The West’s leading legal scholar of public land and Indian issues has said for years that the Doctrine of Prior Appropriation was the most radical and destructive of a series of 19th century laws he has nicknamed The Lords of Yesterday.
But when the defeat of Colorado’s proposed Two Forks Dam signaled the death of the strongest of the lords, Wilkinson did not cheer. Instead, he imagined the Doctrine of Prior Appropriation as a person, and delivered a eulogy.
In part the eulogy, delivered on Feb. 22, 1991, to the Northwest School of Law at Lewis and Clark College in Portland, expressed the generosity of a victor. “A eulogy puts things in their best light. It draws positive lessons.” But Wilkinson’s eulogy represents more than generosity. It also implicitly calls on opponents of “Prior” to understand the dead lord’s legitimate strengths. Without that understanding, reform in the wake of his death, Wilkinson believes, will be even more difficult
“The hope for the West lies in good communities. And the creation of communities was the best of Prior Appropriation, and that deserves to be said. Reclamation was a beautiful, honorable, virtuous, idealistic movement, during the 1880s, 1890s and early part of the 20th century. It was well intentioned. To see those valleys opened up – to see good families and communities established – was very significant stuff, even if it was subsidized.”
Wilkinson sees signs that the replacement of Prior and other traditional extractive activities may not be automatically benign. A Lord of Today, he says, “is modern recreation in the West: overuse of wilderness, second homes, congested roads, crowding of Yellowstone and Yosemite.
“Environmentalists loosely said we have to move away from extraction to recreation. That may be wrong if it means Aspen, Catamount ski area at Steamboat Springs, and condos at the north end of Ketchum. Environmentalists helped this along; they argued for recreation. But recreation means something different than it did 20 years ago, and they certainly didn’t warn us of the ramifications.”
But the community-building strengths of Prior and the threats posed by his successors did not make Wilkinson’s eulogy to Prior an adoring or nostalgic one:
“There was a dark side, and you can’t deny that either. Even in a eulogy, you can allude to that.” The point is to see both sides: “Too many people see Prior through one lens or another.”
Wilkinson knows Prior’s dark side intimately. He came to the West through the door of social justice and equity, and he has seen how Prior took water from Indian and Hispanic people. “I feel great bitterness and anger over what has happened at particular places. Elephant Butte and the Hispanic communities there in New Mexico were defrauded of their water.
“It angers me to go to the upper end of the Salt River watershed – the Salt River Project (an irrigation and hydropower corporation near Phoenix) almost owns it. The White Mountain Apache Reservation produces 60 percent of the water, but its rights have not been quantified, and the Salt River Project challenges any water the tribe tries to use. The Salt River Project objects to even small recreational lakes because of evaporation. This is sick policy.
“Water policy in the West is the most extreme, most out-of-kilter, most biased against rational decisions there is. They’re cutting back logging in the Northwest, but with water it is still a lot of business as usual,” he observes.
“This spring I stood at the junction of the Salt and Verde rivers just east of Phoenix. Both rivers were flowing full. Then, a little farther downstream, in Phoenix, the Salt River is completely dry, and the arrogance of that angers me.”
Despite the West‘s dewatered streams, dammed rivers and drowned canyons, Wilkinson doesn’t put all blame on Prior and the water developers. Wilkinson has written in a law review article that the problem with Prior “is not the interests it represents. They deserve to be represented – well represented – in any sensible water policy. The problem is that the classic doctrine represents only those interests – it is too narrow … The classic doctrine never intersects with fundamental notions of economics, social equity, conservation, environmental protection and science.”
That article, titled “Aldo Leopold and Western Water Law,” appeared in 1989 in the University of Wyoming’s Law and Water Law Review. Now, two years later, Wilkinson announces that the Doctrine of Prior Appropriation met with economics, social equity, conservation, environmental protection and science at Two Forks Dam, and came out of that intersection simply one of many players. As a result, Two Forks will not be built and Prior has been diminished to approximately the stature of the Endangered Species Act or the Clean Water Act
“The decline of Prior had many causes. We now better understand that there has been enough water storage in the West since 1955, that tribes have rights and deserve water, and that there are moral issues about wrecking streams.”
These tendencies are partly a result of changing demographics. “Migration to the West has brought in more people who haven’t grown up with the old stereotypes, and who revere the countryside.”
As a result of the on-going changes revealed at the Battle of Two Forks, the West is now in an age of reform, Wilkinson says. “But real reform in water is going to come very slowly. In the next few years, we’re going to see definitive changes in hardrock mining and timber harvests on national forests. But water will take longer because it has been made so complex. Colorado water, to take an example, is Rube Goldberg at his finest. No one understands it, so fixing it – to the delight of those who don’t want it fixed – just takes forever.”
Part of the slow pace results from the public’s inability to understand the issues surrounding water in the West. And that comes from “the blandness of the language water developers use. They talk of ‘projects,’ of ‘water development,’ of ‘storage.’ People have no idea what that all means.” Aside from the language, “water developers have created the myth that water is so complex common people can’t understand it.”
The defeat of Two Forks, Wilkinson says, shows that people can get involved in water projects. But the understanding is partial. “There is still a sense in Colorado that while we shouldn’t build Two Forks, we‘ll have to build a project somewhere for the Front Range. But the fact is that we don’t need a water project of any size for at least 50 years.”
Although Wilkinson believes Prior is dead, in the sense of being able to build new dams, he leaves a heritage in the form of thousands of water projects across the West, many of which continue to dewater streams, devastate salmon funs, damage surviving rivers with salty or polluted water, and drown canyons.
Changing the nature of those vested rights, Wilkinson says, will be slow and difficult. “Prior is gone, but he’s left 140 years of vested rights sitting out there.”
But the reformers have a few weapons. “Ironically, the overbuilding of water supplies through dams and transbasin tunnels is one of our greatest assets because it gives us great flexibility. Reallocation of water is made much easier. One good example is the Northern Colorado Water Conservancy District north of Denver, which built the Windy Gap and Colorado-Big Thompson projects and brought huge quantities of water over from the Western Slope. There is a great deal of surplus water up around Greeley. We just need to get it down to Denver and its suburbs. Past excesses have become a great advantage.”
The taking of water from streams and the building of dams must be based, under the Doctrine of Prior Appropriation, on putting the water to beneficial use. How, then, has the West ended up with enormous amounts of unneeded water behind dams?
“Part of it is the language again. ‘Beneficial’ doesn’t mean beneficial – it means any use that water developers want and, in effect, that includes overuse, waste. Beyond that, building became an end in itself. You have a powerful system of lawyers, engineers, contractors and federal agencies, and all they did was build water projects. Water development eventually became patently reckless. There were people like Prior in the Bureau of Reclamation and elsewhere who did believe in the reclamation ideal.” But eventually, Wilkinson says, water development became a machine serving very narrow interests.
According to Wilkinson, a major barrier between water developers and environmentalists is the amoral, businesslike approach the developers take toward their “projects” and “diversions,” contrasted with the highly moralistic approach environmentalists take toward streams they see almost as living creatures.
But Wilkinson says water developers and users are not blind to the beauty of the West. “Westerners split their personalities. Business and development had to come first, but that didn’t mean they couldn’t enjoy an evening on the porch, or the rivers, or the irrigated fields. The loggers too – they loved and love working in the woods.”
Is there hope for reconciliation among the West’s warring parties? “Some of the best dynamics happen when environmentalists and developers get on the river or in the woods together. Lifestyle differences drop away, real understanding begins to take place, and sometimes you can get some real breakthroughs.”
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Ed Marston was the publisher of High Country News for 19 years, starting in 1983. We welcome reader letters. Email High Country News at editor@hcn.org or submit a letter to the editor. See our letters to the editor policy.
This article appeared in the print edition of the magazine with the headline Charles Wilkinson crows over the corpse of the West’s traditional approach to water.
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