Sawatch Range - Near Twin Lakes

 

The issue of the sharing or allocation of transboundary water in today’s drought-filled climate impacted era, is a critical one.  It is premised on a simple and irrefutable truth: essentially, the leaders of most of the States of the Union and nation-states have failed to put to use that which they learned or should have learned in kindergarten: “sharing everything” and “playing fair”.[1]  This behavioral paradigm has caused numerous conflicts over water resources.[2]  Consequently, courts have had to act as interlocutors or “third persons”,[3] who are called upon to resolve or adjudicate allocation disputes because the parties were simply unable to.  And so it was in the United States Supreme Court case of Kansas v. Colorado,[4] a long drawn-out dispute of about 100 years, over the allocation of water from the Arkansas River.

of water between two states”.  That cannon of “equitable allocation” is grounded in the common law principles of equity.  But, the allocation formula that the Court inaugurated back at the turn of the last century was fashioned for an agrarian society (1907).  One hundred and eight years hence the United States and most other developed countries have shifted their economies from farm-based ones to service-based ones.  But, the law has remained stagnant.

 

[1]           See  Robert Fulghum, All I Really Need to Know I Learned in Kindergarten  2 (1986), also available at http://www.les.rcs.k12.tn.us/TEACHERS/FergusonM /allireallyneeded toknowilearnedinkindergarten.pdf.

[2]           See e.g., Pacific Institute, Conflicts Over Water (undated), http://pacinst.org/issues/water-and-conflict/conflicts-over-water.  (“There are complex and real links between water and conflict. While water resources have rarely been the sole source of violent conflict or war, there is a long history of tensions and violence over access to water resources, attacks on water systems, and the use of water systems as weapons during war.”)  Suzanne Goldenberg, Why Global Water Shortages Pose Threat of Terror and War, The Guardian (UK) Feb. 8, 2014,

http://www.theguardian.com/environment/2014/feb/09/global-water-shortages-threat-terror-war.  (“From California to the Middle East, huge areas of the world are drying up and a billion people have no access to safe drinking water. US intelligence is warning of the dangers of shrinking resources and experts say the world is ‘standing on a precipice’”).

[3]           See generally, Jerome Frank, Courts on Trial:  Myth and Reality in American Justice 3 (1949) (Reissued 1973); Charanjiv Singh Panesar, Judicial Decision-Making Would be Better if Judges were More Truthful about their Reasons for Particular Decisions, Even if Those Reasons are Extra-Legal, 3 Student J. L.  ____ (2012), http://www.sjol.co.uk/ issue-3/extra-judicial-reasoning.

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

 

Thanks.

Itzchak Kornfeld

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