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J I". 'J 50 STANFORD LAW REVIEW [Vol. '9: Page I court emeeed a decree June 5, 1922, only to find it necessary to revise: it on October 9, 192:1. But the: controversy would not down. The parties came back here on Uuee occasions because: of misunderstandings and disagreements with respect to the: effect of OUT decree.202 The consequence of an understandable reluctance to apportion water on a vague, if not meaningless, standard and thereafter to supervise the de- velopment of the water resources of the litigant states has been a judicial abstinence which in essence favors the upstream state. The dismissal of a suit as nonjusticiable often amounts to a decision allowing the upstream state to continue its diversions. Thus, in the Arkansas River litigation, Kan, sas lost twice in an effort to halt or reduce Colorado's ever-increasing up. stream uses.lEOI Even when the refusal to adjudicate does not have the effect of confirm_ ing upstream uses, it may deprive the plaintiff of the certainty of title neces. sary to secure development of its water resources. To safeguard, so far.as it can, the integrity of its processes, the Supreme Court will not adjudicate an interstate water dispute until existing consumptive uses in one state cause harm or give rise to the immediate threat of harm in another state. Yet Congress and other financing agencies are inclined to take the position that until clear rights are established in the unappropriated water supply, no projects can go forward.'" These two forces tend to stymie timely develop- ment. The upper state, where the water originates, cannot presently use the water economically; the lower state cannot obtain financing for an eco. nomic project because it cannot get a decree for a fixed supply of water-its suit against the upper state being non justiciable since no present "harm" to the lower state from the use of water upstream can be shown. Finally, the Supreme Court as an institution is not equipped to deal with the mass of technical data introduced into evidence in equitable ap- portionment litigation. There is no inconsistency between asserting the absence of any acceptable norm for dividing water interstate and insisting that the technical evidence is important and ought to be understood by the decision makers. While no acceptable principle tells us whether the division between state A and state B should be So-so or 60-40, the technical evidence can tell us what supply we have to divide, how much reservoir evaporation to expect, the amount of return flow, and the point at which it returns to the stream. Evaluating conflicting evidence on these points requires the help of a trained technician, and the tradition of the courts tends to restrain them from securing such help. For example, neither the Supreme Court nor the Master in Arizona v. California had any expert assistance from a 20:1. lJ. at 658-64 (dissenting opinion) (footnotcs omined). 203. S~~ Colorado v. Kamas, 3JO u.s. 383 (1943); Kansas Y. Colorado. 206 U.s...6 (1907). J04. SU MlUt"'s RrpM"J 31. I'm.ember 19(,(,] w:lter technician, 2 and hydrologists tt J(lme of which app This claim that <ule does not, of co< ' Court are the stren~ 'th I :l1o"rordance,vI SUI account of the ecor "."hing a division (or in the United .51: btiun or economIC: CIlmp,ct Jnd partly influence the selller annol block selllen ,:r=ional power of Jute w,ter di~putes. an :rgrrement with lions, have the settle: hbme for the less f2 cIlmpromise. The a' 10' r:rise the number ';onmrnt does not; inlersl,le litigations cJ,e:rper: in Ariz011a alune :rmounted to 10 ) n :rddition to be; dirions are more ada, ,:rns has available t~ ..hie ti,e technical ev norlimiled to a recor (rum rile files of the , ,he U.S. Geological ~ a~:encies or by congr '.;Iil)' of being better Cuurt. 10'. $". e-6., R~pol'ttt'. 'IttoJ) ClnUmon)' and ~xh; lWhJ Sl.IltI GcologjCOlI Sun loCI. J" ArizolU Y. Calir 107. nil is cxclusivc of ~1II' . prcui.d ordu ani n.--.., JH U.s. 977 (195{ "'~f'l! lht nport. H~ 'Wu .......J 11'0.000. 354 U.s. 911