WSP05306

• File Number: 8200.700
• Description: Colorado River
• Basin: Colorado Mainstem
• Date: 1/1/3000
• Author: Getches and Meyers
• Title: The River of Controversy - Persistent Issues
• Water Supply Pro - Doc Type: Report/Study

justice to some state. at other entity can be ahol.to'n. Perhaps the argument that

the Colorado River Cumpact is invalid and un~llforceable because of mutual

mistake of fact could capture the attention of Congress. But Congress'will

not perceive the problem as serious until fulfillment of compact obligations

by the Upper Basin is shown to limit the ability of the basin to grow and

flourish.

Another way to alter or construe the law of the river is in the exercise
88
of the Supreme Court's original jurisdiction over interstate disputes. The

Court is a forum in which mutual mistake arguments might have a hearing on the

ground that the compact is contrary to the Court's docrrine of equitable appor-

tionment. But the Court has shown a strong bias against resolving interstate

issues between states, especially when the resolution requires complex politi-

cal adjustments and detailed future administration.89 The Court has regularly

declined to exercise its original jurisdiction, often finding that the dispute
90
raises no threat of presenr or imminent harm to a party.

There is a risk to the Upper Basin in asking the Supreme Court to reform

the compact based on equitable apportionment principles. The Lower Basin

states are able to put river water to valuable and productive uses now while

water remains underutilized in the Upper Basin. Thus, the Court could decide

that the Lower Basin states with their heavy demands ought to be entitled to

even more water. Such a conclusion would be outrageous from the perspective

of Upper Basin states but it could find some justification in the standards

employed by the Court in other interstate water allocation Cases. A major

Upper Basin

overhaul of the law of the river would be more hospitably received if th~n_,_A.
,...~~~-
Ictual growt~, not hopeful

y well induce the
~
Although there are long term predictions of~

speculation.

could demonstrate immediate hardship.
/}
dramatic permanent reduction in supply

Court or Congress to act.

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