Water-use law may upstage marijuana regulation as a popular opportunity to reject a failed legal experiment in favor of a reasonable regulatory framework.
Colorado’s rejection of the prohibition experiment in favor of reasonable regulation of adult recreational marijuana presents a mind-opening example of popular legal change. Negative impacts have been real – but within expectations – after Colorado shifted from an ineffective ban to reasonable regulation. Benefits include less strain on the criminal justice system, lower adolescent use rates and tax revenues. Opponents repeat anecdotes of balcony dives, but like alcohol, the post-prohibition problems mostly involve overindulgence, tax avoidance, underage consumption and secondary activities, such as impaired driving.
By popular demand, literally, Coloradans engaged the democratic process and created state institutions that now regulate marijuana use and commercial sale. Federal bans are presumably effective but are largely unenforced by federal authorities where states have traditionally addressed drug use through state police powers.
Colorado regulation of marijuana could prevail over the federal bans under honest judicial application of the Supremacy Clause. The Congressional Research Service analyzed the federal ban and confirmed that federal law does not necessarily preempt Colorado’s constitutional regulation. “(T)he Washington and Colorado regulatory and licensing aspects could be seen as supporting the federal government’s objectives of ‘control(ing) the legitimate and illegitimate traffic in controlled substances,’ as opposed to creating an obstacle to that goal,” according to the service’s findings. Based on analysis, not hype, it appears that Colorado’s reasonable regulation could prevail over failed federal prohibition.
So how does this relate to water? A 19th century water-law experiment began in the Western United States that rejected established English, Spanish and United States common law and doctrines of reasonable water use. Reasonable water use doctrines heavily favored a system of regulating competing uses of the public’s water based on reasonableness and protection of the public interest. Reasonable water-use doctrines respect stream integrity, healthy lakes, viable groundwater and limitations of the hydrologic system that runs through our very veins.
Over the 19th and early 20th centuries, Colorado courts and the Legislature systematically replaced the reasonable water-use doctrines with novel laws and institutions that served the wants of mining companies and agribusiness. By the early 20th century, special courts and unelected boards had replaced reasonableness doctrines in favor of protecting the first claimant’s government-given right to divert and “beneficially” use water.
Today, the 19th century water-rights experiment has incrementally yielded in courts and legislatures to realities of the 21st century. The water experiment based on the chaotic system of staking mining claims has been declared “dead” by Colorado water-law expert Charles Wilkinson and deemed “alive but irrelevant” by Reed Benson, a New Mexico water-law expert. Yet, the first-user idea still guides special water courts who dole out water-use rights and resolve disputes. Perhaps confirming the impending death, the unelected water establishment is vigorously spending tax money to lobby and join lawsuits in a Machiavellian attempt to protect the failed experiment.
Fortunately, the debate about reasonable water use involves an increasingly robust and informed public debate based on 21st century Colorado realities and real analysis. Like prohibition, the old order downplays the legal and practical failure of a first-use, water-right system and resists the ideas of reasonableness and the public interest that are well-known to scholars and others who critically analyze current policy and legal history.
For marijuana, it took direct public action to curtail a failed prohibition experiment. Colorado now regulates marijuana use under concepts of reasonableness and public interest. Norms and etiquette are evolving from preprohibition era, with these norms informing the adoption of reasonable public-interest laws and regulations. Public consumption, over-intoxication and impaired driving laws limit the adult use of intoxicants. Colorado law enforcement may intervene when someone stumbles down Main, whether stoned or drunk. Harming someone while stoned or drunk may involve a civil lawsuit to gain compensation.
Public debate about any legal regime involves similar concepts as the marijuana debate.
The debate about using our water, our streams, our lakes and our aquifers is too important to leave to an entrenched and largely unelected water establishment built around a failed 19th century legal experiment. Instead, the 21st century water debate should involve an informed public made aware of the history and real possibility of reasonable water-use regulation.
The 21st century water-use debate must move past “I got it first,” which children on the playground know is patently unreasonable and unfair.
Travis Stills is a public interest and environmental attorney with Energy & Conservation Law in Durango. Reach him at Stills@frontier.net.
