Colorado v. New Mexico, 80

• Court: United States Supreme Court
• Citation: 104 S.Ct. 2433,467 U.S. 310,81 L.Ed.2d 247
• Docket Number: O,No. 80,80
• Parties: State of COLORADO, Plaintiff v. State of NEW MEXICO and Paul G. Bardacke, Attorney General of New Mexico. rig
• Decision Date: 04 June 1984

467 U.S. 310

104 S.Ct. 2433

81 L.Ed.2d 247

State of COLORADO, Plaintiff

v State of NEW MEXICO and Paul G. Bardacke, Attorney General of New Mexico.

No. 80, Orig.

Supreme Court of the United States

Argued Jan. 9, 1984.

Decided June 4, 1984.

Rehearing Denied Aug. 2, 1984.

Syllabus

In this original action, Colorado seeks an equitable apportionment of the waters of the Vermejo River, which originates in Colorado and flows into New Mexico. Historically, all of the river's waters have been used exclusively by farm and industrial users in New Mexico. After a trial at which both States presented extensive evidence, the Special Master recommended that Colorado be allowed to divert 4,000 acre-feet of water per year. His recommendation rested on the grounds that New Mexico could compensate for some or all of the proposed 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. In considering New Mexico's exceptions to the Master's report, this Court held, inter alia, that the Master properly did not focus exclusively on the priority of uses along the river, and that other factors—such as waste, availability of reasonable conservation measures, and the balance of benefit and harm from diversion—could be considered in the apportionment calculus. 459 U.S. 176, 103 ,S.Ct. 539, 74 L.Ed.2d 348. The case was remanded to the Master for additional specific findings to assist the Court in assessing whether the river's waters could reasonably be made available for diversion and in balancing the benefit and harm from diversion. On the basis of the evidence previously received, the Master then developed additional factual findings and reaffirmed his original recommendation. New Mexico again filed exceptions to the Master's report.

Held:

1. In this action for equitable apportionment, Colorado's proof is to be judged by a clear-and-convincing-evidence standard. Requiring Colorado to present such evidence in support of its proposed diversion is necessary to appropriately balance the unique interests involved in water rights disputes between sovereigns. The standard reflects this Court's long-held view that a proposed diverter should bear most, though not all, of the risks of erroneous decision. In addition, the standard accommodates society's competing interests in increasing the stability of property rights and in putting resources to their most efficient uses. Pp. 315-317.

2. Colorado has not met its burden of proving that a diversion should be permitted. Pp. 317-323.

(a) Colorado has not demonstrated, by clear and convincing evidence, that reasonable conservation measures could compensate for some or all of the proposed diversion. For example, though Colorado alleged that New Mexico could improve its administration of water supplies, it did not point to specific measures New Mexico could take to conserve water. Society's interest in minimizing erroneous decisions in equitable apportionment cases requires that hard facts, not suppositions or opinions, be the basis for interstate diversions. Moreover, there is no evidence that Colorado has undertaken reasonable steps to minimize the amount of the diversion that will be required. Pp. 317-321.

(b) Nor has Colorado sustained its burden of showing that any injury to New Mexico would be outweighed by the benefits to Colorado from the proposed diversion. Colorado has not committed itself to any specific long-term use for which future benefits can be studied and predicted. By contrast, New Mexico has attempted to identify the harms that would result from the proposed diversion. Asking for absolute precision in forecasts about the benefits and harms of a diversion would be unrealistic, but a State proposing a diversion must conceive and implement some type of long-range planning and analysis of the diversion it proposes, thereby reducing the uncertainties with which equitable apportionment judgments are made. Pp. 321-323.

(c) The mere fact that the Vermejo River originates in Colorado does not automatically entitle Colorado to a share of the river's waters. Equitable apportionment of appropriated water rights turns on the benefits, harms, and efficiencies of competing uses, and thus the source of the river's waters is essentially irrelevant to the adjudication of these sovereigns' competing claims. P. 323.

Exceptions sustained and case dismissed.

Richard A. Simms, Santa Fe, N.M., for defendants.

Robert F. Welborn, Denver, Colo., for plaintiff.

Justice O'CONNOR delivered the opinion of the Court.

In this original action, the State of Colorado seeks an equitable apportionment of the waters of the Vermejo River, an interstate river fully appropriated by users in the State of New Mexico. A Special Master, appointed by this Court, initially recommended that Colorado be permitted a diversion of 4,000 acre-feet per year. Last Term, we remanded for additional factual findings on five specific issues. 459 U.S. 176, 103 S.Ct. 539, 74 L.Ed.2d 348 (1982). The case is before us again on New Mexico's exceptions to these additional findings. We now conclude that Colorado has not demonstrated by clear and convincing evidence that a diversion should be permitted. Accordingly, we sustain New Mexico's exceptions and dismiss the case.

I

The facts of this litigation were set forth in detail in our opinion last Term, see id., at 178183, 103 S.Ct., at 542544, and we need recount them here only briefly. The Vermejo River is a small, nonnavigable stream, originating in the snow belt of the Rocky Mountains. The river flows southeasterly into New Mexico for roughly 55 miles before feeding into the Canadian River. Though it begins in Colorado, the major portion of the Vermejo River is located in New Mexico. Its waters historically have been used exclusively by farm and industrial users in that State.

In 1975, however, a Colorado corporation, Colorado Fuel and Iron Steel Corp. (C.F. & I.), proposed to divert water from the Vermejo River for industrial and other uses in Colorado. As a consequence, several of the major New Mexico users sought and obtained an injunction against the proposed diversion. The State of Colorado, in turn, filed a motion for leave to file an original complaint with this Court, seeking an equitable apportionment of the Vermejo River's waters. We granted Colorado its leave to file, 439 U.S. 975, 99 S.Ct. 557, 58 L.Ed.2d 646 (1978), and the Court of Appeals for the Tenth Circuit stayed C.F. & I.'s appeal pending our resolution of the equitable apportionment issue.

We then appointed a Special Master, 441 U.S. 902, 99 S.Ct. 1988, 60 L.Ed.2d 371 (1979), the Honorable Ewing T. Kerr, Senior Judge of the United States District Court for the District of Wyoming, who held a lengthy trial at which both States presented extensive evidence. On the basis of this evidence, the Master recommended that Colorado be allowed to divert 4,000 acre-feet of water per year. His recommendation rested on two grounds: first, that New Mexico could compensate for some or all of the Colorado diversion through reasonable water conservation measures; and second, that the injury, if any, to New Mexico would be outweighed by the benefit to Colorado from the diversion.

New Mexico took exceptions, both legal and factual, to the Master's recommendation. As to the Master's view of the law of equitable apportionment, New Mexico contended that the Master erred in not focusing exclusively on the priority of uses along the Vermejo River. 459 U.S., at 181182, 103 S.Ct., at 544545. The Court rejected that contention:

"We recognize that the equities supporting the protection of existing economies will usually be compelling. . . . Under some circumstances, however, the countervailing equities supporting a diversion for future use in one State may justify the detriment to existing users in another State. This may be the case, for example, where the State seeking a diversion demonstrates by clear and convincing evidence that the benefits of the diversion substantially outweigh the harm that might result. In the determination of whether the State proposing the diversion has carried this burden, an important consideration is whether the existing users could offset the diversion by reasonable conservation measures. . . ." Id., at 187188, 103 S.Ct., at 547548 (footnote omitted).

In short, though the equities presumptively supported protection of the established senior uses, the Court concluded that other factors—such as waste, availability of reasonable conservation measures, and the balance of benefit and harm from diversion—could be considered in the apportionment calculus. Ibid.

New Mexico also took issue with the factual predicates of the Master's recommendation. Specifically, it contended that Colorado had failed to prove by clear and convincing evidence that New Mexico currently uses more than its equitable share of the Vermejo River's waters. On this matter, we found the Master's report unclear and determined that a remand would be appropriate.

To help this Court assess whether Vermejo River water could reasonably be made available for diversion, the Master was instructed to make specific findings concerning:

"(1) the existing uses of water from the Vermejo River, and the extent to which present levels of use reflect current or historical water shortages or the failure of existing users to develop their uses diligently;

"(2) the available supply of water from the Vermejo River, accounting for factors such as variations in stream flow, the needs of current users for a continuous supply, the possibilities of equalizing and enhancing the water supply through water storage and conservation, and the availability of substitute sources of water to relieve the demand for water from the Vermejo River; [and]

"(3) the extent to which reasonable conservation measures in both States might eliminate waste...