Muddied Waters: McKinley, contempt, and the Colo. Ground Water Commission
The waters are muddied in the Southern High Plains Designated Basin and two sides met Tuesday in the Baca County Courthouse.
At the beginning of the day on Sept. 1, former House District 64 Rep. Wes McKinley was slated to go to jail on contempt of court charges, but before his sentencing hearing in Springfield, he grilled burgers to serve to his friends and family. It was, he said, a last supper before heading to the gallows.
McKinley has objected to 40 appropriation requests made over the past two years, claiming that the water to support these high-capacity appropriations does not exist.
According to Colorado Revised Statutes 37-90-107, any request for the appropriation for a high capacity well, a non-exempt well or anything over five acre-feet per year, a notice must run as an insertion in a general circulation newspaper. If there is an objection within the 35-day period, the Colorado Ground Water Commission engineer must prove unappropriated water available. If unappropriated water is available, the request will be granted. Without availability, denied. The determination is to be made at a hearing.
“That’s what I’ve done,” he said. “I’ve objected to over 40 of these applications and I say the law says they have to prove there is water available so let’s have a hearing and prove it. They say I have no rights to that, and they don’t have to prove it, they can grant the permits without proving it.”
A letter from the commission is in McKinley’s hands and it says no determination about the availability has been made so they assume there is some available. The letter, he said, is signed by Colorado Ground Water Commission Chief Engineer Keith Vander Horst.
The commission, McKinley said, continued to refuse to hold the hearing guaranteed in statute as a Denver attorney, Alan Curtis, who represents several of the appropriation requestors, filed contempt of court charges against McKinley, claiming his objections were filed frivolously.
Curtis said the basin remains open for appropriation requests and until McKinley, or someone else, petitions the Groundwater Commission to close it, the appropriations will be granted.
The judge agreed with Curtis with the stipulation that McKinley must hire an attorney licensed in Colorado and/or permission from the courts to file an appeal before the Groundwater Commission. The deadlines for appeals and conjunctions collided so McKinley filed a motion with the court to determine whether this is retroactive as McKinley has nine objections filed that have not been dealt with in several months.
“It’s real clear in the Colorado Revised Statutes, what you do in this situation,” McKinley said. “It’s well laid out and I’m simply saying, this is the law and if we’re not going to follow the law, let’s stop spending millions sending people to Denver to play like they’re lawmakers when the agencies have the authority, at will, to make their own rules and there’s nothing you can do about it. And that’s true.”
In Curtis’ eyes, McKinley is incorrect in the standards Curtis said McKinley has made up. The rules for the commission, he said, describe whether a basin allows appropriation by whether it is open to future application or closed.
“Mr. McKinley understands legal process and he was in the legislature for eight years and I believe he ought to have some respect for the law,” Curtis said. “It does not allow him to make up a legal standard and then tell everybody, including Judge (Stanley) Brinkley, the commission’s hearing officer, the commission, and an independent lawyer that he consulted that told him exactly what he’s been told 40 times, that his arguments have no legal basis.”
Curtis said through his objections, McKinley has wasted the time and money of his clients.
“I do not see Mr. McKinley as a heroic Old West figure to the extent that he’s a cowboy, he’s not one of the white hats from my perspective,” Curtis said. “What he’s doing is ineffective, selfish, and it’s a huge waste of my time, the court’s time, and my clients’ time and money.”
McKinley said it’s plain that he can no longer file objections, but said that doesn’t mean that other people can’t. The caveat, however, is the Colorado Judicial Branch’s webpage containing forms to oppose an appropriation displays “Page not found.” McKinley said there is already discussion with legislators interested in the issue about carrying a bill making the process more accessible.
In McKinley’s far southeastern corner of the state — 8 miles from the Oklahoma border and 12 miles from the Kansas border — appropriated water may be used for a number of purposes, with an allowed appropriation of 3.5 acre-feet per acre annually. He said other areas of the state allow two acre-feet per acre annually. He likens it to a gold mine, that once in your possession, you can do whatever you want with it. The comparison of water to gold is no coincidence though.
“Water is the most precious substance on the face of the earth, even compared to gold, diamonds, oil and gas, compared to anything,” he said. “Every man, woman, and child, regardless of age, infirmities, illness, or wealth requires the same amount, without which they will expire in three days. That’s what it’s all about — getting control of the most precious substance on the face of the earth.”
In southeastern Colorado, he said aquifers are depleted, forcing wells to be dug deeper and forcing irrigators to nozzle down, or transition to smaller nozzles to maintain a spray of water rather than a drip, as gallons per minute have dropped from 500 gallons per minute to 400 gallons this summer.
With everything in black, white, and statutes, McKinley said he’s simply protecting his rights, something he said the commission and the state aren’t accustomed to. Rights are being lost, he said, simply because they’re not being exercised.
Despite his time in the House, serving as the foreman of the Rocky Flats grand jury in 1989 and co-authoring the book that told the tale of the two and a half year trial, he primarily thinks of himself as a cowboy.
Staunch defense of private property rights has long been a concern for McKinley, who is a rare rural Democrat. He led the fight against the Pinon Canyon Expansion, carrying legislation to change the laws in Colorado to stop the Army’s expansion into ranch country. During the fight against the expansion, McKinley organized a ride that included then-Gov. Bill Ritter and a well-documented mule ride into the lobby of a La Quinta Inn.
He and his late wife were married for nearly 50 years, they raised about 20 foster children, and three daughters, all on the same dry, hard ground not far from where he was born after his family homesteaded.
Though the judge’s written orders haven’t yet been filed, Curtis said McKinley’s 90-day sentence was suspended unless he files additional objections. Sen. Pete Lee, D-Colorado Springs, and Sen. Larry Crowder, R-Alamosa, both also attended the hearing and a speaker system was set up to broadcast the hearing to those who attended but weren’t allowed into the courtroom.
“Everybody’s got to be somewhere, so that’s where I’ll be,” he said. “I’m really not a threat to anyone except the water boys and the state commission. They think I’m a real threat to them.” ❖
— Gabel is an assistant editor and reporter for The Fence Post. She can be reached at firstname.lastname@example.org or (970) 768-0024.
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