The Source

by Martin Doyle

  We are typically comfortable with the ideas of property and sovereignty as ways to divide land. Fences dividing fields or lines dividing a map; both are intuitive. Dividing water is not so intuitive. When drawing lines in water, we are confronted with an unfortunate characteristic of water: water flows, often across the boundaries between individual properties and sovereign groups. This doesn’t stop sovereign authorities like the Karuk Tribe and the State of Oregon, or property owners like the Klamath farmers, from trying to divide it anyway. To understand conflict over water requires thinking of rivers through these dual concepts of property and sovereignty. An additional conundrum is that while the U.S. Constitution recognizes the property rights of its citizens, it also recognizes the authority—literally, the sovereignty—of several different groups: the federal government, the states, and the tribes. Water wars are not caused by scarcity alone. They are about scarcity amid the realization of these ideas of property and sovereignty as applied to water.

  To understand the western method of treating water as property, we need to back up 150 years to Sutter’s Mill, California, in the chaotic aftermath of the discovery of gold when states in the arid West were just beginning to be created. In January 1848, just days before California officially was recognized as a U.S. territory, carpenter James Marshall found traces of gold just downstream from a sawmill—Sutter’s Mill—he was building on the South Fork of the American River in California. Marshall’s discovery not only kicked off the gold rush but also shaped the development of western water law.

  Water law is all about how water can be used—whether it can be impounded, diverted, and otherwise moved out of and away from a natural waterway such as a stream. In the East, water law was, and is, based on common law—the set of laws and practices that the colonists brought with them from England. Under common law, a riverfront or “riparian” property owner has the right to use water from that stream, but only an amount that would constitute “reasonable use” of the flow of the stream. Upstream riparian landowners are expected to leave enough water for downstream riparian landowners to enjoy the same right to reasonable use. Location is critical in the East: the water right is based on ownership of the riparian land. While this application of law is often attributed to the East being water rich, as important is the condition of the territory where the law was being applied: when water law was being established and developed in the eastern United States, the vast majority of land was privately owned, just as land was in England. It made sense to use English laws because land ownership was almost identical to what it was in England. Because of its emphasis on location, eastern water law has become known as the “riparian doctrine,” and states east of Kansas City invariably use some form of the riparian doctrine.4

  California was the first territory settled in the West, and it initially adopted the customs, like the riparian doctrine, that settlers had brought from back East. The riparian doctrine is built on several assumptions: that a stream will furnish plenty of water to go around; that people might reasonably want to irrigate only the land immediately next to a stream; and that the land being irrigated would be privately owned. But just about every assumption undergirding the riparian doctrine broke down during the frantic building of mining camps in the Sierra Nevada in the aftermath of Marshall’s discovery at Sutter’s Mill.5

  Mining in California first took place in riverbeds, but miners quickly discovered that much more gold was in the banks of rivers as well as in veins extending far out into the surrounding hills. To mine riverbanks and hillsides, miners diverted water out of streams and rivers and into hand-dug ditches or wooden flumes. Allowing water to be diverted and moved so far from riparian land separated water ownership from land ownership, which was the first ingredient in considering water itself as property.

  The second ingredient was the timing of the gold rush. During the initial rush, California was a sparsely settled federal territory. Even after it became a state in 1850, most of the lands being mined were in the public domain—they were owned by the federal government rather than by private individuals or the state. According to custom, it was perfectly legal and even encouraged for private citizens to make a living off these public lands. In fact, before the discovery of gold, Sutter’s Mill was intended to cut wood that was timbered from public forested lands in the same way that timber companies during the 1900s and 2000s cut trees from Forest Service—public—lands. Because most of the lands in the West were in the public domain, water rights could not be tied to land ownership; it was impossible to use the eastern riparian rights system.6

  Both of the basic mining actions involving water—diverting water to non-riparian lands and using water from streams on public lands for private profit—divorced water rights from land rights. This decoupling was the essential conceptual move for the development of western water law. Riparian land was no longer a prerequisite for asserting water rights—water itself had become property.

  The next two developments in western water law are best thought about by envisioning the pioneers of the mid-nineteenth century—whether the “forty-niners” of the gold rush in California or the “Sooners” of the Oklahoma land rush—frantically dashing into unknown and unsettled regions in hopes of making their fortunes. In both cases, most of the areas being settled were territories or infant states where the federal government owned much, or even most, of the land. These public lands were available for private use to the first settlers to “stake a claim,” whether for a Sierra Nevada gold mine or an Oklahoma homestead. Natural resources on public lands were free for the taking.

  But the claim couldn’t be made and then abandoned; the land and the resource had to be put to use. In California gold-mining areas, the mine had to be continuously worked to own the claim; in the farms of the Great Plains, the land had to be continuously farmed to own the claim (thus Laura Ingalls Wilder’s family had to live in their miserable “claim shanty” to sustain residence on their land claim). In the case of a water claim, the water had to be diverted from a stream and put to continuous “beneficial use,” whether for mining gold or irrigating agriculture. This requirement was in contrast to the eastern riparian doctrine, which stipulated that a riparian landowner always retains the right to water based solely on land ownership, whether or not the water is ever put to use. In the western United States, water rights were dependent on staking a claim and then putting the water to use.

  A key concern in the emerging “appropriation doctrine” of the arid, booming West was the seniority of the claim, or when it had been made, compared to other claims on the water. Though anyone could come to the same stream years or decades later and claim water, the senior water rights were satisfied in full first, and any remaining water went to the junior rights-holders in chronological order of their claims. These senior claims were sustained as long as the water was put to beneficial use. If a farmer didn’t use all the water he had claimed, he would permanently forfeit his unused portion to the junior water claimants. This appropriation doctrine for establishing property rights for water came to be known by two phrases: “first in time, first in right” and “use it or lose it.”

  When the territories became states they preserved the doctrine, for they found it an effective way of solving some critical issues of farming and irrigating in the West. Because the western landscape is arid, and few streams are available to divert, farmers had to move water great distances to get it to their property. The first two irrigation canals in Greely, Colorado, were 16 and 36 miles long. Wyoming’s Big Horn basin required an irrigation canal almost forty miles long. Even the early Mormon settlements of Utah in the mid-nineteenth century, set amid the peculiar stream-rich areas of the Wasatch Mountains, needed canals averaging almost four miles long.

  Any infrastructure for farming is an investment. But the infrastructure needed for western irrigation, rudimentary as it was, called for significant financial risk in a region where capital was scarce. For farmers to invest in the dams, canals, and ditches ne
cessary to put the water—and the land—to use, they needed a future guarantee of their right to use the water they’d gone to the trouble of diverting. This was the elegance of the appropriation doctrine. For early farmers considering whether to build the first dams and canals, making water use a property right based on seniority offered the level of certainty they needed. As long as there was enough water to go around, all of the water claims could be filled. But in drought years, those with the most senior claims—senior appropriators—were assured of getting all of their water while junior appropriators were forced to wait in a hydrological queue, hoping there would be enough to go around.7

  Each of the western states developed its own particular approach to property rights, but all of them were modeled on the appropriation doctrine. Importantly, states decided how water was to be treated within their borders independently of the federal government. Just like states already existing in the East, western states had sovereign power over the water within their borders, and they developed their property rights systems independently of each other.

  It was generally accepted that states were sovereign for dividing water within their borders—for determining the meaning of property within their borders. More contentious was the question of who had the authority to divide water that crossed borders.

  Lee’s Ferry may be the single most important location on any river in the United States. It is where we must pivot from thinking about water as property to thinking about water and sovereignty.

  Anyone moving across the desert Southwest, whether Spanish priests in the eighteenth century or Mormon settlers in the nineteenth century, found the Colorado River canyon mostly uncrossable from Hite, Utah, to the Arizona–Nevada border 450 miles downstream. Like the Klamath River, the Colorado watershed has an upper and lower basin, divided by a canyon—in this case, the Grand Canyon. At its head sits Lee’s Ferry, on a topographic oddity of relatively gradual slopes down to the river that created one of the only river crossings in this otherwise impenetrably long and deep canyon.8

  This peculiar point on the map demarcates two groups of states: the upper basin states—Utah, Colorado, New Mexico, and Wyoming—and the lower basin states—Nevada, California, and Arizona. In the early twentieth century, as the population of the West grew dramatically and states increasingly disputed each other’s claims to the limited supply of water, it was far from clear who had the right to the water in the Colorado River. Interstate water disputes like that over the use of the Colorado River revolve around sovereignty and are resolved through interstate treaties.

  The Colorado River Basin.

  Sovereignty is a slippery concept. We can trace our concept of it back to 1648 and the Treaty of Westphalia, the agreement that ended the Thirty Years’ War in Europe. While the treaty is most immediately notable for ending a long and bloody conflict, its lasting legacy has been establishing the way governments relate to each other: as coexisting, sovereign states. Since Westphalia, groups of people are not identified as sovereign unless they occupy a place that is governed by a recognizable authority, and the bounds of that place are identified and recognized by others.

  This notion of sovereignty is why modern geopolitics depends so heavily on borders. Groups of people are not recognized unless they are confined to and defined by a place. Native American tribes, for example, are nations of people—each tribal nation shares common language and common descent. But they didn’t have distinct, bounded territories, so there was no precedent for how the British colonists or early U.S. citizens should treat the tribes in modern governance, where place—territory—was part of being sovereign. This situation made it easier for first the colonists and then the U.S. government to claim sovereignty over land that Native American nations had been using. After the eventual establishment of tribal reservations, the U.S. government had a familiar way to recognize the tribes as sovereigns. Now tribes are inextricably connected to their reservations in the eyes of the U.S. government, whether the tribal nations are located in their traditional geographic regions or not. Similarly, the nation of Israel was not recognized as the sovereign State of Israel until the Zionists established a bounded territory in Palestine. The reason sovereignty is so critical to establish is that, since the Treaty of Westphalia, other sovereigns have recognized that an ultimate authority governs a particular territory.9

  In the United States, as Leaf Hillman noted along the banks of the Klamath, the federal government, state governments, and Native American tribes are all sovereign, and yet their territories all overlap. In water wars, state governments want to have final say over how the water within their borders can be used. But rivers recognize the geography of topography rather than that of politics, and therefore water must be divided and assigned a sovereign when it crosses borders. Lee’s Ferry is important because it became one of these arbitrary political boundaries on the Colorado River, the most important river of the Southwest.

  The challenge at the turn of the twentieth century for water in the West was to resolve who would make the rules for divvying up water and what those rules would be. The question of who would make the rules for dividing interstate rivers was quickly answered: the federal government, through the Supreme Court. The Supreme Court has been regularly called on to resolve interstate water conflicts since a 1902 conflict between Kansas and Colorado. In Kansas v. Colorado, the state of Colorado took the approach that when it came to water, states within the United States should be treated as individual, sovereign governments: “Colorado occupies toward the State of Kansas the same position that foreign States occupy toward each other.” The U.S. Supreme Court did not accept this absolute sovereignty argument, instead deciding that states would be treated as equals, and the Supreme Court would be responsible for establishing justice between the states. In essence, the Court said that it was the sovereign authority over water within the bounds of the United States.

  Although the Supreme Court declared it would be the decider, its basis for making those decisions was completely unclear. During that era, many dramatically different and competing philosophies of interstate water rights emerged.

  On one hand was the Harmon Doctrine, named for an opinion written in 1895 by the U.S. Attorney General Judson Harmon. In 1894 Mexico had made a series of complaints against the United States about its heavy diversions of water from the Rio Grande before the river reached Mexico. Before entering negotiations with Mexico, the Secretary of State, Richard Olney, needed some legal basis for justifying U.S. water rights in the area. Olney asked his attorney general, Harmon, for some principles of international law for discerning how to proceed. Harmon’s opinion was a full-throated patriotic argument in support of U.S. water rights; he insisted that the United States owed Mexico nothing: “The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory.” The Harmon Doctrine of absolute sovereignty obviously favored any upstream water user—which, in the case of the Rio Grande, was the United States.10

  Though the Harmon Doctrine was never used as originally intended in negotiations with Mexico, many U.S. states used it in dealing with their own interstate conflicts. When upstream Colorado set out its case against downstream Kansas, Colorado combined the idea of state sovereignty with the Harmon Doctrine, asserting that “As a sovereign and independent State,” Colorado had absolute sovereignty “over all things within her territory, including all bodies of water,” and thus could not be obligated to deliver any water past its borders.11

  At the other end of the spectrum was the philosophy that older, established water users should take priority over newer or undeveloped water users. Essentially, this scheme applies the prior appropriation doctrine for water allocation between users to water allocation between states. Even though it would have given Mexico greater right to water from the Rio Grande than the United States, this approach had substantial international and historical precedence.

  Historically, in arid regions, the older
, more economically and politically developed water-using societies typically were downstream relative to emerging water-using groups. These older water-using groups—Egypt on the Nile, Babylon on the Tigris-Euphrates, California on the Colorado—have generally seen upstream development as a threat to their water security, because new water users upstream might at some future time drain their water source. Downstream groups inevitably prefer rights based on historic use, like those outlined in the appropriation doctrine. For their part, upstream users tend to prefer rights based on contribution to river flow, like those of the riparian doctrine. This struggle was certainly obvious in how states approached dividing the water of the Colorado River: upper basin states, most notably Colorado, all made some sort of absolute sovereignty argument; downstream states, most notably California, all claimed rights deriving from existing historical use. Everyone expected that the Court would have final say on dividing up the Colorado River. After all, the states themselves seemed unlikely to reach consensus on how to divide the water.12

  As Secretary of Commerce, Herbert Hoover was an unusual politician for the early twentieth century. He had effectively no political experience; after making a fortune as an international mining engineer, he then concentrated on delivering food to war-torn Belgium during World War I and became known as the Great Humanitarian for his leadership in that effort. He was also unusual for being from the West; when elected president in 1929, he was the first to come from a state west of the Mississippi River. In 1922, due to his experiences in the West as a geologist and mining engineer as well as his international reputation as a problem solver, Hoover was appointed the sole federal representative on—and elected the chair of—the Colorado River Commission. It was a new interstate commission, created by the seven states of the Colorado River basin to divide water rights to the Colorado without having to rely on the notoriously unpredictable Supreme Court.