325 U.S. 589 (1945), 6, Nebraska v. Wyoming

Docket Nº:No. 6, Original
Citation:325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815
Party Name:Nebraska v. Wyoming
Case Date:June 11, 1945
Court:United States Supreme Court

Page 589

325 U.S. 589 (1945)

65 S.Ct. 1332, 89 L.Ed. 1815




No. 6, Original

United States Supreme Court

June 11, 1945

        Argued March 5, 6, 7, 1945



        1. In a proceeding within the original jurisdiction of this Court, brought by Nebraska against Wyoming, in which Colorado was impleaded as a defendant and the United States was granted leave to intervene, this Court makes an equitable apportionment between the States of the water of the North Platte River. Pp. 591, 610.

        2. Colorado and Wyoming having the rule of priority of appropriation, and, that rule being dominant in the Nebraska areas affected, the case is treated as involving appropriation rights in the three States. P. 599.

        3. Since the dependable natural flow of the river during the irrigation season has long been over-appropriated, since the claims of the States to the water of the river are based not only on present uses but on projected additional uses as well, and since the claims to the water exceed the supply, there exists a conflict of interests of that character and dignity which makes the controversy a justiciable one within the original jurisdiction of this Court. Wyoming v. Colorado, 259 U.S. 419, followed. P. 610.

        4. The water rights on which the North Platte Project and the Kendrick Project rest having been obtained in compliance with state law, it is unnecessary to determine what rights to unappropriated water of the river the United States may have. Nor is it important to the decree to be entered in this case that there may be unappropriated water to which the United States may in the future assert rights through the machinery of state law or otherwise. P. 611.

        Assuming arguendo that the United States did own all of the unappropriated water, the appropriations under state law were made to the individual landowners pursuant to the procedure which Congress provided in the Reclamation Act, and the rights so acquired are as definite and complete as if they were obtained by direct cession from the federal government. P. 615.

        5. Allocation of the water rights here in question to the States, who represent their citizens parens patriae in this proceeding, in no wise interferes with the ownership and operation by the United States of its storage and power plants, works, and facilities. P. 616.

        6. The difficulties of drafting and enforcing a decree apportioning the water of the river among the claimant States -- where efforts at settlement have failed; a genuine controversy exists, and the gravity

Page 590

and importance of the case are apparent -- do not justify refusal by this Court to perform the important function entrusted to it by the Constitution. P. 616.

        7. Equitable apportionment among appropriation States does not require a literal application of the priority rule. P. 618.

        Although priority of appropriation is the guiding principle, other relevant factors include: physical and climatic conditions; the consumptive use of water in the several sections of the river; the character and rate of return flows; the extent of established uses; the availability of storage water; the practical effect of wasteful uses on downstream areas; the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former.

        8. The decree of equitable apportionment to be entered in this case must deal with conditions as they exist at present and must be based on the dependable flow of the river which is not greater than the average condition which has prevailed since 1930. P. 620.

        9. The decree of equitable apportionment which is entered apportions the natural flow of the river among the three States to the Tri-State Dam in Nebraska but not below it. Pp. 621, 654.

        10. The United States is not given a separate allocation of water, since the water rights appropriated by the Secretary of the Interior were adjudicated to be in the individual landoners and since the United States as an appropriator of storage water is represented by the Wyoming. P. 629.

        11. Storage water is not included in the apportionment, although it is taken into account in determining each State's equitable share of the natural flow. P. 639.

        12. The Court retains jurisdiction of the suit for the purpose of any order, direction, or modification of the decree, or any supplementary decree, that may at any time be deemed proper in relation to the subject matter of the controversy. P. 655.

        Bill in equity by Nebraska against Wyoming (in which Colorado was impleaded as a defendant and the United States was granted leave to intervene) seeking an equitable apportionment of the water of the North Platte River and an injunction restraining alleged wrongful diversions.

Page 591

        DOUGLAS, J., lead opinion

        MR. JUSTICE DOUGLAS delivered the opinion of the Court.

        Nebraska brought this suit in 1934 against Wyoming, invoking our original jurisdiction under Article III, Section 2 of the Constitution. 293 U.S. 523. Colorado was impleaded as a defendant. 296 U.S. 553. The United States was granted leave to intervene. 304 U.S. 545. Issues were joined. A Special Master, Honorable Michael J. Doherty, was appointed and hearings were held beofre him. The matter is before us on exceptions to his report.


        The controversy pertains to the use for irrigation purposes of the water of the North Platte River, a nonnavigable stream. Nebraska alleged that Wyoming and Colorado, by diversions of water from the river for irrigation

Page 592

purposes, were violating the rule of priority of appropriation in force in the three States and depriving Nebraska of water to which she was equitably entitled. The prayer was for a determination [65 S.Ct. 1339] of the equitable share of each State in the water and of the priorities of all appropriations in both States, and for an injunction restraining the alleged wrongful diversions. Wyoming denied the diversion or use of any water to which Nebraska was equitably entitled, but joined in the prayer of Nebraska for an equitable apportionment. Colorado filed an answer, together with a cross-bill against Nebraska and Wyoming, which denied any use or threatened use of the water of the North Platte beyond her equitable share, and prayed for an equitable apportionment between the three States, excepting only the tributary waters of the South Platte and Laramie rivers.1 At the conclusion of Nebraska's case and again after all the evidence was in, Colorado moved to dismiss the suit on the ground that the evidence was insufficient to sustain any judgment in favor of, or against, any party. Colorado argues here that there should be no affirmative relief against her, and that she should be dismissed from the case.

        The North Platte River rises in Northern Colorado in the mountainous region known as North Park.2 It proceeds

Page 593

in a northerly direction on the east side of the Continental Divide, enters Wyoming west of Cheyenne, and continues in a northerly direction to the vicinity of Casper. There it turns east across the Great Plains and proceeds easterly and southerly into and across Nebraska. About 40 miles west of the Nebraska line, it is joined by the Laramie River. At North Platte, Nebraska, it is joined by the South Platte, forming the Platte River. It empties into the Missouri River at Plattsmouth, near the western border of Iowa. In North Park, it is a rapid mountain stream. In eastern Wyoming, it gradually broadens out, losing velocity. In western and central Nebraska. its channel ranges from 3000 to 6000 feet; it frequently divides into small channels, and in times of low water is lost in the deep sands of its bed. Here it is sometimes characterized as a river "two miles wide and one inch deep."

        There are six natural sections of the river basin: (1) North Park, Colorado, or, more accurately, Jackson County; (2) Colorado-Wyoming line to the Pathfinder Reservoir located between Rawlins and Casper, Wyoming; (3) Pathfinder Reservoir to Whalen, Wyoming which is 42 miles from the Nebraska line; (4) Whalen, Wyoming to the Tri-State Dam in Nebraska near the Wyoming-Nebraska line; (5) Tri-State Dam to the Kingsley Reservoir, west of Keystone, Nebraska; (6) Kingsley Reservoir to Grand Island, Nebraska.3

Page 594

       [65 S.Ct. 1340] The river basin in Colorado and Wyoming is arid, irrigation being generally indispensable to agriculture. Western Nebraska is partly arid and partly semi-arid. Irrigation is indispensable to the kind of agriculture established there. Middle Nebraska is sub-humid. Some crops can be raised without irrigation. But the lack of irrigation would seriously limit diversification. Eastern Nebraska, beginning at Grand Island, is sufficiently humid so as not to justify irrigation.

        Irrigation in the river basin began about 1865, when some projects were started in eastern Wyoming and western Nebraska. Between 1880 and 1890, irrigation began on a large scale. Until 1909, storage of water was negligible, irrigation being effected by direct diversions and use. Prior to 1909, the development in Colorado and Wyoming was relatively more rapid than in Nebraska. Since 1910, the acreage under irrigation in Colorado increased about 14 percent, that of Wyoming 31 percent, and that of Nebraska about 100 percent.4 The large increase in Nebraska is mainly attributable to the use of storage water from the Pathfinder Reservoir.5

        The Pathfinder Reservoir is part of the "North Platte Project," which followed the adoption by Congress in 1902 of the Reclamation Act. 32 Stat. 388. Pathfinder was completed in 1913. It has...

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