 4, 2009). 2. Kirk Johnson, It's Now Legal to Catch a Raindrop in Colorado, N.Y. TIMES, June 29, 2009, at Al; Stephanie Simon, Out West, Catching Raindrops Can Make You an Outlaw, WALL ST. J., Mar. 25, 2009, at A COLO. REv. STAT (1) and (2010). These two statutes were enacted as part of 2009 Colo. Sess. Laws S.B See Johnson, supra note 2. See Simon, supra note 2; Morning Edition: Water Wars Out West: Keep What You Catch! (NPR radio broadcast, June 1, 2009), transcript available at npr.org/templates/transcript/transcript.php?storyd= The Wall Street Journal and The New York Times rank first and third respectively in highest national newspaper circulation. Tess Stynes, Journal Keeps No. 1 Ranking, WALL ST. J., Nov. 2, 2011, at B2. National Public Radio (NPR) alone reaches more than 20 million listeners, and its daily newsmagazine shows, 'All Things Considered' and 'Morning Edition,' attract a larger audience than any program except Rush Limbaugh's. Samuel G. Freedman, All Things Considered, N.Y. TIMES, July 17, 2005, at F18 (Book Review). 5. COLO. REV. STAT (1) and (2010). 323 Published by TU Law Digital Commons, Tulsa Law Review, Vol. 46 [2010], Iss. 2, Art TULSA LAW REVIEW Vol. 46:327 concerning residential landowners' right to capture precipitation on their property. Furthermore, this section will also provide the reasoning behind Colorado's long accepted standard of appropriation concerning water rights and why Colorado did not adopt a riparian common law water rights standard. Part III of this Comment will evaluate the legislative history and reasoning behind Colorado's residential precipitation capture laws and provide a response to the criticism of those opposing the new laws. Part III also includes a cost-benefit analysis concerning the new laws that will help explain in part why the State of Colorado decided to enact such laws. Part IV then examines how Colorado's neighboring states treat precipitation capture. Part V's portion of this Comment will focus on why Colorado's residential precipitation capture laws should be expanded to encompass all residential landowners in the State based on social policy and the bundle of rights associated with land ownership. This argument is substantiated on the grounds that residential landowners should have the right to use land and precipitation that collects on their property as they see fit. Furthermore, Part V will argue why the standard of appropriation can be reconciled with allowing all residential landowners to capture precipitation on their property, and why the liability residential landowners faced under the old law which denied residential landowner the right to capture rainwater on his or her property was impractical, superfluous, and unenforceable. Finally, the remaining portion of Part V sets forth an explanation and argument that despite the laws' positive change, the new laws are inherently difficult to enforce. The argument proceeds to elucidate why the new laws do not adequately address dramatic societal and demographic changes and why residential precipitation capture should encompass all Colorado residential landowners as a means of enforceability and utility. II. BACKGROUND Much is written concerning the history and various facets and intricacies of property in general and Colorado water law. 6 This Comment, therefore, will not give an exhaustive historical examination on property rights or to Colorado water law, but will rather give a brief and cursory overview of both. Richard Epstein argues, [p]rivate property has been part of all human societies 6. See RESTATEMENT OF PROP. (1936); JAMES N. CORBRIDGE, JR. & TERESA A. RICE, VRANESH'S COLORADO WATER LAW REVISED EDITION, (1999); John Undem Carlson, Report to Governor John A. Love On Certain Colorado Water Law Problems, 50 DENV. U. L. J. 293 (1973): James A. Corbridge, Jr., Historical Water Use and the Protection of Vested Rights: A Challenge for Colorado Water Law, 69 U. COLO. L. REV. 503 (1998); Gregory J, Hobbs, Colorado Water Law: An Historical Overview, 1 U. DENV. WATER L. REV. 1 (1997); D. Monte Pascoe, Plans and Studies: The Recent Quest for a Utopia in the Utilization of Colorado's Water Resources, 55 U. COLO. L. REV. 391, (1984); Elizabeth A. Rada, Comment, Bubb v. Christensen: The Rights of the Private Landowner Yield to the Rights of the Appropriator Under the Colorado Doctrine, 58 DENV. U. L.J. 825 (1981); Symposium, A Survey of Colorado Water Law, 47 DENV. U. L.J. 226 (1970) (as one can surmise from the plethora of resources addressing the issue of water rights in the State of Colorado and throughout the entire western region, it is of little wonder why the University of Denver Sturm College of Law for over a decade has published a law review dedicated solely to water rights issues that serves as a high-quality forum for the exchange of ideas, information, and legal and policy analyses concerning water law ). The University of Denver Sturm College of Law Water Law Review, About, (last visited Sept. 28, 2009). 2 Hansen: Colorado Residentail Property Owners and their Cloudy Right to Pr 2010 COLORADO RESIDENTIAL PRECIPITATION CAPTURE 325 since primitive times. 7 Property has many meanings within the law but often the word property concerns the legal relations between persons with respect to a thing. Rights to property as defined by the Restatement (First) of Property are those legally enforceable claim[s] of one person against another, that the other shall do a given act or shall not do a given act. 9 The common law or traditional approach to property denies that external things are held in common by mankind and awards ownership of any unowned thing to its first possessor. 10 The idea of first in time, first in possession is encapsulated in a maxim of Roman law, qui prior est tempore potior est jure (who is first in point of time is stronger in right.) 1 Henry Brinklow, simply, yet eloquently, stated that the treatment of property under the common law is: [fqirst come, first served. 1 2 William Blackstone, a renowned English judge, jurist, and professor, argued that property consists in the free use, enjoyment, and disposal of all [an individual's] acquisitions, without any control or diminution, save only by the law of the land. 1 3 Despite some limitations to the common law's treatment of possession as a touchstone to property rights, the principle of possession provides courts absent a better alternative... an attractive starting point, for resolving particular disputes over the ownership of particular things., 14 The principle of first possession justifies itself because it serves as a means of organization as well as assures and fosters property rights through structured boundaries between individuals.1 5 Furthermore, as Epstein argues, the first possession rule by nature is an enduring rule because it resolves competing property interests particularly in disputes between private owners and the state.1 6 One of the most well known examples of a starting point for judicial application of the first possessor rule is found in Pierson v. Post.17 The Pierson case involved a disputed claim regarding who owned a wild fox - the one who first pursued the fox or the one who killed the fox and took possession of it.18 The Pierson Court concluded that an individual or entity must have more than a mere intention to possess a thing in order to gain title and ownership to it.1 9 In Pierson's case, mortally wounding the fox was sufficient for possessory purposes RICHARD A. EPSTEIN, SUPREME NEGLECT 15 (2008). 8. RESTATEMENT, supra note Id. at RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 10 (1985). 11. JESSE DUKEMINIER, JAMES E. KRIER, GREGORY S. ALEXANDER & MICHAEL H. SCHILL, PROPERTY 3 (6th ed. 2006). 12. Id. 13. POLLY J. PRICE, PROPERTY RIGHTS: RIGHTS AND LIBERTIES UNDER THE LAW 19 (2003). See also Sir William Blackstone, BLACKSTONE INSTITUTE, (last visited Oct. 18, 2009). 14. Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221, (1979). 15. Id. at Id. at Cai. R. 175 (N.Y. Sup. 1805). Epstein provides an excellent detailed analysis of Pierson and the principle of first possession. Epstein, supra note 14, at Cai. R. 175 (N.Y. Sup. 1805). 19. Id. 20. Id Published by TU Law Digital Commons, Tulsa Law Review, Vol. 46 [2010], Iss. 2, Art TULSA LAW REVIEW Vol. 46:327 A. The Unique Nature of Water as Property The traditional approach to property rights recognizes the trinity of exclusive possession, use, and disposition... as forming the core of private property that lies at the center of organized social life. 2 1 Water rights are considered property rights. 22 However, as vital a resource and valuable a property water is in Colorado, water has no higher or more protected status than any other sort of property. 23 It is, therefore, understandable that [p]roperty rights to land are more readily defined and enforced because it is possible to survey lines and record boundaries. 24 This is because [m]obile resources such as... water... are more difficult to bring under the property rights umbrella. 25 The quandary of determining water rights is that their effective use... requires that many people share it at one time. 2 6 Therefore, the basic systems of water rights all seek some balance among consumption, navigation, recreation, and fishing. 27 It is no surprise then that [t]he law constantly speaks of correlative and reasonable uses, never absolute and exclusive dominion. 28 As a result of the unique property characteristics of water, some even argue that water rights claims under the Takings Clause of the United States Constitution will become much more commonplace in the future. 29 Property rights hold a fundamental place within the United States Constitution because of historical antecedents in state constitutions and natural rights philosophy. 30 Property rights had such special importance within American society essentially from its inception because every state constitution was based on the idea that the purpose of government was to preserve natural rights to 'life, liberty, and property.' 31 James Madison, who helped write the United States Constitution, believed that government's purpose was to ensure and safekeep the enjoyment of citizens' property rights.32 However, despite property rights being considered of special importance within the United States as embodied in its Constitution, property rights are not without limitation. 33 B. The First Possession Rule's Application to Water Rights Richard Epstein argues that [t]he notion of exclusive possession... is implicit in 21. EPSTEIN, supra note 7, at Joseph L. Sax, The Constitution, Property Rights and the Future of Water Law, 61 U. COLO. L. REv. 257, 260 (1990). 23. Id. 24. TERRY L. ANDERSON & LAURA E. HUGGINS, PROPERTY RIGHTS: A PRACTICAL GUIDE TO FREEDOM & PROSPERITY 39 (2003). 25. Id. 26. EPSTEIN, supra note 7, at Id. 28. Id. 29. PRICE, supra note 13, at Id. at Id. 32. Id. 33. U.S. CONST. art. IV, 3(2); U.S. CONST. amend. V; U.S. CONST. amend. XIV, 1; PRICE, supra note 13, at 3. 4 Hansen: Colorado Residentail Property Owners and their Cloudy Right to Pr 2010 COLORADO RESIDENTIAL PRECIPITATION CAPTURE 327 the basic conception of private property Epstein asserts that [t]he firstpossession rule leaves each thing with a determinate owner.... 35 Epstein thus, articulates that over time society is better off if the surplus in things remains well defined with a single owner, than if each and every owner surrenders some of what he has acquired in exchange for the right to some portion of the surplus of [property] acquired by others. 36 Epstein, furthermore, wrote [t]he parallels between water law and the firstpossession rule to land... gives a baseline for analysis that provides a clear foundation... and is largely impervious to political manipulation. 37 That said, the nation's high court determined in California v. United States that except where the reserved rights or navigation servitude of the United States is invoked, the State has total authority over its internal waters. 3 8 The United States Supreme Court prior to its California v. United States decision held that it is within a state's prerogative to determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters... shall control. Congress cannot enforce either rule upon any state. 39 Furthermore, the United States Supreme Court in the early 1900s did not consider a landowner's right to water to be on par with protections afforded by the United States Constitution to real estate. 4 0 C. The Origin of the Prior Appropriation Doctrine The appropriation model was first used in Utah and California and ha[s] some antecedents in Roman law.... 41 The State of Colorado, like Utah and most western states, did not adopt the common law's riparian approach to water rights, but instead adopted an appropriation system of water rights, which greatly differs from the common law's riparian model. 4 2 The appropriation standard's basic principle is that the person who first appropriates (captures) water and puts it to reasonable and beneficial use has a right [greater than] later appropriators. 4 3 A water rights system of appropriation quantifies the amount of water taken and establishes priorities to available water among users according to when their appropriation was established. 44 Colorado utilizes an 34. EPSTEIN, supra note 10, at Richard A. Epstein, The Utilitarian Foundations of Natural Law, 12 HARV. J.L. & PUB. POLICY 713, 732 (1989). See also RICHARD A. EPSTEIN, PRINCIPLES FOR A FREE SOCIETY: RECONCILING INDIVIDUAL LIBERTY WITH THE COMMON GOOD 27 (1998). 36. Id. 37. EPSTEIN, supra note 10, at U.S. 645, 662 (1978). 39. Kansas v. Colorado, 206 U.S. 46, 94 (1907). 40. PRICE, supra note 13, at (citing Hudson Co. Water Co. v. McCarter, 209 U.S. 349, 356 (1908)). 41. DALE A. OESTERLE & RICHARD B. COLLINS, THE COLORADO STATE CONSTITUTION: A REFERENCE GUIDE 339 (2002). Some of the earliest individuals to adopt certain prior appropriation principles were Mormon pioneers who settled various parts of the West, and in particular, what eventually became the State of Utah. See I WELLS A. HUTCHINS, WATER RIGHTS IN THE NINETEEN WESTERN STATES 163 (2004); DAVID M. GILLIAN & THOMAS CAPNOR BROWN, INSTREAM FLOW PROTECTION: SEEKING A BALANCE IN WESTERN WATER USE 25 (1997). 42. DUKEMINIER ET AL., supra note 11, at Id. at CORBRIDGE & RICE, supra note 6, at 1. Published by TU Law Digital Commons, Tulsa Law Review, Vol. 46 [2010], Iss. 2, Art TULSA LAW REVIEW Vol. 46:327 appropriation system because of the limited availability of water 4 5 in the State, as generally no more than fifteen inches of precipitation falls annually.46 In comparison, states east of Colorado, such as Minnesota and Georgia receive forty-six and sixty-six inches of annual rain, respectively.47 Because little rain falls within Colorado, the State must rely on snowmelt runoff as its principal water source.48 Colorado also adopted the appropriation standard because violence, including gunfights, and the dynamiting of dams was commonplace in its frontier days as miners, ranchers, and farmers vehemently fought over the valued resource. 4 9 To this day, various entities continue to duke it out over available water rights within Colorado. 50 As municipalities continue to grow, water disputes should only intensify.51 The doctrine of prior appropriation, however, is not infallible or without its shortcomings even if it makes more productive use of water. 52 Colorado also uses the standard of appropriation because eighteen states and the nation of Mexico rely on part of the State's water supply. 53 The states that rely on Colorado water are situated both east, west, north, and south of the State. 54 Obvious states that rely on Colorado water include Arizona, California, Nevada, New Mexico, Utah, and Wyoming. 5 5 There are, however, states that one may not easily suspect as needing Colorado water, such as Arkansas, Iowa, Kansas, Kentucky, Louisiana, 45. Id. at Id. 47. EDELLA SCHLAGER, PROPERTY RIGHTS, WATER AND CONFLICT IN THE WESTERN U.S. IN CHANGING PROPERTIES OF PROPERTY 293 (Franz von Benda-Beckmann et al. eds., 2006) (citing Precipitation Maps ofthe Western US, WESTERN REGIONAL CLIMATE CENTER 2001, (last visited October 2005)). 48. CORBRIDGE & RICE, supra note 6, at Id. at See Stephanie Simon, Oil, Water Are Volatile Mix in West, WALL ST. J., Mar. 19, 2009, at A3 (Simon addresses the increasing amount of control energy companies are currently obtaining within the State of Colorado as they seek to extract oil and natural gas from shale that requires vast amounts of water; environmental groups such as the Western Resource Advocates adamantly oppose such allocation of water, because it believes limited State water resources should be allocated towards growing municipalities, households, and preserving wildlife). The process of oil and natural gas extraction from shale may become an even more attractive option for energy companies in Colorado and elsewhere as a result of the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. See Morning Edition: Smaller Oil Firms Fear Regulation Backlash In Gulf (NPR radio broadcast, July 7, 2010), transcript available at The populari
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