The Colorado Doctrine:Water Rights, Corporations, and Distributive Justice on the American Frontier

Early Colorado water law has long been recognized as a model for the Prior Appropriation Doctrine as it developed throughout the West. Adoption of prior appropriation was a deliberate rejection of eastern water law, which gave the owners of land located next to or across a stream equal rights to the use of the water. In The Colorado Doctrine, David Schorr examines the reasons for this rejection and for the choices embodied in the Prior Appropriation Doctrine in Colorado. His book presents at once a history of the development of western water law and an argument for questioning fundamental assumptions about this radical departure from established water law. With a cast of characters including greedy foreign capitalists, passionate agrarian reformers, intrepid miners and irrigators, and populist politicians, this history captures the human striving embodied in the law.

 

According to Schorr, prior appropriation as adopted in Colorado derives from two principles. First, everyone should have equal access to the use of water from a stream, not just riparian land owners. In the dry western climate, limiting rights to riparian owners would deprive the vast majority of citizens an essential resource. Second, all users of a stream are entitled to sufficient water to accomplish the purpose for which the water is appropriated. If too many people try to divide the waters of a stream among them, no one would have enough to support a farm or mining claim. Here is a seeming contradiction that is solved by giving priority use of the water to the first users. In this way, a balance is struck between equality and sufficiency.

 

In addition, the law required that the water must actually be used for a beneficial purpose. This meant that no one could claim more water than needed and, therefore, no one could profit from speculation in a resource that belongs to all.

 

Schorr maintains that these principles express the predominant sentiment in the West at the time, which was embodied in the ideal of “the greatest good for the greatest number”. His interpretation is based on a comprehensive review of relevant documents from the period, and several of the most evocative of these are reproduced in the book. Often, he lets the boosters, politicians and influential writers of the day speak for themselves on the pages.

 

Schorr’s goal is to turn the common wisdom on its head. He argues that the widespread distribution of resources, rather than economic efficiency, is the foundation of the Colorado Doctrine and therefore much of the water law of the West. This is a distinction that may not concern most readers, but it should not discourage them. Although it is clear that Schorr intends to contribute to a scholarly debate, the end is not only scholarly. The debate has infused current understanding and discussion on water policy, and his insights have potentially important implications for policy making.

 

In addition, the language is clear, the argument cogent, and the information full of interest to anyone curious about the history of western water law.