Wednesday, April 11, 2007

Western water law has deep, tangled roots

Water law rooted in needs of early miners


By GREG STAHL
Express Staff Writer

"Water is the true wealth in a dry land; without it, land is worthless or nearly so. And if you control the water, you control the land that depends on it. In that fact alone was the ominous threat of land and water monopolies."

That is among the passages written by Wallace Stegner in his portrait of John Wesley Powell and the "second opening of the West," "Beyond the Hundredth Meridian."

Water is a meaningful commodity in the West, and its importance has fed a form of governance that has roots going back more than 100 years.

The foundation of Western water law, the prior appropriation doctrine, "first in time, first in right," is unique in this country to the 17 conterminous Western states and Alaska. If a state is arid, it embraces the prior appropriation system.

Prior appropriation is policy that grew from the people, as opposed to being handed down by a legislature or the courts. It is policy that's generally considered to have grown out of a symbiotic relationship with hard-rock mining law.

"The miners, just as they did with the mining laws, developed their own water laws before any state or federal court or legislature spoke," writes University of Colorado School of Law Professor Charles Wilkinson in his book, "Crossing The Next Meridian." "As might be expected, the rules for water looked a lot like the rules for minerals."

The rule of priority based on the time a claim was laid was a sound rejection of riparian water law, which applied in the eastern United States and England. Riparian doctrine requires sharing of a waterway by all landowners bordering it.

"That made no sense at all to these miners," Wilkinson writes. "If two men, or companies, came in and diverted a whole stream, so be it. If just one took the whole stream, so be it. They needed it; they depended on it; they had rights to it.

"In one sense: absolute anarchy. In another, one that made much better logic in those days: absolute order. In a mining society, how could a person operate without being able to rely on a stable possession of the claim and the water necessary to operate it?"

Water law of the mining camps first reached the judicial system for a definitive opinion in the famous 1855 California Supreme Court case "Irwin v. Phillips." It centered on the South Fork of Poor Man's Creek in the California gold country.

Mathew Irwin arrived first and appropriated water for his mining operation, as well as to sell to other miners. Robert Phillips arrived several months later, only to discover a dry riverbed.

The court, knowing the rules of the mining camps, writes it was a matter of "a universal sense of necessity and propriety" to embrace the tenets of prior appropriation, thus legislating "first in time, first in right" for the first time in the West.

The California example is muddied, however, because the court ruled in favor of prior appropriation doctrine, despite the state Legislature's enactment of riparian doctrine. It was the Colorado Supreme Court that issued a breakout decision in 1882 that cemented the issue for pure prior appropriation states throughout the Rocky Mountains.

In "Coffin v. Left Hand Ditch Co." the court ruled that the upstream, senior water user could legally divert an entire river out-of-basin, despite the burden that placed on a farmer, Coffin, downstream.

"Prior appropriation was the law of the courts because it had already become the law of the miners and farmers," Wilkinson writes.

Later developments in the prior appropriation system were provisions consistent with the mining camps. To obtain a water right, an appropriator had to divert the water. Water had to be put to a "beneficial use." Beneficial use was limited to mining, agriculture, industrial, municipal, domestic, stock-raising and hydropower uses. In-stream uses were not among those considered beneficial.

The book "Legal Control Of Water Resources, Third Edition," by Joseph L. Sax, Barton H. Thompson Jr., John D. Leshy and Robert H. Abrams, was also used to compile this article.




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