Statement of Stanley Mosk, Attorney General of California, on S. 1658 and Pacific Southwest Water Plan Before the United States Senate Interior and Insular Affairs Committee

Document: Statement of Stanley Mosk, Attorney General of California, on S. 1658 and Pacific Southwest Water Plan Before the United States Senate Interior and Insular Affairs Committee, Subcommittee on Irrigation and Reclamation, April 1964, page 7We have a century of modern history to help fill the gap. In 1855 the mining camps of the Sierra Nevadas were also, and in every sense, close to a state of nature. In that year the California Supreme Court decided the first prior appropriation case, aided by little more than judicial "notice of the political and social condition of the country" and the erudition of a Latin maxim. 1/ From that humble beginning the law of prior appropriation has spread throughout the West. Courts and legislatures have been impelled by imperative necessity. If our problem were internal to any state in the West, the answer would be clear; Existing projects would be protected as against a future project. We recognize that our problem is not internal. It is a regional problem with two factors to be considered: (1) the state lines constituting the boundaries of Arizona, California, and Nevada; (2) the Boulder Canyon Project Act and the California Limitation Act as construed and applied in the decree in Arizona v. California. Neither factor makes a material difference in determining what the undetermined shortage allocation should be. Prior appropriation is applicable in the West without regard to state lines. The Supreme Court first so held in Bean v. Morris, 221 U.S. 485 (1911), a suit between prior appropriators. It later so held in Wyoming v. Colorado, 259 U.S. 419 (1922), a suit for an equitable apportionment between states representing their respective water users. In the latter case, the Court gave two mutually reenforcing reasons: (1) In both states, the rule of appropriation alone is adapted to conditions of their civilization. (2) Neither state in justice can complain of the application, between them, of the rule which both states apply internally. 1/ Qui prior est in tempore potior est in jure. Irwin v. Phillips, 5 Cal. 140, 147 (1855). 7.Epson Perfection 4870 Photo, 400 dpi, 8 bit, 1,086,952 byte