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,. ) ,] ~l ! 1 For Ihose interstate water disputes reaching the Supreme Court, the court has applied, as the guiding princifle. the doctrine of equitable ap- portionment.2 The decree of the Umted Stales Supreme Court in Nebraska v. Wyoming (1945)24 was based on this principle. Nebraska sought 10 have an equitable apportionment made of the North Platte River based on the principle 01 priority of appropriation applied interstate. The court Considered Ihal the literal application 01 the priority rule might not result in a just, equitable, or even possible solution. The court identified several factors involved in apportioning water in an interstate river between competing states. Forexample, the economy of a region may have been established on the basis of junior appropriations. So lar as possible those established uses should be protected though strict application 01 the priority rule might jeopardize them. Apportionment calls for the exercise of an inlormed judgment on a consideration of many lactors. Priority 01 appropriation is the guiding principle. But physical and climatic conditions, the con- sumptive use of water in the several sections of the river. the character and rate of return flows. the extent of established uses, the availability of storage water, the practical effect of wasteful uses on down- stream areas, the damage to upstream areas as compared to the benefits to down- stream areas if a limitation is imposed on the former -. these are all relevant factors.25 These factors were offered for illustrative purposes and do not constitute an exhaustive list. The court recognized that delicate adjust- ments must be made in apportionment cases. Nebraska v. Wyoming was important for a number of other reasons. The court accepted jurisdiction to hear the case even though Nebraska had made no showing 01 actual damage. It was important to the court's decision to hear the case that the river was, in fact, overappropriated .. claims to the water of the river exceeded supply. The court stated that. "P)I there were a surplus of unappropriated water, different considerations would be applicable. (Here however.) ...there is not enough water in the river to satisfy the claims asserted against it... The present claimants being states we think the clash of interests to be of that character and dignity which makes the controversy a justiciable one under our original jurisdiction:,26 The court concluded that a Ilat percentage method of ap- portionment was the most equitable method to allocate the water in the river. The Supreme Court's exercise of jurisdiction in interstate water cases has been rare for a number of reasons. In the first place, "the Supreme Court's interstate function is circum- scribed by the 'case or controversy' limitations in the Constitution."27 The Constitution states that "The Judicial Power Shall extend to all Cases, in Law and Equity, arising under this Constitution. the Laws of the United States. and Treaties made,... to Controversies to which the United States shall be a Party; to Controversies between two or more States..:'28 (emphasis added). Secondly, the Court "has imposed severe restrictive qualifications. even where jurisdiction exists. on the exercise of that jurisdiction."29 Finally. the Court is "not well-equipped to act asa trial court..:.30 A special master is frequently appointed in these water cases to conduct hear- ings and gather information on the frequently complex issues involved and make recommend- alions to the Court. The Court itself has express- ed its reservations to hearing cases between states. It has proffered thai. The reason for judicial caution in adjudica- ting the relative rights of states in such cases is that. while we have jurisdiction of such disputes. they involve the interests of Quasi-sovereigns. present complicated and delicate Questions and. due to the possibil- ity of future Change of conditions, necessi- tate expert administration rather Ihan judi- cial imposition of a hard and fast rule.31 There are. in addition, technical legal problems which can make interstate Iitigition difficult and cumbersome. One author has pointed out, "fAI major problem in an interstate suit. particularly with respect to water compacts. is that the federal interests in the subject matter may be so significant as to make the United Stales an indispensable party, in which event the failure of the United States to consent to be joined in an action by one state against another compacting state may effectively block relief.32 The Blue River Basin Compact entered into between Kansas and Nebraska in 1971 contains a provision designed to circumvent this event. It stipulates that. This Compact shall become binding and obligatory when It shall have been ratified by the Legislature of each State and consent- ed to by the Congress of the United States and when the Congressional act consenting to this Compact includes the consent of Congress 10 name and join the United States as a party in any litigation in the United States Supreme Court. il the United States is an indispensable party and if the litigation arises out of this Compact or its application, and il a signatory State is a party thereto.33 2.5