8093

• UCREFRP Catalog Number: 8093
• Author: Natural Resources Law Center.
• Title: Instream Flow Protection In The West - Revised Edition - 1993.
• USFW Year: 1993.
• USFW - Doc Type: \
• Copyright Material: NO

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47.

Two arguments can be made in response to this char~e of socialism: First, one might observe that
socialism is not entirely foreign to water development in the WesL Most major water projects
have been centrally planned and shielded from the harsh realities of market forces. Moreover,
prior appropriation doctrine has never been purely laissez faire, but has long been overlain by at
least some attention to the larger public welfare (e.g., Schodde v. Twin Falls Water Co., 224 U.S.
107 (1912) (favoring larger junior appropriator over small senior)). Second, one might argue that
political realities require government ownership and control over instream rights if the public is to
obtain large instream rights on major rivers. These are fair observations. It may well be that in
some instances socialized control is the expedient and intelligent way to go. I continue to believe,
however, that it should not be the only vehicle for protecting instream values, and that if market
forces can be applied to these transactions (with an appropriate governmental oversight role), all
users may be made better off.