By John Orr
Greg Hobbs is calling it quits after 19 years as the Colorado Supreme Court’s “water expert.”
Early in his career he clerked for the 10th Circuit, worked with David Robbins at the EPA, and worked at the Colorado Attorney General’s office. AG duties included the natural resources area – water quality, water rights and air quality issues. He represented the Northern Colorado Water Conservancy district before forming his own firm, his last stop on the way to the Court.
He told the Colorado Statesman that he always had his eye on the Supreme Court. While serving at the 10th circuit, Judge William Doyle told encouraged him to set his sites on the Supreme Court, saying “They do everything over there.”
When he appointed Hobbs to the court, Governor Roy Romer told him to “get a real tie,” according to the Statesman. A bolo tie, as Hobbs usually wears, didn’t seem to qualify.
The justice is hardworking outside his court duties. He is often asked to speak at conventions and meetings around the state. He is deeply driven to learn about others and to share his knowledge of law and history.
A few years ago, over in Breckenridge, the Summit Daily News reported that Hobbs said, “The water ditch is the basis of civilization.”
His passion is to explain current opportunities and problems within a historical context. He describes himself as a “failed PhD,” having dropped out of a PhD Latin American History program at Columbia University.
One opinion in particular illustrates the importance of history to Hobbs:
The University of Denver Water Law Review honored Justice Hobbs at their annual shindig. Former Justice Mike Bender told attendees about a case where a man had been arrested after police entered and searched his zippered tent in a campground.
In his opinion, Hobbs detailed the history of Coloradans that lived in tents. The plains Indians and their teepees, the miners camps dotted all over the mineral belt and elsewhere, and more than a few homesteaders, also. He said that in Colorado, there is an expectation of privacy when you close up your tent dwelling, and that it is no different from the expectation for a more permanent structure.
The police violated the man’s Fourth Amendment rights by not obtaining a search warrant, he said.
The justice credits luck for his interest in water law. He got in on the ground floor of the environmental movement during the early days of the Clean Water Act and the Clean Air Act.
He has a deep and abiding respect for Colorado water law.
During his time on the court, there were two interesting cases dealing with the “speculation doctrine” – that is, a water diverter must put the water to beneficial use, not hold on to it and auction it to the highest bidder.
Pagosa Springs Water and Sanitation District was told it was not allowed a 100-year planning horizon. High Plains A&M was denied a change of use – agricultural to municipal and industrial – for lower Arkansas Basin water on the High Line Canal, because they didn’t have any firm customers for the water they were changing.
The Court recognized the Legislature’s legal ability to create whitewater parks as a beneficial use.
Perhaps one of the most remarkable insights that Justice Hobbs realized pertains to environmental flows within Colorado water law:
When Amy Beatie, director of the Colorado Water Trust, was clerking for the justice, she told him that her primary interest was working for the environment. He advised her to go into private practice, learn about the workings of water law, the mechanics and hydrology of diversions, and the art of finding common ground at water court. Then, he said, have faith that there will be a way to work for the environment within the water rights system.
Ms. Beatie paid attention.
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Her organization just secured an instream flow right for the Colorado Water Conservation Board on a tributary of the Gunnison River, the Little Cimmaron River. The trust purchased shares of the McKinley ditch and assigned them to the CWCB – the only entity under state law that can hold rights for instream flows.
The water rights are senior and near the confluence with the Gunnison. Therefore, in times of low flows they are capable of calling out diversions above them. Water bypasses the McKinley headgate and stays in the stream for the fish and other critters. Further development of junior water rights won’t affect the arrangement, since the instream flow will always be in line ahead of newer ones.
This agreement and decree were a big deal since they were the first of their kind, with a willing seller, an organization dedicated to finding deals that benefit instream flows, an entity that can legally hold those rights, and an active water rights market.
At this summer’s Martz Conference hosted by the CU law school, Justice Hobbs spoke about Colorado’s water market. Many groups and individuals decry the current state of water in the western U.S. Brad Udall, for example, told attendees at last fall’s Colorado River District Annual Symposium, that we are living with 19th-century laws, 20th-century infrastructure and 21st-century problems.
Hobbs reminded attendees at Martz 2015 that Colorado has the most active water market in the U.S. and it evolved under those 19th-century laws. Colorado water law is there to protect all appropriators and works very well, albeit slowly. Things move along more quickly as case law grows.
The basis of Colorado water law is the “doctrine of prior appropriation,” which is really a doctrine of scarcity, as just about anyone can administer a stream with average or above average flows. The art comes when there are low flows, so the state engineer has the priority system in his toolbox for those dry times.
Greg has become a friend to me over the years and I already miss him on the court.
He assures me that he will keep writing and speaking. After all, he asserts, “Coloradans love a good story.”
You tell a good story, Greg.
John Orr covers Colorado water issues at Coyote Gulch: www.coyotegulch.net
