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\\/Tater Allocation: The New Rules of the Game In a ruling which will have repercussions for a long time to come, the Court determined that water is an article in interstate commerce. 14 Raphael J. Moses Counsel Moses, Wittemyer, Harrison and Woodruff, Pc. Boulder, Colorado Who owns water? What rights come with ownership? When does need take precedence over ownership? And, most important, who gets to decide? Since the Supreme Court ruled in favor of a Nebraska farmer, the rules of water allocation, use and ownership may never be the same. When, in 1976, the manager of the local natural resources district in Nebraska told Joy Sporhase that he could not irrigate the 160 acres that he and Delmar Moss, his son-in-law, owned in Colorado with the well that was located on his Nebraska land adjoining the state line, he couldn't believe his ears. He and his son-in-law had just bought the farm, the well was there, and it had been used to irrigate the Colorado land as well as the Nebraska land. Joy Sporhase went to see his lawyer. When Richard Dudden, the Ogallala lawyer who later carried the Sporhase case successfully all the way through the United States Supreme Court, told Sporhase that the Nebraska statute did forbid the use of the Nebraska well water on the Colorado land, Sporhase said, "That's not right, and I'll take the case to the United States Supreme Court if necessary." Every lawyer hears those words from time to time and never has taken them seriously, but Sporhase, turned down by the local management district, turned down by the Nebraska District Court, and turned down by the Nebraska Supreme Court, persevered. He appealed to the United States Supreme Court and, in a ruling which will have repercussions for a long time to come, the Court determined that water is an article in interstate commerce, that no state can make rules which impose an impermissible burden on interstate commerce, and that the Nebraska statute imposed such a burden. The Repercussions. . . At the time the United States Supreme Court issued its Sporhase ruling in July of 1982, there was pending in the United States District Court in New Mexico a suit filed in 1980 by the city of El Paso, Texas, against the State Engineer of New Mexico. El Paso, a rapidly growing city of 450,000, found itself in need of an additional water supply and determined that wells located in the alluvium of the Rio Grande in New Mexico would be the most feasible source of that supply. El Paso, therefore, filed 326 well permit applications with the State Engineer of New Mexico, These wells would withdraw water from the Hueco and Mesilla Bolsons (basins) just across the New Mexico state line from EI Paso. The State Engineer denied all of these applications, relying on a New Mexico statute prohibiting the transport of underground water out of New Mexico. The trial court held, relying largely on Sporhase (which had been determined by that time), that the New Mexico groundwater embargo violated the commerce clause of the United States Constitution and that the defendants would be enjoined from enforcing that embargo. That ruling was appealed to the Tenth Circuit Court of Appeals and, while the case was pending on appeal, New Mexico amended its laws in an attempt to avoid imposing an impermissible burden on interstate commerce, New Mexico tried to get the Court of Appeals to dismiss the case because of the new legislation, but the Court of Appeals refused to do that and sent it back to the District Court for further hearings.