The Battle over Water Rights
In the West, the Oldest Claims Take Precedence
Listen to Elizabeth Arnold's report.
Aug. 28, 2003 -- Take the arid West, stir in a bunch of people with high hopes for farming and ranching and don't add water, and you end up with long-lasting and bitter disputes. As NPR's Elizabeth Arnold reports, when it comes to water, the law of the West is simple and unforgiving: the first one to use it gets it.
Aug. 26, 2003: NPR's Howard Berkes reports on 19th-century explorer John Welsey Powell's vision for for governing water rights in the West.
This doctrine, known as "prior appropriation," originated during the California Gold Rush days, with miners who needed water for their placer operations on public lands. They adopted the same rule for water as they did for minerals: "first in time, first in right."
To this day, prior appropriation governs water in nine Western states. David Getches, dean of the University of Colorado law school, says the doctrine has created an unruly situation.
"It's the same justice we think about when somebody wants to crowd in front of us in line," Getches says. "It didn't take into account who may have a more valuable use, or a use for water that society thinks is more or less important, or even damaging."
The complicated and often emotional legal contests that prior appropriation creates are evident along the Musselshell River, a 500-mile-long stream in eastern Montana that, in a good year, reaches the Missouri River at its confluence. According to Richard VanCampen, the chief water commissioner on the Musselshell Enforcement Project, the good years are rare.
"Presently, there's not enough water in the river to even supply the users on the river, let alone downstream states," VanCampen says. "For 45 days, there's been no water flowing through the system that reaches the end of the river. It's all been used up by those with the most senior rights, those that go back to 1875."
VanCampen is a water cop; his job is to make sure those who have the most senior right to what little water flows down the Musselshell River get it, no matter where they are on the river. Last year, VanCampen caught one rancher illegally trying to irrigate his parched fields. The rancher's water right dated back to 1900, but only those with rights dating to 1883 or before had priority access to water at the time.
"It's a lesson hard learned, but it's a lesson that everybody needs to understand," VanCampen says.
Along the Musselshell, it's easy to see who has the best claims. While the tiny hamlet of Harlowtown rations water for gardening and car washing, a rancher high above the river bottom maintains a lush crop of alfalfa with endless pipes and sprinklers.
"It doesn't make for good neighbors," Arnold says. "Farms and friendships have been lost over water rights, and the tension it creates is more real than in any Hollywood Western."
Legal experts say water law has evolved somewhat to accommodate needs that were not foreseen when the doctrine of prior appropriation was shaped. For example, claims on water for recreational, environmental and urban uses are recognized, but only as junior rights. Ultimately, senior water rights trump all.
"This is a struggle in this country in all kinds of ways," says attorney Bill Swan, who has wrestled with water rights for three decades. "Somebody has a right to something, and we say, 'Can't we share that?' But in a recent decision of the California Supreme Court, in a case that came to a head over a region in the Mojave Valley, the court unanimously held that the senior water right had to be respected. So this notion that we are somehow going to share these early vested property rights did not go very far."
And that leads to a problem that the prior appropriation doctrine doesn't address: In the rush to claim water rights, there was never a consideration that, one day, there might not be enough to go around.
Aug. 27, 2003: NPR's Elizabeth Arnold reports on the history of the Colorado River and the competing demands on its water.
Musselshell River Enforcement Project
A brief explanation of Western water law as applied in Montana
An explanation of the prior appropriation doctrine, from the Center for Environmental Education at Washington State University
FindLaw.com offers a description of water law.