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',001524 . . Upper Colorado River Commissioners December 31, 1992 Page 2 been negotiated the law of equitable apportionment and evolving marketing principles would have applied, in part, to the benefit of the Upper Basin States" (p. 14). In support of this statement, Mr. Israel quotes an excerpt from a 1945 case, Nebraska v. Wyoming, to show that priority of appropriation was not "the only rule for determining the rights as between States" (p. 15). It is significant to note that absent from the list of "other considerations" in the Nebraska case is mention of water marketing or monetary compensation for upstream States. While Mr. Israel states that "the tendency [in equitable apportionment cases] has been to protect existing uses wherever possible" (p. 15), even he does not assert that courts in equitable apportionment cases seek to protect the future uses of upstream States. Mr. Israel seems to want to preserve the Compact's allocations to each Basin in order to preserve the "surplus" Upper Basin water for marketing to the Lower Basin, but he wants to remove obstacles to water marketing in the Compact "which appears not to have envisioned such transfers" (p. 14). With- out the Compact on which Mr. Israel casts aspersions, there would have probably been little water development in the Upper Basin in the last 70 years, and there would have been little if any water to market now. This fact is supported by examining case law contemporaneous with the negotiation of the Compact. In Wyoming v. Colorado (1922) 259 U.S. 419, 66 L.Ed. 999, 42 S.Ct. 552, the United States Supreme Court held as follows: . one who has acquired a right to the water of an interstate stream by prior appropriation in accordance with the laws of the state where it is made is protected in such right, as against subsequent appropriators, although the latter withdraw the water within the limits of a different state (66 L.Ed. 999). Contrary to the more liberal view expressed by the Supreme Court in 1945 in the Nebraska case, if the Supreme Court were asked in 1922 to allocate the water of the Colorado River, the Court would probably have protected the rights of the senior appropriators in the Lower Basin against future or more junior rights in the Upper Basin. Mr. Israel concedes this point later in his paper when he states that "in the absence of a Compact or equitable apportion- ment decree, California would have utilized excess Upper Basin waters, appropriated the water under state law, and in such a setting would have justifiably relied on such a supply" (p. 21). Although Mr. Israel talks about the transfer of water rights in the West increasing substantially "during the past two decades" (p. 16), he only discusses such transfers beginning in 1982. Again, Mr. Israel wants to apply water marketing, an activity that by his own definition has only been carried out for the past 20 years, to water allocations preserved by the 1922 Compact.