State of Nebraska v. State of Wyoming United States

• Court: U.S. Supreme Court
• Writing for the Court: DOUGLAS
• Citation: State of Nebraska v. State of Wyoming United States, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815 (1945)
• Decision Date: 11 June 1945
• Docket Number: O,No. 6,6
• Parties: STATE OF NEBRASKA v. STATE OF WYOMING et al. (UNITED STATES, Intervener). riginal

325 U.S. 589

65 S.Ct. 1332

89 L.Ed. 1815

STATE OF NEBRASKA

v STATE OF WYOMING et al. (UNITED STATES, Intervener).

No. 6, Original.

Argued March 5, 6, 7, 1945.

Decided June 11, 1945.

[Syllabus from pages 589-590 intentionally omitted]

Bill in equity by the State of Nebraska against the State of Wyoming for a determination of the equitable share of the States of Nebraska, Wyoming, and Colorado in the waters of the North Platte river and for an injunction restraining the alleged wrongful diversions, wherein the State of Colorado filed an answer, together with a cross-bill against the State of Nebraska and the State of Wyoming praying for an equitable apportionment between the states, and wherein the United States of America intervened. The State of Colorado moved to dismiss the suit and a special master was appointed and exceptions were filed to his report.

Mr. Paul F. Good, of Lincoln, Neb., for

complainant.

Mr. W. J. Wehrli, of Casper, Wyo., for defendant State of Wyoming.

Mr. Jean S. Breitenstein, of Denver, Colo., for defendant State of Colorado.

Mr. Frederic L. Kirgis, of Denver, Colo., for the United States, intervenor.

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, 55 S.Ct. 115, 79 L.Ed. 635. Colorado was impleaded as a defendant. 296 U.S. 553, 56 S.Ct. 369, 80 L.Ed. 390. The United States was granted leave to intervene. 304 U.S. 545, 58 S.Ct. 1035, 82 L.Ed. 1519. 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.

I.

The controversy pertains to the use for irrigation purposes of the water of the North Platte River, a non-navigable stream. Nebraska alleged that Wyoming and Colorado by diversions of water from the river for irrigation 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 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 betwe n 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 pro- ceeds 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

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 per cent, that of Wyoming 31 per cent, and that of Nebraska about 100 per cent.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, 43 U.S.C.A. §§ 372, 373, 381, 383, 391 et seq. Pathfinder was completed in 1913. It has a capacity of 1,045,000 acre feet, which is 79 per cent of the average annual run-off of the North Platte River at that point. This project includes an auxiliary channel reservoir called Guernsey, located above Whalen, Wyoming. Its capacity is 50,870 acre feet. The project also includes two small reservoirs in Nebraska—Lake Alice and Lake Minatare—having a capacity of 11,400 and 67,000 acre feet respectively. There are two main supply canals—Interstate and Fort Laramie—which take out from the North Platte at the Whalen diversion dam. The Interstate canal runs on the north side and the Fort Laramie on the south side of the river. Both extend far into Nebraska. Northport—a third canal—is located wholly in Nebraska. These canals and their laterals extend over 1600 miles. The project also includes a drainage system and two hydroelectric power plants. The United States contracted with landowners or irrigation districts for use of the water—selling it, as contemplated by the Reclamation Act, so as to recoup the cost of the project which was about $19,000,000. It also entered into so-called Warren Act contracts pursuant to the Act known by that name (36 Stat. 925, 43 U.S.C.A. § 523 et seq.) which authorized the Secretary of the Interior to contract for the storage and delivery of any surplus water conserved by any reclamation project in excess of the requirements of the project.

We have mentioned the Interstate, Ft. Laramie, and Northport canals which are part of the North Platte Project, the first two of which take out at the Whalen diversion dam. About a mile east of the Wyoming-Nebraska line is the Tri-State Dam. Just above that dam in Nebraska are the headgates of three large Nebraska canals Tri-State, Gering, and Northport. Water for the Northport is diverted through the Tri-State headgate, Northport physically being an extension of the Tri-State canal. Another Nebraska canal is the Ramshorn which also receives its supply through Tri-State. Just above the state line is the headgate of the Mitchell canal serving Nebraska land. While these five canals are commonly referred to as the Nebraska State Line Canals, this opinion generally uses the term as excluding Northport which, as we have said, is a North Platte Project canal. There are also nine Wyoming private canals diverting below Whalen. One of these, French Canal, serves lands in both Wyoming and Nebraska. The section of the river from Whalen to the Tri-State Dam is the pivotal section of the entire river. In this short stretch of 40 odd miles is concentrated a demand for water as great as in the entire preceding 415 miles apart from the Kendrick project to which we will refer. We will return to a conside ation of the problems of this pivotal section shortly.

The North Platte Projects has greatly increased the water resources of the river available for irrigation. Unused and wasted water are stored and held over from one season to another. Moreover, the storage water has affected the water tables through saturation of the subsoil. This has increased the return flows available for rediversion and irrigation. The Special Master found that due largely to the influence of the North Platte Project and the application of storage water to lands in eastern Wyoming and western Nebraska the returns flows increased from a negligible quantity in 1911 to 700,000 acre feet in 1927. While that amount sharply declined during the drought beginning in 1931, it still is substantial. Thus from 1931—1936 it amounted to 54,300 acre feet in the Whalen-Tri-State Dam section. And as we have already said, the great and disproportionate increase in acreage irrigated in Nebraska since 1910 as compared with the increase in Colorado and Wyoming is largely attributable to the North Platte Project. While the North Platte Project has increased the water resources, it has complicated the problem of water administration in Wyoming and Nebraska. It has necessitated a...