Priority: The Most Misunderstood Stick in the Bundle

Article excerpt


A decade has passed since Charles Wilkinson eulogized the passing of Prior Appropriation in 1991. (1) I rejoined that Prior may have died but his progeny lived on. (2) A year later, the authors of the "The Long's Peak Report" proposed a series of national water policy initiatives to the incoming federal administration. (3) I rejoined that the report presented a one-sided view of water policy that excluded other viewpoints, particularly viewpoints of water right owners. (4) Michael Blumm and I then engaged in a debate over the Long's Peak Report. (5) Two years before Wilkinson's eulogy, Bennett Raley (6) and I authored two articles addressing the role of water quality law in protecting rather than restricting the exercise of water rights. (7)

In 1996, I transitioned from representing water clients to being a State Supreme Court Justice. In this role, I have had the privilege of authoring water opinions (8) and several water law articles, (9) as well as participating in water decisions authored by other Justices. (10) This work constantly reminds me how vital is the role of water law and policy, and how misunderstood is the role of water rights priority.


   Help from History 
   Please help me know it happened, 
   That life I thought we had-- 
   Our friends holding out their hands 
   To us-- 
   Our enemies mistaken, infected by 
   Unaccountable prejudice-- 
   Our country benevolent, a model 
   For all governments, good-willed 
   Let me retain what ignorance it takes 
   To preserve what we need-- 
   A past that redeems any future, (11) 
   William Stafford 

In concluding his eulogy, Wilkinson wrote, "Prior has now passed on." (12) "I wonder whether the reformers ... now that they will have to replace Prior ... can offer up still other ideas as bright." (13) Prior's wife, Ramona, truly lamented the passing of this antiquated, lovable, often wrong-headed, but genuinely motivated frontiersman Prior's "most luminous idea," said Ramona, was "that sense of community ... he most passionately cared about." (14)

Taking up the theme, I envisioned the elopement of Prior's grandson, Beneficial, with Miss Trust. The young Miss was a stunning but pampered member of the California Trust family, generous to a fault in her willingness to give away the property of others. Nevertheless, the union of Beneficial and Trust brimmed with the generative seed of enduring western optimism. The song of their union sounded like this:

   Beneficial: "Waste Not, Want Not" 
   Trust: "Let it Be, Let it Be" 
   Beneficial: "Use Only What You Truly Need" 
   Trust: "Efficiently, Efficiently." 

Could such a marriage of tradition and reform occur voluntarily, or only with a gun to Beneficial's head? The Long's Peak Report, it seemed, favored a forced trip to the altar of reform. Uncle Sam would command Beneficial's consent to water reallocation, if necessary, to serve more contemporary values like stream flow restoration. Duty-bound to represent my client's interest in a voluntary match, I insisted on respecting Beneficial's inheritance of Prior's rights. (15) Blumm advocated for the bride, the shortchanged latecomers, instream uses, and Indian tribes. (16)

I attempted to regain the high ground by harnessing progressive conservation to prior appropriation. (17) Blumm retorted that I had mounted the steed backwards, stating that "Pinchot's call for multiple use was not simply a call for development of water resources, it was a call for centralized, federal regulation of waterways." (18)

A decade later, though at least my advocacy appears to have been overheated, Blumm and I had the privilege of a timely and significant debate. I must concede that centralized federal planning and development was at the core of the Reclamation Program. However, it was the prior appropriators who had invited the federal relationship; they needed national help to build the waterworks they required to make theft water uses. …