By Eric Kuhn and John Fleck
Santa Fe New Mexican
Santa Fe, New Mexico, was off the beaten path in November 1922. That was the point.
After a logjam and a seven-month break, the Colorado River Commission finally reconvened in Santa Fe, New Mexico at the Bishops Lodge on Nov. 9, 1922, to try to find common ground for a seven-state compact to divide the waters of the Colorado River.
The Commission’s chairman, Commerce Secretary Herbert Hoover, chose to meet there because he wanted a secluded location where the commissioners and their advisors could roll up their sleeves and hammer out a compact.
The enthusiasm for a deal, and the optimism for what might follow, was palpable as leaders across the West descended on New Mexico. The obstacles were great, both technical and institutional, New Mexico’s Alamogordo Daily News reported in the days leading up to the gathering.
That all of the obstacles will be surmounted goes without saying, and doubtless in an incredible short time and during the lives of the most of the people now living a net work (sic) of lines and irrigation ditches will run out from the Colorado river that will give rise to new industries and create thousands of acres of new areas that will support large populations.
The lodge is a few miles north of the city over what was then a very rough road. Time was short. The 1921 law authorizing the negotiations only gave the Compact Commission a year to finish its task. Only 53 days remained and as far as Hoover could tell, the commission was nowhere near an agreement.
The 10th meeting did not get off to a smooth start. First, the commissioners from California, Nevada, and Wyoming had travel problems. All seven state commissioners would not get to Santa Fe until late on Friday. Next, Hoover had a second goal in picking the smallish Bishops Lodge. He wanted to limit the size and attendance at the meeting. In his view, the negotiations had too many camp followers, especially from California. Hearing that the lodge had booked as many as four to a room, he ordered Clarence Stetson, his aid and commission secretary, to direct the manager to reduce the guest list, limiting those staying at the lodge to two to a room. Although it upset those that were kicked out of the lodge, only a few departed Santa Fe. Instead, most decided to make the daily trek over the rough road and to Hoover’s annoyance, the state commissioners, especially California’s McClure, were reluctant to tell their state colleagues they were not welcome.
Hoover’s scheme to sequester the negotiations kept the press at bay. “The Associated Press dispatches from the conference have been meagre,” the Nevada State Journal reported as the proceedings rolled forward.
Without all the commissioners present, there was little of substance that could be accomplished pm the first day. The five commissioners decided to limit the attendance at executive sessions to the commissioners plus one legal and engineering advisor for each and any governor that might be in attendance. They then adjourned.
While the commission may not have met in seven months, they had kept in communications with each other and Stetson. Colorado’s Delph Carpenter, in many ways the Compact’s most important parent, had been especially active. He was still reeling from his state’s Supreme Court loss in the Laramie River case where the court decision applied the Doctrine of Prior Appropriation on an interstate basin. That loss in his view left the upper river states fully exposed to the big projects California already had in place or was actively planning. He and Utah’s Caldwell both had already decided they would give up on their insistence that Lower Basin projects never interfere with future water use on the upper river. Both had a new idea to share with their fellow commissioners based on dividing the use of the river’s waters between two basins and leave the dividing the water among the states to each basin.
Now they just needed to wait until everyone arrived.
The Silver Fox, Delph Carpenter, publicly stated several times after the compact that if the SCOTUS would have decided the CO River water case that prior appropriation would have settled overwhelmingly in favor of California. A compact was the only solution that avoided this fate.
Although DOI and USBR can make rulings now, eventually the states need a workable compact, or it goes back to SCOTUS and to prior appropriation.
As Charles P. Pierce notes every Friday in Esquire online, “History is so cool.”
To me, water that comes out of the sky and falls upon our country belongs to all citizens. The country formed a federal government in part to decide how to equitably distribute the natural assets. Why should one state be able to use an asset to the disadvantage of another? Simply because they have more projects or developments under way? By Hoover, the intention was about industry and large populations. And that is the American ethos. So SCOTUS, true to form, would favor the greater centers of wealth, without concern for the greater issue that faces all Americans, climate change. The reduction in the river’s flow is the proximate cause for the current legal dilemma, and also the result in part of the development that took place. In a better world, SCOTUS, would start with climate change as the overriding consideration.
1. Establish the current volume of water available.
2. Cut back water allocations on a pro rata basis.
If that results in reducing the existing uses, so be it. No guarantees were issued by the water “gods”.
Just as no guarantees were issued by the “creator” of the planet on which we live. In both cases we misused what was available and we will pay a price.
The 1922 compact was decided using the current best available information. We now know that the stream flow was running at a high point in the rivers history. So that became the fatal flaw in the Compact.
The SCOTUS made decisions on WYO v. CO based on the best use of the river’s water at that time.
SCOTUS did not make decisions based on wealth or industry, but on Beneficial Use and Prior Appropriation.
That was the law, and the basis for decisions in 1922 WYO v. CO decision, and why the Compact was created; To share the waters with more states, and not just the one state that was using 90+% of it to produce food (CA). More water for every other state than California, was the decision in 1922.
Now if we want to re-hash the 1922 compact, we will need to talk about what is the best mixed use of the water. Housing in the desert, other urban uses, the environment, water for Mexico, recreation, or food? Hopefully we can find the right balance.
I’m going on the record to say that I believe that the Imperial Valley, the Salton Sea, and a flowing river in the Grand Canyon, are all great environmental uses of the river, that also have as a byproduct – food!
Glenn – I’d refer you to our book Science be Dammed. We show, based on the historical record laid out in the work of the government’s own scientists, that the compact negotiators explicitly ignored the best available information, which suggested there was not enough water for the plans they were making, in favor of unrealistically optimistic water supply estimates provided by Reclamation. In other words, had the negotiators listened to the best available science of the day, the fatal flaw could have been avoided.