Western Water Rights and the U.S. Supreme Court

The book that I have been working on these last years has now been published.  It addresses the nature and problems with the prior appropriation doctrine, the principle upon which  the public's water is all but privatized under the state laws of the western United States.  The U.S. Supreme Court case legitimizing the doctrine, issued in 1922 under the signature of Associate Supreme Court Justice Willis Van Devanter, upheld the application of the doctrine across state lines, thereby enabling the greater share of the Laramie River to flow to his one time client and principal political benefactor, Wyoming Senator F.E. Warren.  Although Warren's interests were primarily at stake, the case was filed on behalf of the State of Wyoming, under the U.S. Supreme Court's original jurisdiction.  No appeal could be had.  The Warren/Wyoming interests were represented in the litigation by the Justice's brother-in-law John Lacey.  During the procedural history of the case, Justice Van Devanter, a prior Chief Justice of the Wyoming Supreme Court, raised an issue not raised by the pleadings, that of the U.S.' interest in the interstate river system, then ruled that the U.S. had none--a holding giving rise to the up-stream protectionism of interstate flow in the Colorado River through the device of the 1922 Colorado River Compact.  California's earlier appropriation of water from the Colorado put the up-stream states at risk, given the Court's ruling that prior appropriation principles applied across state lines.

The opinion carries the signature of no other justice.  Then Chief Justice Taft was the only other justice on the Court who apparently reviewed Associate Justice Van Devanter's opinion.  Van Devanter waited eleven years to publish the decision, at the end of the 1921 October term, while all the other justices were away from the Court.

The book concludes with an analysis of the question whether the prior appropriation doctrine comports with the Fourteenth Amendment of the U.S. Constitution.

The book is available from McFarlandbooks.com or Amazon.

The Beat Goes On.

Now having spent over three years researching water allocation laws and practices of cultures throughout world history and the globe, it is time to settle down to some serious analysis and writing.  The last several months spent with Omani, Persian, Chinese, and back to Roman cases, have caused me to think about issues, structure, synthesis.  A central point is unavoidable--water availability (source, volume), climate, and environment are direct influences on societal complexity and political power within and between cultures.  What renders justice?  Is justice contextual?  The problem is going to be that, having gathered so many case studies, writing may prove difficult.  I'm up for the challenge.

Another challenge is that the anthropological reading is so interesting.  Now exploring the water-location propensities of early cultures, I find myself deeper into the research, and ruminating early synthesizing principles to be divined from the universe of information.  Life could be a lot worse.

One significant thank you so far:  I met one day now two years ago with Professor Aaron Wolf of Oregon State University in Corvallis.  As we talked about my project, he kept looking over his shoulder at a large stack of papers.  He told me that he had been working on a similar, cross time and society water ethics project and pointed with his thumb over his shoulder at the stack behind him.  Leaving his office briefly, Wolf asked that I look over his pile of papers.  To my great delight, he had collected several hundred articles directly on point.  "Take them," he said, returning to his office.  "How long have you been collecting these," I asked.  "Oh, thirty years," he said calmly.  He put them all in a cardboard box and sent them home with me--the originals.  What a trusting, generous, free-thinking man.  Now read completely, scanned on to disc, I will return them in the same cardboard box.  How sweet it is.

J. Davenport

Where to look next?

Following on my thinking about the inconsistency between priorities of claims to water under U.S. Western water law and the U.S. Constitution’s notion of equality, and following my exploration of other U.S. and British water law regime histories, I began to wonder which approach was the more typical and which the anomaly.  I thus began to explore other times’, other cultures’ anthropologic and social histories, so as to find the full panoply of approaches to water supply allocation.  I note now that persons from nine nations, United States, United Kingdom, France, Ireland, Russia, Germany, Italy, Netherlands, Poland, and other “unknown regions” have viewed this site.  I have to date explored the Sumerian, Hittite, Hebrew, Egyptian, Arab, Mesopotamian, Ancient and Classical Greek, Roman, Islamic, Civilian (Medieval and modern), and Hindu, Olmec, Mayan, Aztec, Andean, and Pre-Columbian North American approaches to this universal problem—how to protect, and at the same time spread access to this essential resource--and am currently working on pre-Roman Celtic cultures in Europe and England.  I would greatly appreciate that any viewer might suggest a water law custom or regime that I might further investigate (references to particular sources would also be appreciated).  I am particularly interested now in exploring Persian and Asian cases.  Thanks.

J. Davenport

Equal Protection

The guarantees of the Fourteenth Amendment to the U.S. Constitution would suggest that perhaps the idea of "first in time is first in right" is not constitutional.  If this question intrigues you, check out the attached article:  Life, Liberty and Pursuit of Happiness--Without Water?
 "Life, Liberty and Pursuit of Happiness--Without Water?"

It's Okay to Cry "Wolf"

              It’s okay to cry “Wolf!”  Just do it with spirit.  Professor Aaron T. Wolf’s 2017 book, The Spirit of Dialogue, Lessons from Faith Traditions in Transforming Conflict, Island Press, is anything but alarming, rather more it is consoling.  Based on an impressively broad reading of faith literature (Judaism, Christianity, Hinduism, Confucianism, Buddhism, Islam, Bahá’í Faith), facilitation of water conflict agreements in the Middle East (Israel, Palestine (River Jordon)), North Africa (Egypt, Sudan (Nile River)), Southeast Asia (Mekong  River), the Caucuses (Azeri, Armenia and Georgia (Kura-Araks River), and consultation with the World Bank, the Vatican, U.S. Geological Survey, U.S. Army Corps of Engineers, and U.S. Bureau of Reclamation, Professor Wolf, now over 20 years at Oregon State University, knows his stuff.

            Wolf asks, “What, precisely, can spiritual traditions offer the fields of facilitation, mediation, and conflict transformation, especially when people in conflict often come from a variety of backgrounds and belief systems?”  He answers:  “Well, quite a lot, it turns out.”  Later, he explores the “constructs of anger and conflict, as understood by faith traditions, and some of the tools and techniques to assuage both.”  A worthy study indeed.
            "We don’t all come from the same place in our attitudes about water.  “[T]he Western legal structure is very comfortable with the idea that one side in a dispute can be found entirely right and gain everything, while another side is found entirely wrong and loses everything.  In contrast, the balance of justice and mercy in many communities of the South and East can retain individual rights and honor on both sides of a dispute and lead to reconciliation of a wrongdoer within one’s community.  Consider the Arabic word tarrahdhin, for example, defined as ‘resolution of a conflict that involves no humiliation,’ a profound concept with no Western equivalent.”
            In Wolf’s “glass half full” approach, he says, “As the historically contrasting worldviews of the global North and West and the South and East increasingly more interact, both within and without the worlds of complex negotiations, we have the opportunity to heal historic divisions.  The history of conflicts and cooperation suggests that people do come together, even across vociferous divides.  And yet the suffering created by scarcity and conflict will only increase with population growth, poverty, and global change.  As the dangers grow, however, so do the opportunities for dialogue and healing.”  Water conflicts Wolf has facilitated have reached “general consensus that the highest priority [of needs] should be given simultaneously to drinking water and to water for spiritual purposes.”
            Water plays a significant role in the spiritual practices of most the world’s religions and is central focus in the lives of indigenous peoples.  “Both faith and water ignore separations and boundaries.  Thus they offer vehicles for bringing people together, and because they touch all we do and experience, they also suggest a language by which we might discuss our common future.”  Wolf’s approach to water negotiations is first to remove reference to artificial boundaries, permitting the parties opposite to focus on the organic watershed, to look at systemic issues within the whole.  Negotiations focused primarily on rights, rather than shared goals, he suggests, exacerbate rather than resolve conflict.
 
            Professor Wolf admonishes that “the impact of conflict is generally felt by a much larger population than is charged with resolving it.”  His facilitation works systematically to identify common interests, ascending through “four worlds”:  the physical (positions, warrior, adversarial), the emotional (interests, lover, reflective), the perceptual (values, thinker, integrative) and the spiritual (harmony, dreamer, a “world without” which “straddles the internal (intellectual mind) and the external (intuitive mind, which seems to tap into deeper and wider knowledge).”
            The Spirit of Dialogue is a thoughtful read.  I recommend it.

Groundwater Contamination as Economic Cost

Groundwater Contamination as Economic Cost

While the consumptive use of water, from either surface or groundwater source, can be measured, use of groundwater through contamination of its quality is usually not.  Consumption of groundwater quality is clearly a cost rarely attributed to the economic activity which it benefits.  For some thoughts on the subject, follow this link:

Groundwater Contamination as Economic Cost

J. Davenport

The Colorado River's Antiquated Legal Infrastructure

The Seven states of the Colorado River worked hard to resolve a climate-aggravated water shortage within the context of an antiquated legal infrastructure that exacerbates the problem.  On May 20, they signed the Drought Contingency Plan.  “[T]he seven states and Mexico were able to get together and agree on voluntary restrictions.  These were not imposed—the states agreed to them.  They set aside water law, water rights, and priority systems, and thought about what they needed to do to protect the system.  I think it’s a significant and remarkable achievement and a real demonstration of what we’re going to need to do in the future,” said Jeff Kightlinger, General Manager of the Metropolitan Water District of Southern California.  The difficult legal infrastructure the states set aside incorporates the nineteenth century notion of water-rights priorities based on time of the respective establishment of each, an interstate agreement (Colorado River Compact) originally premised upon fear of exercise of state-law-based rights, the interstate significance of which was recognized by a 1922 U.S. Supreme Court decision (Wyoming v. Colorado) decided by an ethically compromised justice.  Constitutionally-recognized principles, like equal protection under the Fifth and Fourteenth Amendments of the U.S. Constitution, suggest a more even approach.  Moreover, this self-imposed, antiquated approach is inconsistent with the water-sharing ethic ensconced in most of western civilization’s historical and contemporary water jurisprudence, as well as that described in international law.  The states were well advised to set aside this legal infrastructure and do the better thing for their constituents.

J. Davenport

Beneficial Use--For Whose Benefit?

Today water use is legitimized through proof of “beneficial use”. The principle of beneficial use exhibits itself in the first and second century AD case of the Barbegal Aqueduct and Mill located on the territory of the commune of Fontvielle, near the town of Arles in southern France  There, water was trained by Roman engineers to move by aqueduct to an elevated location where it could fall over a progression of wheels, the motion of which was transferred by gears to grinding wheels used to grind grain into flour which could be baked into bread sufficient to feed the town of Arles.  The use was “beneficial.”
The principle can also be observed some thousand years later in the “mill monopoly” enjoyed by lords of the manor in early medieval English feudal law, a law which was indeed administered by the lord himself.  The monopoly derived from the lord’s control of the only (or limited) milling capacity of the manor, the mandate that all within the manor must grind their grain at the lord’s mill (subject of course to a fee or tax), and the protection of the water flow which turned the mill’s grindstone through a “praedial servitude” upon upstream properties who might competitively divert water essential to turning the mill’s water wheel.  The creation of this microcosm of water, agronomic and economic interdependence was “beneficial” to its participants, the lord most of all, as it was essentially a closed economy.  It only had extra-manorial impact when density of use on a given stream put manors in competition.  When the praedial servitude was asserted through actions in “nuisance” against upstream users, the defense necessarily became that the upstream user also had a water right by virtue of its riparian position, a right in which no new beneficial use need be shown.
Somewhere along the historical timeline, most notably in the late eighteenth century with its advent of English industrialization, beneficial use began to be regarded as the economic betterment of a particular water user, as opposed to the broader public.  Betterment of a single interest was perceived to be the implied betterment of all.  Thus, beneficial use became to mean simply work of any kind which generated individual wealth.  Water could, in essence, be owned if one could use it to make money—public good had departed from the definition.
Putting water to beneficial use is, of course, the means by which appropriative water rights are perfected..  Modern statutory definitions of beneficial use are essentially lists of purposes, all of which, with the exception of domestic, are economic until environmental purposes were added.
At the common law, the converse of beneficial use was “waste.”  Waste may be evidenced by insufficient purpose, insufficient conservation of resource or insufficient benefit.  It has been fashionable at periods of judicially sanctioned economic self interest to allege that it is wasteful to permit a watercourse to run in its natural way, to leave water in the ground in its natural setting, or to permit water to run its way to the sea. Environmentally conscious post-industrialists have, of course eschewed such thoughts.

Your Water Footprint

Stephen Leahy’s Your Water Footprint (Firefly Books, Ltd., 2014) presents some rather staggering statistics about the amount of water it takes to make everyday products enjoyed by consumers of wealthy societies.  4,068 gallons (15,400 liters) of water to produce 2 pounds (1 kilogram) of beef;  2,747 gallons (10,400 liters) of water to produce 2 pounds of lamb; 1,582 gallons (5,990 liters) of water to produce 2 pounds of pork; 1,136 gallons (4,300 liters) of water to produce 2 pounds of chicken.  A single egg, Leahy suggests, takes 52 gallons to produce.  “depending upon where the food is produced, the water footprint may be big or small.” Quoting Arjen Hoekstra, “86% of humanity’s water footprint is not within people’s homes, but in making food, natural fibers, oils and energy.”  The single tomato that Leahy suggests takes 9.3 gallons of water to produce certainly consumes a lot less water in my own garden.

According to Leahy (the attribution of his data is a little obscure) 3,095 cubic miles (12,900 cubic kilometers) of fresh water hangs in the atmosphere (due to evaporation and transpiration during photosynthesis).  30 trillion gallons (113 trillion liters) of water fall to earth in precipitation each day.  The world’s three largest aquifers hold 15,600 cubic miles (64,900 cubic kilometers) (Australia’s Great Artesian Basin), 9,600 cubic miles (40,000 cubic kilometers) (South America’s Guarani Aquifer), and 900 cubic miles (3,608 cubic kilometers) (North America’s Ogallala Aquifer).  That’s a lot of tomatoes.

While Leahy’s implied guilt trip for rich-country consumers is worth considering, it fails to consider the water justice questions.  Where is the major water consumption?  In the factory or field?  In the home?  Although water supply is essentially geostationary—it is hard to export the resource itself by means other than global, atmospheric processes—the natural resource converted to products conveyed long distances (across oceans)  makes the total global water supply relevant.  But it may be the modern structure of international production, trade, transportation, corporate structure and finance which constitutes the major component of the justice problem.  Increase in global population, rise in energy demand and production, climate change likely also play a part.  So I won’t feel too guilty when I eat my home-grown tomato.

Welcome to Water Justice

Our purpose here is to do some thinking about the essential commodity of human life, indeed the essential substance of all living things.  Some now blithely say that competition for water will be the basis for future war between nations.  Some say, with climate change, we'll have too much water, or we'll get it at the wrong time in the wrong amounts, or delivered by powerful, ocean-generated weather.  Closer to home, in the United States at least, legal paradigms with which to determine how water is apportioned strain when supply gets short.  Drought is a growing concern.  Hopefully the writing posted here will encourage you to dig deeper in your own thoughts about the justice of water use and management.

Like the air we breathe, water is an essential component of this globe's life-engendering habitat.  We can't live without it.  In the history of western civilization, water has been believed to be a "common" asset, available to all.  And yet, access to it has proved confrontational in private-property oriented societies, as well as between governments and nations.  Justice is, of course, about balancing the respective merits of competing claims in unique, and sometimes confrontational, contexts.  And justice is not just about the rules, for those may well have been set in place to create and protect wealth, power and station.  Justice has a greater reference, a greater home, than law itself.  Because need for water is global and time immemorial, water justice inquiry invokes broad societal and temporal reference, research and contemplation.

Hopefully you will discover, as you review the materials provided here, that these thoughts are not "all wet," and that the humor, if and where it exists, is not exceedingly "dry."

James Davenport