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<br /> <br />000706 <br /> <br />in considering the extent of the contribution to the interstate river made by the portion oftheVermejo <br />watershed in Colorado (id.at 324, emphasis added): <br /> <br />As a final consideration, the Master pointed out that <br />approximately three-fourths of the water in the Vermejo River <br />system is produced in Colorado. He concluded, therefore, that <br />"the equities are with Colorado, which requests only a portion of <br />the water which it produces." '. .. Last term, the Court rejected <br />the notion that the mere fact that the Vermejo River originates in <br />Colorado automatically entitled Colorado to a share of the river's <br />waters: . .. Both Colorado and New Mexico recognize the <br />doctrine of prior appropriation, . . . and appropriative, as opposed <br />to riparian, rights depend on' actual use, not land ownership. . . . It <br />follows, therefore, that the equitable apportionment of <br />appropriated [sic] rights should turn on the benefits, harms, and <br />efficiencies of competing uses, and that the source of the Vermejo <br />River's waters should be essentially irrelevant to the adjudication <br />of these sovereigns' competing claims. <br /> <br />Whether the same conclusion would be reached where some or aU of the contesting states apply the <br />riparian doc.trine is debatable. In any event, the question should be taken to the next level - why <br />shouldn't a state be given points on its equitable apportionment scorecard for maintaining the portion <br />of an interstate watershed within its borders in a healthy, productive condition? <br /> <br />Contemporaneously with its Vermejo decisions, the Court held in Idaho v. Oregon and Washington, <br />462 U.S. 1017 (1983), that the doctrine of equitable apportionment was applicable to a dispute <br />among the three states over their respective shares of the anadromous fish in the Columbia-Snake <br />River System. It relied on its statement,inKansas v. Colorado, 206 U.S. 46, 97-98 (l907), that <br />"[w]henever. . . the action of one state reaches through the agency of natural laws into the territory <br />of another state, the question of the extent and the limitations of the rights of the two sates becomes <br />a matter of justiciable dispute between them, and this court is called upon to settle that dispute in <br />. such a way as will recognize the equal rights of both and at the same time establish justice between <br />them." 462 U.S. at 1024, note 8. The basic principle it applied was that "states have an affIrmative <br />duty under the doctrine of equitable apportionment to take reasonable steps to conserve and even to <br />augment the natural resources within their borders for the benefit of other states." Id. at 1025 <br />(emphasis added). However, the Court concluded that Idaho had not proved a present injury. Justice <br />O'Connor's dissent emphasized watershed protection and management as an important factor to be <br />considered in equitable apportionment cases (id. at 1033, 1037, emphasis added): <br /> <br />Even if there is absolutely no harvestable Surplus for a year or for <br />several years, Idaho has a right to seek to maintain and eventually <br />increase the runs by requiring the defendants to refrain from <br />practices that prevent fish from returning to their spawning grounds <br />in numbers sufficient to perpetuate the species in this river system. <br />Cf. ,Colorado v. New Mexico, 459 U.S. 176 . . . (1982) <br />(recognizing duty to conserve common water supply); Wyoming v. <br />Colorado, 259 U.S. 419, 484. . . (1922) (same). <br /> <br />307 <br />