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

00
r--

....'
..

2

CONGRESSIONAL RECORD

~

aggregatfug 19 second-feet. On June 24, 1928. there was in the
stream. at the recognized Colorado gaging station, 57 second-feet
of water. The Ditch Co. cle.1med that by reason of the 1898 de-
cree it was entitled to all the water In the stream except that
reqUired to satisfy the Colorado priorities. If it bad been per-
mItted to draw all that water, none would have been available to
the New Mexico water claimants, who, under similar laws, had
made appropriations. Some or tbem were earlier in date than
the Ditch Co.'s.
The case was first heard in the district court on evidence in
1930. The ditch company objected at the trial to the admission
or consideration of the compact. It insisted that the campact
attempted to surrender to New Mexico and thus destroy vested
property rights of Colorado clt1zens; tha.t thiS is a vlola.tion of
the obUga.tloDS of Its contract; and that the compact insofar as
it "applies or 18 intended to apply to private rights of the indi-
viduals or citizens of Colorado, or to be used as a defense of or
justification for the acts of the State engineer or h18 subordinates
in interfering with or viola.ting the priva.te rights of citizens of
Colorado, or in attempting to disregard, ignore or set aside the
decrees of th18 [district] court for the d1strtbution of water in
accordance with the decrees, is unconstitutional and voId" in viola-
tion of the due process clauses of the :ft1th and fourteenth amend-
ments of the Federal Constitution and of section 25 of the Con-
stitution of Colorado.
The district court overruled the objection: found in substance
the facts stated above; held that the compact justified the action
of defendants; and entered a. decree that the bill be d1smi8sed,
each party to bear its own costs. That judgment was reversed
by the supreme court of the State (one judge ctW!enting),
La Plata River and C1teTry Creek Ditch Co. v. HinderUder (93
CoL 128). The opinion decl&red:
"There 1B not the slightest pretense, either in this compact
itself or in the proceedings leading up to it, to a dec1s1on of the
question of what water Colorado owns, or what water New Mexico
owns, or what their respective citizens own. It is a mere co;,n-
promise of presumably confi1ct1ng ela.1m.s, a. tra.d1ng therein, in
which the property of cit1zens is bartered, without notice or hea.r-
ing and with no regard to vested right."
An appeal to this court was d18m1ssed for want of :Ilnal judg-
ment below. HinderUder v. La Plata River and Cherry Creek
Ditc1f. Co. (291 U. S. 650). The case was then retried by the dis-
trict court on the same pleadings and evidence; and, pursuant to
the op1n1on of the Supreme Court of Colorado, a decree was entered
which, after rec1t1ng in substance the facts above stated, declared:
"6. That the satd La Plata River compact, entered into between
the sta.tes of Colorado and New MeJdco with the consent of the
Congress of the United States of America., does not constitute a
defense to the actions of said defendant water offtcia.ls compla.ined
of by plaint1ft', and 18 not a.vallable to said defendant water om-
c1als, as a legal de!ense or justiflcation for their acts in closing
and shutting down the headgate of plaint1ft' and depriving the
said plaintiff', thereby. of its right to the use of the waters from
sa1d La Pla.ta River for 1rr1gation purposes, as provided by the
terms and provisiOns of said decree of adjudication of January
12:, 1898."
The decree spec11lcally:
"(3) Enjoined and commanded [the defendants] to permit the
diversion through the plaint11f's headgate [of] water for plain-
tiff's ditch in accordance with the terms of said decree at any
and all tfmeB when there 18 water in said stream to which said
decree, under its terms and conditions, would apply:"
This second judgment of the trial court was afilrmed by the
supreme court of the State; an additional op1n1on being deliv-
ered by the court, and a. dissent by a different justice (101 Colo.
73). An appeal to this court was allowed by the acting chief
justice of the State.1I Pursuant to the act of Congress, August 24,
1937 (c. 754, 50 Stat. 751), the attention of the Attorney General
of the United States was directed to the contention that the
validity of a Federal statute 18 involved (302 U. S. -). He filed
memoranda in which he contended that:
"(1) This court is included in the courts to which section 1 of
the act of August 24, 1937, is applicable; (2) the constitutionality
of the compact is drawn in question whether or not a decision on
this point is necessary; (3) a compact is an act of Congress; and
(4) it is an act 'affecting the public interest.' "
Opposing some of the views expressed by the Attorney General,
a brief was filed on behalf of Delaware, Maryla.nd, New Jersey,
New York, V1rg1.n1a, the Port of New York Authority and the
Delawa.re River Joint Comm1ssion.
The Ditch Co. moved to dismiss the appeal, contending among
other things, that the mere fact that the compact was approved
by Congress does not make it a Federal statute within the
meantng of the jur1.sdictional act authorizing appeals. Decision
on the motion to dismiss was postponed to the hearing on the
merits. For reasons to be stated, we .are of opinion that the case
is not reviewable on appeal; that it. presents a Federal question

11 The first Judgment in the trtal court was entered June 16,
1930; the f1rst judgment of the Supreme Court of Colorado on
July 3, 1933; the d18m1ssal by this court of the first appeal on
March 12, 1934; the second judgment in the tria.l court on May
12, 1936; the second Judgment of the Supreme Court of Colorado
on July 6, 1987.
68100---15432

reviewable on certiorari; that because of its tmporta.nee certiorari
should be granted; and that the judgment must be reversed,
First. As the Ls. Plata River flows from Colorado into New Mexico
and in each State the water is used bene.f1cially. it must be
equitably apportioned between the two. The decision below in
effect ignores that rule. It holds 1mmateria.l the fact that the
acts complained of were being done in compliance with the
compact, and does so on the ground that the compact in author-
izing diversion and rotation violated rights awarded by the Jan-
uary 12, 1898, decree in the Colorado water proceeding; holds that
the decree a.warc1ed to the Ditch Co. the right to d1vert from
the river 3974, cubic feet per second (subject only to the senior
COlorado priorities of 19 second-feet), even if by so doing it ex-
hausts the whole flow of the stream and leaves nothing for the
New Mexico claimants; and holds that the right so awarded is a
vested property right which the two States, although acting with
the consent of the United States, lacked power to diminish or
modify except by a condemnation proceeding and payment of
compensation. No such proceeding was provided for in the com-
pact and none was had. otherw1se.
It may be assumed that the right adjudicated by the decree of
January 12, 1898, to the Ditch Co. is a property right, inde-
feasible so far as concerns the state of Colorado. its citizens, and
any other person cla1.m.1ng water rights there. But the Colorado
decree could not confer upon the Ditch Co. rights in excess of
Colorado's share of the water of the stream; and its share was
only an equita.ble portion thereof.
The cla1m that on interstate streams the upper State has such
ownership or control of the whole stream as entitles it to divert
all the water, rega.rdless of any injury or prejudice to the lower
State, has been made by Colorado in litigation concerning other
intersta.te streams, but has been consistently denied by this Court.
The rule of equitable apportionment was settled by Kansas v.
Colorado (206 U. S. 46, 97). It was d1scu.ssed again in Wyoming v.
Colorado (259 U. S. 419, 466). where the Court said:
"The contention of Colorado that she 88 a. State rightfully may
divert and use, as she may choose, the waters flowing within her
bounds.r1es in this interstate stream, regardless of -any prejudice
that this may work to others having rights in the stream below
her boundary, cannot be maintained. The river throughout its
course in both States 18 but a single stream wherein each State
has an interest which should be respected by the other. A like
contention was set up by Colorado In her answer in Kansas v.
Colorado and ws.s adjUdged untenable. Further consideration
satiSfies us that the rUling was right."
And in New Jersey v. New York (283 U. S. 336,342-343), the
Court said of an interstate stream:
"It offers a necessity of life that must be ra.tioned. among those
who have power over it. New York has the physical power to cut
off all the ws.ter within Its jurisd1ctton. But clearly the exercise
of such a power to the destruction of the interest of lower Statee
could not be tolerated. And on the other hand equally little
could New Jersey be permitted to reqUire New York to give up
its power altogether in order that the river might come down to
it undiminished. Both States have real and substant1a1 interests
in the river that must be reconciled as best they may be."
The decree obviously is not res judicata so far as concerns the
State of New :Mexico and its citizens who claim the right to divert
water from the stream in New Mexico. As they were not parties to
the Colorado proceedings, they remain free to challenge the cla.1m
of the ditch company that it is entitled to take in Colorado all
the water of the stream and leave nothing for them.'
Second. The declared purpose of the compact was, as the pre-
amble recites, equitable apportionment:
"The State of Colorado and the State of New Mexico, desiring to
provide for the eqUitable distribution of the waters of the La. Plata
River and to remove all causes of present and future controversy
between them with respect thereto, and being moved by consider-
ations of intersts.te comity, pursuant to acts of their respective
legislatures, have resolved to conclude a compact for these pur-
poses and have named as their commissioners Delph E. Carpenter,
for the State of Colorado, and Stephen B. Davis, Jr., for the State
of New Mexico, who have agreed upon the following articles."
The Supreme Court of Colorado held the compact unconstitu-
tional because, for aught that appears, it embodies not a judicial,
or quasi judicial. decision of controverted rights, but a tradIng
compromise of confi1ctlng claims. The assumption that a judicial
or quast judicial decision of the controverted claims is essenti&! to
the valtdity of a compact adjusting them, rests upon misconcep-
tion. It ignores the history and order of development of the two
means provided by the Constitution for adjusting interstate con-
troversies. The compact-the legislative mea.ns--a.dapts to our
Union of sovereign Sta.tes the age-old treaty making power of
independent sovereign nations. Adjustment by compact without
a judicIal or quasi judicial determination of existing rights had
been practiced in the Colonies,li was practiced by the States

'Washington v. Oregon (297 U. S..517, 528). Compare Fowler v.
Lindsey (3 Dall. 411, 412); Arka11.$as v. Tennessee -(246 U. S. 168,
176),
Ii NIne colonial boundary agreements are llsted by Frankfurter
and Landis, The Compact Clause of the Constitution-A Study in
Intersts.te Adjustments (1925) 34 Yale L. J. 685, 730-32:.