Laserfiche WebLink
<br />Oul<ioD <br /> <br />(1907), the Court held that Kansas had not been sufficiently <br />damaged by Colorado's depletion of the water of the Arkansas <br />River to justify apportioning it. Although a suit by the <br /> <br />Upper Basin would not depend on the doctrine on equitable <br />apportionment, it might nonetheless founder on similar <br />grounds related to the degree of harm. <br />If the suit did escape a dismissal, it would probably be <br /> <br />slow and expensive to litigate, as is notoriously true of <br />original jurisdiction actions. More importantly, the Lower <br />Basin would not stand idly by. The doctrine of equitable <br />apportionment is riddled with vague, overlapping stan- <br />dards.86 The two opinions in Colorado v. New Mexico, 459 <br /> <br />u.s. 176 (1982) and 466 U.S. 310 (1984) contributed fresh <br /> <br />ambiguities to the doctrine, but probably it is still fair to <br /> <br />say there is still some life in the maxim, "Priority of <br /> <br />appropriation is the guiding principle." <br /> <br />Nebraska <br /> <br />v. Wvominq, 325 U.S. 589, 618 (194S). If it were interjected <br /> <br />in some fashion into the suit, the Lower Basin might manage <br /> <br />to obtain a decree which would protect its existing level of <br /> <br />use and demand and cast the Upper Basin into an irreversibly <br /> <br />inferior position. <br /> <br />The terror of original jurisdiction <br /> <br />litigation is its unpredictability. <br /> <br />V. LEGAL THEORIES POTENTIALLY PROVIDING RELIEF TO THE UPPER <br />BASIN. <br /> <br />A. T~e Requirement of Article III (d) of the Compact <br />That the Upper Basin Not Deplete the River Below an Aggregate <br />of 75 m.a.f. For Any Ten Year Period <br /> <br />-35- <br />