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.
