It’s the Water, Stupid: the Ascendancy of Nancy Rice (and Greg Hobbs and Rebecca Kourlis), and Related Topics
Nancy Rice, presently chief justice of the Colorado Supreme Court, was a Denver District Court judge in 1992 when I first had contact with her. This post is a quick exposition of why Gov. Romer plucked her out of Denver District Court, for placement directly on the Colorado Supreme Court.
It had to do with the Snowmass Creek instream flow (ISF) water right.
In around October 1992 I had been tapped by a nonprofit legal foundation called the Land and Water (LAW) Fund of the Rockies to represent Aspen Wilderness Workshop pro bono in AWW’s contest against the Colorado Water Conservation Board’s sudden vote to “not enforce” the decreed instream flow water right for Snowmass Creek. It did this because the Aspen Skiing Company wanted 40% of the stream to make snow with. I was available, having been canned by the Colorado Attorney General’s office in July 1991 at David Robbins’s behest. And I was a water attorney. I was also involved with a LAW Fund attorney at the time, Bruce Driver, so I was known to them.
The ISF case had been filed in Denver District Court by Stewart McNab, who, with LAW Fund director Kelley Greene, had already been denied a temporary restraining order. He could not continue on the case, because his law firm had been informed it had a “conflict” with the Ski Company. Had I been the one to file this case initially, I would have filed it in water court, and I still wanted to transfer it there; however, I was required to subordinate my independent judgment to that of the LAW Fund’s board of directors, per my agreement with them. The case stayed in Denver District Court–and to my chagrin was assigned to Courtroom 7, Judge Nancy Rice.
“To my chagrin,” because I had, in January 1992, filed my original complaint against Lois Witte and Linda White over that very canning from the AG’s office. That case had also been assigned to Nancy Rice in Courtroom 7. We’d had no proceedings in it, because I had been hoping to negotiate a settlement. Failing that, in September, I amended to add the top dogs in the Attorney General’s office, as well as other claims. So both these politically sensitive cases, one in which I was the plaintiff and one in which I was the lawyer, were before the same judge, a very embarrassing situation for me.
This was my first exposure to the manipulation of case assignments in Denver District Court. There were 19 district court judges then. The odds of two unrelated cases being assigned to the same judge were .0029, meaning it was extremely probable that the second assignment was not done randomly.
But I didn’t need to calculate the odds, because Judge Rice herself admitted the assignment was not random. In December, she informed the parties in the Snowmass Creek case that, although she was being transferred to another courtroom (per the Denver court’s year-end “rotation” of judges), she was taking the ISF case with her because it had been “personally assigned” to her.
There is no such thing as a “personal assignment” in a neutrally operating judicial system. I should have moved for recusal right then and there. And I should have filed a complaint, but I didn’t. Although I was relieved to have the cases before two different judges, the damage to my client in the Snowmass Creek case was already done. Judge Rice knew extremely embarrassing facts about Aspen Wilderness Workshop’s attorney which AWW did not know, itself, at the time.
CWCB moved for summary judgment, and so did we. I had co-counsel on the original brief, Reed Zars, who moved to Wyoming in early 1993, so I was solo on the case after that point, even after moving to Craig, Colorado, myself at the beginning of March to take up the position of city attorney. I came back to Denver to do the argument on cross-motions for summary judgment in front of Judge Rice, a hideous experience. She never once made eye contact with me, although I was standing about 15 feet in front of her for at least half an hour. She looked down at papers on her desk the entire time. I addressed my argument to the court reporter down below, therefore, who was at least looking at me.
Judge Rice proceeded to grant the CWCB’s motion for summary judgment and dismissed all seven claims in our case.
In 1998, Gov. Romer rewarded her with appointment to the Colorado Supreme Court. Judges are selected in Colorado by the governor, after three names are submitted to him by a committee. That’s why we end up with such terrible ones, unqualified people and people with conflicts, whom the public never has any opportunity to vet. Romer–a real estate developer (see depo page 31)–in 1996 had also appointed Greg Hobbs to the Supreme Court. Hobbs is a water lawyer who had written an amicus brief in the Snowmass Creek Supreme Court case arguing that the CWCB had no trust responsibility to the ISF water rights, despite taking the exact opposite position in a published article some years before. And in 1995 Romer had appointed Becky Kourlis to the Supreme Court. Kourlis had been the district court (and water) judge in Craig, so had firsthand knowledge about the contempt proceedings I was subjected to as Craig City Attorney beginning in Sept. 1993.
I remember Al Knight, an editorial writer for the Rocky Mountain News, analyzing these judicial appointments to anticipate how Hobbs and Kourlis would rule in criminal cases. He did not seem to realize the common denominator in their appointments was their rulings or activities in water cases. Forty percent of what the Colorado Supreme Court does is water, since appeals of water cases go directly to the Supreme Court from the water court, bypassing the Colorado Court of Appeals. Sec. 13-4-102(1)(d), C.R.S.
I realized as soon as these three Supreme Court appointments were made that cases seeking to keep water in the streams, or cases I was to bring personally, would never be successful again–as indeed was the case. I further believe Greg Hobbs was personally involved in the disciplinary vendetta I was subjected to from 2006-11, because I had exposed substantial criminal acts by his buddies who are water attorneys. Was Nancy Rice also involved in the vendetta? Well, she certainly did not stop it.
As for the appeal of the ISF case after Rice dismissed it, I had to file that with the Colorado Court of Appeals, but then succeeded in getting direct review by the Colorado Supreme Court. However, as mentioned, since September 1993 I had been defending against this onslaught of contempt proceedings in Craig, another hugely embarrassing situation to admit to my client (and which, I have realized since, was exploited by the water developers to get me off the ISF case. See my June 20, 2015, comment to the post linked to above.) Beleaguered, I volunteered to withdraw, and the LAW Fund found another pro bono attorney–unfortunately not a water attorney. She did not understand the key concept of res judicata, which in a water case means that decreed water rights cannot be collaterally attacked. Although the appeal to the Supreme Court (901 P.2d 1251 (Colo. 1995)) was successful on other issues I had identified and developed, such as that a water decree could not be administratively modified and that the CWCB had a trust responsibility to the ISF, the legislature changed all that after the Supreme Court’s opinion came down, transforming the instream flow right into an inferior water right. It can now be modified (read: reduced, since the ISF can’t be increased this way) administratively by the CWCB whenever any developer, like the Aspen Skiing Company, wants to take it. They only skip off to court later, hand-in-hand, to get a rubberstamp. This legislation was drafted by Greg Hobbs in 1996, right before he became a Colorado Supreme Court justice, himself. I wrote a critical examination of it in a law review article, and later got Hobbs recused from a second instream flow case I brought to the Colorado Supreme Court.
So I won that battle, therefore, but lost the war: Kourlis wrote the opinion and held against us in that case.
An additional insult: the Colorado Water Congress, which exists for the purpose of facilitating the removal of water from streams, held a panel discussion with four attorneys in early 1993 about the Snowmass Creek instream flow case. The case was the biggest thing around at the time and caused quite a buzz. Did the CWC invite me, the plaintiff’s attorney, to participate? Of course not–it invited David Robbins to “represent the environmental interest.” David was not on the case and had nothing to do with it, although he had been in the Attorney General’s office in 1975 when the original ISF was adjudicated. And he is no environmentalist. The other three on the panel were, of course, water developers just like him.
One last disagreeable realization I had is that the (undeserved) contempt proceedings against me in Craig were likely prolonged at Romer’s behest, to get me off the ISF case. Yet another weird coincidence in the string of weird and harmful coincidences I have endured in my life was that the City of Craig had a private water attorney working for it, Jim Lochhead, when I came on board, even though its new city attorney–moi–was a water attorney. Lochhead thus came in as “conflicts counsel” for the city when the contempt proceedings were initiated against me. The judge responsible for initiating the contempt, Mary Lynne James, had dismissed the City almost immediately, as I showed him; however, Lochhead treated the case as still “live” against the City, filing motions and so forth for several months, causing me even more embarrassment with my employer.
Lochhead was a member of the CWCB himself at the time. He had been influential in getting the rest of the board to vote for slicing off 40% of the ISF off so the Aspen Ski Company could make snow in October. He did this by lying about the water right the Ski Company would be using for its diversions, saying it was senior to the ISF. It was not senior for the use of snowmaking, however, since it was not decreed for that use (and snowmaking, I argued in the later case, is not a beneficial use in Colorado law in the first place). So did Lochhead purposely keep me twisting in the wind, to get rid of the case against the Colorado Water Conservation Board?
For all his good work in the service of water developers, Lochhead was appointed by Roy Romer to be director of the Department of Natural Resources in the spring of 1994. Ken Salazar, who had also been on the CWCB helping trash Snowmass Creek, as Romer’s director of DNR, went on to become Colorado Attorney General, senator from Colorado, and Secretary of Interior under Obama, in which capacity he trashed a lot of other stuff, like the Gulf of Mexico.
Romer, for his part, took substantial campaign contributions in 1992-94 from persons associated with the Aspen Skiing Company, as I learned for the first time when I got these records in 1998. They certainly look like a quid pro quo for his slicing off 40% of the ISF in Snowmass Creek. I’ve been able to identify the following as associated with the Aspen Skiing Company:
Bob Maynard (no relation to me!)–president of the Aspen Skiing Company–$2,000, 8-10-93;
Marvin Davis (whose entities MKDG III and MKDG IV–“Miller Klutznick Davis Gray”–were partners in the Ski Company), $25,000 to Romer on Feb. 12, 1993. LOOK AT THAT: $25,000! No checks on campaign contributions in Colorado whatsoever. There are many such contributions in these pages.
A. Steven Crown; James S. Crown; Lester Crown; and Susan Crown, partners of the Aspen Skiing Company at the time (and General Dynamics, with intimate mob ties), $4,000, 8-10-93*;
Suzanne C. Goodman (another Crown), $1,000, 4-1-93;
Harris Sherman (Ski Company’s lawyer, who went on to be Undersecretary of Agriculture under Obama), $2,000, 8-12-93. I encountered Mr. .Sherman for the first time in Rice’s courtroom during that summary judgment proceeding, by the way. He came over to my table to talk to my client before we began, inserting himself between us to lean toward her with his back to me in a pointed snub, without introducing himself.
There are several other skiing-related entities and their lawyers who gave money to Romer, as well, as those pages show.
Note: I will link to my briefs as soon as I locate them. It is possible I don’t have them, since I turned my case file over to the attorney who succeeded me.
*Well, well, well, another link that points nowhere, when it should point to the evidence of the Crown family’s mob ties. Well, here’s another (and all would do well to examine Bollyn’s other writings).