WSP00986 - Laserfiche WebLink

Home Browse Search

3 of western waters.8 The federal government would have to respect the priority of state sovereignty in matters relating to interstate streams. Negotiation of interstate compacts would maintain state sovereignty and would restore the development initiative to the states. "The galling yoke of bureaucratic oppression," Carpenter contended, " . . . and interference with the internal affairs and development of the States. . . have awakened the states to the need for preserving comity. . . ."9 Comity, a word rarely used any more. It meant the courtesy between equals, friendly civility, a code by which nations might "recoghize and give effect within their own territory to the institutions or laws of another nation. "10 No other term better describes Carpenter himself or his underlying principle of cooperative negotiation. He had studied European rivers to learn how headwaters states treated disputes. II He had familiarized himself with the U. S. Attorney General's 1895 opinion rejecting Mexico's prior appropriation claim to additional water from the Rio Grande.12 And he had studied the 1920 Nile River convention which settled an international controversy on the basis of comity 13 What he concluded was that preservation of national or state sovereignty and the achievement of equitable and long lasting agreements on international or interstate rivers could only be achieved by treaties or compacts negotiated prior to construction by the federal government of storage or diversion works. Where water was used principally for irrigation in an arid area, wars could break out over conflicts on rivers that crossed lines of sovereignty. But the states of the West had given up the option of waging war when they joined the Union. They could either do battle in the Supreme Court, the equivalent of international war, or they could nominate commissioners to effect a compact, the equivalent of ambassadors negotiating a treaty to avoid war. For Carpenter, diplomacy not only made more sense; it ought to be required, he believed, as a prerequisite before the Supreme Court accepted any interstate water case. 14 States of origin could no longer claim ownership of all waters rising within their territory. Justice David J. Brewer had made that clear in the Court's 1907 opinion in Kansas v. Colorado And neither could lower states claim a servitudel5 on states of origin, thereby effectively terminating water storage and other forms of irrigation development upstream Servitudes