Divided Court Sinks Conservation Ballot Measure

The Colorado Supreme Court, in a 4-3 decision on Monday, held that a proposed citizen initiative entitled “New State Department and Elected Board for Environmental Conservation” planned for the November 2008 ballot violates the state’s single subject requirement. The decision will keep the issue off the ballot in 2008.Proponents of the initiative claimed that it “proposes only the creation of a new Colorado Department of Environmental Conservation with a mission of `conservation stewardship.'”

Citizens challenging the initiative argued that the proposal had the additional subject of changing the standard that applies to review of all government agency decision-making at the state level by establishing a:

mandatory public trust standard for agency decision-making whereby conflicts between “economic interest” and “public ownership and public conservation values in lands, waters, public resources, and wildlife,” must always be resolved in favor of “public ownerships and public values.”

The majority, in an opinion written by Justice Gregory J. Hobbs, Jr., agreed with those challenging the initiative. 

Justice Allison Eid, joined in dissent by Justices Nathan B. Coats and Nancy E. Rice, argued that the ballot measure, in fact, constituted a single subject, arguing that what the majority described as a substantive public trust standard for Colorado law was merely a mission statement for a new department.

The measure would have consolidated a host of smaller programs and agencies under an independent, voter elected, board governed Department of Environmental Conservation, consisting of the state’s:

* Natural Areas Program
* Water Conservation Board
* Division of Forestry
* Division of State Parks
* Water Quality Control Division
* Division of Wildlife
* Land Use Commission
* Captive Wildlife and Alternative Livestock Board
* Board of Land Commissioners
* Great Outdoors Colorado Program
* Great Outdoors Colorado Trust Fund
* Hazardous Waste Commission
* Natural Areas Council
* Board of Parks and Outdoor Recreation
* Pollution Prevention Advisory Board
* Water Quality Control Commission
* Wildlands and Urban Interface Wildlife Working Group
* Wildlife Commission

It would also have assigned any new agencies for environmental functions to the agency.

The alignment of the Colorado Supreme Court’s more conservative justices in favor of a seemingly pro-environment measure, and of the more liberal leaning majority against it, reflect the predominance of process concerns over the underlying policy. 

Historically, Colorado’s Supreme Court has interpreted the powers of citizens to initiate legislation narrowly since state voters adopted a single subject requirement for initiatives. It notes that “one of the purposes of the single subject requirement is to apprise voters of the subject of each measure, so that surreptitious measures that could result in voter surprise or fraud are not placed on the ballot.” A tight interpretation of this requirement necessarily involves considerable analysis of the merits of the proposals brought before it.

In this case, the majority was concerned that there was a substantive change in the state’s environmental law, as well as a mere administrative reorganization of a fragmented area of the state’s government. In the majority’s view, the decision-making rules that applied to the old fragmented boards would differ from the decision-making made by the new department.

Conservatives in Colorado, in contrast, have been inclined to take a more hands-off attitude allowing issue proponents to define what they mean by a single purpose. This inclination arises from the “originalist” approach to constitutional interpretation that abhors overt policy making by judges, even when the law seems to allow judges to make decisions that could rest on policy grounds. The dissenters underline this interpretive preference with a statement in closing that states that, “The proposed initiative might be a good idea or a bad idea; we must leave that decision to the voters.”

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Andrew Oh-Willeke

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