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<br />~ 21.04[3] <br /> <br />MINERAL LAW INSTITUTE <br /> <br />21-32 <br /> <br />it did not present a justiciable controversy.ll9 The Court rea- <br />soned that Arizona, which sought an equitable apportion- <br />ment, had not suffered present harm because the Colorado <br />River water available to it exceeded its present water rights <br />and claims. In Kansas v. Colorado, 120 the Court held that <br />Kansas had not been sufficiently damaged by Colorado's de- <br />pletion of the water of the Arkansas River to justify appor- <br />tioning it. Although a suit by the Upper Basin would not de- <br />pend on the doctrine on equitable apportionment, it might <br />nonetheless founder on similar grounds related to the degree <br />of harm. <br /> <br />If the suit did escape a dismissal, it would probably be slow <br />and expensive to litigate, as is notoriously true of original ju- <br />risdiction actions. More importantly, the Lower Basin would <br />not stand idly by. The doctrine of equitable apportionment is <br />riddled with vague, overlapping standards.l2l The two opin- <br />ions in Colorado v. New Mexico 122 contributed fresh ambigui- <br />ties to the doctrine, but probably it is still fair to say there is <br />still some life in the maxim: "Priority of appropriation is the <br />guiding principle." 123 If it were interjected in some fashion <br />into the suit, the Lower Basin might manage to obtain a de- <br />cree which would protect its existing level of use and de- <br />mand, and cast the Upper Basin into an irreversibly inferior <br />position. The terror of original jurisdiction litigation is its <br />un predictability. <br /> <br />119Id. at 565-67. <br /> <br />120206 U,S. 46 (1907). <br /> <br />121 For a rigorous critique of the doctrine, see Meyers, "The Colorado River," su- <br />pra note 36, at 49-53, <br /> <br />122459 U.S. 176 (1982); 466 U.S. 310 (1984). <br /> <br />123 Nebraska v. Wyoming, 325 U,S. 589, 618 (1945). <br />