Capitol Report

by Sandra Eid, Legislative Coordinator

Takings '97: Governments Empowered to Demand Compensation from Each Other

On July 17 an interim committee of the state legislature resurrected one of the most controversial environmental issues of the '96 session. The issue is being portrayed as one of "standing" for political subdivisions (governmental entities) seeking to protect their property. Standing is the right to be a party in court, a concept for determining when a private party has enough at stake to allow it to sue.

However, such a portrayal of the issue is incomplete. The real purpose of the draft bill adopted by the interim committee is compensation--monetary damages to be paid by one governmental entity to another.

By linking the issue of "standing to the "takings" clause of the Fifth Amendment, the bill grants to political subdivisions the same right guaranteed to private citizens to seek compensation for governmental abuse. Just as citizens may pursue damages for the taking of their private property, public entities would be allowed to seek damages for the taking of their public property. The effect of this bill would be to pit Colorado units of government against each other.

The Sierra Club has strongly opposed such legislation in the past and opposes this new bill. The two versions introduced and eventually killed during the '96 session addressed provided standing to public entities seeking to protect water rights. The new version provides standing to political subdivisions seeking to protect all property and contract rights.

Had either of the '96 bills become law, well-financed Front Range municipalities and water districts would have been empowered to claim compensation from Western Slope counties for interference with the development of their water rights. The cities of Aurora and Colorado Springs (legally thwarted by Eagle County in their efforts to develop the Homestake II Project) were major supporters of the two bills.

Should this new bill, much broader in scope than the previous versions, become law, it would be impossible to predict the results. Colorado has literally thousands of political subdivisions--counties, municipalities, special districts, and school districts. All would be empowered to seek compensation for the perceived abuse of their property and contract rights from others.

The one aspect of this situation that would be abundantly clear is that private citizens (Colorado taxpayers) would be paying for both sides of the legal battles--and for the compensation awarded to victors. That threat alone would force smaller governments to yield to larger ones. Standing, a doctrine that allows private parties to attempt to protect themselves from government abuse (among other things), would become a tool of abuse by one government against another.

There are 12 members of the Interim Committee on Water and Land Resource Issues. Seven voted in favor of the bill, Sen. Don Ament (R-Iliff), Sen. Gigi Dennis (R-Pueblo West), Sen. Joan Johnson (D-Adams County), Rep. Jeanne Adkins (R-Parker), Rep. Steve Johnson (R-Fort Collins), Rep. Jeanne Reeser (D-Thornton), and Rep. Brad Young (R- Lamar). Three voted no, Reps. Lewis Entz (R-Hooper), Carl Miller (D-Leadville) and Matt Smith (R-Grand Junction). Two members of the committee were absent, Sen. Tilman Bishop (R-Grand Junction) and Sen. Terry Phillips (D-Louisville).

The final committee meeting is scheduled for October 16. Unless the measure is reconsidered and significantly changed, a totally unacceptable "compensation" bill will be sent to the '98 legislature.