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Show NORTH PLATTE RIVER LITIGATION 747 175 per cent of the long-time annual average river run-off of the river at Pathfinder. We have here storage capacity in excess of the practi- cable limits of a dependable supply as that term has hitherto been construed. Wyoming v. Colorado, supra. A mass allocation was made in Wyoming v. Colorado. But there is no hard and fast rule which requires it in all cases. The standard of an equitable apportionment requires an adaptation of the formula to the necessities of the particular situation. We may assume that the rights of the appropriators inter se may not foe adjudicated in their absence. But any allocation between Wyoming and Nebraska, if it is to be fair and just, must reflect the priorities of appropriators in the two States. Unless the priorities of the downstream canals senior to the four reservoirs and Casper Canal are determined, no allocation is possible- The determination of those priorities for the limited pur- poses of this interstate apportionment is accordingly justified. The equitable share of a State may be determined in this litigation with such limitations as the equity of the situation requires and irrespective of the indirect effect which that determination may have on individual rights within the State. Hinderlider v. La Plata Co., 304 U.S. 92, 106-108. Nebraska contends that the allotment to Farmers Irrigation Dis- trict be increased in the seasonal limitation recommended, so that the Warren Act contract which it has may be recognized. But for reasons which we will elaborate the only water subject to the present allocation is natural flow. Contracts requiring the supplementation of natural flow by storage are unaffected.16 The United States contends that Nebraska's equitable share of nat- ural flow water should be limited to that which is in fact being diverted and used by any or all of the designated canals within the specified limitations in acre-feet and second-feet. It is said that these provisions of the proposed decree are the operative provisions which determine the amount of natural flow to be passed into the Whalen-Tri-State Dam section of the river. It is said that Nebraska can permit, as it has heretofore, water to pass the Tri-State Dam for use below that point even though her equitable share is calculated only on the basis of the needs of appropriators at or above Tri-State. And it is pointed out that the lands served by diversions below Tri-State have no equitable claim on water originating in Wyoming or Colorado, their needs being reasonably met by local supplies. We think, as we will develop later, that the record sustains the conclusion that equitable apportionment does not permit Nebraska to demand direct flow water from above Whalen for use below Tri-State. The reservoirs above Whalen may store water and Kendrick may divert whenever and to the extent that the Nebraska canals at or above .Tri-State are not using or diverting natural flow. We do not believe, however, that any revision of this part of the proposed decree need be made. We cannot assume that Nebraska will undertake to circumvent the decree. Moreover, the proposed revi- sion offers difficulties. As Nebraska points out, when a junior Nebraska canal having storage rights is closed to natural flow due to operation 18 Whether, as between the United States together with the Irrigation projects sponsored by it on the one hand and the Farmers Irrigation District on the other, the United States is estopped by United States v. Tiltey, 124 F. 2d 850, to deny the amount of acreage covered by the Warren Act contract with the district is not relevant here. |
