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

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early Wyoming uses, the return flows, and the greater storage water rights which Nebraska appropriators have in this section as compared with those of Wyoming appropriators tip the scales in favor of the flat percentage system recommended by the Special Master. It should be noted, moreover, that that method of apportionment, though not strictly adher- [325 U.S. 589, 646] ing to the principle of priority, gives it great weight and does not cause as great a distortion as might appear to be the case. For on the first 412 second feet of flow the advantage would be with Nebraska, since 412 is the point at which 25 per cent of the flow would first equal the 103 second feet which on a priority basis would go to Wyoming. On the next 1,114 second feet the advantage would be with Wyoming, since Wyoming's share on a priority basis would equal 25 per cent of the flow only after the total flow had reached 1,526 second feet. Accordingly, we conclude that the flat percentage method recommended by the Special Master is the most equitable method of apportionment. We have considered the arguments advanced against the apportionment being made on the basis of 25 -75 per cent. But we do not believe the evidence warrants a change in those percentages. Wyoming urges reductions in the requirements for the Whalen to Tri- State Dam section of the river. As we have seen, the seasonal requirement, as found by the Special Master, is 1,027,000 acre feet. Wyoming thinks this should be reduced 85,000 acre feet by lowering the estimates for the Interstate, Tri -State and Northport Canals and by eliminating the demand of Ramshorn. Wyoming would reduce Interstate by 60,000 acre feet - 15,000 on account of alleged excessive acreage, 27,000 on account of possible large winter diversions to Lake Minatare and Lake Alice, 18,000 on account of water which can be pumped from wells. We have examined the evidence on the alleged excessive acreage and the Lake Minatare and Lake Alice diversions and are satisfied that Wyoming has not made a showing sufficient to sustain her exceptions. It would serve no useful purpose to burden this opinion with the details. As respects the desired reduction because of pumping little need be said. In 1940 Interstate received only 45 per cent of its requirements. Wyoming estimates that the water pumped during that year was the equivalent of 18,000 acre feet at the headgate. It is diffi- [325 U.S. 589, 647] cult to seethe equity in Wyoming's demand that Interstate's quota from the river be reduced by that amount. These irrigators bore their share of the cost of the operation and maintenance of Pathfinder and Guernsey and also paid the cost of the pumping. It is not just that they forego the benefits of the water for which they are paying, give the benefits to others, and take on the additional expense of pumping. We have carefully considered Wyoming's claim that excessive estimates have been allowed Tri -State and Northport. As respects Tri -State there is a sharp conflict over the evidence concerning the acreage served. While the acreage of 52,300 acres computed by the Special Master is liberal, it has support in the evidence and Wyoming has not made a sufficient showing which warrants a reduction from that figure. It is true that the Tri -State acreage expanded as the result of Warren Act contracts and that a demand on natural flow to supply that aggregate acreage on its face seems inequitable in relation to canals junior to Tri -State which have no storage rights. But the Special Master found that the supply for the Wyoming private canals in this section had also been enhanced through the operation of Pathfinder and return flows resulting from the use of storage water. We do not believe sufficient disparity has been shown to warrant an adjustment in the decree. The Special Master allowed 30 per cent for loss in the Tri -State Canal. Wyoming claims that should be reduced because water intercepted in the Tri -State Canal for delivery to Northport does not suffer as great a loss since it is not carried as far. But Wyoming's witness reached the same view as the Special Master. And no proof is advanced by Wyoming which undermines that conclusion. Moreover, an examination of the points at which the return flows are intercepted indicates that the room for difference of opinion is not as great as Wyoming suggests. [325 U.S. 589, 648] Wyoming's contention that in determining the requirements of the canals in this section Ramshorn should not have been allotted 3,000 acre feet per annum presents different problems. Ramshorn receives its supply through Tri- State. The Special Master in computing the requirements of Tri- State deducted the return flows below the Tri -State Dam which were intercepted and utilized by the canal. 20 But there apparently was not deducted the accretions from Spring Creek, a tributary which flows into the river below the Wyoming- Nebraska line and above Tri -State Dam. 21 The average run -off of Spring Creek from May to September during the 1932- 1940 period appears to have been 2855 acre feet. We agree that this accretion should be taken into account in computing Nebraska's requirement of water from Wyoming. The Special Master found that the priorities of the canals in this section, the acres served, the requirements in section feet (one second foot for each 70 acres), and the acre feet requirement per season were as follows: []