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Show 736 INTERSTATE ADJUDICATIONS III Motion to Dismiss. As we have noted, Colorado moves to dismiss the proceeding. She asserts that the pleadings and evidence both indi- cate that she has not injured nor presently threatens to injure any downstream water user. She emphasizes the large increase since 1910 in acreage under irrigation in Wyoming and Nebraska as compared with the increase in Colorado. She asserts there is a surplus of water in the stream, as evidenced by the fact that during the recent drought or dry cycle the Kendrick Project in Wyoming and the Tri-County Project in Nebraska have been constructed, indicating that the spon- sors considered that the available water supply was not entirely used by existing projects. And she emphasizes that during the drought there was a divertible flow passing Tri-State Dam during the irriga- tion season. The argument is that the case is not of such serious magni- tude and the damage is not so fully and clearly proved as to warrant the intervention of this Court under our established practice. Mis- souri v. Illinois, 200 U.S. 496, 521; Colorado v. Kansas, 320 U.S. 383, 393-394. The argument is that the potential threat of injury, repre- senting as it does only a possibility for the indefinite future, is no basis for a decree in an interstate suit since we cannot issue declaratory decrees. Arizona v. California, 283 U.S. 423, 462-464, and cases cited. We fully recognize those principles. But they do not stand in the way of an entry of a decree in this case. The evidence supports the finding of the Special Master that the dependable natural flow of the river during the irrigation season has long been over-appropriated. A genuine controversy exists. The States have not been able to settle their differences by compact. The areas involved are arid or semi-arid. Water in dependable amounts is essential to the maintenance of the vast agricultural enterprises established on the various sections of the river. The dry cycle which has continued over a decade has precipitated a clash of interests which between sovereign powers could be traditionally settled only by diplomacy or war. The original jurisdiction of this Court is one of the alternative methods provided by the Framers of our Consti- tution. Missouri v. Illinois, 180 U.S. 208, 241; Georgia v. Tennessee Copper Co., 206 U.S. 230, 237. The Kendrick Project plainly is an existing, threat to senior appropriators downstream. As we have noted, it is junior to practically every appropriation on the river between Alcova and the Tri-State Dam. Since 1930 there would have been no water for it if it were operated on a priority bas'is. And in view of the general position taken by Wyoming with respect to Nebraska priorities, it cannot be assumed that the Kendrick Project would be regulated for the benefit of senior appropriators in Ne- braska. Neither Wyommg nor Colorado has ever recognized any extension of priorities across state lines. They have never limited or regulated diversions by their appropriators in subordination to the senior appropriators of a downstream State. Out-of-priority diversions by Colorado have had an adverse effect downstream. We do not know their full extent; but we do know that Colorado appro- priators junior to Pathfinder consume about 30,000 acre-feet a year and that Pathfinder has never been filled since 1930 and has always been in need of water. This alone negatives the absence of present |
