No. For now, what Colorado is doing is okay because the good it does for Colorado is much greater than the harm it's causing Kansas. First, the Court told the U.S. government that the Constitution does not give it the power to control rivers for farming inside a state; that power belongs to the states. In the fight between the two states, the court said it's not about which state's law is 'right,' but about finding a fair balance. The judges saw that Colorado turned a desert into a garden, creating huge value. While Kansas was being hurt a little, it wasn't a disaster. So, the Court decided not to stop Colorado, but it left the door open for Kansas to sue again if Colorado starts taking even more water in the future and things get worse.

No, Kansas doesn't get help right now. Colorado has been using the water to turn dry land into farms, which is important. Kansas has some problems because there's less water, but it's not bad enough yet to make the court stop Colorado. The court says Kansas can come back if things get worse because Colorado uses even more water in the future. The decision is based on the idea that states need to work out water sharing in a fair way, like countries do, because there's no specific law for this. The court is making new rules as it goes, called 'interstate common law,' to help with these kinds of problems.

I agree with the final decision, but my thinking is a bit different. I believe that Colorado taking water for irrigation has lowered the river’s flow into Kansas a little, but not so much that Kansas suffers major harm because the water is still used beneficially. I see value in how Colorado’s irrigation makes barren lands productive, which helps the whole region. However, I warn that we should keep a close watch on this situation because if Colorado takes even more water in the future, it could upset the fair balance and start hurting Kansas. That caution is where my view differs from the majority, even though we both support the same outcome today.

But the downstream State (Kansas) did not sustain the burden of showing that since the earlier litigation between the States

—where we first announced the doctrine of equitable apportionment, we found that users in Kansas were injured by Colorado's upstream diversions from the Arkansas River.

The case is to be considered in the untechnical spirit proper for dealing with a quasi international controversy, remembering that there is no municipal code governing the matter, and that this court may be called on to adjust differences that cannot be dealt with by Congress or disposed of by the legislature of either state alone.

Equitable apportionment is the doctrine of federal common law that governs disputes between states concerning their rights to use the water of an interstate stream.

—stating that the Necessary and Proper Clause "is not the delegation of a new and independent power, but simply provision for making effective the powers theretofore mentioned

—for, as we held long ago in a leading case on our original jurisdiction: "[W] henever... the action of one State reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them, and this court is called upon to settle that dispute in such …

Our cases establish that a State seeking to prevent or enjoin a diversion by another State bears the burden of proving that the diversion will cause it "real or substantial injury or damage."

—"through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common law."

Although Louisiana was unsuccessful in that case in pursuing the commercial interests of its residents, a line of cases followed in which States successfully sought to represent the interests of their citizens in enjoining public nuisances.

—we concluded that "[t] he controversy rises... above a mere question of local private right and involves the matter of state interest and must be considered from that standpoint."

No. While Colorado's diversion has caused some perceptible injury to Kansas, it has not done so to an extent that destroys the equitable apportionment of benefits between the two states. The Court first addressed the federal government's claim, holding that the Constitution is a document of enumerated powers and does not grant Congress the power to legislate for the reclamation of arid lands within states; this power is reserved to the states under the Tenth Amendment. Regarding the dispute between the states, the Court established that neither state can impose its water law system on the other. Instead, the governing principle is 'equality of right,' which demands an 'equitable apportionment' of the river's benefits. The Court balanced the harms and benefits, finding that Colorado's irrigation created immense benefits by transforming a desert into productive land. While Kansas suffered some detriment, particularly in its western counties, the evidence did not show widespread or catastrophic harm. Therefore, the Court dismissed Kansas's complaint, but did so without prejudice, allowing Kansas to file a new suit if a material increase in Colorado's diversions were to cause more substantial injury and upset the equitable balance.

No. The State of Colorado's use of the Arkansas River for irrigation purposes has indeed diminished the flow into Kansas, but not to the extent of causing substantial injury to Kansas. Both states have the right to an equitable share of the river's benefits, and while some depletion is recognized, it has not yet reached a point where Kansas is entitled to relief. The case is dismissed without prejudice, allowing Kansas to seek new proceedings if future increased depletion by Colorado causes significant harm. The court's decision is informed by the doctrine of equitable apportionment and recognizes the need to consider these disputes in an untechnical spirit, as they are quasi international controversies without a governing municipal code. The court is building what may be called interstate common law through these decisions.

I join in the result of the majority opinion but must note that my reasoning departs in emphasis. I concur in dismissing Kansas’s petition because the evidence shows that although Colorado’s irrigation practices have diminished the Arkansas River’s flow into Kansas, the injury suffered by Kansas has not yet reached the threshold warranting judicial relief. My concurrence stresses that Colorado’s reclamation efforts, which convert arid lands into productive fields, generate considerable public benefit because they promote regional development and economic efficiency. I differ from the majority in pinpointing the need for vigilant future review, for if further depletion occurs, the balance of equitable rights may tip unfavorably against Kansas. Thus, while I agree that relief is not currently justified, I caution that continued water appropriation should be subject to renewed judicial scrutiny because significant future harm remains a possibility.

Kansas v. Colorado

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