State of Wyoming v. State of Colorado
| Citation | 309 U.S. 572,84 L.Ed. 954,60 S.Ct. 765 |
| Decision Date | 22 April 1940 |
| Docket Number | O,No. 10,10 |
| Parties | STATE OF WYOMING v. STATE OF COLORADO. riginal |
| Court | United States Supreme Court |
See 310 U.S. 656, 60 S.Ct. 1070, 84 L.Ed. —-.
Messrs. Ewing T. Kerr, of Cheyenne, Wyo., Harold I. Bacheller, of Casper, Wyo., and Arthur Kline, of Cheyenne, Wyo., for complainant.
Return of Governor of Colorado:
Messrs. Ralph L. Carr, of Denver, Colo., Clifford H. Stone, of Gunnison, Colo., and Jean S. Breitenstein, of Denver, Colo.
Return of Attorney General of Colorado:
Messrs. Byron G. Rogers, Henry E. Lutz, and Shrader P. Howell, all of Denver, Colo., Robert G. Smith, of Greeley, Colo., and Lawrence R. Temple and Albert P. Fischer, both of Fort Collins, Colo.
The State of Wyoming sought leave to file its petition for a rule requiring the State of Colorado to show cause why it should not be adjudged in contempt for violation of the decree in this suit, restraining diversions of water from the Laramie river. 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999; 259 U.S. 496, 42 S.Ct. 594, 66 L.Ed. 999; 260 U.S. 1, 43 S.Ct. 2, 66 L.Ed. 1026; 286 U.S. 494, 52 S.Ct. 621, 76 L.Ed. 1245; 298 U.S. 573, 56 S.Ct. 912, 80 L.Ed. 1339.
In response, Colorado asked that evidence be taken to determine the amount of return flow to the Laramie river from the diversions at the headgates of meadowland ditches and that Colorado have credit therefor. This matter had been considered by the Court in framing its decree (298 U.S. pages 581, 582, 56 S.Ct. page 916, 80 L.Ed. 1339) and the motion was denied. Leave was granted to Wyoming to file its petition and Colorado was directed to show cause accordingly.
Two returns have been filed on behalf of Colorado, one by the Governor of the State setting forth his executive order directing the withdrawal of the appearance of the Attorney General and appointing special counsel to represent the State, and another return by the Attorney General who challenges the authority of the Governor to supersede him. In the view we take of the material matters presented, we find no such differences between the two returns as to require us to determine the question of authority.
Wyoming charges that from May 1, 1939, to June 18, 1939, Colorado diverted from the Laramie river 39,865.43 acre feet, that is, somewhat in excess of the total of 39,750 acre feet allocated to Colorado by our decree; that thereupon, and on June 19, 1939, Colorado closed the headgates of the various ditches involved; that on June 22, 1939, in violation of the decree, Colorado opened the headgates and permitted the diversion between June 22, 1939, and July 11, 1939, of 12,673 acre feet in excess of the 39,750 acre feet allowed; and that in particular, with respect to meadowland ditches, Colorado permitted the diversion between May 1, 1939, and July 11, 1939, of 24,775 acre feet above the 4250 acre feet (measured at the headgates) specifically allowed for the meadowland appropriations. 298 U.S. page 586, 56 S.Ct. page 918, 80 L.Ed. 1339.
In defense, Colorado contends that the meadowland diversions in excess of 4250 acre feet were in accordance with Colorado law and were not inconsistent with the decree of this Court until a diversion by Colorado from the Laramie river for all purposes reached the allocated total of 39,750; that the diversion of an amount greater than that total during the period above specified was with the acquiescence of Wyoming; and that Wyoming has not been injured.
Colorado pledges that hereafter its officials will administer the flow of the Laramie river in that State in accordance with Colorado laws and adjudication decrees until a total amount of 39,750 acre feet, measured at the headgates, has been diverted, and, when that total has been reached in any year, Colorado can and will close the headgates and keep them closed during the remainder of the irrigation season.
In support of the contention that the diversion of more than 4250 acre feet for the meadowland appropriations should not be regarded as a violation of our decree, if the aggregate diversions in Colorado do not exceed the total allowed, Colorado presents a declaratory judgment of the District Court of that State for the County of Laramie, entered February 2, 1939, in the suit of Adelrick Benziger v. Water Supply & Storage Company et al. That suit was brought on behalf of the meadowland appropriators in Colorado, and the defendants were the other appropriators in that State whose respective appropriations had been the subject of consideration in the suit in this Court. Our rulings were examined by the state court which concluded that they were intended to, and did, determine only the relative rights to the two States to divert the waters of the Laramie river and its tributaries and that it was not our purpose to withdraw the appropriations and water claims in Colorado from the operation of its local laws or to restrict the utilization of the waters in any way 'not affecting the rights of the State of Wyoming and her water claimants'. Accordingly the state court held that the fixing in our decree of the meadowland appropriations was intended only to bear upon the relative rights of the States and was not intended to be an adjudication of the relative rights of the decreed appropriations in Colorado; hence, that so long as the aggregate of the water diverted in Colorado does not exceed the total of 39,750 acre feet accredited to the Colorado appropriations, as stated, they are subject to the laws of Colorado. In that view the Court adjudged that the meadowland appropriators and the defendant appropriators were entitled to divert according to their respective priorities until they reached the amount of 39,750 acre feet, and that when that amount had been diverted 'all headgates are to be closed for the balance of the season'.
A review of our decisions confirms the construction thus placed upon them. Suit was brought in 1911 to prevent a proposed diversion in Colorado of the waters of the Laramie river, an interstate stream. Voluminous evidence was taken, the case was thrice argued, and a final decision was rendered in 1922. 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999. After an elaborate consideration of the physical features of the region and the principles applicable to a determination of the rights of the respective States, the Court concluded that as both States had adopted the doctrine of appropriation, it was equitable to apply that doctrine and to determine their respective rights according to the rule of priority. The Court examined the evidence with respect to the flow of the stream, its variations, and other relevant matters, and found that the available supply—288,000 acre feet—was not sufficient to satisfy the Wyoming appropriations and also the proposed Colorado appropriation. The Court found that there were some existing Colorado appropriations entitled to precedence over many of those in Wyoming. These included 18,000 acre feet for what was known as the Skyline Ditch and 4250 acre feet for meadowland appropriators. These were not to be deducted, as the 288,000 acre feet was the available supply after they were satisfied. The proposed Colorado appropriation which was in controversy in the suit was that known as the Laramie-Poudre Tunnel di- version, a part of an irrigation project known as the Laramie-Poudre project. The evidence showed that the Wyoming appropriations having priorities senior to the one in Colorado, and which were dependent on the available supply above specified, required 272,500 acre feet. Deducting that from the available 288,000 acre feet there remained 15,500 acre feet which were subject to the proposed appropriation in Colorado. Accordingly a decree was entered enjoining the defendants from diverting more than 15,500 acre feet annually from the Laramie river through the Laramie-Poudre project. The decree provided that it should...
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