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Show 586 INTERSTATE ADJUDICATIONS minant of judicial apportionment as enunciated in Wyoming v. Colo- rado, 259 U.S. 419, was the law in six of the Colorado Basin States,4 and senior appropriations were respected in the seventh.5 The law of appropriation, which rests on the basic principle that a water right depends on beneficial use and which gives priority of right to the appropriator first in time, had been repeatedly declared to be indis- pensable to the development of the arid lands of the West.6 This backdrop of firm dedication to the principles of appropriation and of judicial apportionment is critical to an understanding of con- gressional purpose with respect to the Project Act. It is also critical to recognize that congressional compromise with these deeply respected principles was only partial; the problems facing Congress as a result of Wyoming v. Colorado were narrow. No Senator or Representative ever suggested that judicial apportionment was generally inappropri- ate ; no Senator or Representative ever inveighed against the law of appropriation as such. The first problem was simply this: Interstate application of the doctrine of priority, unlimited by equitable consid- erations, threatened to deprive the four Upper Basin States of their fair share of the Colorado River because they were not so quick as California in development. The purpose of the Compact was simply to limit traditional doctrines to the extent necessary to avoid this extreme and harsh result, and to eliminate long and costly litigation. It was perfectly plain that the Colorado River Compact merely guaranteed to the upper States a specified quantity of water immune from priorities below, subject to stated delivery requirements; it did nothing whatever to interfere with the law of priorities or the prin- ciples of equitable apportionment among the States of the Lower Basin.7 It was precisely because it did not that Arizona refused to approve either the Project Act or the Compact until something was done to safeguard her share of Lower Basin water.8 Similarly, the upper States feared that in the absence of ratification by Arizona, California would be free to appropriate all the Lower Basin's share under the Compact, and Arizona, not limited by that document, would be free to appropriate, as against the upper States, water the Compact sought to apportion to the Upper Basin.9 The remaining problem, therefore, was that California's acquisition of priorities as against Arizona and the upper States had to be further limited. A ceiling had to be put on her interstate appropriative priori- ties. Solution of this narrow problem likewise did not require complete abrogation of the principles of priority and interstate judicial ap- portionment. * Arizona: Olough v. Wing, 2 Ariz. 371, 17 P. 453; Colorado: Coffin v. Left Hand Ditch Co., 6 Colo. 443; Nevada: Jones v. Adams, 19 Nev. 78, 6 P. 442; New Mexico : Albu- querque Land & Irr. Oo. v. Gutierrez, 10 N. Mex. 177, 61 P. 357; Utah: Stowell v. John- son, 7 Utah 215, 26 P. 290; Wyoming: Moyer v. Preston, 6 Wyo. 308, 44 P. 845. 6 California: Osgood v. El Dorado Water and Deep Gravel Mining Co., 56 Cal. 571. e E.q., Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446-447, 449-450: Stowell v. John- son, 7 Utah 215, 225, 26 P. 290, 291; Willey v. Decker, 11 Wyo. 496, 515-524, 73 P. 210, 215-218, "Irrigation," said the Nevada court, ". . . would be strangled by the enforce- ment of the riparian principle." Twaddle v. Winters, 29 Nev. 88. 106, 85 P. 280, 284. 7 Ward Bannister, Denver attorney and spokesman for the Upper Basin States, said that "[t]he purpose of the Compact is to provide the three lower States with a fund of water from which they may appropriate and the four upper States with a fund of water from which they may appropriate." Hearings before House Committee on Irrigation and Reclamation on H.R. 2903, 68th Cong., 1st Sess. 232. 8 See the remarks of Senator Hayden, 70 Cong. Rec. 388. 9 See, e.g., H.R. Rep. No. 1657, 69th Cong., 2d Sess., pt. 2, 3-4; Hearings, supra, note 2, at 34-37. |