Steampunk garb is being stored with an ungoggled eye toward future costume opportunities. The Snowdown revelry – styled in Victorian Apocalypse – is fading into mid-winter dream. Strange metal props will likely remain as yard art. Plenty of money changed hands, and tourists flocked, confirming that local creativity is an inexhaustible resource that defines La Plata County’s enduring social and economic life.
Throughout the county, methane-belching production equipment that currently occupies the San Juan Basin provides a sobering real-life reminder of steampunk style. Like steampunk, the fossil-fuel industry came from the intersection of conservative Victorian morals and the industrial revolution. The gas boom did not arrive here in full force until the late 1980s and is already in steep decline. Unlike Snowdown hangovers, impacts of exhausted gas fields leaves lasting evidence of Victorian-era legal deviations.
The early 1800s common law protected the public and environment by ensuring economic activity did not harm neighbors or cause damage beyond the owner’s fence lines. The Victorian era produced activist state and federal judges and elected officials loyal to the new class of industrialist capitalists who systematically eroded our foundational laws and values. Visions of industrial utopia and legal fictions joined to radically transform common law to benefit newfangled steel machines powered by dirty fossil fuels.
The creation of the liability-free corporate investor is the perhaps the best known accomplishment of the judicial/industrial activists. By 1900, corporate railroads, industrialists, miners and millers inflicted harm on neighbors and rivers with impunity and without compensation.
New legal conceptions of water use and mineral access created rights separated from the character of the land and helped unleash the industrial age. Severed water and mineral ownership departed from laws existing at this country’s founding that presumed land ownership included everything from the center of the earth to the stars above. Granted, a bit of Snowdown cheer helps wash down the legal fiction that a person can own sky and stars, but our laws are nothing if not socially created fictions made real by government enforcement of judicial opinions and statutes.
The steampunk transformation of common law endures today. Yet, the steampunk legal regime was only partially realized. A landowner may sever and sell rights to minerals under her land, but the right to access severed minerals must be exercised using alternative production methods that avoid impacts to land, water and other minerals. Common law now recognizes mineral and surface owners as co-equal, even though the oil and gas industry peddles the myth that minerals rights are more equal than the others. Popular, legislative and judicial responses to 20th century industrial disasters ensured that the mineral production is still constrained by local land use ordinances, state regulation and federal environmental laws. The Colorado Supreme Court still recognizes the right to access minerals is limited by the property rights of others and that local land use ordinances can be applied to gas production as a means to protect the public well-being and our pursuit of happiness.
The unsustainable water scheme continues to depend on a massive and expensive legal bureaucracy that creates, allocates and enforces private use of Colorado water. Little attention is given to taxes diverted to special courts and water districts that create and oversee rights to water uses and transbasin diversions that the common law traditionally prohibited. There is a revival of legal doctrines that recognize a public trust requiring our government institutions to protect the integrity of our water bodies. Despite neo-Victorian attempts to repair steampunk-inspired water laws, the human right to clean and viable water bodies gained traction in the courts, legislatures and constitutional amendments.
Shared values of sustainability, clean air, clean water, clean food and happy/healthy people remain resilient against neo-Victorian efforts to expand the failed steampunk legal regime. Oddly, the steampunk transformation may inform a just and common legal future. Just as activists deliberately transformed the Founders’ common law to accommodate industrial capitalism, thoughtful local and state laws that foster a viable future can replace Colorado’s dysfunctional water and mineral laws. There is every reason an ecologically informed legal regime recognizable to the Founders could replace the dystopian steampunk laws.
Each year, the Follies and the Snowdown Sneer confirm that La Plata County is brimming with critical imagination and careful observers. Informed by historical success and failure, a new generation of citizens, judges and elected officials can correct mistakes made by their steampunk predecessors and create a future based on traditional water and mineral law regimes that recognize ecological well-being and healthy/happy communities.
Travis Stills is a public interest and environmental attorney with Energy & Conservation Law in Durango. Reach him at Stills@frontier.net.
