Kansas v. Colorado began in 1902 with the issue of whether Colorado was taking too much Arkansas River water from Kansas. Claims were made that the land surrounding the river banks was less valuable because of reduced flow. The issue was again revisited in 1907 where the Supreme Court dismissed Kansas’ petition. After examination of transcripts from the litigation, the court found Kansas was justified in its claims. It has continued to be brought to the Supreme Court with official designations in 1943, 1985, 1995, 2001 and 2009.
“In fact, this was the largest U.S. Supreme Court case that had ever come before the justices up to this time,” Sherow said during his presentation at the 3i Show in Dodge City, Kansas, Oct. 13.
To delve into the case, one must understand a little bit about economics and the American market system at the time.
“The American economic system is more than just economics. It’s also culture. It embodies values,” Sherow said.
There are three components to the market culture. The first, any natural resource is looked at for its economic potential.
“When you see a tree you see lumber. When you see water you see cubic feet per second that can be used in economic production. When you see a mountainside you see mining and the ores that are in it,” Sherow said.
The second part is human beings have a natural right to use their own labor to create value out of those commodities.
The third component is the government has the right and the obligation to protect individual natural rights to use those commodities for their own economic gain.
“These were things that were very important in terms of making sense out of this lawsuit,” Sherow said.
Even though the case originated with central Kansans wanting water in the Arkansas River, blame was placed on farmers irrigating in western Kansas. Sherow said early pump systems in the western part of the state were based on windmills with small ponds feeding flood irrigation systems.
“Sugar beets made irrigation in western Kansas profitable,” he said. “Irrigation was an iffy proposition in Kansas, but with this it became a very important economic source in the state.”
At the time of the litigation, Colorado and Kansas had different ways of thinking about water, according to Sherow. Colorado had prior appropriation built into their state constitution. It recognized three beneficial uses the state would protect—domestic, agricultural and industrial uses.
“With the prior appropriations system, which stresses first in time first in right,” Sherow said, “the first person to use the water establishes the right to it and we’ll have that right in perpetuity.”
The next person has the right to the water they put in economic use. The later the date on the prior appropriation right, the less likely the later person will get the water use.
“The earlier the date, the more likely to get water as the rivers flow,” Sherow said.
By 1900 between Pueblo, Colorado, and the Kansas/Colorado state line there were nearly 100 irrigation systems in place. These systems provided for more than 7,000 farms and 300,000 acres in the Arkansas River Valley of Colorado as well as domestic uses in Pueblo and Colorado Springs. The Colorado Fuel and Iron Company also used water off the Arkansas River.
“So the economic use of water in those three beneficial uses was extensive, well developed by 1900,” Sherow said.
Around Garden City, Kansas, there was approximately 30,000 acres in irrigation by the time the suit came in to play. What is now the Bureau of Reclamation also got involved with one of the first pump irrigation projects in the area.
Marshall Murdock was the editor of the Wichita Eagle in the early 1900s. He was a powerful individual and concerned for his city since they had to rely solely upon railroads for transportation of goods in and out of the city.
“Everybody was held captive to what railroad rates were,” Sherow said. “If you’re a farmer shipping out wheat or if you’re a retailer bringing in goods on the railroad, those railroad rates determine what your bottom-line is going to be.”
Murdock felt held hostage by the railroad companies and wanted another source of transportation in and out of Wichita. He wanted it to be river transportation.
“Think about that,” Sherow said. “Bringing river transportation and steamboats up the Arkansas River to Wichita.”
Sherow said Murdock was no fool but he knew the river needed more depth and more flowing water. During his time as editor he noticed the flow seemed to lessen each year. The riverbanks were compressing, which concerned him. He convinced the Army Corps of Engineers to bring a snag boat to Wichita in the Arkansas River in 1880.
“It got to Wichita, believe it or not, and when the snag boat was turned around to go back down the river it got stuck on sand bars almost immediately. People jumped off the boat and landed in 2.5 inches of running water in the Arkansas River,” Sherow said. “It was about the last time the Army Corps of Engineers really considered making Wichita an inland port.”
Undeterred, Murdock still wanted to get more water down the Arkansas River. He pointed fingers at “those greedy farmers out around Garden City causing all our water problems here at Wichita,” Sherow said.
“Now think about how you feel about that if you’re a farmer relying on the Arkansas River at Garden City and all at once one of the most powerful newspaper editors in Kansas is saying you’re the root of all my problems,” he said. “Well they didn’t take that very well.”
Murdock did some research and learned about the other irrigation companies in Colorado and later shifted his blame.
“Everybody knew something was going to have to break here because the United States government prior to the creation of the reclamation service was very interested in including the federal resources to increase irrigation,” Sherow said.
Eventually the case came to a head and in May 1907 the suit was settled.
“So out of this comes the notion we’ve got to put states together to come up with a way to divide water among themselves,” Sherow said. “This created interstate water compacts.”
The interstate water compacts helped avoid litigation like the Kansas v. Colorado case and became very important to water in the west.
“It is prime to everything else has followed since that time,” Sherow said. “So western Kansas and eastern Colorado have created the modern litigating system that we have today and it came out of this suit. I can’t over emphasize how important this suit was.”