State of Nebraska v. State of Wyoming et al. 325 US 589 (1945) 325 US 589

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589, 629] istered so as to divert water from above Tri -State to the use of those diverting below Tri- State, application for appropriate relief may be made at the foot of the decree. The United States asserts that it should be given a separate allocation of water even if it is not treated as the owner of unappropriated water and hence the possessor of an unbroken chain of title to project water. The Special Master concluded that the position of the United States or the Secretary of the Interior is that of an appropriator of water for storage under the laws of Wyoming and that its interests are represented in that connection by Wyoming. That was in line with the ruling of this Court when Wyoming moved to dismiss this very case on the ground, among others, that the Secretary of the Interior was a necessary party. State of Nebraska v. Wyoming, 295 U.S. 40, 43 , 55 S.Ct. 568, 569. The Court said: 'The bill alleges, and we know as matter of law, that the Secretary and his agents, acting by authority of the Reclamation Act and supplementary legislation, must obtain permits and priorities for the use of water from the state of Wyoming in the same manner as a private appropriator or an irrigation district formed under the state law. His rights can rise no higher than those of Wyoming, and an adjudication of the defendant's rights will necessarily bind him. Wyoming will stand in judgment for him as for any other appropriator in that state. He is not a necessary party.' We have discussed the procedure of appropriation which has been followed in this region. The Secretary of the Interior made the appropriations under Wyoming law. But we have noted that the water rights were adjudicated to be in the individual landowners. Hence, so far as the water rights are concerned, we think it is not proper to analogize this case to one where the United States acquires property within a State and asserts its title against the State as well as others. The United States claims that it is at least entitled to be recognized as the owner of the storage water with full [325 U.S. 589, 630] control over its disposition and use under Wyoming law. That seems to be true under Wyoming law. Wyo.Rev.Stats. (1931) 122 -1601, 122 -1602; Scherck v. Nichols, 55 Wyo. 4, 19, 95 P.2d 74. The decree which is entered will in no way cloud such claim as it has to storage water under Wyoming law; nor will the decree interfere with the ownership and operation by the United States of the various ederal storage and power plants, works, and facilities. We repeat that the decree is restricted to an apportionment of the natural flow. The decree will, however, place a restraint on the storage of water in Pathfinder, Guernsey, Seminoe and Alcova Reservoirs, so as to protect the Nebraska lands served by the French Canal and the State Line Canals which the senior. The United States points out that if Nebraska permits some of the natural flow to go below the Tri -State Dam, as it may do, thus causing certain of the State Line Canals to go short, those canals would be entitled to have any deficiencies replaced by the United States under Warren Act contracts. It says that under the proposed decree only storage water and not natural flow could be supplied and unless storage water is appropriately defined by the decree, it might not be possible to meet the contract requirements without violation of the limitations on natural flow which are fixed by the decree. And it says that that would be the result if storage water were defined to exclude all water passed through a reservoir at any time when its inflow is as great as or greater than its outflow. Nebraska recognizes the desirability of that course. She contends, however, that where the outflow is equal to or less than the intake, none of the released water can be considered as storage water. And she says that when the water being released is greater than the inflow, that portion which represents the amount of natural flow being taken in at the intakes cannot be considered as storage. See Gila Valley Irr. Dist. v. United States, 9 Cir., 118 F. [325 U.S. 589, 631] 2d 507. She says that the United States by its proposal is attempting to transform into storage water what is in fact natural flow originating above the reservoirs. For reasons which will be more fully discussed, we think that storage water should be left for distribution in accordance with the contracts which govern it. Accordingly, we think it is advisable to define storage water in the manner proposed by the United States, so as to make the operation of the decree more certain and to adjust it to the storage water contracts which are outstanding. Storage water therefore is defined for purposes of this decree as any water which is released from reservoirs for use on lands under canals having storage contracts in addition to the water which is discharged through those reservoirs to meet the requirements of any canal as recognized in the decree. This definition does not adversely affect rights recognized in the decree. It is perhaps a departure from the ordinary meaning of storage. But so long as the Warren Act contracts are outstanding that definition is necessary in order to give them effectiveness. For they do not provide that the United States will furnish water in such amounts as may from time to time be available. The United States agrees to deliver water which will, with all the water to which the land is entitled by appropriation or otherwise, aggregate a stated amount. 17 [325 U.S. 589, 632] There are other