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State of Nebraska v. State of Wyoming et al. 325 US 589 (1945) 325 US 589
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State of Nebraska v. State of Wyoming et al. 325 US 589 (1945) 325 US 589
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12/11/2014 2:08:31 PM
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Water Supply Protection
Description
North Platte River Decree
State
NE
WY
Basin
North Platte
Water Division
6
Date
7/11/1945
Author
States of Nebraska and Wyoming
Title
State of Nebraska v. State of Wyoming et al. 325 US 589 (1945) 325 US 589
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condition of the supply of the natural flow during 1931 -1940 in the Whalen to Tri -State Dam section is <br />obvious. The. claim of Colorado to additional demands may not be disregarded. The fact that Colorado's <br />proposed projects are not planned for the immediate future is not conclusive in view of the present over - <br />appropriation of natural flow. The additional demands on the river which those projects involve constitute a <br />threat of further depletion. Colorado in her argument here asserts that 'if Jackson County is to maintain its <br />livestock industry to the same extent as it has in the past it will have to develop this additional summer [325 <br />U.S. 589, 610] pasture and it cannot do this without increasing its irrigated acreage.' <br />What we have then is a situation where three States assert against a river, whose dependable natural flow <br />during the irrigation season has long been over appropriated, claims based not only on present uses but on <br />projected additional uses as well. The various statistics with which the record abounds are inconclusive in <br />showing the existence or extent of actual damage to Nebraska. But we know that deprivation of water in <br />and or semiarid regions cannot help but be injurious. That was the basis for the apportionment of water <br />made by the Court in State of Wyoming v. Colorado, supra. There the only showing of injury or threat of <br />injury was the inadequacy of the supply of water to meet all appropriative rights. As much if not more is <br />shown here. If this were an equity suit to enjoin threatened injury, the showing made by Nebraska might <br />possibly be insufficient. But State of Wyoming v. Colorado, supra, indicates that where the claims to the <br />water of a river exceed the supply a controversy exists appropriate for judicial determination. If there were <br />a surplus of unappropriated water, different con iderations would be applicable. Cf. State of Arizona v. <br />California, 298 U.S. 558 , 56 S.Ct. 848. But where there is not enough water in the river to satisfy the <br />claims asserted against it, the situation is not basically different from that where two or more persons claim <br />the right to the same parcel of land. The present claimants being States we think the clash of interests to be <br />of that character and dignity which makes the controversy a justiciable one under our original jurisdiction. <br />State of Colorado v. Kansas, supra, is not opposed to this view. That case turned on its special facts. It is <br />true that an apportionment of the water of an interstate river was denied in that case. But the downstream <br />State (Kansas) did not sustain the burden of showing that since the earlier litigation between the States (see <br />State of Kansas v. Colorado, [325 U.S. 589, 611] 206 U.S. 46 , 27 S.Ct. 655), there had been a material <br />increase in the depletion of the river by Colorado. Improvements based upon irrigation had been made by <br />Colorado while Kansas stood by for over twenty years without protest. We held that in those circumstances <br />a plain showing was necessary of increased depletion and substantial injury to warrant a decree which <br />would disrupt the economy of the up- stream State built around irrigation. Moreover, we made clear (320 <br />U.S. page 392, note 2, 64 S.Ct. page 180) that we were not dealing there with a case like State of Wyoming <br />v. Colorado, supra, where the doctrine of appropriation applied in each of the States which were parties to <br />the suit and where there was not sufficient water to meet all the present and prospective needs. <br />Colorado's motion to dismiss is accordingly denied. <br />I►VA <br />Claim of United States to Unappropriated Water. The United States claims that it owns all the <br />unappropriated water in the river. It argues, that it owned the then unappropriated water at the time it <br />acquired water rights by appropriation for the North Platte Project and the Kendrick Project. Its basic rights <br />are therefore said to derive not from appropriation but from its underlying ownership which entitles it to an <br />apportionment in this suit free from state control. The argument is that the United States acquired the <br />original ownership of all rights in the water as well as the lands in the North Platte basin by cessions from <br />France, Spain and Mexico in 1803, 1819, and 1848, and by agreement with Texas in 1850. It says it still <br />owns those rights in water to whatever extent it has not disposed of them. An extensive review of federal <br />water legislation applicable to the Platte River basin is made beginning with the Act of July 26, 1866, 14 <br />Stat. 251, the Act of July 9, 1870, 16 Stat. 217 and including the Desert Land Law (Act of March 3, 1877, <br />19 Stat. 377, 43 U.S.C.A. 321 et seq.) [325 U.S. 589, 6121 and the Reclamation Act of June 17, 1902, 32 <br />Stat. 388. But we do not stop to determine what rights to unappropriated water of the river the United States <br />may have. For the water rights on which the North Platte Project and the Kendrick Project rest have been <br />obtained in compliance with state law. Whether they might have been obtained by federal reservation is not <br />important. Nor, as we shall see, is it important to the decree to be entered in this case that there may be <br />unappropriated water to which the United States may in the future assert rights through the machinery of <br />state law or otherwise. <br />
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