William O. Douglas

“ It is urged that the long-time averages must be considered in computing the dependable supply and if they are and if the storage capacity of these reservoirs is added to the natural flow, the dependable supply will be increased. Moreover, Wyoming argues that no allocation can be made to individual appropriators in any of the States because they are not parties and cannot be bound in their absence. ”

“ Wyoming estimates that the water pumped during that year was the equivalent of 18,000 acre feet at the headgate. It is difficult to see the equity in Wyoming's demand that Interstate's quota from the river be reduced by that amount. These irrigators bore their share of the cost of the operation and maintenance of Pathfinder and Guernsey and also paid the cost of the pumping. It is not just that they forego the benefits of the water for which they are paying, give the benefits to others, and take on the additional expense of pumping. ”

“ The Kendrick Project plainly is an existing threat to senior appropriators down stream. As we have noted, it is junior to practically every appropriation on the river between Alcova and the Tri-State Dam. Since 1930 there would have been no water for it if it were operated on a priority basis. And in view of the general position taken by Wyoming with respect to Nebraska priorities, it cannot be assumed that the Kendrick Project would be regulated for the benefit of senior appropriators in Nebraska. Neither Wyoming nor Colorado has ever recognized any extension of priorities across state lines. ”

“ On the record before us we are not justified in assuming that there will be a greater supply than has been available during the 1931-1940 period. To base the decree on a larger supply would not be to base it on a dependable supply. Under those conditions Kendrick can store no water. Even with reservoir regulation we are not convinced that Wyoming has shown an adequate supply to justify the allocation she seeks. The combined storage capacity of the North Platte and Kendrick projects is equal to 175 per cent of the long-time annual average river run-off of the river at Pathfinder. ”

“ The United States and Nebraska claim that the adoption of a priority schedule in this section would achieve the most equitable results. On a 25-75 percentage basis, Nebraska would get 75 second feet out of the first 100, to none of which she would be entitled in times of an extreme low flow; Wyoming would get 225 second feet out of the next 900 to none of which she would be entitled on a priority basis. A priority basis would only coincide with the percentage basis when the supply available was 400 second feet or 1500 second feet. ”

“ As Nebraska points out, when a junior Nebraska canal having storage rights is closed to natural flow due to operation of Nebraska priorities, it should be allowed to make up the deficiency in its supply in relation to its requirements by asking for storage water under such contracts as it may have with the United States. The United States does not repudiate those contracts. ”

“ Eighty-two per cent of that Nebraska acreage has storage water rights under Warren Act contracts; 7 per cent of that Wyoming acreage has storage water rights. When groups 1 to 7 are considered, 82 per cent of the Nebraska acreage and 47 per cent of the Wyoming acreage have storage water rights under Warren Act contracts. The Mitchell and Ramshorn Canals are the only Nebraska canals in the 7 groups which have no storage water rights. As we have said, storage water, though not apportioned, may be taken into account in determining each State's equitable share of the natural flow. ”

“ The United States contends that Nebraska's equitable share of natural flow water should be limited to that which is in fact being diverted and used by any or all of the designated canals within the specified limitations in acre-feet and second-feet. It is said that these provisions of the proposed decree are the operative provisions which determine the amount of natural flow to be passed into the Whalen-Tri-State Dam section of the river. ”

“ The rights are small but very numerous. The total acreage under irrigation is 153,000 acres, allowing for a margin of error. Below Pathfinder and above Guernsey the Special Master dealt only with diversions from the main river. He concluded that the run-off of the tributaries becomes so far exhausted before any shortage of water occurs in the main river that any regulation of the tributary diversions would be of no material benefit. The tributary inflow is greater than the depletion of the river. There is some out-of-priority diversion as we have noted. ”

“ He also felt that an interstate priority schedule for this section, while not open to all the objections which would be present if it were applied to the whole river, would have other objections. Those were (1) that it would deprive each State of full freedom of intrastate administration of her share of the water and (2) that it would burden the decree with administrative detail beyond what is necessary to an equitable apportionment. ”

“ The property right in the water right is separate and distinct from the property right in the reservoirs, itches or canals. The water right is appurtenant to the land, the owner of which is the appropriator. The water right is acquired by perfecting an appropriation, i.e., by an actual diversion followed by an application within a reasonable time of the water to a beneficial use. ”

“ A further contention is that the plaintiff sells the water before it is used, and therefore has no right in the seepage. But the water is not sold. In disposing of the lands in small parcels, the plaintiff invests each purchaser with a right to have enough water supplied from the project canals to irrigate his land, but it does not give up all control over the water or do more than pass to the purchaser a right to use the water so far as may be necessary in properly cultivating his land. Beyond this all rights incident to the appropriation are retained by the plaintiff. ”

“ Nebraska contends that the allotment to Farmers Irrigation District be increased in the seasonal limitation recommended, so that the Warren Act contract which it has may be recognized. But for reasons which we will elaborate the only water subject to the present allocation is natural flow. Contracts requiring the supplementation of natural flow by storage are unaffected. ”

“ While the North Platte Project has increased the water resources, it has complicated the problem of water administration in Wyoming and Nebraska. It has necessitated a segregation of storage and natural flow. The storage plants and diversion works are in Wyoming, although much of the beneficial use is in Nebraska. Appropriators in Nebraska are dependent on regulation and control in Wyoming. ”

“ But where there is not enough water in the river to satisfy the claims asserted against it, the situation is not basically different from that where two or more persons claim the right to the same parcel of land. The present claimants being States we think the clash of interests to be of that character and dignity which makes the controversy a justiciable one under our original jurisdiction. ”

“ In general, the practice has been to allow storage right canals having early priorities to receive natural flow water on a priority basis, using storage water merely as a supplementary supply. In this area, 90 percent of the lands have both natural flow and storage rights. [10] Seventy-eight percent of the lands having storage rights are in Nebraska, 22 per cent in Wyoming. Of the lands having natural flow rights only 49 per cent are in Nebraska and 51 per cent in Wyoming. ”

“ She emphasizes the large increase since 1910 in acreage under irrigation in Wyoming and Nebraska as compared with the increase in Colorado. She asserts there is a surplus of water in the stream, as evidenced by the fact that during the recent drought or dry cycle the Kendrick Project in Wyoming and the Tri-County Project in Nebraska have been constructed, indicating that the sponsors considered that the available water supply was not entirely used by existing projects. And she emphasizes that during the drought there was a divertible flow passing Tri-State Dam during the irrigation season. ”

“ Colorado. But there is no hard and fast rule which requires it in all cases. The standard of an equitable apportionment requires an adaptation of the formula to the necessities of the particular situation. We may assume that the rights of the appropriators inter se may not be adjudicated in their absence. But any allocation between Wyoming and Nebraska, if it is to be fair and just, must reflect the priorities of appropriators in the two States. Unless the priorities of the downstream canals senior to the four reservoirs and Casper Canal are determined, no allocation is possible. ”

“ Those projects, however, are not completed; they are indeed projects for the indefinite future. In addition to these projects in North Park, Colorado also has proposed that large quantities of water from the river be exported from the basin into other rivers.
There have been out-of-priority diversions in Colorado and Wyoming above Pathfinder in relation to the priorities and needs of Nebraska users. Their full extent is not known. But as respects Pathfinder, the Special Master estimated that Colorado appropriators junior to Pathfinder consume about 30,000 acre feet a year. ”

“ The argument is that the potential threat of injury, representing as it does only a possibility for the indefinite future, is no basis for a decree in an interstate suit since we cannot issue declaratory decrees. ”

“ One who by the expenditure of money and labor d verts appropriable water from a stream, and thus makes it available for fruitful purposes, is entitled to its exclusive control so long as he is able and willing to apply it to beneficial uses, and such right extends to what is commonly known as wastage from surface run off and deep percolation, necessarily incident to practical irrigation. ”

“ Wyoming thinks this should be reduced 85,000 acre feet by lowering the estimates for the Interstate, Tri-State and Northport Canals and by eliminating the demand of Ramshorn. Wyoming would reduce Interstate by 60,000 acre feet-15,000 on account of alleged excessive acreage, 27,000 on account of possible large winter diversions to Lake Minatare and Lake Alice, 18,000 on account of water which can be pumped from wells. ”

“ Hence we, like t e Special Master, treat the case as one involving appropriation rights not only in Colorado and Wyoming but in Nebraska as well.
North Park. There are at present in the North Park area in Colorado (Jackson County) 131,800 acres irrigated. The climate is arid. The sole industry is cattle raising, the only crops being native hay and pasturage. The growing season is short. While the diversions are high per acre (about 4 1/2 acre feet) the return flows are large, making the average consumptive use [8] rate only 74 acre foot per acre. ”

“ This project includes an auxiliary channel reservoir called Guernsey, located above Whalen, Wyoming. Its capacity is 50,870 acre feet. The project also includes two small reservoirs in Nebraska-Lake Alice and Lake Minatare-having a capacity of 11,400 and 67,000 acre feet respectively. There are two main supply canals-Interstate and Fort Laramie-which take out from the North Platte at the Whalen diversion dam. The Interstate canal runs on the north side and the Fort Laramie on the south side of the river. Both extend far into Nebraska. Northport-a third canal-is located wholly in Nebraska. ”