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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CONGRESSIONAL RECORD

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before the adoption of the Constitutlon,8 and had been exten~
sively practiced in the United States for nearly half a century
before this court first applied the JudtCla.1 means in settl1ng the
boundary dlspute in Rhode Island v. Ma.ssachusetts (12 Pet. 657.
723-25) ,f
The extent of the existing equitable right of Colorado and of
New Mexico in the La. Plata River could obviously have been
determined by a. suit In this court. as was done in Kansas v.
OOlOTadO, supra, in respect to rights In the Arkansas River and In
Wyoming v. Colorado, supra., in respect to the Laramie,' But
resort to the Judicial remedy Is never essential to the adjustment
of interstate controversies. unless the States are unable to agree
upon the terms of a compact. or congress refuses its consent.
The d1f6cultles incident to litigation have led States to resort,
with frequency. to adjustment of their controversies by compact.
even where the ma.tter in d1spute was the relatively simple one
of a boundary. In two suCh eases this court suggested "tha.t the
parties endeavor with the consent of Congress to adjust their
boundaries" (Washtngton v. Oregon, 214 U. S. 206. 217. 218;
MtnnesotG v. Wtsconsin, 252 U. S. 273, 283.). In New York v.
New Jersey (266 U. S. 296. 313). which involved a more intricate
problem of rights In Interstate waters, the recommendation that
treaty making be resorted to was more spee1flc 10; and comp~ts
for the apportionment of the water of interstate streams have
been oommon.ll
Third. Whether the apportionment of the water of an intersta.te
stream be made by compact between the upper and lower States
With the consent 01 Congress or by a decree of this Court, the
apportJonment is binding upon the cit1zens of each State and all
water claimants, even where the Sta.te ha.d granted the water rights
before it entered into the compact. That the. private rights of
grantees of a State are determined by the adjustment by compact
of a disputed boundary was settled a century ago In Poole v. Fleeger
(11 Pet. 185, 209), where the Court'said:
"It cannot be doubted, that it is a. part of the general right of
sovereignty, belonging to independent nations, to esta.bllBh and fiX
the disputed boundaries between their respective territories; and
the boundaries so establlsbed and flxed by compact between na-
tions, become conclusive upon all the subjects and citizens thereof,
and bind their rights; and are to be treated, to all intents and
purpoees, as the true and real boundaries. ThIs is a doetr1ne un1~
versally recognized in the law and practice of nations. It is a
right equally belonging to the States of this Union; unless it has
been surrendered under the COnstitution of the United States.
So far from there being any pretense of such a general surrender
of the right, that it is expressly recognized by the Constitution
and guarded in its exercise by a single l1m1tat1on or restriction.
requ1r1ng the consent of Congress."
In Rhode Island v. Ma88achusetts (12 Pet. 657. 725), the Court,
dtscuss1ng the origin and scope at the compact clause, said:
"If - congress consented, then the States were In th1s respect
restored to their or1g1.nal inherent sovereignty; such consent being
the sole I1m1tation imposed by the Constitution, when given, left
the States as they were before, as held by this Court in Poole v.
Fleeger (11 Pet. 209); whereby their compacta became of binding
force and finally settled the boundary between them; operating
with the same effect as a trea.ty between sovereign powers. That

'Five agreements made under the Articles of Confederation ha.ve
been found. See Frankfurter and Landis, supra note 5, at 732-34.
~ Nine compacts were appa.rently executed in this period. (al~
though five of these were Without express congressional consent).
See Frankfurter and Landis. supra note 5, at 735--37. 749-62. See
also Ely, 011 Conservation through Interstate Agreem.:n.t (1933).
371-72,389-91; (June 1936) 9 State Government 118; Dodd, Inter-
state Compacta (1936) 70 U. S. L. Rev. 557, 574. The agreement
between New Jersey and New York in 1833 put an end to the
boundary suit begun in 1829. New Jersey v. New York (3 Pet. 461,
5 Pet. 284, 6 Pet. 323).
'See also Connecticu.t v. Massachusetts (282 U. B. 660, 283 U. S.
789) (Connecticut River): New Jersey v. New York (283 U. S. 336,
805) (Delaware River); Wyoming v. Colorado (286 U. S. 494, 298
U. S. 573) (Laramie River); Wash-tngton v. oregon. (297 U. 8. 517)
(Walla Walla. River). Three other water-apportionment suits are
pencUng in this court. Colorado v. Kansas, original No. 6
(Ark&nsas River); Nebraska v. Wyoming (295 U. S. 40). original
No.9 (North Platte River); Tezas v. New Mexico, original No. 11
(Rio Grande River).
. The long-drawn-out irrltating boundary l1tigatlon, Rhode Island
v. Massachmetts (7 Pet. 651; 11 Pet. 226; 12 Pet. 657, 755; 18 Pet.
23; 14 Pet. 210; 15 Pet. 283; 4 How. 691); was finally settled by a
compact. Bee Frankfurter and Landis, supra, note 6, at 696,
787-738.
10 "We cannot wtthhold the suggestion, inspired by the con-
sideration of this ease, tha.t the grave problem of sewage disposal
presented by the large and groWing populations liVing on the
shores of New York Bay is one more likely to be wisely solved
by cooperative study and by conference and mutual concession on
the part of representa.tives of the States so vitally interested in it
than by proceedings in any court however constituted" (p. 313).
II congress has consented to 15 such compacts, of which 5 have
been rati:!led by 2 or more of the contracting States (see State
government, supra note 7, at 120-21. See also Ely, supra note 7.
a.t 381-388; Dodd. supra. note 7. a.t 57~78).
68100-15432

is, that the boundary so establtshed and fixed by compact between
nations become conclusive upon all SUbjects and citizens thereof
and bInd their rights. and are to be treated to all intents and pur-
poses as the true real boundaries."
See also Garcia v. Lee (12 Pet. 511, 621); Coffee v. Groover (123
U. S. I, 29, 30, 31); Virginia v, Tennessee (148 U. S. 603, 525).
The rule as a.ppl1ed to the apportionment by Judictal decree of
the water of an interstate stream. was stated in Wyoming v. Colo-
rado (286 U. S. 494, 508) :
"But it lB said that wa.ter claims other than the tunnel appro-
priation could not be, and were not, atreeted by the decree. because
the claimants were not parties to the suit or represented therein.
In this the nature of the suit is misconceived. It was between
States, each acting as a quasi sovereign and representatives of the
interests and rights of her people in a controversy with the other.
Counsel for COlorado inslBted in their brief in tha.t suit that the
controversy was 'oot between private parties' but 'between the two
sovereignties of Wyoming and COlorado'; and th1s Court in its
opLnlon assented to tha.t view but observed that the controversy
was one of immediate and deep concern to both States, and tha.t the
interests of each were indissolubly ltnked with thoae of her ap-
propriators (259 U. S. 468). Decisions In other eases also warrant
the conclusion that the water cla1mants in COlorado and those in
Wyoming were represented by their respective States and are bound
by the decree."
Fourth: As the States had power to bind by compact their re-
spective approprl&tors by cUv1s1on of the !low of the stream. they
had power to reach that end either by providing for a continuous
equal div1B1on of the water from time to time in the stream or by
proViding for alternate periods of fiow to the one .8ta.te and to the
other of all the water in the stream.. To secure "the greatest bene-
flctal use of" the water 10 the stream, the compact provided that
the water may be "rotated between the two States in such manner
for such periods and to conttnue for mch time as the State en-
gineers may Jointly determine." That such alternate rotating :flow
was then a more eme1ent use of the stream than 1:f the :!low had been
stea.dUy divided equa.lly between the Colorado and the New Mexico
appropriators was conclusively established by the evidence. Th&t
lB, the rotating supply which the compact authorized. and the two
State engineers agreed upon, was clearly more bene1le1aJ to the
Ditch CO. than to have given to it and other Colorado a.ppro-
priators steadily one~half of the water in the river. The dele-
gation to the State engineers of the authority to determine when
the waters should be so rotated was a matter of det&l.1 clearly
Within the constitutional power. There is no cl.a.1m that the ali~
thority conferred was abused
Fifth. AiJ Colorado possessed the right only to an equitable
share of the water In the stream, the decree of January 12, 1898.
in the Colorado water proeeed1ng did not award to the Ditch Co.
any right greater than the equitable share. Hence the appor-
tionment made by the compact cannot have taken from the Ditch
Co. any vested right, unless there was in the proceedings lead.~
ing up to the compact or in its application, some vitiating in~
ftrmtty. No such 1nflrm1ty or illegality has been shown. There
18 no allegation in the pleadings, no evidence In the record, DO
suggestion in brief or argument, tha.t the apportionment agreed
upon by the commissioners was entered into without due in-
quiry; or tha.t it was not an honest exerctse of Judgment; or
even that it was, or lB, inequltable. The fact that the appoint-
ment of the joint comm1ssione~s was authorized in 1921, and
their agreement was not adopted by the States unt11 1923, and
that it was not approved by Congress untU 1926 shows that there
was ample time for consideration by all concerned. There 18 no
suggestion that the Ditch CO. or indeed anyone else, was dented
by the commissioners opportunity to be heard; or even that any
water claimant objected to the terms 01 the com.pact. It appears
that although the State of Colorado was not permitted to inter~
vene in this litigation, Colorado v. Hinderltaer (73 Pac. (2d) 997).
its attorney general represented the State's water omcials. More-
over, the compact provIdes in article VI that it "may be modified
or terminated. at any time by mutual consent," and there 18 not
even a suggestion that either State or the Ditch. CO. has ex-
pressed a desire to modify or term1na.te it.
Sixth. The water otflcIals rely for their defense upon the rule re-
quiring equtta.ble apportionment of the water of an interstate
stream and the action of Congress in approving the adjustment of
the equitable apportionment which the States made by their com~
pacts. The assent of Congress to the compact between Colorado
and New Mexico does not make it a .'treaty or statute of the United
States" within the meaning of section 237 (a) of the Judicial
Code, and no question as to the validity of the consent is pre-
sented. (People v. Central E. E., 12 Wall. 455.) A cla.1m based on
the equtta.ble interstate apportionment of water, like one based on
the proper location of a State boundary. is not within the pro-
vlBions of section 287 (a). (Rust Land 41- Lumber Co. v. Jackson,
250 U. S. 71.) The appeal must therefore be d1sm1s.sed. But in
holding that the State Engineer and his subordinates should be
enjoined from taking action required by the compact the State
court denied an importa.nt claim under the Constitution which
may be reviewed on certiorar:1 by this court under section 287 (b).
For the dec1s1on below necessarlly rests upon the prem.1se that
at the time the compact was ma.de Colorado was absolutely en-
titled to at least 58 %. cubic feet of water per second regardless of
the amount left for New:Mes1co. The Judgment cannot stand if