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Show NORTH PLATTE RIVER LITIGATION 767 go against one who is not doing, or immediately threatening to do, harm to the complainant. The court is simply taking Colorado under its wing and proposes to act as guardian of the State in respect to the waters of the North Platte within her borders. One need only examine the Master's report to determine that Ne- braska's case against Wyoming stands no better than that against Colorado. This court stated, in Colorado v. Kansas, 320 U.S. 383, 393: "Such a controversy as is here presented is not to be determined as if it were one between two private riparian proprietors or appropriators." Nor is it to be determined by the relative priorities of the users in the upper and lower States. Yet that is what in effect Nebraska sought by her complaint. She is not awarded the relief she asked but instead the so-called "natural flow" water is apportioned in percentages between Wyoming and Nebraska. This is done in spite of the fact that the Master finds that Nebraska needs none of the natural flow which passes the Tri-State Dam for lands lying below that point but has ample water for those lands, regardless of any such flow. Without a showing of need for water for beneficial use and, in spite of the fact that some of the water flowing past the Tri-State Dam is found now to go to waste, an apportionment is made between Wyoming and Nebraska. The Master's findings show that, under the heretofore uniform test, Nebraska has not proved such damage as would entitle her now to relief. The table quoted in footnote 4 of the court's opinion demon- strates that during a thirty-year period, while irrigation did not increase materially in Colorado and increased about one-third in Wyoming, Nebraska more than doubled her acreages under irrigation. Speaking of Nebraska agriculture's dependence on irrigation, the Master says: "On the other hand, when scanned for evidence of serious drouth damage since 1931, the statistics are equivocal. It appears that there was a rather sharp reduction in the production of alfalfa and sugar beets, but the indication is that this was due to a reduction of acreage rather than of rate of yield. While there was some decline in the production rate of alfalfa, there was a rise in the rate for sugar beets. The acreages devoted to beans and potatoes increased to very closely offset the reduction in beets and alfalfa, the total acreages devoted to the four crops for the three five-year periods, being 124,281, 122,332, and 122,130 respectively. The large increase in total production of beans and potatoes should also be noted. The statistics, taken all in all, are, to say the least, inconclusive as to the existence or extent of damage to Nebraska by reason of the drouth or by reason of any deprivation of water by wrongful uses in Wyoming or Colorado. "Nebraska makes no strong claim for its showing in this regard. Her brief says:'. . . the factors involved in the crop statistics which cannot be eliminated largely distort the picture and make it difficult to show one way or the other the effect and results of the shortage of irrigation water upon crop production. However, we believe that when the statistics are properly considered in the light of other factors, they indicate that crop production is seriously damaged when the water supply is low.' |