Forging New Rights in Western Waters, Robert G. Dunbar, (Nebraska: University of Nebraska Press, 1983), 270pp.
Understanding environmental problems; justifying aspirations; litigation; politics; applicable to water resource issues; written for the first party participant.
Forging New Rights in Western Waters is an examination of the history and evolution of Western water rights as a modification of a property right. It begins with the history of the first irrigations in the West and concludes with an examination of the not uncontested right to appropriation.
Forging New Rights in Western Waters has been required reading in multiple political science courses and in the Environmental Certificate Program courses at the University of Colorado at Boulder. Dunbar discusses the history of irrigation of Western lands from evidence of the practice by native peoples as early as 300 BC to the pivot sprinkler irrigation systems presently used. He pays special attention to the irrigation work done by Mormon settlers in the West. Chapter three is concerned with the evolution of the alliance between farmers and investors and the resultant ditches. The author chronicles the formation of ditch companies which resulted from failed attempts by would-be settlers, due to financial underestimations, to construct ditches to supply irrigation water to the otherwise withering crops. This first profitable alliance for supplying water to farmers was followed by the involvement of state governments.
Chapter five details the initial involvement of the federal government in various irrigation schemes beginning in the mid- to late nineteenth century. These included employment of the Army Corps of Engineers and the massive privatization of federal holdings of dry land on the condition that the owners irrigate it within a specified amount of time. The author also offers the history of the creation, and task, of the Reclamation Service as set out in the Reclamation Act of 1902. The following chapter is an examination of the evolution of irrigation into a battle over property rights. From the basis in the English common law known as the Doctrine of Riparian Rights, through the litigation of water rights disputes, arose the Doctrine of Prior Appropriation.
Through examination of the creation and development of water management under the Desert Land Act of 1877 and the precipitant litigation Dunbar demonstrates the evolution of a new property right; the right to water use. The author discusses the resultant difficulties (determining chronological priority of appropriations) of a provision in the Colorado state constitution which guarantees the right of appropriation of water rights. The use of water commissioners to determine the priorities of rights to stream water and other water related issues is examined. After examination of the Colorado system of water-right enforcement Dunbar examines the creation and characteristics of the Wyoming system. Following a chapter focusing on rights to interstate waters the author compares the California groundwater right to the New Mexican groundwater right. The latter is the basis of conflict in the popular book The Milagro Bean Field War. The penultimate chapter is concerned with the conflict between federal assertions of jurisdiction and states' insistence on their authority to resolve water related disputes. Finally a criticism of the appropriation right is offered.
Forging New Rights in Western Waters is a useful examination of the evolution of Western water rights which offers both an historical and a legal perspective for such rights. It is both comprehensive and succinct.
T. A. O'Lonergan
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