WSP06645

• File Number: 8220.145.G
• Description: La Plata Project ‎(New Mexico)‎
• Basin: San Juan/Dolores
• Date: 5/2/1938
• Title: Congressional Record: Decision of the US Supreme Court Regarding Interstate Compacts
• Water Supply Pro - Doc Type: Publication

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(Not printed at Government expense)

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SEVENTY-FIFTH CONGRESS, THIRD SESSION

Interstate Compacts on Interstate Streams

REMARKS

o.

BON. EDWARD T. TAYLOR
OF COLORADO
IN THE HOUSE OF REPRESENTATNES
MondaY, May 2, 1938

DECISION OP THE UNITED STATES SUPREME COURT RE-
GARDING INTERSTATE COMPACTS

Mr. TAYLOR of Colorado. Mr. Speaker, by unanimous
consent, I Insert in the RECORD a decision of the United
States Supreme Court rendered a week ago today determin-
Ing the constitutionality, the validity, the legal effect, ex-
tent, and status of interstate compacts establlshlng the rights
and obligations of the respective states concerning the
waters of interstate streams.
The case was taken up to the Supreme Court from the
SUpreme Court of Colorado. The decision Is of very great
importance to nearly every State in the Union. but more
especially Is It of vital concern to all the Western States In
the arid region.
I feel the decision is of such vast and far-reacWng e:ffect
it should be inserted in the CONGRESSIONAL RECORD where it
will be accessible to the newspapers throughout the country
and may be read by many thousands of interested people
who would otherwise never see it. Justice Brandeis deliv-
ered the opinion of the Court, and there was no dissenting
opinion.
The decision is as follows:
80PBDa COURT OJ' THE UNITED STA'1'J!:S
No. 437. October Term., 1937
M. C. Hinder~ider, state engineer, et aI., appellant v. The La
Plata River &- Cherry Creek Ditch Co. Appeal from the Supreme
Court of Colorado. April 26, 1938.
Mr. Justice Brande18 del1vered the opinion of the Court.
The La. Plata River & Cherry Creek. Ditch Co., a Colorado cor-
poration, owns a dltch by which It diverts from that river in
Colorado water for Irrigation. On July 5, 1928, It brought in the
district court for La Plata County a suit which charged that since
June 24, 1928, the defendants. HinderUder, State engineer of Colo-
rado, and his subordinates have so administered the water 01 the
river as to deprive the platnt11f of water which It cl.a1ms the right
to divert. A mandatory injunction was sought.
The defendants admit that in administering the water of the
stream during the period named they shut the headgate of the
Ditch Co. so as to deprive it 01 water for purposes of irri~
gation; but assert that they did so pursuant to the requirements
of the La Plata River compact entered into by the States of Colo-
rado and New Mexico With the consent of the Congress 01 the
United States. The compact provides that each State shall receive
a deftn1.te share 01 water under the varying conditions which obtain
during the year, and, among other things: 1

1 The compact had its InceptJon in 1921 when the legislature of
each State authorized the appointment of a com.m1ss1oner who
shall represent the State ''Upon a joint comm1ss1on . . . to
be constituted by said States tor the purpose of negotiating and
entering into a compact or agreement between said States, with
the consent of Congress, respecting the future utilization and dis-
position of the waters of the La Plata River, and all streams
tributary thereto, and .fl.x1ng and determin1ng the rights of each
of said States to the use, benefit. and dispOSition of the waters of
said stream.: .Protrided, however, That any compact or agreement
SO entered into on behalf of said States shall not be binding or
68150-15432

"r. At all times between the 1st day of December and the 15th
day of the succeedlng February each State shall have the unre-
stricted right to the use of all water which ms.y 1l0w within its
boundaries.
"2. By reason of the usual annual rise and fall, the llow of said
river between the 15th day of February and the 1st day of De-
cember of each year shall be apportioned between the States in
the following manner:
"(a) Each State shall have the unrestricted right to use all the
waters within its boundaries in each day when the mean dally flow
at the interstate station is 100 cubic feet per second. or more.
"(b) On all other days the state of Colorado shall deliver at
the Interstate station a quantity of water equiv8J.ent to one-half of
the mean tlow at the Hesperus station for the preceding day, bu~
not to exceed 100 cubic feet per second.
"S. Whenever the dow of the river 18 so low that in the Judg.
ment 01 the State engineers of the States the greatest beneflc1a1
use of its waters may be secured by distributing all of its water
successively to the lands in each State in alternating periods, in
lieu of delivery of water as provided in the second paragraph of
this article, the use of the waters may be 80 rotated between the
two states In such manner, for such periods, and to continue for
such time as the State engineers may jOintly determine."
For the administration of water rights, Colorado and New Mex-
ico each set up an administrative system with the State engineers
at its head. The State engineers agreed that, in order to put
the water to its most efficient use in the hot summer months of
1928, when the river was very low, the whole of the avaUable sup-
ply should be rotated between the two States. In other words.
that each State should be permitted to enjoy the entire flow of
the river during alternating lO-day periods. Durtng the 10 days
commencing June 24, 1928, all the water of the river (except small
amounts d1verted in Colorado for dO:lD.estic and stock requ1rementa)
was thus allowed to pass to New Mexico; and during the succeed-
ing 10-day period all the water in the stream was similarly allowed
to be dlverted in Colorado. The defendant water oftlcials contend
that In so rotating the water of the stream. they adm1n1stered it
as reqUired by the compact and w1sely.
The La Plata River r18es in the mountains 01 Colorado, 1lows
in a southerly direction until it reaches the boundary of New
Mexico and in the latter State untU it empties into the San Juan
River. The stream is nonnavigable, has a l18.ITOW watershed. and
a large run-oft in the- early spring. Then the quantity flowing
begins to fall rapidly; and during the summer months little
water 18 available for irrigation. In each State the water of the
stream has long been used for 1rr1gatJon, and each adopted the
so-called appropriation doctrine of water use.1 Under that doc-
trine the first person who acts toward. the diversion of water from
a natural stream and the appUcation of such water to a beneficial
use has the first right, provided he diligently continues his enter-
prise to completion and beneficially appUes the water. The rights
of subsequent appropriations are subject to rights already held In
the stream.
The relative rights of all c1e.1mants to dlvert in Colorado water
from the La Plata. River were adjudlcated In a proceeding under
the Colorado statutes. By decree therein of January 12, 1898 (and
later amended). the Ditch Co. was declared entitled to dlvert S9%.
cubic feet of wa.ter per second, subject to five senior prior1t1es

Obligatory upon either of sald States or the citizenS thereof, unless
and until the same shall have been rat1fi.ed and approved by the
legislatures of both States and by the Congress of the United
States" (Colorado Session Laws, 1921, p. 803; Session Laws of New
Mexico, 1921, p. 323).
The compact drafted by the comm1ss1oners was rat1fi.ed by the
General Assembly of New Mmco on February 7, 1923 (Se8s1on Laws
01 New Mexico, 1923, p. 13), and by the General Assembly of Colo-
rado on April 13, 1923 (Colorado Se.ss1on Laws, 1928, p. 696). The
consent of Congress was granted by act of January 29, 1925 (43
Stat. 796).
2 Colorado constJtution, att. XVI. sec. 6, provides: "The water of
every natural stream, not heret"fore appropriated, within the State
of Colorado, is hereby declared to be the property of the publlc.
and the same is dedlcated to the use of the people 01 the State.
subject to appropriation as hereinafter provided." Article XVI.
sec. 6, provides in part: "The right to divert unappropriated waters
01 any natural stream to beneflc1al. uses shall never be denied.
PriOrity of appropriation shall give the better right as between
those using the water for the same purpose." For the law of
New Mexico, see its constitution. art. XVI, sees. :I and 3.