Colorado v. New Mexico
| Decision Date | 13 December 1982 |
| Docket Number | No. 80,O,80 |
| Citation | 74 L.Ed.2d 348,103 S.Ct. 539,459 U.S. 176 |
| Parties | State of COLORADO, Plaintiff v. State of NEW MEXICO and Paul G. Bardacke, Attorney General of New Mexico. rig |
| Court | U.S. Supreme Court |
The Vermejo River—which originates in southern Colorado but is located primarily in New Mexico—is at present fully appropriated by users in New Mexico. Colorado seeks an equitable apportionment of the river's water in order to divert water for proposed uses. The Special Master, after a trial, recommended in his report that Colorado be permitted a diversion of 4,000 acre-feet per year. The Special Master recognized that strict application of the rule of prior appropriation would not permit any diversion. In applying the principle of equitable apportionment, however, he did not focus exclusively on the rule of priority, but apparently rested his recommendation on the alternative grounds that New Mexico could compensate for some or all of the Colorado diversion through reasonable water conservation measures, and that the injury, if any, to New Mexico would be outweighed by the benefit to Colorado from the diversion. New Mexico filed exceptions to the Special Master's report.
Held:
1. The flexible principle of equitable apportionment applies to a State's claim to divert water for future uses, and the criteria relied upon by the Special Master comport with this Court's prior cases. Pp. 183-188.
(a) When, as in this case, both States recognize the doctrine of prior appropriation, priority becomes the guiding principle, but not the sole criterion, in determining an equitable apportionment. Pp. 183-184.
(b) While the equities supporting the protection of established, senior uses are substantial, it is also appropriate to consider additional factors relevant to a just apportionment, such as the conservation measures available to both States here and the balance of harms and benefits to the States that might result from the diversion sought by Colorado. Pp. 184-187.
(c) A State seeking a diversion for future uses must demonstrate by clear and convincing evidence that the benefits of the diversion substantially outweigh the harm that might result. Pp. 187-188.
2. However, the Special Master's report does not contain sufficient factual findings to enable this Court to assess the correctness of his application of the principle of equitable apportionment to the facts of this case. Accordingly, this Court remands for additional findings, including specific findings relating to the Special Master's reliance on the factors of the availability of conservation measures and the weighing of the harms and benefits that would result from the diversion. Pp. 547-549.
Remanded for further findings.
Richard A. Simms, Santa Fe, N.M., for defendants.
Robert F. Welborn, Denver, Colo., for plaintiff.
This case concerns the proper apportionment between New Mexico and Colorado of the water of an interstate river. The water of the Vermejo River is at present fully appropriated by users in New Mexico. Colorado seeks to divert water for future uses. Invoking this Court's original jurisdiction under Article 3, § 2 of the Constitution, Colorado brought this action for an equitable apportionment of the water of the Vermejo River. A Special Master appointed by the Court recommended that Colorado be permitted a diversion of 4,000 acre-feet per year. The case is before us on New Mexico's exceptions to the Special Master's report.
The Vermejo River is a small, nonnavigable river that originates in the snow-belt of the Rocky Mountains in southern Colorado and flows southeasterly into New Mexico for a distance of roughly 55 miles before it joins the Canadian River. The major portion of the river is located in New Mexico. The Colorado portion consists of three main tributaries that combine to form the Vermejo River proper approximately one mile below the Colorado-New Mexico border. At present there are no uses of the water of the Vermejo River in Colorado, and no use or diversion has ever been made in Colorado. In New Mexico, by contrast, farmers and industrial users have diverted water from the Vermejo for many years. In 1941 a New Mexico state court issued a decree apportioning the water of the Vermejo River among the various New Mexico users.1
In 1975, a Colorado corporation, Colorado Fuel and Iron Steel Corporation ("C.F. & I."), obtained in Colorado state court a conditional right to divert 75 cubic feet per second from the headwaters of the Vermejo River.2 C.F. & I. proposed a transmountain diversion of the water to a tributary of the Purgatoire River in Colorado to be used for industrial development and other purposes. Upon learning of this decree, the four principal New Mexico users—Phelps Dodge Corporation ("Phelps Dodge"), Kaiser Steel Corporation ("Kaiser Steel"), Vermejo Park Corporation ("Vermejo Park"), and the Vermejo Conservancy District ("Conservancy District")—filed suit in United States District Court for the District of New Mexico, seeking to enjoin any diversion by C.F. & I. that would violate their senior rights. On January 16, 1978, the District Court enjoined C.F. & I. from diverting any water from the Vermejo River in derogation of the senior water rights of New Mexico users.3 The court found that under the doctrine of prior appropriation, which both New Mexico and Colorado recognize,4 the New Mexico users were entitled to have their needs fully satisfied because their appropriation was prior in time. C.F. & I. filed a notice of appeal, and the Court of Appeals for the Tenth Circuit has stayed its proceedings during the pendency of this case before us.
In June 1978 Colorado moved for leave to file an original complaint in this Court. New Mexico opposed the motion. On April 16, 1979, we granted Colorado's motion and ap- pointed the Honorable Ewing T. Kerr, Senior Judge of the United States District Court for the District of Wyoming, as Special Master in this case. After a lengthy trial involving an extensive presentation of evidence, the Special Master submitted a report to the Court on January 9, 1982. The report was accepted for filing on February 22, 1982.
The Special Master found that most of the water of the Vermejo River is consumed by the New Mexico users and that very little, if any, reaches the confluence with the Canadian River. He thus recognized that strict application of the rule of priority would not permit Colorado any diversion since the entire available supply is needed to satisfy the demands of appropriators in New Mexico with senior rights. Nevertheless, applying the principle of equitable apportionment established in our prior cases, he recommended permitting Colorado a transmountain diversion of 4,000 acre-feet 5 of water per year from the headwaters of the Vermejo River. He stated:
Report of the Special Master, p. 23.
Explaining his conclusion, the Special Master noted that any injury to New Mexico would be restricted to the Conservancy District, the user in New Mexico furthest downstream, since there was sufficient water in the Vermejo River for the three other principal New Mexico water users. Vermejo Park, Kaiser Steel, and Phelps Dodge.6 He further found that the "Vermejo Conservancy District has never been an economically feasible operation." Ibid.
The Special Master's recommendation appears to rest on two alternative grounds: first, that New Mexico could compensate for some or all the Colorado diversion through reasonable water conservation measures; 7 and second, that the injury, if any, to New Mexico would be outweighed by the benefit to Colorado from the diversion.8 In its various exceptions to his report, New Mexico challenges the Special Master's interpretation of the law of equitable apportionment. New Mexico maintains that the rule of priority should be strictly applied in this case to preclude Colorado from diverting any water from the Vermejo River. New Mexico also challenges the factual bases of the Special Master's conclusions that the recommended diversion would not materially affect New Mexico users and that any harm to New Mexico would be offset by the benefits to Colorado.9
We conclude that the criteria relied upon by the Special Master comport with the doctrine of equitable apportionment as it has evolved in our prior cases. We thus reject New Mexico's contention that the Special Master was required to focus exclusively on the rule of priority. However, the Report of the Special Master does not contain sufficient factual findings to enable us to assess the correctness of the Special Master's application of the principle of equitable apportionment to the facts of this case. We therefore remand with instructions to the Special Master to make further findings of fact.
Equitable apportionment is the doctrine of federal common law that governs disputes between states concerning their rights to use the water of an interstate stream. Kansas v. Colorado, 206 U.S. 46, 98, 27 S.Ct. 655, 667-668, 51 L.Ed. 956 (1907); Connecticut v. Massachusetts, 282 U.S. 660, 670-671, 51 S.Ct. 286, 289-290, 75 L.Ed. 602 (1931). It is a flexible doctrine which calls for "the exercise of an informed judgment on a consideration of many factors" to secure a "just and equitable" allocation. Nebraska v. Wyoming, 325 U.S. 589, 618, 65 S.Ct. 1332, 1350-1351, 89 L.Ed. 1815 (1945). We have stressed that in arriving at "the delicate adjustment of interests which must be made," ibid., we must consider all relevant factors, including:
"physical and climatic conditions, the consumptive use of water in the...
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