Overview of Western Water Adjudications: A Judge's Perspective

Journal of Contemporary Water researCh & eduCation West of the 100th Meridian, irrigation development in the 19th Century followed by municipal development in the 20th Century has placed its marker on the available water supply in many river basins. Undoubtedly, as the population of the West has continuously increased and the customs and values of the people have widened to include environmental and recreational uses, the 21st Century is the era of limits made applicable to water decision-making. Due to natural western water scarcity, we are no longer developing a resource. Instead, we are learning how to share a developed resource. In this context, western water adjudications provide a vital function. The term “adjudication” generally refers to the process by which state or federal courts of law decide a case. Typically, the ordinary court case involves only one or several parties. Hearing a civil or criminal matter, the trial court determines what the facts are and then applies the appropriate constitutional, statutory, or case law principles. For example, has one party breached a contract agreed to by both parties; if so, how much money does the breaching party get to collect? What did the defendant do and is she or he guilty of a crime; if so what shall the sentence be? State and federal courts of appeal and Supreme Courts are ultimately responsible for enunciating the law to be followed by trial courts. But the trial courts resolve disputed issues of fact that the appellate courts must base their legal opinions on, if the evidence in the record supports the trial court’s findings of fact. A final judicial opinion that is no longer subject to appeal becomes binding on the parties. In many cases, individuals, companies, and governmental entities settle disputes among themselves rather than testing the proposition that divides them in court. When parties cannot agree, courts are available to make final enforceable decisions about the rights and duties of citizens, companies, and governmental entities under the law of the community. So what does water have to do with courts? And what do courts have to do with water? A basic law of nature is that all living beings need water and that water is a scarce resource. Water is a public resource; its ownership always remains with the public. Of course, the public’s business is the business of individuals who have need of water to make a product, grow a crop, turn a turbine, wet a fishing line, play a kayak wave, or brew ice tea for sipping on the back porch of a hot summer’s day. Individuals, companies, and governmental entities may obtain water use rights in accordance with applicable state and federal laws. The adjudication court determines the relative priority of water use rights that depend upon the same river system for their supply. So stream adjudications inevitably involve many parties making many claims. They include Native American tribes, state, local, and federal agencies, farmers and cities, as well as individual persons and businesses. The tribes and the federal agencies can claim water use rights created under state law. In addition, they may claim federally-created water rights. In contrast, individuals, companies, and non-federal public entities are typically restricted to claiming state-created water use rights only. Subject to the exercise of previously created water rights, federally-created water rights operate to reserve a portion of the available unappropriated Overview of Western Water Adjudications: A Judge’s Perspective