8014

• UCREFRP Catalog Number: 8014
• Author: McDonald, W. J.
• Title: The Upper Basins' Political Conundrum
• USFW Year: 1997.
• USFW - Doc Type: A Deal is Not a Deal.
• Copyright Material: NO

1 An Overview of the lnstitutiona! Setting
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s objections to the doctrine of appropriation as a
We conclude that Colorado
basis of decision are not well taken, and that it furnishes the only basis
which is consonant with the principles of right and equity applicable to
such a controversy as this is. ... The principle on which it proceeds is not
[sicJ less applicable to interstate streams and controversies than to others.
Both States pronounce the rule just and reasonable.... ...[I]ts application to
such a controversy as is here presented cannot be other than eminently just
and equitable to all concerned.ls
Although strictly applied in Wyoming v. Colorado, the Supreme Court has
sometimes deviated from the prior appropriation doctrine in subsequent
cases:
Application of the appropriation doctrine is ... qualified in that protection
of established uses may be more equitable than strict priority. Factors that
inform equitable apportionment (and that might justify deviation from
strict priority) include:
(1) Physical and climatic conditions;
(2) Consumptive use of water in the several sections of the river;
(3) Character and rate of return flows;
(4) Extent of established uses and economics built on them;
~, (5) Availability of storage water;
(6) Practical effect of wasteful uses on downstream areas; and
(7) Damage to upstream areas compared to the benefits to downstream
areas if upstream uses are curtailed.ls
i
is Wyoming v. Colorado, 259 U.S. 470 (1922). In arriving at the decision that the doctrine
of prior appropriation should apply to the Laramie River litigation, notwithstanding the
general principles of equitable apportionment which it had articulated in the 1907 case of
Kansas v. Colorado, supra note 12, the Court took great pains to distinguish the facts of the
earlier case from the case at bar, particularly on the grounds that Kansas and Colorado were
not both prior appropriation. states, whereas both Wyoming and Colorado had adopted the
doctrine of prior appropriation. 259 U.S. at 464-65.
is D. GETCHES, supra note 5, at 405-06. See, e.g., Nebraska v. Wyoming, 325 U.S. 589
(1945) (Frankfurter, J., and Rutledge, J., dissent), 345 U.S. 981(1953); Colorado v. New
Mexico, 459 U.S. 176 (1982) (remanded); Colorado v. New Mexico, 467 U.S. 310 (1984)
(Stevens, J., dissent).
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