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Law Offices of Ronald W. Rutz
Coloradoan Archives

August 8, 2000: Historical Water Law Books; Death Taxes

Q: I am fascinated by your columns on water and water law. Can you recommend any good books?

A: George Vranesh has authored several books, the best being "Colorado Citizens' Water Law Handbook" and "Colorado Water Law" published in 1999. Also look at "Colorado Water, the Next 100 Years," published in 1992.

But when you look at these three and a large number of others listed in the reference files or in the computer listings at any library, they all chronicle the historical dates and regurgitate sterile legal rules, but none, in my opinion, give to the layperson or to the student the full color of what was happening in regard to the evolution of the water laws and rules, the building of the reservoirs and the ditches, and the putting together of organizations like the Northern Colorado Water Conservancy District.

In order to understand the rules and to get a sense of why water law is now changing, it is imperative to look back and to know about the lobbying, political maneuvering, and intrigue at the national and state levels directed against Colorado in the 1860's and 1870's, lead by countries like Cuba, sister states, the sugar interests from the Territory of Hawaii, and even regions within Colorado, all of which were often Byzantine, bitter, and occasionally violent.

The story would include how people, who in the future would call themselves Coloradoans, "stole" the water (violated riparian law which was the governing water law allocating use), "legalized" the situation through boot-strapping techniques such as codifying their activities in our state constitution and laws (which they wrote), and then through marvelous lawyering got the federal government to accommodate what had happened. Some of our basic water tenets are now unraveling due to the federal government's exertion of its "superior" rights and because of the environmental laws, causing many of us to wish that Colorado still had that solid core of lawyers with us today. It would also be nice to see Colorado start winning these water law cases again in the Supreme Court.

There were social and ethnic clashes, such as between Horace Greeley's "Go West Young Man, Go West" crowd and those Germanic wanderers who somehow found their way here from the other side of the world, fleeing for religious freedom and away from the beheading and raping Cossack persecution, all of which moved our water rules to a strict priority anchor and away from the California approach of having elements of the riparian system and prior appropriation together in one system of laws.

The Colorado water story also has heavy elements of the have/have-not split, such as people trying to break the strangle-hold of those that owned the late water and thus could financially make or break any farmer trying to get enough water to finish out a crop. The depression of the 1930's and the emergence of "big government" helped many otherwise very independent and self-reliant farmers to side with the "new dealers" in order to "dilute" the rigidity of our water system.

Thus, to understand water law, it is necessary to know why the rules are the way they are and that these "laws" often turned on one or two personalities or a few key events stretching from the international and national sphere to state and local areas. Maybe you should write such a book.

Q: This series of questions is not directed to you, Ron, but to Senators Wayne Allard and Ben Nighthorse Campbell and Representative Bob Schaffer.

You base your opposition to "death taxes" in part on the supposition that many Colorado farms and ranches in the last decade have been lost to "death taxes" and thus could not stay in the family to be farmed. Please supply the list that you presumably relied upon to form your opinion and to base your vote upon so that we can see how many estates were impacted. And I would assume that your list would have values so we can see the sizes of the farm and ranch estates. Also, I assume that your list would exclude farms and ranches that were lost because the deceased did not do even the fundamental planning that the rest of us do. I would further assume that the list would not include the estates where no active family farmer or rancher was ready to step in. And finally, I hope you did your homework and deleted those estates where the farm or the ranch would probably be gone anyway because of its location. How many farm and ranch estates remain, Congressmen, that were honestly forced to sell out because of the "death tax" and thus were unavailable to a family member that wanted to continue to farm? You did base your vote on facts, did you not?

And I am still trying to understand how it would benefit society or even the people involved to have, for example, in the twinkling of an eye Bill Gates' two little children controlling 75 BILLION DOLLARS. I could go on and on with my own list here.

A: I like these Q and A's where I don't have to answer. As an aside, and I do not claim any expertise, it will be interesting to see how this all survives the current election because an unusual coalition was put together that might come undone.

Environmentalists supposedly either supported or did not actively oppose this law because of the argument that no estate tax keeps rural areas from being developed. There is talk that these groups may insist on guarantees, next time around.

Some minority Congresspersons went along in order to insure continued funding of "big city" issues and programs. Some have felt let down, or so I am told.

But time will tell. Just do not fall into the trap of doing your planning based upon what you expect or wish to happen. Set up your affairs based upon the here and now but with the flexibility to change as change occurs.

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