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

Home Browse Search

drainage the United States adds to the natural flow below Kendrick, it is only fair to allow Kendrick whatever benefit may result from that contribution. Cf. Reno v. Richards, 32 Idaho 1, 178 P. 81.One difficulty is that the drainage system has not been completed, Kendrick has not been put into operation, and we do not know what the contribution by artificial drainage will be. Accordingly, we do not at this time consider the claim on the merits. When Kendrick has been put into operation and there is a full development of return flows, application may be made for revision of the decree to permit 'in lieu of diversions at or above Alcova. Whalen to Tri -State Dam. As we have said, this is the critical section of the river. The main controversy cen- [325 U.S. 589, 638] ters around it and around the Special Master's proposal for dealing with it. He proposes that the natural flow water in this section between May 1 and September 30 each year be apportioned on the basis of 25 per cent to Wyoming and 75 per cent to Nebraska. He recommends that N braska be given the right to designate from time to time the portion of its share which shall be delivered to the Interstate, Ft. Laramie, French and Mitchell Canals for use on Nebraska lands served by them and that Wyoming be enjoined from diversions contrary to this apportionment. 19 None of the parties agrees to this apportionment. Wyoming earnestly contends that storage water as well as natural flow should be included in the apportionment which is made for this section of the river. She points out that in State of Wyoming v. Colorado, supra, the Court made an apportionment based upon a supply 'which is fairly constant and dependable, or is susceptible of being made so by storage and conservation within practicable limits.' 259 U.S. page 480, 42 S.Ct. page 562. She argues that the Court has the power to allocate storage water though its disposition is controlled by contracts between the United States and irrigation districts; and that an apportionment which excludes storage water is unfair. The argument is that each State should be restricted to the use of such supplies only as the necessary to provide their respective irrigators, in- [325 U.S. 589, 639] cluding those receiving water under contracts, with such amounts as are necessary for beneficial use. The large excesses diverted by Nebraska are adverted to as showing the degree to which carry-over storage in the upper reservoirs has been diminished and the supply for Kendrick exhausted. The Special Master concluded that since the North Platte Project storage water was disposed of under contracts between the United States and landowners under the project and under the Warren Act contracts, the obligations of those contracts and the necessity of performance under them must be recognized by the decree. He concluded, however, that in the allocation of the natural flow the storage water available might bear upon the equities of the States, although it would have no relevancy to the legal rights of individual appropriators inter se under the law of either Wyoming or Nebraska. We think the equities of the case support the failure to include storage water in the apportionment. We do not reach the question whether the presence of the storage water contracts would preclude an apportionment of storage water. The nine Wyoming private canals and the Mitchell and Ramshorn canals have no contract rights to receive storage water from the federal reservoirs. It is difficult for us to see how it would be equitable to make an apportionment on the basis that they do. In certain years in the past there have been excessive diversions by canals in this section, including the nine Wyoming private canals. We cannot assume that an apportionment of storage water is necessary to prevent a recurrence of those practices. Certainly an apportionment of storage water would disrupt the system of water administration which has become established pursuant to mandate of Congress in 8 of the Reclamation Act that the Secretary of the Interior in the construction of these federal projects should proceed in conformity with state law. In pursuance thereto [325 U.S. 589, 640] all of the storage water is disposed of under contracts with project users and Warren Act canals. It appears that under that system of administration of storage water no State and no water users within a State are entitled to the use of storage facilities or storage water unless they contract for the use. See Wyo.Rev.Stats. (1931), 122 -1504, 122 -1508, 122 -1602. If storage water is not segregated, storage water contractors in times of shortage of the total supply will be deprived of the use of a part of the storage supply for which they pay. If storage water is not segregated, those who have not contracted for the storage supply will receive at the expense of those who have contracted for it a substantial increment to the natural flow supply which, as we have seen, has been insufficient to go around. In State of Wyoming v. Colorado, supra, the Court did not apportion storage water. It apportioned natural flow only. It took into account when it made that apportionment the effects of storage in equalizing natural flow in Wyoming. We think no more should be done here to effect an equitable apportionment.