Forging New Rights in Western Waters
July 1, 1984
Raymond Starr, Book Review Editor
Forging New Rights in Western Waters. By Robert G. Dunbar. Lincoln: University of Nebraska Press, 1983. Preface. Notes. Index. 277 Pages. $19.95. Reviewed by Lawrence B. Lee, Professor Emeritus, San Jose State University, author of Kansas and the Homestead Act (1979) and Reclaiming the American West (1980).
Well known is the epic narrative of western dam building and the amazing transformation that water brought to the economy and way of life in arid America during the past century. Heretofore, however, we did not have a full understanding of the Western transformation of water rights law which undergirded irrigation agriculture and urban growth. It is agricultural historian Robert Dunbar’s particular contribution to trace the complex institutional history which brought to the fore the justly acclaimed appropriation right our author celebrates in this work. Much of the book, incidentally, is concerned with a detailed description of the contest between the “inherited” Anglo-American doctrine of riparian rights and the doctrine of prior appropriation, the rule of “first in time, first in right,” derivative from the mining frontier and in conformity with the dictates of an arid environment. The scenario moves in time and place from California of the 1850s to Colorado of the 1870s, then to the other states following Colorado’s lead into the 20th century. Wyoming, under state engineer Elwood Mead’s leadership refined administrative procedures for distributing rights to surface water and preventing over-appropriation of streams or the waste of irrigation water. Subsequently, when ground water pumping proved economical, it was the New Mexican system that became the model and the appropriation right was the essence of the system.
The author’s sympathies are unmistakably with the states in their clash with federal authorities over a presumptive claim of federal “reserved rights” to states’ nonnavigable water courses. This was foreshadowed in the Winters Doctrine on behalf of Indian claims in a 1908 decision of the Supreme Court adumbrated in later judgments. Dunbar finds ample evidence for states’ water rights autonomy in the federal acts of 1866, 1870, the Desert Land Act (1877) and the Reclamation Act (1902). Correspondingly, the interstate compact device to resolve conflicting claims between the states for interstate waters receives the Dunbar imprimature.
The interpretive scheme is concisely stated in the book’s concluding sentences. “The appropriation right is not a static institution. Forged as an adaptation to the arid West, it continues to be shaped by western needs and pressures.” The author makes good his design to prove that the environment offered the compelling force in fashioning the appropriation water right. Another volume, however, might be written to prove that this right has been flexible enough to shed itself of the “appurtenancy rule” tying the water to the land. Then a “free market” in water rights may redirect the transfer of water rights in response to the high demand urban market and reflect modern day concerns for conservation of water per se. Of contemporary interest, also, is the environmental need to maintain augmented “in stream” flows, a condition partaking more of riparian rights stipulations than those of appropriation rights. Students of water resource history have waited a long time for just this kind of nontechnical study. It is authoritative, the product of a lifetime of scholarly endeavor and adds a new perspective to the history of the West.