Colorado v. New Mexico Page 2

Colorado v. New Mexico general information

Media for Colorado v. New Mexico

Audio Transcription for Oral Argument - October 04, 1982 in Colorado v. New Mexico

Richard A. Simms:

And with respect to his ultimate finding that CF&I's proposed diversion would have little effect on New Mexico users, I believe that is not a finding at all but is demonstrably an erroneous conclusion of law.

I think the real irony of the Master's report lies in his understanding that... and I'm quoting him from page 21 of the report... the unique circumstances which confronts the Master in this case is Colorado's failure to divert water and put it to beneficial use at any time in the past.

New Mexico has applied the water and has existing economies which are dependent upon that water.

Instead of applying, the rather obvious holdings of this Court in Wyoming versus Colorado and Nebraska versus Wyoming and in Arizona versus California, the Master instead has equated the cause of action in this case with the relief sought.

The way he puts it is this, and I'll quote him again... simply stated, the doctrine says that each state is equal to all of the others, and as quasi-sovereigns, each state is entitled to a share of a river flowing between them.

We think that the Master started with the view that each state is entitled to a portion of the waters of an interstate stream no matter what the circumstances might be.

This is best illustrated I think by the Master's treatment of the first equitable apportionment decision handed down by this Court in 1906, Kansas versus Colorado.

That case, very unlike the case before this Court today, showed... the facts in that case showed a pattern of contemporaneous development in both states.

By 1883 in Kansas, there were some 1,200,000 acres of irrigation on the Arkansas in Kansas.

Between 1884 and 1891, there had developed independently under the law or prior appropriation in Colorado some 300,100 acres of land.

That situation presented the classic equitable apportionment case.

The water supply became insufficient to satisfy the simultaneous growth in both states, and there appeared a conflict in the social and economic institutions which had developed independently.

There, the substantive laws of each state... and as you'll recall, it was said in Kansas versus Colorado that there is no federal law of water in the West; each state has a right to develop its own system under which rights to the use of water might be protected... each state had done so.

The substantive laws in Kansas versus Colorado had been exercised historically.

In that case there was an actual conflict between existing users on either side of the state line.

Because in Kansas they have the doctrine of riparianism, which stands for the proposition that water should be maintained in the river and let down the river undiminished, and on Colorado's side you have priority of appropriation, a doctrine which allows water to be diverted from the river and taken to lands not riparian to the river, you had an actual collision of sovereigns in that case.

Also, the sovereign interest on both sides of the Kansas-Colorado border arose from actual existing uses of water in the respective states.

Notwithstanding those obvious differences from this case, the Master has said, and I'm quoting, The same type of situation exists in this case.

Sandra Day O'Connor:

Mr. Simms, may I ask you whether it's your position that as between two states, both of which are states using the appropriated water theory, that the prior appropriator must make reasonable use of the water that's appropriated?

Do we measure the decreed rights or the appropriated rights by some measure of reasonable use, in your view?

Richard A. Simms:

The court has said that each state is obligated to conserve water to the extent that is economically possible.

There is no evidence in this case and no discussion in the Special Master's report, as opposed to Colorado's reply brief, that there were any uses in New Mexico that were not responsible uses of water.

The measure of water, I think, is one that the Master did not follow, and I think it's one of his fundamental mistakes.

What the Master should have done in assessing the water right entitlements in New Mexico so that he could further assess injury was to look to the actual historic irrigated acreage on the river.

That is not necessarily the decreed right.

It is something that can be discovered through a look at what's been irrigated historically.

Instead of--

Sandra Day O'Connor:

If the historic use is somehow wasteful, can the Master take that into consideration or not?

Richard A. Simms:

--Oh, I think he definitely can.

And I would point out that there is nothing in the record in this case that indicates that there is any waste.