In this post and in next few, I will address the subject of equitable allocation of water.  Based on my experience as both a student and as a teacher, this topic is not one that is covered very extensively.  Nevertheless, it is an important one, particularly today and in light of climate change and its resultant spate of droughts and high temperatures.  These two phenomena may yield disputes over water, and in some cases riparian land.  My point of departure will be a 1907 case from the United States Supreme Court that gave birth to the doctrine of equitable allocation: Kansas v. Colorado.

1866_Map_of_Colorado,_Nebraska,_and_Kansas-After Mitchell 1866 Map of Colorado, Nebraska, and Kansas(After Mitchell)

 

Kansas v. Colorado, was an original jurisdiction case.  In its original jurisdiction cases, the Supreme Court sits as a court of first instance, i.e., a trial court, pursuant to the United States’ Constitution’s Article III, Section 2.[1]  Original jurisdiction cases begin as disputes between two states of the Union.  In such a conflict the Supreme Court sits as a quasi-international court.  Indeed, in these class of disputes the Court has utilized international law principles as a guide in its adjudication.

Kansas v. Colorado  was a dispute over the transboundary apportionment of the waters of the Arkansas River – where both states acted as parens patria for their irrigating citizens and ditch companies.  It took 107 years to resolve, from 1902-2009.  I divide the dispute into two temporal periods: the first, encompassing the period from 1901 – 1949, addressed apportionment issues that preceded a compact executed by the two states[2] and (2) the second period from 1949 – 2009, which post-dates the compact.

1-Download-Nikon Coolpix 269

These two temporal periods can also be divided into a common law, equitable apportionment period, followed by a compact/”treaty” era.  In the Court’s second decision in the dispute, Kansas v. Colorado, 206 U.S. 46 (1907), Justice Brewer, speaking for the Court, employed the common law as a means of introducing the concept of equitable apportionment, as a means of pacifically resolving water apportionment disputes between the states of the Union.  Brewer, citing Lord Kent, initially introduced the following definition of the common law:  “[t]he common law includes those principles, usages and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature.”[3]

U.S. Supreme Court Associate Justice David Josiah Brewer (1837-1910)Assoc. Justice David Josiah Brewer

Brewer then observed the following, with regards to the common law, international law and pacific dispute resolution:

[a]s it does not rest on any statute or other written declaration of the sovereign, there must, as to each principle thereof, be a first statement . . .  For after all, the common law is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between [parties] . . .  We have exercised that power in a variety of instances, determining in the several instances the justice of the dispute.  Nor is our jurisdiction ousted, even if, because Kansas and Colorado are States sovereign and independent in local matters, the relations between them depend in any respect upon principles of international law.  International law is no alien in this tribunal. [4]

The foregoing set the stage for many of the Court’s subsequent equitable apportionment cases, including one of its most recent, the 2010 North Carolina v. South Carolina, dispute, No. 138 Original.[5]  Indeed, there was an essential need for a structure to replace “the waging of war and to negotiating treaties,”[6] which would allow for the pacific resolution of disputes, while according the respect and dignity due to the sovereignty and equality of each State.[7]

This equality of rights allowed the Court to fashion an equitable common law remedy where no law existed previously, so that it would be able to pacifically resolve these types of inter-state disputes; thus, filling a lacunae.[8]  The filling of voids in the law, can be seen to resolve this particular dispute, and for resolving it while providing a new remedy.  In this regard, one author recently noted that “[t]he objectives of international adjudicative bodies today include the advancement of particular normative goals like . . . the maintenance of cooperative arrangements.”[9]  Consequently, in filling a void in the law, the Court may have been seeking not only to advance the equitable use of the Arkansas River, but also to maintain harmony and concordant relations between Colorado and Kansas.

In addition to the above, I posit that in the absence of other available remedies, the Court saw that as an institution, it needed to fashion a norm that the Parties (1) would comply with; (2) allow it to solve the problem that it was being asked to resolve; and (3) demonstrate that its judgments are not mechanical, but rather are institutional constructs created by judges who possess political and regional attitudes.[10]  Indeed, the Court’s jurisprudential regime also appears to recognize the relevant factual predicates and other pertinent factors in each adjudication that it must address.  These regimes establish and/or fix the degree of scrutiny and weighing that the justices utilized in balancing the various equitable factors, when it adjudicated the 1907 “doctrine of equitable allocation” phase of the dispute.  These jurisprudential regimes also have the potential for making a significant difference in the justices’ decisions.

 

[1]           Const. art. III, sec. 2 provides in pertinent part that “[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority . . . — to controversies between two or more states.  (Emphasis added).

[2]           A compact may be likened to a treaty between two or more U.S. states, however, it must be approved by Congress and the United States is always a nominal party. Compacts are entered into pursuant to the Constitution’s Compact Clause; U.S. Const. art. 1 § 1. (“No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”)

[3]           Kansas v. Colorado, 206 U.S. 46, 96 (1907).

[4]           Ibid at 97.  (Emphasis added).

[5]           South Carolina v. North Carolina, 558 U.S. 256 (2010).

[6]           Kristin Linsley Myles, South Carolina v. North Carolina – Some Problems Arising in an East Coast Water Dispute, 12 Wyoming L R (2012) 3, 5.

[7]           Ibid.

[8]           See generally, Nienke Grossman, The Normative Legitimacy of International Courts, 86 Temple L R 62, 62 (2013).  (“International courts and tribunals are deciding more disputes involving sovereign states than ever before.  They find facts, identify and interpret relevant rules, fill gaps and ambiguities in the law, and apply rules to facts.”). (Emphasis added).

[9]           Ibid. at 64.

[10]          See e.g., Mark J. Richards and Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, Am. Political Sci R (2002) 305.  See also, Grossman, ibid. at 62.  (“International court judges are of diverse citizenship, and they are charged with discerning the international responsibility of sovereigns and awarding remedies as mandated by international law.”)

Thanks.

Itzchak Kornfeld

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