Introduction
1. Mead Scrapbooks, 1913, Elwood Mead Papers, American Heritage Center, University of Wyoming. Elwood Mead was the engineer who drafted Wyoming’s water-law system in 1890. His 1913 statement of his view of the only policy suitable for water resources was his consistent view before, during, and after his time in Wyoming.
2. Elinor Ostrom, Nobel Prize winner in economic sciences in 2009, describes natural resources like water (or forests, grazing lands, and ocean fisheries), from which it is difficult to exclude people but which can be easily diminished as a “common pool resource,” and for which different societies over thousands of years have created different forms of governance. Ostrom, Governing the Commons, 30–33.
3. Eminent writers on modern western water law and its roots include Charles Wilkinson at the University of Colorado, Dan Tarlock at the Chicago-Kent College of Law, and Robert Glennon at the University of Arizona. On basic western water law and its origins, see Wilkinson, Crossing the Next Meridian, 21–22, 232–40; and Tarlock, “The Future of Prior Appropriation,” 771–76. Instead of states granting water rights for free, Glennon recommends putting a price on water and encouraging water markets, arguing that the water crisis in the United States, born of high use and waste, is resolvable if we “begin to treat water as a valuable, exhaustible public resource”; see Glennon, Unquenchable: America’s Water Crisis, 23–76, 316–20.
4. Tarlock and Robison, Law of Water Rights and Resources, §5:14; Tarlock, “How Well Can Water Law Adapt,” 7. Yale property law scholar Henry Smith describes many elements of western water law that smack more of public rights-based governance than private rights; see Smith, “Governing Water,” 449, 466–78. The Wyoming Supreme Court in 1992 put it this way: “Water is simply too precious to the well-being of society to permit water right holders unfettered control over its use”; in General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn III), 835 P. 2d 273 (Wyo. 1992) at 280.
5. Tarlock, “The Future of Prior Appropriation,” 771–85, notes that original western water law “initially developed as a fair and efficient risk distribution scheme for a regime of many small-scale irrigators in arid and semi-arid areas” (776). He argues that because of agricultural, industrial, and urban growth, supported by federal and state investment in massive infrastructure in major states like California and Colorado, multi-stakeholder agreements and some forms of water marketing—not traditional water law—tend to govern water in those places in the twenty-first century.
6. Federal water projects serve less than 15 percent of the lands irrigated in Wyoming, watering about 270,000 acres of the nearly two million acres that were irrigated in Wyoming as of the last full count in 2007. See US Bureau of Reclamation, “Project Information: Shoshone Projects” and “Riverton Unit” (websites), https://www.usbr.gov/projects/index.php?id=422 and https://www.usbr.gov/projects/index.php?id=386; and WWDC, “The Wyoming Framework Plan,” 6. The federal North Platte Project serves both Wyoming and Nebraska, and a breakdown of the acreage served in Wyoming is available in WWDC, Platte River Basin Plan Final Report, chapter 2, pages 4–5. Hydropower generation at federal water projects helps pay for irrigation operations, but less than 15 percent of that hydropower is used in Wyoming, where hydropower is less than 2 percent of the total energy consumed; WAPA Statistical App., 5, 15; US Energy Information Administration, “Wyoming State Profile and Energy Estimate, Overview” (website), https://www.eia.gov/state/analysis.php?sid=WY. By even the most generous estimation of “urban” population (counting people living in towns of 2,500 or more), Wyoming is 65 percent urban (and has only two cities over fifty thousand people), contrasting to the national average of 80 percent and the 95 or 85 percent urban populations of California or Colorado, respectively. Iowa State University’s Community Indicators Program (website), https://www.icip.iastate.edu/tables/population/urban-pct-states, in its 2010 urban population estimates includes as “urban” all people who live in “urban clusters,” defined as between 2,500 and fifty thousand people—accounting for Wyoming’s “65 percent urban” status.
7. How to govern natural resources to sustain future human societies is a challenge investigated by many current scholars. A strong line of research now argues that today’s troubles stem largely from old assumptions that simple, straight-line cause and effect approaches can accurately assess the impacts of human interaction with nature. The mantra of water management in the early twentieth century could have been, “Build a dam and you will have water when and where you want it; no unexpected consequences need apply,” but the expectation of simple, predictable, and controllable outcomes is incongruous in a natural landscape. Research suggests that the challenge for water allocation systems is to maintain dynamic response to both landscape and people. See Folke, Berkes, and Colding, “Ecological Practices and Social Mechanisms”; Gatzweiler, Hagedorn, and Siko, “People, Institutions and Agroecosystems”; Gunderson, Holling, and Light, Barriers and Bridges, 8–9; Holling, Gunderson, and Peterson, “Sustainability and Panarchies”; and Holling, Gunderson, and Ludwig, “In Quest of a Theory.”
The Setting
1. Knight et al., Mountains and Plains, 3–4, 27–38. Longstanding climatic conditions are set out in Wyoming Climate Atlas, by Curtis and Grimes. Wyoming precipitation: Curtis and Grimes, chapter 4, 59–80. Precipitation figures for other states, based on NOAA National Climatic Data Center figures, are summarized in “Average Annual Precipitation by State,” https://www.currentresults.com/Weather/U.S./average-annual-state-precipitation.php. Population estimates are from the historical bible of Wyoming, Larson’s History of Wyoming; the 1890 US Census Bureau summary of population for each state; and, for Wyoming in 2017, based on US Census reports released May 2018, at http://eadiv.state.wy.us/pop/Place-17EST.htm.
2. Cassity, Wyoming Will Be Your New Home, 89, describes Wyoming homesteaders “going against the grain” and in subsequent chapters describes the forces that led to current landownership patterns, pictured in figure 1.3 in Knight et al., Mountains and Plains. For acreage requirements for grazing, see Larson, History of Wyoming, 173.
3. Larson, 406–7, 431–39, 510–12, describes the history of the state’s minerals industry since 1910. Minerals (including oil and gas) represented about 30 percent of the state’s gross domestic product by 2017; agriculture contributed about 1.5 percent (commercial hunting and fishing, a lively arena in Wyoming, is counted in “agriculture” in the national statistics categories cited here); and tourism 3.7 percent: see Economically Needed Diversity Options for Wyoming (ENDOW), Socioeconomic Report, Appendix, 34, 54, 315. But as a recent commentator on the tourism industry has noted (see Western, “Evolving Wyoming Tourism,” 8), tourism is coming up—sales tax from tourism came close on the heels of sales tax from the minerals industry—but the much greater “severance taxes” on minerals removed from the ground, and mineral royalties, have been revenue sources the state has relied on.
4. Jacobs and Brosz, Wyoming’s Water Resources, 1–4; Wyoming Water Development Commission (WWDC), Wyoming Framework Water Plan Vol. 1 (see especially sections 3.1 and 5.2). Agricultural commodity and value figures for 2019 (topped by cattle and calves, followed by hay): US Department of Agriculture (USDA), National Agricultural Statistics Service, Wyoming Statistics.
5. Jacobs and Brosz, 3–4, 7; WWDC, “Platte River Basin Plan: Executive Summary,” 8–9.
Chapter 1
1. Elwood Mead to Grace Raymond Hebard, March 27, 1930, in “Recollections of Irrigation,” 10, Elwood Mead Papers. Mead wrote to Hebard when she was collecting documents in 1930 relating to Wyoming statehood and constitution for the University of Wyoming archives. They were old friends; Hebard had briefly been secretary to the state engineer when Mead held that position in the 1890s.
2. “Theresa A. Jenkins Speech,” Cheyenne Daily Sun, July 24, 1890, 1, Wyoming State Library’s Newspapers Database, https://pluto.wyo.gov/awweb/main.jsp?flag=browse&smd=1&awdid=1.
3. “Judge M. C. Brown Speech,” Cheyenne Daily Sun, July 24, 1890, 5, Wyoming State Library’s Newspapers Database, https://pluto.wyo.gov/awweb/main.jsp?flag=browse&smd=2&awdid=22; Larson, History of Wyoming, 259.
4. “Theresa A. Jenkins Speech,” 1890.
5. Larson, History of Wyoming, 248–49; MaryJo Birt, “To ‘Hold a More Brilliant Torch:’ Suffragist and Orator Theresa Jenkins,” Wyoming State Historical Society (website), WyoHistory.org, published August 29, 2019, https://www.wyohistory.org/encyclopedia/hold-more-brilliant-torch-suffragist-and-orator-theresa-jenkins.
6. “Theresa A. Jenkins Speech,” 1890.
7. “Governor Warren Speech,” Cheyenne Daily Sun, July 24, 1890, 4, Wyoming State Library’s Newspapers Database, https://pluto.wyo.gov/awweb/main.jsp?flag=browse&smd=2&awdid=21; Larson, History of Wyoming, 263–66. For more on Wyoming and women’s suffrage as a territory and state, see Tom Rea, “Right Choice, Wrong Reasons: Wyoming Women Win the Right to Vote,” Encyclopedia, Wyoming State Historical Society (website), published November 8, 2014, https://www.wyohistory.org/encyclopedia/right-choice-wrong-reasons-wyoming-women-win-right-vote.
8. Larson, History of Wyoming, 253–54; Phil Roberts, “Wyoming Becomes a State: The Constitutional Convention and Statehood Debates of 1889 and 1890—and Their Aftermath,” Encyclopedia, Wyoming State Historical Society (website), published November 8, 2014, https://www.wyohistory.org/encyclopedia/wyoming-statehood.
9. Mrs. I. S. Bartlett, “Poem: The True Republic,” Cheyenne Daily Sun, July 24, 1890, 5.
10. Gillette, Locating the Iron Trail, 76–77.
11. Gillette, 76–77.
12. Mead, Second Annual Report, 1889, 19.
13. Kluger, Turning on Water with a Shovel, 3–13; Mead Scrapbooks, in Elwood Mead Papers; “Average Annual Precipitation by State,” Current Results Weather Science (website), https://www.currentresults.com/Weather/U.S./average-annual-state-precipitation.php.
14. Wilson, “Farming and Ranching,” 27, 95, 162–64.
15. Wilson, 27, 95, 162–64.
16. Woods, Wyoming’s Big Horn Basin, 13–24.
17. “The Indians,” excerpt from Territorial Governor John A. Campbell’s inaugural address to the first Territorial Legislature, October 13, 1869, in “To Make the Desert Bloom,” Hoopengarner, 75, app. A, 254–55; “Memorial to President Ulysses S. Grant,” General Laws, Resolutions and Memorials, 1713–16; “Memorial to the Honorable Commissioner,” General Laws, Resolutions and Memorials 1871, 143–44; Kruse, “The Wind River Reservation 1865–1910,” n.p.
18. “Buffalo, WY,” clipping files, Johnson County Public Library and American Heritage Center, University of Wyoming. Water rights records on French Creek for John Fisher, May 10, 1883, in Board of Control (BOC), Tabulation of Adjudicated Surface Water Rights for Div. II, 1999. Fisher was predecessor of a key named defendant in Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 P. 258 (1900), see discussion that follows.
19. BOC, Tabulation for Div. II, 365–67; Mead, Water Right Problems, n.p.
20. Mead, Water Right Problems.
21. Younger sons of British aristocratic families had ranches for health, entertainment, and occasional profit along the southern Big Horns in the 1880s. The first dude ranch in Buffalo opened in about 1911; “Buffalo, WY,” clipping files, Johnson County Public Library. Some cowboys became ranch owners by marrying “girls with checkbooks”—girls whose city families brought them to the dude ranches; Phyllis Hall, interview with author, September 1996.
22. Don Hall, interview with author, September 1996.
23. Nettleton to Mead, January 21, 1888, Elwood Mead—Federal Government Officials 1886, 1888–1890, State Engineer Elwood Mead Records 1886–1892.
24. Mead, “Recollections of Irrigation,” 3, Mead Papers; Larson, History of Wyoming, 150–58; Gould, Wyoming: A Political History, 96–100.
25. Mead, “Recollections of Irrigation,” 3–4.
26. Warren Papers; Hansen, “The Congressional Career of Sen. Francis E. Warren”; Larson, History of Wyoming, 140–41; F. E. Warren to J. M. Carey, December 11, 1886, box 27, folder 7 in Carey Family Papers.
27. See generally Gould, Wyoming: A Political History: frontispiece photo, Francis E. Warren.
28. Warren letters, June 9, 1888, June 15, 1888, Warren Papers. In March 10 1882, (Letterbook 4, p. 110), Warren Papers, Warren commented on measures he got passed in the territorial legislature “without a dissenting vote. This took good financing, ‘you bet.’” Larson, History of Wyoming, 158–62; Mead, “Recollections of Irrigation,” 5, Mead Papers.
29. Mead, “The Ownership of Water,” 85–87.
30. Woods, Horace Plunkett in America, 52–54, 155–58; Larson, History of Wyoming, 304.
31. The territorial statutes of 1887, backed by the stockmen, called for the creation of a territorial engineer, who was to recommend a new water law for the territory; Mead, Irrigation Institutions, v.
32. Mead (all), First Biennial Report, 32; Second Biennial Report, 35; Irrigation Institutions, viii, 10–12, 369–73; “Government Aid and Direction,” 72–98; “Reclamation and Rural Life,” May 5, 1925 speech, Elwood Mead Papers of the Water Resources Collections and Archives, UC Riverside.
33. Kluger, Turning on Water with a Shovel, 24; Hays, Conservation and the Gospel, 51–53, 69, 74–77. Mead and Pinchot were not allies. When Mead was in Washington a decade later, they occasionally skirmished; Hays, Conservation and the Gospel, 243–44.
34. Mead in “Irrigation in Australia,” Independent, n.d., ca. 1913, clipping file in Mead Papers. Mead described his strong belief about the public nature of water as a major reason he had gone to Australia in 1907 to work for the State of Victoria, noting that there, “laws governing the ownership and use of streams carried into effect the principles for which I had been contending in America for twenty years. The profligate surrender to private ownership of water powers worth untold millions of money has never been a feature of Victorian development.” Mead expressed the same views in Mead, Third Biennial Report, 57–61; and Irrigation Institutions, 374–77. He compared the idea of a state granting term-limited water rights to a city granting term-limited franchises to public utilities; Irrigation Institutions, 376.
35. Mead to State Engineer Clarence Johnston, July 1908, in Johnston, Ninth Biennial Report, 76.
36. Mead, First Biennial Report, 22–36; Kluger, Turning on Water with a Shovel, 25–26; Conkin, “The Vision of Elwood Mead,” 88–97.
37. Mead, Second Annual Report, 96. As territorial engineer, Mead made two annual reports, which thus precede the biennial reports made as state engineer.
38. Dunbar, Forging New Rights, 73–85.
39. Dunbar, 73–85; Tarlock, “The Future of Prior Appropriation,” 779; Tarlock, “How Well Can Water Law,” 9–11; Horwitz, The Transformation of American Law, 32–43; Pisani, Water, Land and Law, 8–11.
40. Clawson and Held, The Federal Lands, 15–27; Carstensen, The Public Lands: Studies, xxi–xxvi; Pisani, 11–20.
41. Pomeroy, Treatise on the Law, secs. 12–44; Pisani, 7–23, 63; Wilkinson, Crossing the Next Meridian, 17–21, 232–35; Wilson, America’s Public Lands, 23–33.
42. Mead, “Recollections of Irrigation,” 10–11, Mead Papers; Pomeroy, secs. 12–44; Lasky, “From Prior Appropriation to Economic Distribution,” Rocky Mountain Law Review 2, 35; Wilkinson, 234–35.
43. Dunbar, Forging New Rights, 73–85; Pisani, Water, Land and Law, 11–12, 24–37; Pomeroy, secs. 12–44. As Pomeroy describes, courts went through some gyrations to find a private right to water on the public domain, ultimately holding that use of a stream could lead to a right to use it if the “true owner” like the federal government did not intervene.
44. Lasky, “From Prior Appropriation to Economic Distribution,” Rocky Mountain Law Review 2, 35.
45. Dunbar, 60–66, 73–85; Pisani, 24–37; Mead, “The Ownership of Water,” 85–87.
46. Mead to Johnston in Johnston, Ninth Biennial Report, 76. Mead cited both Hall and Powell in his 1887 speech to Colorado farmers; “The Ownership of Water,” 81–84, referring to Powell’s 1879 Lands of the Arid Region and Hall’s 1886 Irrigation Development.
47. Mead, “The Ownership of Water,” 81–82.
48. Hall to Mead, October 4, 1889, Elwood Mead—Federal Government Officials 1886, 1888–1890, State Engineer Elwood Mead Records 1886–1892. Nettleton expressed his doubts, more mildly, in Nettleton to Mead, July 24, 1888 (same source).
49. Mead, Irrigation Institutions, 207.
50. Standard elements of prior appropriation law are listed in Tarlock and Robison, Law of Water Rights and Resources, §5:44, and described in Wilkinson, Crossing the Next Meridian, 235.
51. Dunbar, Forging New Rights, 97–105; Mead, First Biennial Report, 68–69.
52. Mead, Second Biennial Report, 34–39; Mead, “The Ownership of Water,” 84; Powell’s endorsement of tying water rights to the land watered appears in Powell, Report on the Lands of the Arid Regions, 43.
53. Mead, “The Ownership of Water,” 82–89. The quotes are on 89, 87, 82, respectively.
54. Dunbar, Forging New Rights, 102–6; Pisani, Water, Land and Law, 21–22. Journals and Debates of the Constitutional Convention, statements of George Fox (Laramie) and Charles Burritt (Buffalo), 295, 504–5. Judge Melville Brown of Laramie, chairman of the convention, objected strenuously, but to no avail, to priority based on the date of a water right, Journals, 503–4.
55. Mead, Second Biennial Report, 37–48 and Irrigation Institutions, 82.
56. Mead, 39.
57. Mead, 40.
58. Wyoming State Engineer, 26th Biennial Report 1941–42, 81.
59. Mead, Second Biennial Report, 37–39.
60. Mead, First Biennial Report, 56–60; Mead, Second Biennial Report, 20–22; Hays, Conservation and the Gospel, 265–66.
61. Mead, Second Biennial Report, 33–48.
62. Wyo. Constitution art. VIII, sec. 3; Sess. Laws 1890–91, 8 §34; Mead (all), Second Biennial Report, 39–41, 51–54; Third Biennial Report, 37–46; Irrigation Institutions, 268–71.
63. Mead, First Biennial Report, 56–69 and Irrigation Institutions, 252–59.
64. Mead, First Biennial Report, 57, and Irrigation Institutions, 247, 256–59.
65. Mead, First Biennial Report, 15–21.
66. Mead explained in an 1898 report to the state, for instance, that there were times when the public interest would require, in the case of irrigation, issuance of a new permit to cover land already covered by an earlier state water permit, because the plans based on the earlier permit had not worked out, and the water had not been used. Mead, Third Biennial Report, 62–63 (see discussion in chapter 3 of this book). He saw his Wyoming system, creating stability and certainty in water rights in the place of the confusion and litigation that had dominated most of the West, as the necessary groundwork for the economic changes and new water demands ahead. Mead, Irrigation Institutions, 261, 377. For the lease and rental fee, see Mead, Third Biennial Report, 57–66, quotation at 60; Mead, Irrigation Institutions, 374–76. Term-limited permits for resource use were much discussed among Progressive Era policymakers, Hays, Conservation and the Gospel of Efficiency, 79–81. Wyoming municipalities could acquire land and irrigation water for municipal use under Wyo. Constitution art. XIII, sec. 5; Mead, Second Biennial Report, 38.
67. Wilson, America’s Public Lands, 43; Nicole Lebsack, “Crook County, Wyoming,” Encyclopedia, Wyoming State Historical Society (website), WyoHistory.org, published November 8, 2014, http://www.wyohistory.org/encyclopedia/crook-county-wyoming.
68. Elinor Ostrom and her colleagues have demonstrated through extensive research that resources like grazing lands, classified by them as “common pool resources,” have been managed sustainably for centuries governed by common property systems. Resources governed by such systems have historically been called “commons.” In economic analysis language, resources that are hard to keep people away from have low “excludability,” while resources readily diminished by others’ use have high “subtractibility”; common pool resources have both attributes. Typical examples of such resources are grazing lands, flowing water, ocean fish, and forests (many of which are the very resources whose dwindling supplies are a challenge in the twenty-first century). Ostrom, Governing the Commons, 1–28; Ostrom, Understanding Institutional Diversity, 24; Dietz et al., “The Drama of the Commons,” 3–35.
69. Frank Benton, identified as a thirty-year Wyoming cattle man, in a speech to the American Cattlemen’s Association, 1902, in Dew, “Frustrated Fortunes,” 150. Ostrom notes that such sentiment has been expressed by a variety of thinkers since Aristotle. Ostrom, Governing the Commons, 2.
70. Some historians and economists mistakenly cite the deterioration of public rangelands in the United States during the late nineteenth century as an example of Garrett Hardin’s famous “Tragedy of the Commons.” Hardin’s analysis suggested that resources like grazing lands, which he labels a “commons,” will inevitably be degraded. He concluded that to avoid that result, such resources must be owned and managed either by private parties or a government. Hardin, “The Tragedy of the Commons,” 1243–48. Ostrom and her colleagues have pointed out that what Hardin describes was not a “commons” problem but an “open access” problem, where a common pool resource (though perhaps on paper “owned” by a government) was not managed in any way but was simply left open to whoever might happen to use it. Degradation is indeed the usual result of that situation. Research by Ostrom and colleagues shows that common pool resources can be sustainably used for centuries if they are not left to open access but instead are managed under a common property system finely tuned to local conditions. Dietz et al., “The Drama of the Commons,” 11–12.
71. Cassity, Wyoming Will Be Your New Home, 8–19; Board of Control, Tabulation for Div. II; Larson, History of Wyoming, 133; Gould, Wyoming: A Political History; Whitehead, The Compiled Laws of Wyoming, 377–79.
72. Cassity, 12–66; Wilson, America’s Public Lands, 23–33; Larson, 173–78. The Homestead Act, the Desert Land Act, and other legislation of the period did not stop speculation or land monopolization, or even succeed in giving small settlers the best chance at obtaining public lands, as some backers had intended. Gates, “The Homestead Act in an Incongruous Land System,” 315–19, 340; Ganoe, “The Desert Land Act in Operation,” 142–57.
73. Larson, History of Wyoming, 190–94; Woods, Sometimes the Banks Froze, 42–45; Ann Noble and Albert Sommers, tour and interview with author, June 30, 2018.
74. Larson, 163–94; Cassity, Wyoming Will Be Your New Home, 67–96.
75. J. David to J. M. Carey, April 13, 1888, box 27, folder 17, Carey Family Papers. “Under the present order of conducting the cattle business, hay is of vital importance and too much of it can not be raised,” wrote Carey’s ranch foreman in Meeteetse in northwest Wyoming’s Big Horn basin. This letter and others to Carey also discussed how best to handle land claims filed by various entry-men to ensure that the lands involved would be held by Carey and Brothers Co. See also Kirk to J. M. Carey, January 24, 1887, box 27, folder 11; J. David to J. M. Carey, March 9, 1888, box 27, folder 17; E. David to J. M. Carey, April 16, 1888, box 27, folder 17.
76. Total irrigation “enterprises” undertaken in Wyoming, figures most likely provided by the Wyoming State Engineer’s Office for decades or five-year periods from before 1860 to 1919, are included in the special 1920 census report on irrigation; US Department of Commerce, Irrigation and Drainage, 332.
77. Blake, Van Devanter, and Caldwell, Revised Statutes of Wyoming, 366 (Title 19, Irrigation); 1888 Wyo. Sess. Laws, 55. For Mead comments on the territorial water statutes, see Mead, Second Biennial Report, 35–37.
78. Mead, “Recollections of Irrigation,” 5, Mead Papers.
79. Mead, First Biennial Report, 61–62.
80. Mead, “Recollections of Irrigation,” 5–9.
81. Mead (all), First Biennial Report, 66–68; Second Biennial Report, 30, 33–35; Third Biennial Report, 43–45.
82. Gould, Wyoming: A Political History, 83–113; Mead, “Recollections of Irrigation,” 11–13, Mead Papers.
83. Wyo. Constitution art. I, sec. 31.
84. Wyo. Const. art. VIII, sec. 1.
85. Wyo. Const. art. VIII, sec. 3.
86. Wyo. Const. art. VIII, sec. 2 and 5.
87. Wyo. Const. art. VIII, sec. 2 and 5; Mead, Second Biennial Report, 37–44.
88. Wyoming Constitutional Convention, Journal and Debates, 1893.
89. Mead, “Recollections of Irrigation,” 13, Mead Papers.
90. Mead, 11.
91. Associated Press, “Appeal of Letter Draws Dr. Elwood Mead to Hyattville: Commissioner of Reclamation who was Territorial Engineer to Attend Pioneers’ Picnic,” June 19, ca. 1930, Mead Biographical File, American Heritage Center, Laramie, WY.
92. Mead, “Recollections of Irrigation,” 10, Mead Papers.
93. Mead, Third Biennial Report, 149–54.
94. Cassity, Wyoming Will Be Your New Home, 53–87; Larson, History of Wyoming, 268–84.
95. Smith, The War on Powder River; Dew, “Frustrated Fortunes,” 70; Davis, Wyoming Range War, 79–180.
96. Report of the Public Lands Commission, S. Doc. No. 154 at xxi, 58th Congress 3rd Session (February 13, 1905).
97. S. Doc No. 58–154 at xxi.
98. Dew, “Frustrated Fortunes,” 134–281.
99. Davis, Wyoming Range War, 196–214, 247–54.
100. Larson, History of Wyoming, 284–90.
101. Davis, Wyoming Range War, 200–205; Burritt to Warren, Wyoming Historic Materials, 1892–1951, Brock Papers.
102. Hays, Conservation and the Gospel, 243–44; Mead, First Biennial Report, 33–36; Mead, Second Biennial Report, 30–36; Dew, “Frustrated Fortunes,” 41–82; Cassity, Wyoming Will Be Your New Home, 146–59, 266–83.
103. Mead, First Biennial Report, 56–62.
104. Mead, “Recollections of Irrigation,” 13–16, Mead Papers.
105. Smith, War on Powder River, 185; Mead, “Water-right Problems,” 32.
106. Mead, “Water-right Problems,” 32.
107. Larson, History of Wyoming, 287; Sheridan Press, July 30, 1977, article on Henry Coffeen.
108. In 1915–1916, for instance, Mead chaired the Central Board of Cost Review for the US Reclamation Service; Gillette, in turn, reported to Mead as chair of the Board of Review for the Northern Division of the Reclamation Service. Kluger, Turning on Water with a Shovel, 74; Yale University, Obituary Record of Graduates, 128.
109. Mead, Third Biennial Report, 149–50; Board of Control (BOC), “Clear Creek Adjudication,” 186–87.
110. BOC, 186–87.
111. Mead, Third Biennial Report, 151.
112. Mead, 151.
113. Mead, 150–51.
114. Mead, 151.
115. Faulkner, American Economic History, 636–38; BOC, “Clear Creek Adjudication,” 182–87.
116. In what follows, quotes and background come (except where otherwise noted) from the decision and the case file (including briefs for plaintiffs and defendants) deposited in the Wyoming State Archives for Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 P.258 (1900).
117. Farm Investment Co., brief of plaintiff at 51.
118. Id. brief of plaintiff at 24–25, 72; see also the Wyoming Supreme Court’s summary of the plaintiff’s argument, in its decision in Farm Investment Co. at 258.
119. Farm Investment Co., brief of plaintiff at 51.
120. Id. at 26–27.
121. Moyer v. Preston, 6 Wyo. 308 (1896)
122. The Compiled Laws of Wyoming, sec. 1, reads: “All persons who claim, own, or hold a possessory right, or title, to any land or parcel of land, within the boundary of Wyoming Territory, when those claims are on the bank, margin, or neighborhood, of any stream of water, creek, or river, shall be entitled to the use of the water of said stream, creek, or river, for the purposes of irrigation, and making said claim available, to the full extent of the soil, for agricultural purposes.” Sec. 2 then says if the land needing irrigation is “too far removed from said stream,” then the landholder is entitled to a right of way for a ditch through others’ lands. Whitehead, The Compiled Laws of Wyoming, 377.
123. Pomeroy, Treatise on the Law; Moyer v. Preston, 6 Wyo. 308 (1896).
124. Moyer, 6 Wyo. at 319.
125. Pomeroy, §100, concludes his discussion of the prior appropriation system by saying:
The principal defect of the system, the one capable of working the greatest injustice, is inherent in the very theory itself, in its fundamental conception. This defect is the total absence of any limit to the extent of a prior appropriation,—to the amount of water which may be taken,—except the needs of the purposes for which it is made. The prior appropriator, in order to carry out a purpose regarded by the law as beneficial, of great magnitude,—such, for example, as an extensive system of hydraulic mining, or the irrigation of a large tract of farming lands, or, doubtless, the supply of a municipality,—may divert and consume, without returning to its natural channel, the entire water of a public stream, no matter what may be its size or length, or the natural wants of the country through which it flows. . . . In this manner the natural benefits of a stream to the lands situated upon its bank throughout its entire length may be completely destroyed, and the natural rights of all persons who should afterwards settle and purchase lands adjoining the stream may be totally ignored, disregarded and abrogated by such a prior appropriation.
Italics in original; idiosyncratic punctuation (“,—”) is also in original. For a modern critique of western water law, see for example Wilkinson, Crossing the Next Meridian, 20–27, 230–47.
126. 1901 Wyo. Sess. Laws 67 §2.
127. Farm Investment Co., 9 Wyo. at 124.
128. Wyoming Constitutional Convention, Journal and Debates, 510.
129. Farm Investment Co., 9 Wyo. at 124.
130. Id. at 127.
131. Id. at 137.
132. Id. at 136.
133. Id. at 140.
134. Id. at 142.
135. Id. at 142.
136. Id. at 142, citing Kinney, A Treatise on the Law, sec. 493.
137. Dunbar, Forging New Rights, 113–32.
138. Mead (with Warren’s help) became the head of irrigation investigations for the Department of Agriculture’s Office of Experiment Stations in early 1899. Kluger, Turning on Water with a Shovel, 26–27; Bond, Fifth Biennial Report, 68.
139. Report of Edward Gillette, superintendent, Division 2, in Mead, Third Biennial Report, 151.
Chapter 2
1. Heritage Book Committee, Pages from Converse County’s Past, 546.
2. Larson, History of Wyoming, 263.
3. Larson, 321, 447–49. Carey’s career included territorial delegate pushing for statehood, US senator drafting with Mead the 1894 “Carey Act” fostering state investment in irrigation, switching to Democratic Party after political split with Warren, and election as governor 1910 seeking progressive ballot and initiative reforms. Larson, 319–25, 330–34. Democrats first used the “grand old man” label for Carey in the 1910 campaign.
4. Kennedy, “Memoirs,” 281–88, quotation 285–86. Kennedy was prominent in the statewide Republican Party in the 1910 campaign and felt badly for any Republican nominee who “would be confronted with the irrepressible Judge Carey filled to the brim with venom and highly capable of putting up a campaign which would stir the Republican Party to its very soul”; Kennedy, 285.
5. Larson, History of Wyoming, 319–25, 330–34, 447–48; Gould, Wyoming: A Political History, ix, 48, 77–82. Fenimore Chatterton, a Republican politician, Wyoming Secretary of State, and acting governor, a little younger than Warren and Carey, wrote bitterly, even fifty years later, of Warren’s “Machine” in Chatterton, Yesterday’s Wyoming: The Intimate Memoirs, 94–103.
6. Larson, 447–48, 125–27, 101–6; Gould, Wyoming: A Political History, 52, 75–77; Spring, “Carey Story is a Wyoming Saga,” 10; “Joseph M. Carey,” Biography, Wyoming State Historical Society, WyomingHistory.org, published November 8, 2014, http://www.wyohistory.org/encyclopedia/joseph-carey; Pexton, “Carey-Bixby Ranch,” 4–5 (Pexton is coeditor on Heritage Book Committee, of Pages from Converse County’s Past, cited throughout this chapter); Larson, History of Wyoming, 69. Carey’s wife was distantly related to President William Howard Taft. Heritage Book Committee, Pages from Converse County’s Past, 142.
7. Wilson, “Farming and Ranching,” 185–202; Hoopengarner, “To Make the Desert Bloom,” 81–89. Quotation, at Hoopengarner 218, is from an 1871 congressional committee report on the organization of “Indian territory” and the irrelevance of the wishes of the native people it affected: “We see nothing about Indian nationality or Indian civilization which should make its preservation a matter of so much anxiety to the Congress or the people of the United States. The fundamental ideal upon which our cosmopolitan republic rests is opposed to the encouragement or perpetuation of distinctive national characteristics and sentiments in our midst. We see no reason why the Indian should constitute an exception.”
8. Spring, “Carey Story is a Wyoming Saga,”10; Pexton, “Carey-Bixby Ranch,” 4–5; David, Malcolm Campbell, Sheriff, 60–70; Flannery, John Hunton’s Diary, vol. 3, 67.
9. Frink, Cow Country Cavalcade, 10: “After 1867, the railroad provided a means of shipping eastward directly from Wyoming. Grazing land could be had for the taking. A man could move in, build a cabin and corrals, and call it a ranch, stocking it with cattle that could range far and wide to fatten on free grass. It was the grass that made cow country”; Clay, My Life on the Range, 73, 154. Free grass attracted many, including Scots, who lived in a land where grass for livestock was dearly bought. Clay, 155–56, quotes a prospectus issued by Scottish investors, 1882: “The ranch was secured . . . at a period when a wide selection of pastoral ground still existed. Its advantages are . . . a sufficiency of the most nutritious grasses for 50,000 head of cattle; a low rate of mortality, averaging from one per cent in favorable seasons, to five per cent in severe winters. There is no doubt whatever that the high price of Cattle will continue, as the proportion of Cattle to population in the United States diminishes rapidly. Even without in any way anticipating the increase to which these conditions point, cattle raising in the Western States of America is at the present time one of the most lucrative enterprises in the world.” The houses cattle kings built that hosted adventuring visitors included Frewen’s Castle; Woods, Moreton Frewen’s Western Adventures, 55, discussed later in this chapter. For the Cheyenne Club, see Clay, My Life on the Range, 72–78.
10. Spring, “Carey Story is a Wyoming Saga,” 10–11; Frink, Cow Country Cavalcade, 38–47.
11. Larson, History of Wyoming, 141. The Republican Central Committee first offered the territorial delegate nomination to Warren, who declined—preferring the governorship, to which he was appointed by President Chester Arthur in early 1885. Larson, 139–41.
12. David, Malcolm Campbell, Sheriff, 70–71. Campbell’s reminiscences, dictated to David. Of the ranching industry from the 1870s into the early 1880s Campbell said, “Soon the entire country was to be checkerboarded with ranch limits. The entire country was divided into cattle ranges, the boundary lines of which were defined by certain creeks and rivers.” The rule of thumb for recognizing a company’s “home range” was ten square miles around water that thirsty cattle could drink. The rule was recognized routinely by men working on the range: “Straying cattle were turned back to their home feeding grounds as a matter of courtesy by the first cowpuncher who found them”; in David, 71.
13. Clay, My Life on the Range, 66–67, 232–47. Clay noted that the WSGA started by protecting its members’ interests at cattle markets further east but then “branched off into range protection” against cattle thieves, which got it involved in “sordid” Wyoming politics; 66–67. For non-member views of the WSGA, see Davis, Wyoming Range War, 47–49; Smith, The War on Powder River, 60. See also Jackson, “Wyoming Stock Growers’ Association: Political Power,” 571–94; “The Wyoming Stock Growers’ Association: Its Years of Temporary Decline,” 260–70; “The Administration of Thomas Moonlight,” 139–62.
14. Davis, Wyoming Range War, 47–50; Smith, The War on Powder River, 27–29, 51–63. “The maverick law of 1884 lit the powder train which led to the Johnson County explosion,” says Smith. The disposal of unbranded mavericks was an increasingly controversial problem as herds crowded the range in the profitable mid-1880s. The Wyoming law of 1884 put control of those mavericks solely in the hands of the WSGA. The organization could and did, in effect, ensure that the cattle were auctioned off only to ranch-owner members, never to cowboys, and then kept the cash proceeds of maverick auctions to use for whatever purpose it chose, including range detectives to track down alleged cattle thieves. “Class legislation,” said the Buffalo correspondent of the Laramie Boomerang in February 1884; Smith, 61. Smith blames much of the blacklist rule and the maverick law on WSGA secretary Thomas Sturgis, who was a close associate of Carey’s. Sturgis was described by Clay in 1883 as “the leading man in Wyoming, exercising a wonderful influence” and as secretary of the WSGA, one who “showed great skill in steering the ship” through “sordid” Wyoming politics; Clay, My Life on the Range, 65–67. The stock industry in neither Montana nor Colorado adopted the blacklist rule, and though they too had to deal with mavericks, they did not take the Wyoming approach to that issue. Both states created public commissions to dispose of mavericks found on the range to the highest bidder, cowboy or no; in Montana, key issues such as roundup times, maverick sales, and disposition of maverick sale proceeds were left to local committees. For the wage cut and strike in 1886, “the only cowboy strike in the history of the northern range,” see Smith, The War on Powder River, 31–33. In a small but telling example of cattle company views of settlers, one settler was allowed to keep a milk cow, but the nearby company branded its calf each year to ensure that the man wouldn’t get into the cattle business; Davis, Wyoming Range War, 37.
15. For post-1887 cattle business, see Clay, My Life on the Range, 93–96, 136–44, 247. Appropriate to an era of experimentation in the business world, the larger stockmen in the WSGA and other states in 1887 moved into an attempt at vertical integration, with the American Cattle Trust, to control both beef production and marketing and to escape the grip of eastern meat packers and their low prices. The trust lasted only until 1890. Trust organizers included Warren and Sturgis. Gressley, “The American Cattle Trust,” 61–72; Davis, Wyoming Range War, 49. On small settlers, see Cassity, Wyoming Will Be Your New Home, 82–84. On land and water fraud, see Annual Report of the Commissioner, 74–75, 100–101; Davis, Wyoming Range War, 36; Larson, History of Wyoming, 173–82. In April 1886 reports and a June 5 letter, General Land Office (GLO) agent James A. George named stockmen Frank Wolcott and Thomas Sturgis (prominent associates of Carey’s) and well-known lawyer Stephen Downey in fraudulent land filings. George described generally (it was outside federal jurisdiction) the practice of filing oversized water claims under territorial water law: “[They] keep settlers off as effectually as though they had a Chinese wall around the land. They do this by incorporating ditch companys [sic] and, by appropriating all the water that the stream affords, debar every settler from using any water in the stream, either above or below.” Microfilm selection from US GLO records, “Report of Fraudulent Claim or Entry,” and “Supplemental Report,” University of Wyoming Microfilm, roll 1, n.p. An inspector in Dakota Territory reported, “The idea prevails to an almost universal extent that, because the government in its generosity has provided for the donation of the public domain to its citizens, a strict compliance with the conditions imposed is not essential. Men who would scorn to commit a dishonest act toward an individual, though he were a total stranger, eagerly listen to every scheme for evading the letter and spirit of the settlement laws, and in a majority of instances I believe avail themselves of them. Our land officers partake of this feeling in many instances, and if they do not corruptly connive at fraudulent entries, modify their instructions and exceed their discretionary powers in examinations of final proof”; Annual Report of the Commissioner, 50–51. In Kansas, Nebraska, and Dakota Territories, this inspector reported such land-officer behavior was marked under the timber-culture laws. Carey claimed to have planted, starting in 1883, nearly sixty thousand trees north of Cheyenne, where most of them died. He described his efforts and stated that the law could not be complied with “in the arid region,” and federal agents gave him title to the 160 acres involved, under the Timber Culture Act. Larson, History of Wyoming, 174. For Carey’s lands in Converse County and fraud charges, see Heritage Book Committee, Pages from Converse County’s Past, 546; US GLO, “Report of Fraudulent Claim or Entry,” and “Supplemental Report,” UW microfilm, roll 1, n.p.
16. Larson, History of Wyoming, 160 (CY ranch in what became Casper), 304 (irrigation colony created by the Wyoming Development Company and run later by its farmers as the Wheatland Irrigation District). By the mid-1890s, at least, the Wyoming Development Co. under Carey provided “perpetual” water rights with land they sold to project settlers so “every settler owns his water right”; in Carey to J. M. Gordon, August 8, 1895, and text for Wyoming Development Co. circular, 86–87, 378, box 57, Carey Family Papers. On land fraud complaint against Carey, see US GLO, “Supplemental Report” (see full citation in note 15) containing handwritten copy of complaint filed by J. Slichter, W. B. Wood, A. Shaffer, March 18, 1886. The three men noted good soils and timber on the supposed “desert” land and concluded their complaint by saying, “Now we would like if you would come and look at this land as soon as you can conveniently, so that we can get a crop on it yet this season if we get the land, and obliged, yours respectfully.” The investigating agent reported that on receipt of the complaint and accompanying survey, he inspected the property in April 1886, and in May 1886 recommended cancellation of the Desert Land Entries Carey claimed.
17. Heritage Book Committee, Pages from Converse County’s Past, 545–47; railroad arrival in Douglas and Casper, Larson, History of Wyoming, 159; John Slichter in BOC, “Testimony in Proof #3321”; US GLO, “Report of Fraudulent Claim or Entry,” microfilm, roll 1, n.p. Summary of Slichter testimony in Cheyenne to GLO office, December 1886, in “Brief for Contestee Joseph E. Taylor” (entryman who sold the land to Carey), in Carey Family Papers, box 27, folder 4.
18. Pages from Converse County’s Past, a book memorializing the creation of the county in 1888, includes interviews and memories written by county settlers, like Jesse Slichter (who died in 1962), as well as pieces on early families and notables written by members of the Wyoming Pioneer Association.
19. Heritage Book Committee, Pages from Converse County’s Past, 546 (John Slichter family).
20. Heritage Book Committee, 142–43 (Edward David family).
21. Larson, History of Wyoming, 182; Carey in BOC, “Testimony in Proof #3322”; Heritage Book Committee, Pages from Converse County’s Past, 142.
22. Slichter, in BOC, “Testimony in Proof #3321.”
23. Larson, History of Wyoming, 290–93. In 1894, when the Republican Party in Wyoming was poised for comeback after the 1892 political debacle following the Invasion, Wyoming Republicans kept Warren in the US Senate but ditched Carey in favor of a new face. At the time, US senators were elected by the legislature, but the majority Republican legislature cast not one vote for Carey. Strong constituent views against having two US senators from Cheyenne were reportedly part of the reason. Warren refused to defer to Carey for the Senate seat, writing to a colleague, “Now I am not against Carey, but I am for Warren”; Larson, 292.
24. Johnston was president of the company in 1894 and was still associated with it in 1918 as a shareholder; Carnes, “The Wyoming Development Company,” 49, 106.
25. Larson, History of Wyoming, 254–55; Riley, “A Memorial to the Members,” 183–84.
26. Slichter, in BOC, “Testimony in Proof #3321”; Carey in BOC, “Testimony in Proof #3322.”
27. Carey, BOC. Carey apparently used what he called the “Slichter Ditch” to help distribute water over land already irrigated by an earlier ditch of his own.
28. BOC, Tabulation of Adjudicated Surface Water Rights, Div. I, 1996, 312–13.
29. John Slichter appears in a photograph of the “First Jury in the State,” in Wyoming State Archives, Bio File–C. W. Horr (John Slichter is misidentified as Jesse in the photo notes); Jesse left the ranch, worked in town, and was county assessor, 1915–18; Charley stayed in ranching and was a two-term county commissioner, Heritage Book Committee, Pages from Converse County’s Past, 546–47 (John Slichter Family), 544 (Charles Slichter family).
30. David, Malcolm Campbell, Sheriff, 5–6, 67–68, 71–72.
31. David, 71–72; Heritage Book Committee, Pages from Converse County’s Past, 545; Gould, Wyoming: A Political History, 36–39. Campbell described a brawl at old Fort Fetterman in 1882 after the roundup; see David, Malcolm Campbell, Sheriff, 72–76.
32. Heritage Book Committee, Pages from Converse County’s Past, 649 (Frank Wolcott), citing Owen Wister diary entry, July 16, 1885. General Land Office, April–June 1886 reports, US GLO microfilm, roll 1 (full citation in note 15).
33. Heritage Book Committee, Pages from Converse County’s Past, 648–49, 143; David, Malcolm Campbell, Sheriff, 130–31, 133–34; Clay, My Life on the Range, 138–40, and on Wolcott’s plan for the Invasion, 268–69.
34. David, 82–83.
35. David, 68, 135.
36. David, 69.
37. Heritage Book Committee, Pages from Converse County’s Past, 142–43.
38. David, Malcolm Campbell, Sheriff, 69–71.
39. Buffalo Bulletin April–May 1956, file 18 in J. R. Smith Papers; “Smith Ranch on Crazy Woman Oldest Place in Johnson County,” Buffalo Bulletin (Buffalo, WY), August 16, 1956; Davis, Wyoming Range War, 16–17. On dry conditions, Mike Whitaker (Water Division II Superintendent), interview with the author, April 2000; on creek diversions, see Division II superintendent Kawulok’s report in Christopulos, Annual Report of . . . 1982, 109–10. In the 1890s, Mead, aware of Crazy Woman’s chronic shortages, had staff investigate a possible trans-basin diversion from Tensleep Creek on the west side of the Big Horn Mountains to Crazy Woman on the east. The idea was determined infeasible. Mead, Fourth Biennial Report, 103–4.
40. Buffalo Bulletin April–May 1956, file 18 in J. R. Smith Papers; “Smith Ranch on Crazy Woman Oldest Place in Johnson County,” Buffalo Bulletin (Buffalo, WY), August 16, 1956; Davis, Wyoming Range War, 17, 42.
41. David, Malcolm Campbell, Sheriff, 70–71.
42. Woods, Moreton Frewen’s Western Adventures, vii, 19, 55; Moreton Frewen to Hesse, April 1884, urged “doing all we can to take up the water on the North Fork.” Smith cites the letter as preserved in the microfilmed American letters of Horace Plunkett, the third son of Irish nobility, who had established a nearby ranch and started joint operations with Frewen’s in 1885. Smith, War on Powder River, 96; West, Horace Plunkett, Cooperation and Politics, 1–4; Woods, 132.
43. For Hesse’s and Canton’s personal histories and invasion role, see Smith, War on Powder River, 109, 119; Davis, Wyoming Range War, 14–15, 32–33, 50–54. In 1885, to bolster his water claims, Canton managed to summon up a three-man commission—provided for under the territory’s early water law—to apportion water in the Little North Fork on the spot, allocating much of that little creek to his company, which boasted plans for irrigating and selling water. Such a commission was provided for in the 1870s “in case the volume of water in said stream, creek, or river, shall not be sufficient to supply the continual wants of the entire country through which it passes, then the county commissioners . . . shall appoint three commissioners, as hereinafter provided, whose duty it shall be to apportion, in a just and equitable proportion, a certain amount of said water, upon certain, or alternate weekly days to different localities, as they may, in their judgment think, best, for the interest of all parties concerned, and with due regard to the legal rights of all.” Whitehead, The Compiled Laws of Wyoming, 377. A record of the commission Canton invoked is in Johnson County Civil Case #234, Crazy Woman Decree (1889), transcript of petition for apportionment, 1–2.
44. For 1885 range conditions, see Smith, War on Powder River, 95. For Smith’s 1886 concerns, see Johnson County Civil Case #234, Crazy Woman Decree (1889), J. R. Smith testimony, 2–4.
45. Johnson County Civil Case #234, certified transcript of county records, apportionment and county surveyor’s certificates 1–21; certified transcript of water and ditch claims, 1–25 (showing Smith filed in 1886, his claim of starting ditch in 1879).
46. Johnson County Civil Case #234, Smith testimony, 4, January 31, 1889. The district courts had the exclusive power to settle water rights questions, under the Water Law of 1886, chap. 61, §9. Evidence was to be taken on the ditches and other water use facilities (and diligence in constructing facilities), chap. 61, §15. The language the Crazy Woman court used regarding irrigated acreage echoed what the 1886 statute required as far as information claimants were to file with the county clerk: “the number of acres of land lying under and being, or proposed to be, irrigated by water from such ditch, canal or reservoir,” chap. 61, §10.
47. Johnson County Civil Case #234, decree of court, July 15, 1889. See also Table No. 3 listing Crazy Woman ditches as in 1889 court decree; in Mead, Second Annual Report, 80–81; BOC, Adjudicated Tabulation of Water Rights, Div. II, 1999, 447, “Crazy Woman Creek . . . as established by the Decree of the Court of the Second Judicial District.” Smith was awarded 67 cubic feet per second (cfs), Canton 26 cfs, and Hesse 130 cfs. One irrigator on the creek got rights to water that amounted to one cubic foot of water per second for every hundred acres. Smith did a lot better—his award gave him one cubic foot of water for every eighteen acres of the 1,200 acres he would irrigate. The standard Mead later imposed statewide, after experimentation with crops, gave people a lot less water per acre than Smith’s allotment; Mead’s standard was one cubic foot of water for seventy acres. For the controlling position of the Smith right: Zezas Ranch Inc. v. Board of Control, 714 P. 2d 759 (Wyo. 1986), see answer brief of the State Board of Control, June 10, 1985, 10–11.
48. Davis, Wyoming Range War, 33, 88–89, 139–41.
49. Davis, 83, 143, 158. Campbell said of Barber, “Perhaps no one on the range was accorded the wealth of affection from the ordinary run of cowboys as well as from the cattle kings as was Dr. Barber”; David, Malcolm Campbell, Sheriff, 82.
50. Davis, Wyoming Range War, 157–58, 165.
51. Smith, War on Powder River, 283.The superintendent of Division II complained in 1906 of the problems of managing Crazy Woman Creek under the court decree: “The irrigation officers cannot follow the orders in said decree and give justice to the appropriators. The decree does not fit the situation and I believe the court was not fully informed of the conditions at the time the decree was granted.” He longed for Board of Control review (Johnston, Eighth Biennial Report, 68) that did not occur until the early 1980s. Christopulos, Annual Report of . . . 1982, 109–10; Division III Superintendent Cooper’s report in Christopulos, Annual Report of . . . 1982, 118–24.
52. Houston Williams, interview with the author, May 2000.
53. Christopulos, Annual Report of . . . 1982, 109–10 and 118–24. Zezas Ranch Inc., 714 P.2d at 760–61, 763–65; Craig Cooper, interview with author, August 2000. The neighbors claimed that much of the large water right on the old Smith ranch had been “abandoned” (see abandonment discussion, chapter 4). The district court and the Wyoming Supreme Court found that original decree language ordering that claimants get the water “necessary and useful” for their acreage, in an amount “not to exceed” the cfs then listed in the order, meant that the water rights had never really been quantified, and that was an appropriate job for the board. The board, in fact, when given this opportunity by the Wyoming Supreme Court, quickly revised all the water rights on Crazy Woman that had been brought into question by the Zezas case (those included Smith’s, Canton’s, and Hesse’s) to the statewide one cfs per seventy-acre standard, as much easier to administer.
54. Mike Whitaker (Water Division II superintendent), interview with the author, April 2000; Craig Cooper (Division III superintendent), interview with author, August 2000.
55. Wyoming Session Laws of 1886 provided that water commissioners had the duty to divide water according to priority, chap. 61, §4; but (perhaps since the commissioners were to be paid, by the counties, only per day of actual work) the laws enacted that same session went on to say, in a section captioned “Commissioners to perform duties only when necessary,” that “said water commissioners shall not begin their work until they shall be called on by two or more owners or managers, or persons controlling ditches in the several districts, by application in writing”; 1886 Wyo. Sess. Laws 61 §8. That language survived Mead’s overhaul of Wyoming water laws in 1890, being re-enacted in 1890 Wyo. Sess. Laws 8 §45. It was repealed in 1901, perhaps due to misplaced confidence among Mead’s successors in the capacity of far-flung water commissioners to be on every stream that needed management, whether called upon or no; 1901 Wyo. Sess. Laws 102 §2. Craig Cooper, interview with author, 2000; Wyoming Statutes Annotated, 41–3-606; substitution of local arrangements for strict enforcement of priority rights is common in western states, Tarlock “The Future of Prior Appropriation,” 778–80.
56. Wyo. Constitution art. I, sec 31.
57. Heritage Book Committee, Pages from Converse County’s Past, 563–65 (Addison Spaugh, foreman of Converse County Cattle Co.), 545–47 (John and Sarah Slichter Family) 135–37 (George H. and Lea Cross family). Olson, Ranch on the Laramie, 14–19. On Carey and Kendrick, see Trenholm, Wyoming Bluebook, 3:4, 250; Larson, History of Wyoming, 387–93; Cynde Georgen, “John B. Kendrick: Cowboy, Cattle King, Governor and U. S. Senator,” Encyclopedia, WyoHistory.org, Wyoming State Historical Society, published November 8, 2014, https://www.wyohistory.org/encyclopedia/john-kendrick. Kendrick’s acquisition of some of his ranch land is in “Over A Century of History,” Trail End State Historic Site (website), trailend.org/kendrick-ranches.html. Starting in 1908, Kendrick built a nearly 14,000-square-foot mansion on a hilltop overlooking the town of Sheridan. It featured a ballroom on the top floor and, reflecting Kendrick’s fascination with technology, a specially designed wooden staircase with features that looked like nuts and bolts. Kendrick called the house Trail End, and it is now open to the public as a state historic site. Cynde Georgen, “Trail End Historic Site,” Encyclopedia, WyoHistory.org, Wyoming State Historical Society, published November 8, 2014, https://www.wyohistory.org/encyclopedia/trail-end-state-historic-site.
Chapter 3
1. John H. Gordon to his cousin David, December 19, 1881, John H. Gordon Biographical File.
2. Gordon, “Personal History” (unpublished manuscript), 6, 19, 23. Gordon Biographical File.
3. Mead, Third Biennial Report, 18.
4. Mead, First Biennial Report, 24.
5. In the early 1900s, the State Engineer’s Office had inadequate funding and staff for a rapidly growing workload as more lands were settled. The four division superintendents were falling behind in their inspections and adjudications of territorial claims and state permits, and they sometimes paid meeting expenses out of their own pockets; Bond, Sixth Biennial Report, 54–58, 66–70. They, and the engineer, regularly took on survey and engineering work of their own to make a living. Nonetheless, the new agency provided a communications network for on-site water users, who had as yet few organizations of their own. The superintendents and their part-time “commissioners” monitoring and regulating streams lived in their divisions, pursued their own livelihoods, and communicated regularly with water users. The superintendents and the state engineer met twice a year as the Board of Control to confirm adjudications and rule on proposals from users to change a water use or argue that a neighbor had forfeited a water right; 1890–91 Wyo. Sess. Laws, 8 § 25–26, 34; Mead, Third Biennial Report, 37–45; Johnston, Seventh Biennial Report, 19–20. This made conflict resolution low-cost for users (who did not have to attend). Mead, Irrigation Institutions, 247. For the five board members, however, even getting together was expensive; it took days to cross the state by horseback, wagon, or coach on rough roads, and train service reached only a few places; Mead, Fourth Biennial Report, 72; Johnston, Seventh Biennial Report, 30–35.
Centralized state administration looked elegant on paper, but it was patchy in action. That provided opportunities for users to change how the system worked—a classic example of what economist Douglass North calls an opportunity for entrepreneurs to change the institutions within which they work; North, Institutions, Institutional Change, 83–89.
6. John H. Gordon, “Personal History,” (unpublished manuscript), 25–29. Gordon identified the purchasers of his Laramie River ranch in about 1884 as Teschemacher and de Billier; at 28. After the disastrous year of 1886–87, H. E. Teschemacher and Frederick de Billier were ruined, and later they joined the Invasion of Johnson County; Clay, My Life on the Range, 77; Davis, Wyoming Range War, 143. Gordon’s Scottish friend was Andrew Gilchrist, later a prominent ranchman based in Cheyenne involved in establishment of the irrigation colony at Wheatland; Progressive Men of the State, 355–57.
7. Gordon, “Personal History,” 25–29.
8. Mead, First Biennial Report, 73–74.
9. Horse Creek figures in Mead, Third Biennial Report, 46. Gordon quote in Gordon, “Personal History,” 29.
10. Johnston v. Little Horse Creek civil case (1895). Regarding George Baxter’s biography, see Davis, Wyoming Range War, 78, 135, 139, 206, 230; Gould, Wyoming: A Political History, 93–96; Mercer, The Banditti of the Plains, xlvii; Larson, History of Wyoming, 249; Riley, “Memorial to the Members,” 179–81. Baxter grew up in Tennessee and married “a wealthy Tennessee girl.” He helped raise $100,000 for the legal defense of the invaders, an amount “dwarfing the expenditures of Johnson County” for prosecution; Davis, Wyoming Range War, 206.
11. Johnston v. Little Horse Creek civil case (1895)
12. Johnston v. Little Horse Creek Irrigating Co., 79 P. 22 (Wyo. 1904), 223. Johnstons listed in the case file are James R. Johnston, George D. Johnston, Lizzie D. Johnston, and Harry Homer Johnston. The Johnstons are described in glowing terms in Progressive Men, 502–4, probably funded by fees paid by the subject of each profile. James Johnston was one of the founding brothers who went west in 1849, and the quote about the “pluck,” etc., common to him and his son is on 504.
13. Johnston 79 P. 22 (Wyo. 1904); Indenture of October 30, 1894 between Springvale Ditch Co. and Little Horse Creek Irrigating Co., Records of the Laramie County District Court, Johnston v. Little Horse Creek, Docket # 6–233, box 2, Wyoming State Archives (explaining the week-by-week rotation the companies had arranged). Mead described his interpretation of these facts in his Irrigation Institutions, at 262–65 (written while the case was pending before the Supreme Court).
14. Mead, Third Biennial Report, 45–46, 52–53; Johnston civil case (1895).
15. Mead, Irrigation Institutions, 264.
16. Johnston 79 P. 22 (Wyo. 1904).
17. In a July 30, 1908, letter to the State Engineer’s Office, Mead described the effect of Potter’s decision as “mischievous,” saying, “Not only did that decision render meaningless and practically inoperative some of the most important features of the State’s water law, but, if carried to its logical conclusion, it would throw Wyoming back into the ruck of the arid States of America, whose water laws belong to the lower Silurian period”; Mead’s letter to State Engineer’s Office, in Johnston, Ninth Biennial Report, 76.
18. Mead, Irrigation Institutions, 262–65; Johnston 79 P. 22 (Wyo. 1904) 233–35.
19. 1905 Wyo. Sess. Laws 97.
20. Johnston, Eighth Biennial Report, 81–99. J. A. Johnston left the State Engineer’s Office the year Mead left, 1898. He became a director of the Stock Growers National Bank in Cheyenne, part of the financial empire of John Clay, cattle industry banker and key partner in a commission firm handling the marketing of Wyoming cattle. By 1907, J. A. Johnston was head of Clay’s commission house office in Denver; Wyoming Industrial Journal, no. 4 (September 1, 1899): 19; and Cheyenne Daily Leader, no. 109 (December 23, 1905): 10 (available in the Wyoming State Library’s Newspapers Database, http://newspapers.wyo.gov/); Woods, Commissionman, Banker, and Rancher, 215. Mead had J. A.’s son Clarence work summers for the State Engineer’s Office, serve as assistant state engineer, and then join him in Washington working on irrigation and drainage issues for the US Department of Agriculture. Clarence T. Johnston Biographical File, American Heritage Center, University of Wyoming. J. A. and Clarence kept up family ties, as in a 1907 family Christmas party with both attending; Cheyenne Daily Leader no. 85 (December 27, 1907): 5.
21. Johnston, Eighth Biennial Report, 84; Cooper, History of Water Law, 40; Mullen, Wyoming Compiled Statutes, 724 (beneficial use, and transfer ban), 725–26 (exception to transfer ban for list of preferred uses); Wyoming Statutes Annotated, 41–3-612 (rotation among water users).
22. Compare beneficial use language in Mullen, 724, Wyoming Compiled Statutes 1910, and Wyoming Stat § 41–3-101 (2011).
23. Johnston, Tenth Biennial Report, 17–29; quotations are from 28, 29.
24. Mead, Second Biennial Report, 34–46.
25. Johnston, Eighth Biennial Report, 70.
26. “Report of Superintendent Edward Gillette, Division No. 2,” in Mead, Third Biennial Report, 150–51.
27. Johnston 79 P. 22 (Wyo. 1904) 229, 232–33. In contrast to the 1904 court, Wyoming people by 1910 had essentially recognized a special kind of property right in water, illustrating Demsetz’s principle that property rights emerge when resource values rise. Demsetz, “Toward a Theory,” 347–59. Property rights outline the relations between people—privileges and obligations—over a resource; Meinzen-Dick and Nkonya, “Understanding Legal Pluralism,” 14. Political scientists, economists, and lawyers all agree that there is no single “property right.” Property owners hold a “bundle” of rights, and bundles can differ. Ostrom and Schlager have usefully identified basic rights to look for in classifying the property relations that different people may have in connection with a resource. They identified the right to access a resource; the right to withdraw portions of it; the right to manage how and when it is used; the right to exclude others from it; and the right to “alienate” or transfer a resource by sale or lease to another’s control. Schlager and Ostrom proposed that someone who holds all five of those rights, including alienation, is an “owner,” while those holding less than all five are not owners but should be identified with different terms. Schlager and Ostrom, “Property-Rights Regimes,” 251–54. Wyoming water users and the State Engineer’s Office had understood that there were a variety of possible property rights. They had decided that for water, the right of alienation—in the case of water, the right to transfer the resource to be used in another place—should not be put into private hands.
Mead had prepared water users to think that way in his reports in the 1890s. The average settler, Mead told them all in 1894, “has usually regarded an appropriation of water in much the same light as he regards acquiring title to land, and looks on nothing less than absolute ownership as adequate and proper. We [at the Wyoming Board of Control] have never been able to accept that view.” Mead, Second Biennial Report, 39–40. Eighty pages later he returned to that theme: “The difficulty is to draw the line between adequate protection to the appropriator and preservation of the rights of the public. To do this involves to many a new conception of property rights, few being able to conceive of any interest in water short of absolute ownership, which the Board is not disposed to sanction.” Mead, Second Biennial Report, 124.
28. Mead, “The Growth of Property,” 12.
29. George Baxter Biographical File; Riley, “A Memorial to Members,” 181; Gordon, “Personal History,” 30–31; Denver Sunday Post, May 28, 1899, reprinted in Read, Johnny Gordon Had a Dream, 2006.
30. Lou Blakesley quotation in Johnston, Tenth Biennial Report, 56.
31. Big Horn Power Co. v. State of Wyoming, 23 Wyo. 271, 148 P.1110 (1915). The constitution provided that permits could be denied. While outright permit denials were rare, many water permits were issued only after promoters revised their projects to make them more practical in the view of the engineer’s office; see Parshall, Eleventh Biennial Report, 10.
32. 1890–91 Wyo. Sess. Laws 8 §34, 36.
33. Johnston, Seventh Biennial Report, 12–13; see also Johnston, Ninth Biennial Report.
34. Mead, Third Biennial Report, 63–66: Mead to A. Gilchrist, April 20, 1892, box 1, folder 10, Carey Family Papers.
35. Mead, 63–66.
36. Davis, A Vast Amount, 1993; Davis, Goodbye, Judge Lynch, 2005; US census figures for Big Horn County (which in 1900 encompassed most of the Big Horn basin) can be found in Historical Decennial Census Population for Wyoming Counties, Cities and Towns, http://eadiv.state.wy.us/demog_data/cntycity_hist.htm; and Land Area and Decennial Housing Units for Wyoming Counties, http://eadiv.state.wy.us/demog_data/cntyhus_hist.htm.
37. Bonner, William F. Cody’s Wyoming, 2007
38. Blakesley, in Johnston, Tenth Biennial Report, 56.
39. Mead, Fourth Biennial Report, 93.
40. Elwood Mead to J. A. Van Orsdel, November 14, 1902, Mead-Van Orsdel correspondence file; “Andrew Gilchrist,” in Progressive Men of Wyoming, 355–57.
41. The 1894 Carey Act, as it was known nationwide, attempted to give the support and supervision of state governments to big irrigation projects, which had typically failed for lack of adequate financing and staying power. The Carey Act allocated federal lands to states to set aside for private irrigation projects where the state certified that sufficient water was available. The state was to enter a construction contract with the private company. The contract would include state approval of the amount the company could charge settlers for water rights on lands covered by the company’s irrigation system. Carey Act of 1894, 28 Stat 422, 43 U.S.C. § 641 (1976). In Wyoming, the company initially filed for water rights for the whole tract to be irrigated, and the company had to make project settlers owners of shares in the canal, with the price of the shares set by the state and paid for over time by the settler. Mead, Fourth Biennial Report, 21. The settlers’ water rights were adjudicated in each settler’s name and obtained the priority date of the initial water right filing by the company. See, for example, Solon Wiley’s Carey Act project, discussed in the text. Big Horn Development Co. Permit 233E, filed December 1896 (creating that priority date), in Wyoming State Engineer’s Office files, Cheyenne (hereafter cited as SEO Permit 233E).
42. Lindsay, The Big Horn Basin, 1930; Cook, Wiley’s Dream of Empire, 1990.
43. Lindsay, 1930; Curtis and Grimes, Wyoming Climate Atlas, 101, figures 6.4 and 6.5, net annual precipitation and annual precipitation, 1895–2003; Bond, Sixth Biennial Report, 47–53.
44. Van Orsdel, Biennial Report . . .1901–1902, 31–37, 82–88; SEO Permit 233E, filed December 19, 1896 (creating that priority date), and signed by Elwood Mead, February 10, 1897. Mead in 1902 described his action six years earlier regarding the Wiley project: “When Mr. Wiley took up the building of a canal along the line of the original Hay project [prominent Cheyenne banker Henry Hay was Gilchrist’s partner in the original bench land project], we discussed the effect of an assignment of the original Hay permit [to Wiley], but I could not approve the recognition of a priority for his project to date from that of the original Hay filing [1893], because it would work an injustice to other appropriators who had dug ditches and irrigated farms along the river between the time the Hay project was approved and abandoned. In this discussion, I told Mr. Wiley that his project was a new enterprise, having had no real connection with that of Mr. Hay and that I would only issue a permit on an application of the regular form, and only recognize a priority dating from the receipt of that application. He complied with this requirement, and his application as recorded and approved only gives him, in my opinion, a priority dating from its receipt in the State Engineer’s Office.” Mead to Van Orsdel, November 14, 1902. Hay, a delegate to the state constitutional convention, helped found the Stock Grower’s National Bank in Cheyenne (in which Gilchrist had major shares) and became the bank‘s president in 1894. He was also state treasurer 1895–1899, and again briefly in 1903. “Hon. Henry G. Hay,” in Progressive Men of Wyoming, 231–32; Trenholm, Wyoming Blue Book, 2:137.
45. Van Orsdel, Biennial Report . . .1901–1902, 31–37 (includes the question submitted by State Engineer Fred Bond); Mead to Van Orsdel, November 14, 1902, December 2, 1902.
46. Van Orsdel, Biennial Report . . .1901–1902, 31–37, 82–88.
47. “Biography, Josiah Alexander Van Orsdel,” Judges of DC District Courts, Historical Society of the District of Columbia (website), http://dccircuithistoricalsociety.org/Biographies/biosalpha.html; Peters, “Joseph M. Carey,” 15–16; Trenholm, Wyoming Blue Book, 2:172, 203.
48. Van Orsdel, Biennial Report . . .1901–02, 31–37.
49. Van Orsdel, 31–37.
50. Van Orsdel, 82–88.
51. Van Orsdel, 82–88. Van Orsdel argued that the construction deadlines in a state water project were imposed under state water laws, “the general statute” dating from 1890, but that the state had subsequently by statute implemented the Carey Act (currently Wyoming Statutes Annotated, § 36–7-101) and set terms for the contract, with no construction deadline. That “special statute,” enacted later than the general, must prevail. Van Orsdel noted the state Carey Act statute had also made the water for the project “appurtenant” to the land (appurtenant in a water context means any water rights go with the land in a land sale, unless the water is separately conveyed elsewhere). He also argued, in the June 30, 1902, opinion, that deadlines for putting water to use (as opposed to completing construction) certainly could not apply to the developer company in a Carey Act project, since only individual settlers could accomplish getting water on the land. In general, he said, whether an individual had gotten water on the land could only be determined by the Board of Control in an adjudication proceeding, which should consider whether the settler had used “reasonable diligence” to get water onto the land. With this reasoning, Van Orsdel paved the way for permits to acquire considerable practical and legal status in Wyoming water law, which ultimately encouraged numbers of users to believe they need not always bother to get their permits adjudicated.
52. Van Orsdel to Mead, August 19, 1902; quotations respectively from Mead to Van Orsdel, November 14, 1902; Van Orsdel to Mead, November 24, 1902. Mead-Van Orsdel correspondence file.
53. Farmer’s Canal was represented by Gibson Clark, a former Confederate soldier from Virginia who was a clerk in the trading post at Fort Laramie after the war, eventually studied law, and, a Democrat, was elected to the Wyoming Supreme Court in 1892 (the year of the Invasion of Johnson County that saw other Democrats elected in reaction). Clark left the court to serve as US district attorney for Wyoming under the Democratic administration of President Grover Cleveland, and then went back into private practice in 1898 when his term expired. Trenholm, Wyoming Blue Book, 2:201. Farmer’s Canal 1902–1904: Final Decree, June 14, 1904; SEO Permit 233E (full citation in note 41), endorsements for extension of time to show beneficial use of the water (the series of signed notes on the permit, by successive state engineers, initially to extend the time for getting water on the land, and eventually to cut out the project lands which saw no water, runs from 1902–69). The Farmer’s Canal and the Bench Canal, with others on what came to be known as the Greybull River, joined together in 1920 to form a district that could build reservoirs on the river, and did so in 1938, 1972, and 2005—with a Federal Emergency Administration of Public Works grant and loan for the first reservoir and a Wyoming Water Development Commission grant and loan for the last one. “About Us: A Brief History of Greybull Valley Irrigation District,” Greybull Valley Irrigation District (website), https://greybullvalleyid.com/.
54. Reclamation Act of 1902, Pub.L. 57–161, passed June 17. For the roles of Warren, Mondell and Mead, and Mead’s opinion of Mondell, Kluger, Turning on Water, 33–34. Key characters in passage of the Reclamation Act testified to their support for a national role in reclamation via irrigation in the West in 1905, as witnesses called by the government in a dispute between Kansas and Colorado over water in the Arkansas River, decided by the US Supreme Court in State of Kansas v. State of Colorado, 206 U.S. 46 (1907). Testimony on the passage of the Reclamation Act and its value from Wyoming players are in vol. 2 of the transcript for Kansas v. Colorado, in The Making of Modern Law, hereafter cited as “Kansas Transcript of Record,” at 1179–90 (Mondell), 1289–95 (Warren), 1323–1467 (Mead), 1055–59 (Van Orsdel), and 1047–55 (Clark). For enthusiastic newspaper coverage in Wyoming after President Theodore Roosevelt signed the Reclamation Act, see a report with photographs covering almost a full page: “The Irrigation Bill: How the Wyoming Members of Congress Worked for the Passage of the Measure and What It Means for the West,” Cheyenne Daily Leader, June 19, 1902. See also Lilley and Gould, “The Western Irrigation Movement,” 1966.
55. Deloria and Lytle, American Indians, American Justice, 1–12; Hoxie, A Final Promise, 1–188.
56. Shurts, Indian Reserved Water Rights, 5 (“coercive and vicious”), 119–25; Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); O’Gara, “Home From School,” September 1, 2017, WyoFile (website), http://www.wyofile.com/home-from-school/; Trenholm, Wyoming Blue Book, 2: 472; Mondell, Frank, “Autobiography, vol. 1,” 227, unpublished manuscript, in Mondell Papers.
57. Hoopengarner, “To Make the Desert Bloom,” 83–96; “When the Tribes Sold the Hot Springs,” Encyclopedia, Wyoming State Historical Society (website), published December 3, 2018, https://www.wyohistory.org/encyclopedia/when-tribes-sold-hot-springs; Mondell, “Autobiography,” vol. 1, 221–26, and vol. 2, 308–14. Quotations “preparing for cession” 1897, vol. 1, 226, “fair and fertile region,” vol. 2, 309, “grandiose plan” vol. 2, 310.
58. Hoopengarner, “To Make the Desert Bloom,” 83–96; Wilson, “Farming and Ranching,” 202–18; Kruse, “The Wind River Reservation,” n.p.
59. Wilson, 218–23; Shay, “Promises to a Viable Homeland,” 558–99.
60. Hoopengarner, “To Make the Desert Bloom,” 97–155. Johnston’s quote on promising agricultural prospects is in Eighth Biennial Report, 9. He notes Wyoming statutory authority from 1899 for his office to make surveys “to demonstrate the feasibility of various irrigation projects” at 10, and his discussion of his work to survey the project and launch it is 30–60. Chatterton, Yesterday’s Wyoming: The Intimate Memoirs, 55, 59, 99–103.
61. Permit #7300, August 7, 1906, State Engineer Permit Files, submitted and signed by Fenimore Chatterton as attorney for the Wyoming Central Irrigation Co., while Chatterton’s autobiography, 98, and state records show Chatterton was Wyoming Secretary of State until January 1907. Trenholm, Wyoming Blue Book, 2: 29–130. The entry notes that Chatterton remained the attorney for Wyoming Central Irrigation Co. until 1914. Chatterton in Yesterday’s Wyoming, 124, said regarding the irrigation project on the ceded portion of the Wind River reservation: “I personally had the water rights for 300,000 acres of land—now officially known as the Riverton Project.”
62. The Chicago investor who founded and headed the Wyoming Central Irrigation Co. was Joy Morton, founder of Morton Salt; Ballowe, A Man of Salt and Trees, 165–66. The quotation on the attitude of the settlers is from an unpublished, unfinished biography of Joy Morton, written by his son Sterling Morton toward the end of Joy’s life; see “Other Business Ventures,” 18, Morton Family Papers, box 50, folder 8, Chicago History Museum.
63. Cheyenne State Leader, October 20, 1910, 1, 8, quotation, 8; Hoopengarner, 97–155.
64. Hoopengarner, 166–97; Mondell, “Autobiography,” vol. 3, 657–63. These pages contain details on Mondell’s work to get money for irrigation surveys and construction on the ceded portion of the reservation—the portion opened to white settlers, and particularly the area that became the Riverton Project (now home of Midvale Irrigation District) run by the Bureau of Reclamation (in 1920, known as the Reclamation Service). Mondell was successful over several years in ensuring that money for the Riverton Project came from the “Indian appropriations bills,” which Congress used to provide funding for Indian reservations. Mondell commented that with $200,000 allocated to the Riverton Project in the Indian Appropriation Act of 1920, “Thus at last the project was underway with an Indian Bill appropriation but under Reclamation Service control, a hybrid but nevertheless an established project,” 662. Mondell crossed out these pages and this detail, to shorten his autobiography as serialized in Wyoming newspapers in 1935–36, but the pages still remain, completely readable, in the manuscript at the American Heritage Center, where the newspaper serial version is also preserved, in Collection 01050, box 23, folders 3 and 4.
65. Hoxie, A Final Promise, 158–61, describes how lease and sale of allotments became possible under federal law.
66. Winters v. United States, 207 U.S. 564 (1908). Shurts (2000) provides an excellent, detailed description of the context and implications of the Winters case in the early twentieth century.
67. Shurts, Indian Reserved Water Rights, 6. Winters, 207 U.S. 564 effectively allowed an “inchoate, unquantified, flexible reservation of water”; Shurts, 8–9. Westerners worked around the prior appropriation doctrine “to reserve water and watersheds for coordinated and comprehensive economic development,” 17–34. Pages 103–18 describe the competing interests in Montana’s Milk River valley leading up to and after the Winters case.
68. Van Orsdel was a witness in Kansas v. Colorado, 206 U.S. 46, (1907), a dispute between Kansas and Colorado over the Arkansas River. That dispute posed the question: Between downstream and upstream states on the same river, states with different rates of development, who had the best right to water? And did the Reclamation Act mean the federal government was the prime decision maker on what water went where in the West? Federal lawyers called on witnesses from Wyoming (both an upstream and downstream state, depending on the river involved) to bolster the case for a US government role. See “Kansas Transcript of Record,” vol. 2 at pages cited in endnote 54 for Wyoming witnesses; Van Orsdel’s testimony, as attorney general of Wyoming, is at vol. 2, 1055–59 of the transcript. The high court rejected federal intervention, and favored an “equitable apportionment” of water, to sort out the competing needs of Kansas and Colorado. But in 1906 Van Orsdel’s appointment as an assistant attorney general in Washington had him working with the lawyers who had made him a witness for the United States in Kansas, 206 U.S. 46. One of the cases he soon went to work on was Winters, 207 U.S. 564, then before the US Supreme Court. For Winters, the solicitor general’s brief and also the supplemental brief, the latter signed by Van Orsdel as apparently the lead author, are found in the Transcript of Record (file date November 20, 1906, term year 1907), in the Supreme Court records and briefs database The Making of Modern Law: U.S. Supreme Court Records and Briefs, 1832–1978, 180–213, 227–68, hereafter cited as “Winters Transcript of Record.” The solicitor general’s brief highlighted the Montana treaty and its intent: the Indians were to be farmers, and to farm there they needed water. The solicitor general argued further that Montana water law had a hint of “riparian” rights in it, for land that was not in the public domain (where prior appropriation ruled). So, the solicitor general argued, the water for the reservation had no cap or deadline; it should be available whenever and in whatever amount reasonably needed for farming. “Winters Transcript of Record,” 180–213. (Shurts, in Indian Reserved Water Rights, 43–50, ably explains the role riparian rights played in water law discussion at the time.) Van Orsdel filed the supplemental brief, initially focused on narrow jurisdictional questions raised by the other side, but then going to the merits. He launched an argument different from the solicitor general’s, saying that the United States, by setting aside land for an Indian reservation, had protected from appropriation all the water needed for that land. Van Orsdel mentioned the treaty intent argument but emphasized this alternate argument, an argument much like his argument in the Carey Act situation in Wyoming in 1902. He summarized his argument as, “The United States by setting apart and holding this land as an Indian reservation thereby reserved it from the public domain and exempted from subsequent adverse appropriation, under either the public-land laws of the United States or the laws and customs of Montana, the uninterrupted flow of all water necessary to its beneficial use,” in “Winters Transcript of Record,” 243.
In its final Winters decision, the US Supreme Court homed in on both the solicitor general’s argument on the intent of the treaty and Van Orsdel’s argument on the authority of the federal government to reserve land and water from the reach of state water law. On that point the high court said, “The power of the government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be”; Winters 576–77. In its Winters ruling on that point, the high court cited a comment it had made in 1899, cited also by Van Orsdel for the same point; “Winters Transcript of Record,” 245. The court had suggested in 1899 that when the United States owned land bordering on a river, state water law could not deprive the government of the right “to the continued flow of its waters, so far, at least, as may be necessary for the beneficial uses of the government property”; United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690 (1899) at 702–3. In that case, the United States had opposed the plans of a private company with New Mexico state permits to construct a dam on the Rio Grande. The court ruled that the state’s right to impose the law of prior appropriation on its rivers was limited by the superior power of the US government to ensure navigable rivers remained navigable. The court noted in passing that the only other ground for limiting state authority to set the law for use of rivers would be that states cannot destroy the right of the United States, as owner of property by a stream, to the continued flow of water in that stream, at least as necessary for the purposes of the US property. Though this statement was made only in passing in 1899, the court then quoted it with approval in Kansas, 206 U.S. 46 and ultimately in Winters 207 U.S. 564. Van Orsdel did not cite the 1899 Supreme Court decision in his 1902 opinion on the water rights of Carey Act lands in Wyoming, but he would have been aware of it then. The principle of tribal water rights dating from treaty dates has since been known as the principle of “reserved water rights,” echoing the language of Van Orsdel and the top court.
69. Shurts, Indian Reserved Water Rights, 202–5; United States v. Hampleman, Case No. 763 (D.Wyo. 1916) (Hampleman was the water commissioner on Owl Creek, and a water user himself, upstream of the Duncans. The action he took as water commissioner appeared to be intended to ensure water reached other settlers, with 1880s rights, at the mouth of the creek on lands that had not been part of the reservation created in 1868.); Wadsworth, “Wind River Indian Reservation Annual Report, Narrative,” 1912, box 1, file 107, RG 75, National Archives; “Report of Superintendent of Water Division No. 3,” in Parshall, Eleventh Biennial Report, 30–31.
70. Shoshone and Arapaho tribes with H. E. Wadsworth, Clerk Mayer, and Inspector Norris, “Minutes of Council Meeting,” May 28–29, 1912, box 6, file 215, pp. 1–7, 9–10, 13–14, 20, Shoshone and Arapaho Business Council Proceedings, RG 75, National Archives (hereafter cited as “Minutes of Council Meeting”).
71. “Minutes of Council Meeting,” 6–13. Comments of Joe Lajeunesse, Shoshone and president of the Business Council 6–7; Calvin Littleshield, Arapaho 7–8; Big Plume (Yellow Calf), Arapaho 8–11; Rabbit Tail, Shoshone, 12; and Cook Tinzona, Shoshone, 13.
72. Big Plume, Arapaho, “Minutes of Council Meeting,” 10–11. Big Plume was often known outside his own people as Yellow Calf, his childhood name, and he appears in a 1908 photo of a Wind River delegation to Washington. Kruse, “Wind River Indian Reservation,” n.p. He was called Yellow Calf by the reservation agency translator and transcriber. By contrast to Big Plume’s statement, Dick Washakie, Shoshoni, said that the secretary if petitioned would only say the same as his officers, and, referring to Wadsworth, “My friend here has told the truth by telling us to sell a part of our land to improve the other part with the proceeds of the sale. We old people here, we are unable to work, we would like to sell our dead Indian lands and have all the cash right down so that we can make our living on it. What I have heard today I believe I understand everything and I believe it best to do what they want us to do”; 16.
73. Big Plume (Yellow Calf), in “Minutes of Council Meeting,” 8.
74. Tisse Guina, in “Minutes of Council Meeting,” 20.
75. Inspector Norris, in “Minutes of Council meeting,” 2, 6, 11–12, and quotation, 20.
76. Wadsworth, “Wind River Indian Reservation Annual Report, Narrative,” 12, 16. The Wind River superintendent worried in 1913 whether farming on remaining allotments was proceeding quickly enough, at 12: “Should the State of Wyoming be found to have control of the waters within the reservation it will be a serious proposition to save the water rights if the State carries out its intention of adjudicating the water rights Dec. 31, 1916.” For the agency’s response once Judge Riner’s decision in U.S. v Hampleman (D.Wyo. 1916) (the Owl Creek case) was issued in late June 1916, see “letter of July 26, 1916,” from the Assistant Commissioner of Indian Affairs in Washington to the Wind River agency enclosing a copy of Riner’s decision; and “letter of July 31, 1916,” from Wind River Special Agent Calvin H. Asbury (holding a temporary post pending appointment of a new superintendent) to W. T. Judkins, Riverton, enclosing a copy of the decree. Asbury: “I would appreciate it if you would give a little attention to the manner in which this decree is being obeyed; and also please explain to the Indians the substance of this decision, and assure them that their right to this water must not be interfered with by Mr. Hampleman or his employees”; in “Correspondence July 26 and 31, 1916,” in General Correspondence. US District Judge Riner’s decree of June 26, 1916, is in Hampleman, Case No. 763 (D.Wyo. 1916), found in Civil Case Files box 120, file 753, folder 2. Riner’s decree is not accompanied by a memorandum explaining his reasoning, in either file. For Riner’s earlier membership in Wyoming’s 1889 Constitutional Convention, see Trenholm, Wyoming Blue Book, 2:485. US District Judge Kennedy’s decree and memorandum of opinion of October 11, 1926, in United States v. Parkins, can be found in Civil Case Files box 257. Parkins was a non-Indian purchaser of allotments in 1912 who by 1920 failed to pay operation and maintenance costs for the reservation irrigation system, was accordingly denied water for those allotments, and then took water without permission from a different point on the system. Kennedy granted the United States a permanent restraining order against Parkins’s unpermitted diversion, ruling that the United States had the right to the water, for the benefit of the Indians, based on the 1868 treaty. United States v. Parkins, 18 F.2d 642 (D.Wyo. 1926), Judge’s Memorandum, 3–4.
77. 51 Cong. Rec. H12949 (daily ed. July 29, 1914) (statement of Rep. Frank Mondell); Shay, “Promises to a Viable Homeland,” 556–58.
78. Wilson, “Farming and Ranching,” 22–31, 216, 222–24.
79. Tom Rea, “Buffalo Bill and the Pony Express: Fame, Truth and Inventing the West.” Encyclopedia, Wyoming State Historical Society, WyoHistory.org, published September 5, 2015, http://www.wyohistory.org/essays/buffalo-bill-and-pony-express-fame-truth-and-inventing-west. Beck, “Autobiography” (unpublished manuscript); Gould, Wyoming: A Political History, 93, 185.
80. Mead, “The Cody Canal,” 12–14. The piece includes rosy descriptions of the Cody area the canal was to serve, the magnanimity of Buffalo Bill, and how the Carey Act helped make possible such a project, one that Mead said would not be feasible with only private capital.
81. Bonner, in “Elwood Mead, Buffalo Bill,” 44, concludes: “The financial disarray of the Shoshone Irrigation Company (Beck and Cody’s company organized to build the Cody Canal) can be traced directly to its directors’ reliance on Elwood Mead’s assessment of the economic potential of their project.” In footnote 7, Bonner concludes: “When we take into account the construction difficulties he either did not foresee or drastically minimized, Elwood Mead was a disaster as a consulting engineer.”
82. “Permit #2111,” State Engineer Permit Files. Mead signed the permit May 22, 1899; he left for Washington later that year.
83. Bonner, William F. Cody’s Wyoming, 2007.
84. Bonner, “Elwood Mead, Buffalo Bill,” 43–44 (see his footnote 7), 46.
85. Correspondence File, December 17, 27, 1915, of Wyoming State Engineer’s Office, Wyoming State Archives.
86. True and Kirby, Allen Tupper True, 3–28, 236–39, 464.
87. “Permit #2111,” State Engineer Permit Files, containing True’s signature 1915 on time extension for the permit, and a brief explanation.
88. Charles E. Robinson family, Garland Division (told by his son Woodrow W. Robinson), Oral History, n.d., oral history files, Homesteader Museum, Powell, WY.
89. Bill Sedwick, Oral History, ca. 1977, oral history files, Homesteader Museum, Powell, WY.
90. Koelling, First National Bank of Powell, 19.
91. Koelling, 21. For more on the history of the Shoshone Project and the town of Powell, see Churchill, Dams, Ditches and Water and Churchill, People Working Together.
92. US Reclamation Service, “Cost of Water Per Acre,” 7; Lampen, A Report of an Economic Investigation, 53–65, 78, 83–86; Mead, “Shoshone Project: Testimony of Farmers, 1915,” Sumner Merring, 3–9, Robert Allan, 7–9, memoranda 32, in Mead Papers.
93. Mead, “Shoshone Project: Testimony of Farmers, 1915,” Albert Shoemaker, 12–13, in Mead Papers.
94. “Permit #2111,” State Engineer Permit Files, contains the date of all the permit expiration notices and subsequent extensions signed by successive state engineers; Wahl, Markets for Federal Water, 33–34; Government Accountability Office (GAO), Bureau of Reclamation, app. 3, p. 6. Permit 2111 was finally adjudicated in the Big Horn River Adjudication which began in 1977 and was completed in 2014 (see chaps. 5 and 6).
95. Emerson, Sixteenth Biennial Report, 51–58; Burritt, Report on Water Rights, 1935.
96. “Permit #7300” and notations thereon, State Engineer Permit Files. The lawyer for the Reclamation Service assigned to determine the status of land and water rights for the federal Riverton project in 1918 reported that he had consulted with the Wyoming State Engineer (James True), who said that “he would grant such reasonable extension as the United States might request. He expressed also a desire to cooperate to the fullest extent.” US Bureau of Reclamation (BOR), Riverton Project History, 1918, 43 (the report of District Counsel E. E. Roddis, in Denver). For use of Indian funds on the project, see Mondell, “Autobiography,” vol. 3, 662, in Mondell Papers and Riverton Project History, vol. 1, 8–9. The “Indian appropriations bill” for fiscal year (FY) 1918 and 1919 appropriated a total of $105,000 for initial surveys and then for plans and construction of the “Riverton Project.” Details include the Wind River Diversion Dam, the Wyoming Canal, Pilot Butte and Bull Lake reservoirs, etc., in Project History, vol. 1, 10–12. The FY 1919 appropriation of $100,000 for the project is in May 25, 1918, Public Law 159, 65th Cong. The language of the bill, discussing how the costs of construction will be reimbursed to the government (citing terms of the 1905 cession agreement), distinguishes between Indian-owned and settler-owned land for reimbursement terms. The idea that there were Indian-owned lands within the project boundaries (apparently pre-cession allotments obtained by some tribal members on the north side of the Wind River) may have been used as justification for funding this non-Indian, Reclamation Service project via an Indian appropriations bill. Vol. 1 of the Riverton Project History, however, notes that of project lands (i.e., on the ceded portion of the reservation), only 1.3 percent were Indian owned; 81 percent were still “public land” open to settlement; and 17 percent were already patented to settlers. Of all those, lands that were “improved” under the few ditches built by the failed company were selling for ten times the price of the bare lands with no ditches (unimproved land under those initial ditches was selling for four times the price of those bare lands with no ditches.). US BOR, Riverton Project History, 1918, 3–6.
97. Holt v. City of Cheyenne, 22 Wyo. 212, 137 P. 867 (1914).
98. In 1914, the Wyoming Supreme Court upheld the state engineer’s view that in actual distribution of the water, waste of water had to be avoided so that as many water users as possible could be served. In Parshall v. Cowper, 143 P. 302 (1914), the court upheld a state engineer order to restrict an irrigator to 0.38 cfs rather than the 1.8 cfs that the Board of Control had awarded in an adjudication some twenty years earlier. The state engineer had argued that despite what the adjudicated water right said, the irrigator’s ditch in 1912 was not capable of carrying more than 0.38 cfs, and the court concluded the irrigator’s water use could be restricted because the law on water commissioner duties (numbered 41–3-603 in modern statutes) provided that water commissioners controlling distribution could prevent waste. Parshall v. Cowper (1914) at 303–4.
99. Johnston, Seventh Biennial Report, 20; True, Thirteenth Biennial Report, 86–87.
100. Johnston, 11.
101. The concept of “relation back,” tying a water right priority date to first steps taken to obtain the water, predated Mead’s system, and the crucial “first step” was the permit application date under his system. The Wyoming Supreme Court upheld application of “relation back,” for Wyoming territorial rights and state-permitted rights, in a number of cases including Moyer v. Preston, 44 P.485 (1896) at 848, Van Tassel Real Estate & Live Stock Co. v. City of Cheyenne, 54 P. 2d 906 (1936) at 913. For an overall discussion of the doctrine of “relation back” see MacDonnell, “The Development of Wyoming Water Law,” 96–97.
102. For homesteading rates in Wyoming, see Larson, 173–78, 362, 414–16. For the “good faith” test for receiving land ownership following on a federal permit, see Spaulding, A Treatise on Public Land, secs. 76, 80, 103, 106.
103. True, Thirteenth Biennial Report, 86–87; 1917 Wyo. Sess. Laws 119. When Wiley relied on unused permits for his project back in 1902, Van Orsdel had noted that a penalty for missing permit deadlines was lacking in the Wyoming water statutes. The 1917 law put such a penalty in place.
104. James True to Ron Nebeker, September 30, 1918. Correspondence Files, State Engineer General Correspondence 1913–20.
105. Emerson, Fifteenth Biennial Report, 62–63. Correspondence files from True’s era show the State Engineer’s Office sending notices warning of default, but apparently that practice was followed less faithfully under other administrations. In 1977, the Wyoming Supreme Court in dealing with an unadjudicated permit from 1910 ruled that failure of the State Engineer’s Office to send such notices in subsequent years meant that while the water continued to be used, no forfeiture of the water rights under the permit could occur. Snake River Land Co. v. State Board of Control, 560 P. 2d 733 (Wyo. 1977), at 735–39. The court’s opinion in the 1977 Snake River Land case shows that for the 1910 permit, the State Engineer’s Office in the 1970s followed what had become common practice by then for water rights held only under permit; the permit holders were able to turn in affidavits showing use since the ditch was completed in 1911, and the water rights were finally adjudicated (in part), in 2016. Snake River Land Co. at 735; “Permit 10160,” John Love, State Engineer Permit Files.
106. Neighbors might watch to see if water diverted under a permit went to the lands that were originally planned; this had clearly been the case for six decades or so given the facts presented in Green River Development Co. v. FMC Corp., 660 P.2d. 339 (Wyo. 1983). Neighbors might not draw attention to water rights left unused for years, but they would be the first to know and could be ready to object if that water right were suddenly revived and the water diverted from the stream. This was demonstrated in Lonesome Fox Corp. 1981, in BOC, Order Record Book 27, at 19. To this day, however, a state permit remains an absolute requirement for a new water right. It is rare in Wyoming to see anyone attempt to claim a water right based merely on years of usage with no state water permit—and any such claims are uniformly thrown out. The legal concept of gaining a right based simply on years of usage is called “adverse possession,” or sometimes “prescription,” a concept from land law, which at one time had some sway in the water law of other states; see Trelease, Cases and Materials, 3rd ed., 203–5; Lewis v. State Board of Control, 699 P.2d 822 (Wyo. 1985).
107. In 1920, when users faced a drought year on top of a depressed agricultural market, juries in the Big Horn basin refused to convict on charges of water theft, even when unchallenged facts showed illegal use of water. On some creeks, the superintendent in the basin reported, neighbors decided to turn a blind eye to water rights sitting unused, and no one brought charges that the rights had been “abandoned” and should no longer be recognized; Emerson, Fifteenth Biennial Report, 81–82. Modern superintendents report the same problem: “Elected sheriffs & prosecutors don’t even like to bring charges against voting irrigators, let alone persuade rural juries to convict,” Jade Henderson (former superintendent Division IV, retired 2014), personal communication with the author, October 8, 2018.
108. The federal program embodied the kind of settlement policy and investment yearned for not only in the Big Horn basin but also in most of the rest of Wyoming. Starting in 1911, the legislature, disappointed in its hopes for population and agricultural growth, invested in a program to recruit farmers and capital to the state; Larson, History of Wyoming, 363–64.
109. Johnston, Eighth Biennial Report, 7, 28; Emerson, Sixteenth Biennial Report, 54–55.
110. In interstate water disputes, the US Supreme Court, in Kansas v. Colorado in 1907 (206 U.S. 46) and Wyoming v. Colorado in 1922 (259 U.S. 419) upset the theories of both those who thought the headwaters “state of origin” had the primary water rights, and those who thought priority dates of actual water use should work across state lines so the earliest development would have the primary rights. Willis Van DeVanter, Warren’s former political chieftain on the US Supreme Court of 1922, wrote the unanimous Wyoming v. Colorado opinion, much to regional dismay. The high court rulings (and the time and money spent on litigation) gave Emerson and other negotiators from the Upper Colorado River states reason to want to develop their own interstate agreements for water allocation, rather than seek court decisions. Tyler, Silver Fox of the Rockies, 15–20, 163–201, 218; Mackey, Protecting Wyoming’s Share, 41–70; Larson, History of Wyoming, 460–62.
111. US Department of Commerce, Irrigation and Drainage, 332, 339.
112. Mead, “The Growth of Property,” 3.
113. Mead testified in the Supreme Court case of Kansas v. Colorado, as did Van Orsdel, Carey, Warren, and other prominent figures in Wyoming (see note 54 above). In his 1905 testimony, Mead said that he admired Italian water law, as instituted in the nineteenth century, because it allocated water to the most benefit to the public (sometimes, the best economic use); rights to water there were allocated not based on time of the application for a right, but on the basis of the opinion of representatives of a variety of interests in government, from agriculture to the military, as to the relative benefits to the public of the proposed different uses. Kansas v. Colorado, vol. 1 transcript in The Making of Modern Law, 1368. Mead’s comments suggest that he might have preferred such a system for Wyoming and the West, but given the established popular custom of priority appropriation, he embodied the concept from Italy as best he could by including the concept of “the public interests” in the constitutional provision: “Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests”; Wyo. Const. art. VIII, § 3, and in his attention to public control of “public waters” in the structure of the State Engineer’s Office. Mead’s support of a short-term abandonment rule, and his emphasis on permit deadlines and the issuance of new permits to replace old unused ones, as seen in the Gray Bull River case, also sought to allow flexibility in water law to accommodate new uses, possibly better serving the public interests.
114. Mead discussed the proposals he put before Congress that failed, in a speech in Cheyenne in June 1925 covered by the Wyoming State Tribune and Cheyenne State Leader; found in Mead Scrapbooks, Mead Papers. As of 1922, just before Mead began as head of Reclamation, the agency had a lackluster record; many of the twenty-four projects built in the West appeared failed, because farmers had either defaulted on payments or abandoned projects. Less than 10 percent of $135 million spent on reclamation had been repaid, only seven percent of irrigated acres in the West were attributable to federal reclamation; Tyler, Silver Fox of the Rockies, 149.
115. Mead to Grace Raymond Hebard, April 25, 1929, box 1, file 1, Mead Papers. Hebard was head of the Department of Political Economy and Sociology at the University of Wyoming and had been Mead’s deputy when he became state engineer years before in Cheyenne. Hebard’s work with the State Engineer’s Office and her career at the university are described in Mike Mackey’s “Grace Raymond Hebard: Shaping Wyoming’s Past,” Wyoming Historical Society (website), WyoHistory.org, published November 29, 2014, http://www.wyohistory.org/essays/grace-raymond-hebard.
116. Lampen, A Report of an Economic Investigation, 1–2.
117. Anna Christofferson interview, Powell Tribune, 1979, Marse and Anna Christofferson Family, oral history files, Homesteader Museum, Powell, WY.
118. Betty Christofferson interview, 1996, Marse and Anna Christofferson Family, oral history files, 15–16, Homesteader Museum, Powell, WY.
Chapter 4
1. Trelease and Lee, “Priority and Progress,” 70.
2. Johnson, Trails, Rails and Travails; see 3–4 for “Horse Creek and Bear Creek Valleys,” quoting Nelson Sherard article in the Torrington Telegram in 1946; and 97–98, for “Nelson H. Sherard and Adella Hubbs Sherard,” by Donald Sherard (their son).
3. For the townsite company activity, see endnote 19, below. For Horse Creek flows, Hinckley Consulting and AMEC, Horse Creek Groundwater/Surface Water, 3–4.
4. Johnson, Trails, Rails and Travails, 3–4, 97–98.
5. On the trial of Tom Horn, see Larson, History of Wyoming, 372–74. LaGrange area and other ranchers on the jury are listed in Davis, The Trial of Tom Horn, 73–74. Nels Sherard’s interest in the trial is in “Reminiscences of Donald N. Sherard,” September 21, 2007, as told to his son Stephen Sherard, Wheatland, WY, typed manuscript on file with the author.
6. Map accompanying “Permit 5937 Sherard Ditch,” and two small reservoirs, Permit 494R, March 22, 1904, signed by surveyor John H. Gordon, State Engineer Permit Files; Johnson, Trails, Rails and Travails, 98.
7. Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P. 2d 572 (1939), Case File Docket 2093, case file: Abstract of Record on Appeal, Appellant (Lincoln Land. Co.), July 8, 1938; 9, Testimony of Nelson H. Sherard (for respondent Horse Creek).
8. Horse Creek Conservation Dist. 54 Wyo. 320, 92 P.2d 572 docket 2093, case file, at Abstract of Record on Appeal, Appellant (Lincoln Land. Co.), July 8, 1938, 18–19, Testimony of Hugh Stemler (for respondent Horse Creek); 15, Testimony of Earl L. Chamberlain (for respondent Horse Creek); 21–22, Testimony of Otis N. Lovercheck (for respondent Horse Creek).
9. Hugh Stemler, Otis Lovercheck, and Earl Chamberlain families in Johnson, Trails, Rails and Travails, 104–6, 81, 63–64.
10. Horse Creek v. Lincoln Land case file, Abstract of Record on Appeal, Commissioner Charles C. Donahue at 25–33, Superintendent L. C. Bishop at 33–34; Horse Creek v. Lincoln Land case file, Brief of Respondent Horse Creek Conservation Dist., September 20, 1938, 13–15. Water commissioner C. C. (“Clint”) Donahue came to the area with his parents at age twenty-one in 1904, homesteaded on his own, and then bought an 1883-origin ranch on Little Horse Creek. He married a neighboring young woman homesteader and installed what his neighbors considered an “ingenious” water system taking spring water to house, fishpond, and garden near Meriden. He worked as water commissioner for forty-five years, starting in 1916. His brother Dan, whose wife refused to come to Wyoming without her piano, ran a Meriden store that had a much-appreciated dance hall attached. Bastian, History of Laramie County, 241, 225.
11. Hinckley Consulting and AMEC, Horse Creek Groundwater/Surface Water, figure 2–14.
12. Horse Creek Readjustment of Rights, BOC, Petitions Granted Files: Letter of Frank Kittle, Superintendent of Division I, October 4, 1917; Wyoming State Board of Control, Board order January 7, 1918.
13. Utt v. Frey, 39 P 807 (Cal. 1895); CF&I Steel Corp. v. Purgatoire River Water Conservancy Dist., 515 P.2d 456 (Colo. 1973); Trelease, Cases and Materials, 188–205.
14. “Abandonment” and “forfeiture” are not completely interchangeable terms. Abandonment as a legal term generally implies the idea of intent; a statute setting a strict term of period of non-use after which a right will be lost is considered a provision for “forfeiture” of rights, which does not require a showing of intent. Wyoming since 1888 has had what is technically a forfeiture statute for water rights, even though what it concerns is commonly called “abandonment” in Wyoming. MacDonnell, Treatise on Wyoming Water Law, 154n830. Both terms have appeared in Wyoming statutes relating to loss of water rights since at least 1913; see 1913 Wyo. Sess. Laws 106 §1; 1973 Wyo. Sess. Laws 176, § 1; and Wyo. Stat. Ann. §41–3-401(a). The confusion inherent in the use of both terms has played out throughout Wyoming water law, with the state’s high court tending to resist forfeiture in various ways, including by requiring a show of intent not to use water, and the State Engineer’s Office tending to seek strict action of the statute without discussion of intent. More Wyoming Supreme Court cases on abandonment are discussed later in this chapter.
15. 1888 Wyo. Sess. Laws 55, § 14. The Wyoming Territorial Legislature of 1888 declared the fatal period of non-use to be only two years, and Mead’s water laws adopted that standard; Mead, Second Biennial Report, 26. In 1905 water administrators opposed changing the abandonment period to five years, but some water users seeking that change were also legislators. Since 1905, five years has been the standard; 1905 Wyo. Sess. Laws 39; Wyo. Rev. Stat. 41–3-401; Johnston, Eighth Biennial Report, 95–96; Trelease, Cases and Materials, 194. On Board of Control power in abandonments, see Van Ordsel, December 12, 1904, opinion, Biennial Report . . .1903–1904; Parshall, Eleventh Biennial Report, 25, 33–34; 1913 Wyo. Sess. Laws 106.
16. Lands in Goshen County were acquired by the Lincoln Land Co., the townsite and land arm of the Burlington Railroad, and its subsidiary Goshen Hole Irrigation. Such companies bought lands on possible rail routes and sold them off when and if the railroad arrived; investors or contractors for townsite companies sometimes were also Burlington staff; Overton, Burlington West: A Colonization History, 182–83, 473. Some said that the company bought thousands of acres from the British-owned Union Cattle Co. (whose cowboy, Goshen Hale, gave his name to the county) and that Union Cattle Co. originally had acquired its lands by having its cowboys file fake homestead claims to get land titles then conveyed to the company. Downing with Smith, “Recollections of a Goshen County Homesteader,” 53–72, 68. Downing did not arrive in Goshen County until 1910, so some of his “recollections” are likely hearsay. For relevant land acquisition by Goshen Hole Irrigation around LaGrange, see the following records located in Goshen County Archives, Torrington, WY: Affidavits of Henry S. Bush, December 6, 1920 and W. J. Turner, October 2, 1974 in Goshen County Clerk Misc. Documents Book 53, p. 658 and Book 373, p. 498; Desert Land entry conveyed to Goshen Hole Irrigation (covering parts of future 66 Ranch and its pasture reservoir), W. F. DeNyse of New York to Edw. Page of Massachusetts, 1886; Page to Goshen Hole Irrigation Co., 1887: Goshen County Clerk Deed Book 7, pp. 116, 349; Desert Land patent from US to W. F. DeNyse, 1891, Goshen County Clerk Patent Book 2, p. 100. Federal agents tried to track the Goshen dummy entry fraud; Carey’s colleague Sturgis pointed that out and warned of potential similar investigations into the irrigation colony project on the Laramie River in which he and Carey were invested, Thos. Sturgis to Carey, January 19, 1887, Correspondence ‘S,’ box 27, folder 12, Carey Family Papers. For Lincoln Land’s water rights activity and the territorial court decree, see Horse Creek Decree, First Judicial District, Wyoming Territory, June 12, 1889, summarized in Board of Control, Tabulations of Adjudicated Surface Water Rights, Div. 1, 1996, 30. Horse Creek Ditch #1 held by Goshen Hole Irrigation Co. was awarded a water right dated September 18, 1884.
17. Horse Creek Readjustment of Rights, the district court decision, and Letter of Frank Kittle, Superintendent Division I, October 4, 1917, are filed with Board order January 7, 1918, in BOC, Petitions Granted Files. True convinced the 1917 legislature to appropriate $4,000 ($88,000 in 2020 dollars) for an investigation and “readjustment” of rights on those creeks. 1917 Wyo. Sess. Laws 125, §27. (That sum matched what went that year to the popular dream of studying more big dams for irrigation for central Wyoming. 1917 Wyo. Sess. Laws. 125, §26.) The field survey was done by Elmer K. Nelson, Report on the survey of Crow and Horse Creeks and their tributaries, submitted to James B. True, Wyoming State Engineer, November 14, 1917; Horse Creek Readjustment of Rights, BOC, Petitions Granted Files.
18. Tour of Horse Creek area by author with a hydrographer-commissioner staff to the Board of Control, November 2011.
19. “Horse Creek Readjustment,” BOC files—Surveyor’s notes on owners of original rights; Hearing Transcript, November 16, 1917, 7, 14; Order of the BOC, January 7, 1918; BOC, Tabulation of Adjudicated Surface Water Rights, Div. I, 1996, 29–31 reprints the order of priorities set on Horse Creek by the territorial court in 1889: priorities #8 and #9 belonged to F. E. Warren’s Warren Land and Livestock Co., while priority #35 belonged to the Maple Grove Land and Livestock Co. represented by John W. Lacey, former law partner of Justice Van Devanter, and the water right that Sherard and others continued to contest into the 1930s was priority #52. BOC, Tabulation of Adjudicated Surface Water Rights, Div. I, 1996, 617–19 reprints the order of priorities set on Crow Creek by the territorial court in 1888 where George Baxter held priority #43. Former US Senator and Governor J. M. Carey also had water rights from Horse Creek but the surveyor found his ditches “in good condition,” so they were not included in the board’s declaration of abandonment.
20. Horse Creek Readjustment, BOC Petitions Granted Files: List of recipients of Kittle letter October 4, 1917; Elmer K. Nelson, Report on the survey of Crow and Horse Creeks and their tributaries, submitted to James B. True, Wyoming State Engineer, 11–24–1917; Board order January 7, 1918.
21. The attorney general appealed the district court order to the Wyoming Supreme Court on behalf of the state engineer, but he later withdrew the case. Comments of J. W. Lacey on Horse Creek Readjustment, “Transcript of Board of Control hearing,” November 26, 1917, Board of Control Petitions Granted files, 14, 37; draft brief to court, Wyoming Attorney General, n.d., 2, 5, 7. In the matter of Horse Creek Readjustment of Rights, “Laramie County District Court Order, May 27, 1918,” case file 11–478, Wyoming State Archives; Wyo. Const. art VIII, §2; Wyoming Supreme Court docket file 3–972, 973, Wyoming State Archives; “Judge Lacey, Teapot Dome Lawyer, Dies,” Laramie Republican Boomerang, February 11, 1936; Trenholm, Wyoming Blue Book, 2:466.
22. Nationally acclaimed trial lawyer Moses Lasky in 1929 described the growth of private property thinking in water law as creating a dichotomy between lawyers and “the layman,” arguing that “legalistic thought obscured the layman’s natural inclination” as lawyers and courts insisted on a private property content to water rights. He cited early Utah, Colorado, and Wyoming territorial statutes as evidence of laymen’s belief in public benefit rather than private property as the concern of water law. Lasky, “From Prior Appropriation,” no. 3, 166–69; Wiel, Water Rights in the Western States, sec. 567; West Group, West’s Encyclopedia of American Law, 1998.
23. For drought history charts, see Curtis and Grimes, Wyoming Climate Atlas, 101. In Larson’s History of Wyoming, 411–46, the chapter entitled “Depression Years, 1920–1939,” begins: “The title of this chapter may surprise some readers who have accepted the standard American-history textbook interpretation of the 1920’s as a decade of prosperity after a short depression in 1920–21. Although textbooks offer a picture of over-all prosperity in the nation, they usually concede that agriculture and coal mining did not share in that prosperity. Agriculture and coal mining were important in Wyoming, as was oil, another industry that suffered a severe setback in Wyoming in the twenties. Because of deflation and the 1919 drought, the livestock business suffered extraordinary distress.” Cassity, Wyoming Will Be Your New Home, 205–44, describes the forces that affected would-be independent small farmers and ranchers in Wyoming in the 1920s into the 1930s and began the process that cut back the number of small self-sufficient holdings. The Board of Control in the 1920s showed itself perfectly willing to consider each case on its merits, finding abandonment in some situations but not in others. “Report of the Secretary of the Board of Control” in Emerson, Fifteenth Biennial Report, at 72; “Report of the Secretary of the Board of Control” in Emerson, Eighteenth Biennial Report, 36. But the engineer and the superintendents saw plenty of reasons for cleanup efforts using the abandonment tool. In the thirty years since Mead’s water system was established, energetic land and water development had led to confusion and contradiction in water rights statewide, just as on Horse Creek. Water superintendents across the state reported instances of irrigators using more water than they were ever entitled to, tacking their old priority date onto it in an “expansion” of their original water rights. Irrigators thought that was innocuous; administrators thought it illegal and unfair to later settlers. Superintendents themselves meantime had also fallen prey to the temptation not to inspect personally every water right they had to adjudicate, because they had simply too many to review. Bond, Fifth Biennial Report, 76–79; “Report of William Gilcrest, Superintendent of Water Div. No. 1” (Southeast Wyoming, including Horse Creek) in Johnston, Seventh Biennial Report, 20; Report of C. E. Howell, Superintendent, Water Division No. 4 (Southwest Wyoming) in Parshall, Eleventh Biennial Report, 32; True, Thirteenth Biennial Report, 86–87; Emerson, Fifteenth Biennial Report, 62–63. As a result, administrators had issued certificates to water rights which were likely to overstate, based on irrigator testimony, how much water that irrigator had succeeded in using. In the Horse Creek case, the unused rights True sought to cut back were of all kinds—rights his own office had approved, as well as rights confirmed in territorial court. Horse Creek Readjustment, BOC: Order, January 7, 1918. The BOC opposed revival of unused rights, and instead required an unused old priority to be lost and a new right to be issued in order to start use again, as demonstrated in 1922: Gottlieb Fluckiger in BOC, Order Record Book 6, 157, 5 Minute Record Book, 413. The water right holder followed board policy and voluntarily abandoned a water right for forty acres, for lack of use, and applied for new 1922 water right for the same acreage.
24. “Yoder Family” as told by Oscar Yoder, son of B. F. (Frank) Yoder, 1966–67, in Johnson, Trails, Rails and Travails, 755–56; Cooper, History of Wyoming Water, 32–35.
25. Hinckley Consulting and AMEC, Horse Creek Groundwater/Surface Water, figure 2–14.
26. Hinckley and AMEC, figure 2–14; the townsite investment company’s permits were numbered 1980E, Enlarged Horse Creek No. 1, Lincoln Land Co., and 1415R, 66 Pastures Reservoir, Lincoln Land. Co., both dated October 28, 1908, in Board of Control, Tabulation of Adjudicated Water Rights, Division 1, 33; Memoranda of agreements between Lincoln Land Co. and Hawk Springs Development Co., May 24, 1912 and September 1, 1921 (enclosures in letter, Kara Brighton to Randy Tullis, Supt. of Water Div. I, May 15, 2007); stamp on permits signed 1908 by State Engineer Clarence Johnston include: permits 1307R, 1892E, 1980E, and 1415R, in State Engineer Permit Files.
27. Notes on assignments (undated), entered on applications for Permits 1307R, Hawk Springs Reservoir, and 1892E, Enlarged Lowe Cattle Co. No. 1, supply ditch for Hawk Springs Reservoir, in State Engineer Permit Files.
28. Cassity, Wyoming Will Be Your New Home, 251–91. The Taylor Grazing Act of 1934 closed the public domain, ending its disposal into private hands and establishing the federal grazing lease system still operating today.
29. Horse Creek Conservation Dist. 54 Wyo. 320, 92 P.2d 572.
30. Horse Creek Conservation Dist. 54 Wyo. 320, 92 P.2d 572 at 9, 15, 18–19, 21–22, 27, Abstract of Record on Appeal: Testimony of Sherard at 9, Testimony of Stemler at 18–19, Testimony of Chamberlain at 15, Testimony of Lovercheck, 21–22, Testimony of Donahue, 27. The year 1933 was prime time for abandonment claims—the Wyoming Supreme Court itself took note of the weather, in a different abandonment case, recording that “commencing with about 1930 or 1931, a period of drouth settled over southeastern Wyoming, which became more and more severe from time to time, reaching its height in 1933 and lasting at least through a part of 1934,” Van Tassel v. Cheyenne, 54 P.2d 906 (1936).
31. Horse Creek Conservation Dist. 54 Wyo. 320, 92 P.2d 572, Abstract of Record on Appeal 40–42, 43–45; Horse Creek Conservation Dist. case file, at brief of appellant, 11, 34–38; “Yoder Family,” Goshen County History Committee, Wind Pudding and Rabbit Tracks, 755–57.
32. Board of Control, “Order, Apr. 20, 1934,” Order Record Book 7, 695.
33. Horse Creek Conservation Dist. 54 Wyo. 320, 334–37, 92 P.2d 572; Horse Creek v. Lincoln Land case file, Abstract of Record on Appeal, 49–52, summary of Findings of Fact, Conclusions of Law and Decree, Laramie County District Court, April 22, 1938; Horse Creek v. Lincoln Land case file, Brief of Appellant Lincoln Land; Horse Creek Conservation Dist. at 334–37. Horse Creek Conservation Dist. at 335–36, citing Zezi v. Lightfoot, 68 P.2d 50 (Idaho 1937). In a water right abandonment case two years earlier, the Wyoming court also specifically cited legal commentators on water who discussed the general rule that “forfeitures are not favored in law,” in the water context. Ramsay v. Gottsche, 51 Wyo. 516, 69 P.2d, at 529 (1937). For the general policy against forfeitures, see West’s Encyclopedia of American Law, 1998. The leading treatise in western water law in the 1930s notes that as a result of that rule, abandonment was not easy to find even in the customary nineteenth century water law in the West. Once the abandonment concept was put into statute, the treatise noted, statutes that specifically used the term “forfeit” were essentially a legislative response to court’s reluctance to order forfeiture. (Kinney, Treatise on Irrigation, §1118, cited in Ramsay v. Gottsche, at 529.) Legislatures were attempting to overcome that reluctance, to impose a strict standard requiring forfeiture. Wyoming’s legislature had used that term for the loss of water rights since 1888 (1888 Wyo. Sess. Laws 55 §14). The Wyoming high court in the 1930s, responding in its turn to the legislature, sought to mute the effect of that harsh word forfeit by putting up barriers to abandonment—as in its endorsement of water right revivals in 1939. Property law scholar Carol Rose has noted that courts and legislatures, in a never-ending attempt to reach a balance between clarity and equity, often do engage in moving the law back and forth between “crystalline” and “mud” rules affecting property, particularly when the issue is forfeiture; Rose, Property and Persuasion,199–225. The Wyoming Supreme Court appears to have triumphed there, even after State Engineer Bishop later got a “crystalline” rule on abandonment into statute with the language “fails, either intentionally or unintentionally, to use the water” adopted by the 1973 Legislature (Wyo. Stat. Ann. 41–3-401(a)). The court has opted for “mud” for an abandonment rule that looks straightforward in the statute book but in practice rarely allows a loss of water rights for non-use.
34. For similar decisions in other states, see Hall v. Lincoln, 50 Pac. 1047 (Colo. 1897); Platte Valley Irrigation Co. v. Central Trust Co., 75 Pac. 391 (Colo.); Carrington v. Crandall, 147 P.2d 1009 (Idaho 1944); Trelease, Cases and Materials, 196–97. In Wyoming as elsewhere, the neighbor claiming abandonment has to carry the burden of proof on many issues in a hearing before the board or in court, Ramsay, 51 Wyo. 516, 69 P.2d, 535; Hall, 50 Pac. 1047 (Colo. 1897). One exception: the burden of proving unavailability of water, as a defense, rests on the one charged with non-use. In the Matter of Johnson Ranches, 605 P.2d 367 (Wyo. 1980).
35. A variety of cases fleshed out how revival could work in Wyoming—and its limits. Sturgeon v. Brooks, 281 P.2d 675 (Wyo. 1955) held that a right to fill a reservoir with a damaged dam that has not held water for years can be revived by dam repair, and use of the water—so that an abandonment petition filed two years after water use restarted would fail; Ward v. Yoder, 355 P.2d (Wyo. 1960), held that a landowner purchaser of land with an old unused right who aimed to clean out its grassed-in ditch could be stopped by an abandonment claim filed before the cleaning was accomplished or water put to use; Wheatland Irrigation District v. Pioneer Canal Co., 464 P.2d 533 (Wyo. 1970) held that the Board of Control could not give the owner of a damaged reservoir a grace period to get the dam repaired in order to avoid an abandonment ruling. In a talk at the Wyoming Game and Fish Commission, former Wyoming Superintendent of Water Division III Craig Cooper described how neighbors noticing truckloads of pipes being delivered could successfully derail a city’s plans to revive an old right and put it to municipal use. Fishery and Wildlife Managers Educational Seminar, January 29, 2003, audio tapes on file with author.
36. Hinckley Consulting and AMEC, Horse Creek Groundwater/Surface Water, 1–2–4, 2–13, 3–4–6; Wyoming Statutes 41–3-916 (1957). Groundwater was not formally the job of the State Engineer’s Office until 1947, after nearly sixty years of surface water management. The 1957 statute enacted a more complete code governing groundwater; see MacKinnon, “The Prospects for Management,” 5–7.
37. “Wyecross Ranch,” in Johnson, Trails, Rails and Travails, 119–20; Curt Meier, personal communication with author, April 27, 2018.
38. Hinckley Consulting and AMEC, Horse Creek Groundwater/Surface Water, 3–8–9, 3–14–15 (a chronology of regulatory issues raised on Horse Creek); BOC Petitions Granted Files for Horse Creek Conservation District, I-78–210 (1979); BOC, Order Record Book 28, 359–69; Judge Alan B. Johnson, First Judicial District of Wyoming, Memorandum on Petition for Review, John Meier and Son, Inc. v. Horse Creek Conservation District and State Board of Control for the State of Wyoming, December 17, 1980.
39. Hinckley Consulting and AMEC, 1–3, 2–12, 2–17, 3–14–15, also figures 3–4; the report notes that the state engineer authorized the report in response to Horse Creek Conservation District requests in 2009 that groundwater wells be regulated in priority along with surface water rights (which would mean that groundwater wells, all of relatively late date, could not be pumped until after most surface water rights had been satisfied). In late 2011, the State Engineer’s Office (SEO) held a public meeting to review report results in hopes that better information would help both sides reach an accommodation, according to an SEO October 19, 2011, press release. The following state engineer orders provide additional information: “Order of the State Engineer—Horse Creek Basin, July 19, 2013” and “First Amended Order of the State Engineer—Horse Creek Basin, May 31, 2017,” at https://sites.google.com/a/wyo.gov/seo/; SEO presentation, Horse Creek Public Hearing presenting 2014–2016 water use data, February 15, 2017.
40. The current owner of the old townsite company ranch and its reservoir (known as Pasture 66 Reservoir) is Curt Meier, elected treasurer of Wyoming in November 2018. Meier’s lawyer in the groundwater disputes, Hageman, was an unsuccessful candidate for the Republican nomination for Wyoming governor in 2018. Senator Curt Meier, personal communication with author, April 27, 2018. Goshen County Assessor’s office, Account # R00220912, includes some sixty acres of irrigated cropland, owned by Mead Land and Livestock LLC of Cheyenne, annual report in Filing ID 2001–000427453, Wyoming Secretary of State’s office, Cheyenne, showing registered agent is Matthew H. Mead (governor of Wyoming, 2011–19). Horse Creek Conservation District, owner of the Hawk Springs Reservoir, reported its entire service area as over 10,500 acres of irrigated land. Wyoming Water Development Commission, State of Wyoming 2015, 4
41. The court called for close scrutiny in abandonment cases and saved water rights from abandonment for a variety of reasons: the water had been used somehow, through a stream or another ditch, Van Tassel v. Cheyenne, 54 P.2d 906 (Wyo. 1936); there was no water available, Simmons v. Ramsbottom, 68 P.2d 153 (Wyo. 1937); some “fault or neglect” on the part of a water right owner needs to be shown for abandonment (whether this means the owner had to “intend” to abandon has been hotly debated), Ramsey v. Gottsche, 69 P.2d 535 (1937); intent is not necessarily required, but the abandonment must be voluntary, not forced by circumstances, Scott v. McTiernan, 974 P.2d 966 (Wyo. 1999); those claiming abandonment had to be clearly affected by the fate of the contested water right or they had no standing to bring an abandonment case, Hagie v. Lincoln Land Co. 18 F.Supp. 637 (D.Wyo. 1937), cited with approval by the Wyoming Supreme Court in Platte County Grazing Association v. Board of Control, 675 p.2d 1279 (Wyo. 1984), Cremer v. State Board of Control, 675 P.2d 250 (Wyo. 1984). Further, the rule of abandonment in Wyoming, as in other states, meant simply that water had to be used only at some point in the required period of years. One good wetting of a field amid five years of otherwise non-use can be enough to defeat an abandonment charge. Jacobs, Tyrell, and Brosz, Wyoming Water Law, 11.
The discussion is lively on whether there an “intent” to abandon a water right is required. Under Ramsey, 69 P.2d 535 (Wyo. 1937), the new owner of a water right would not lose it through abandonment, since he showed no “fault or neglect” in not using the water, when after years of damaging floods he started diversion repairs in a reasonable time. The court in Ward v. Yoder (1960) (water right with grassed-in ditch, abandonment charge succeeds when filed after owner starts to clean ditch but before water is used again) declared no “intent” was necessary to find abandonment. Administrators, however, have read the court’s decisions differently, Cooper, History of Wyoming Water, 78 (Cooper is a former member of the Board of Control, as superintendent of Water Division III.). As long-time state engineer Floyd Bishop, put it, “no one intends to abandon a water right!,” because the rights are too valuable; interview with the author, December 13, 2010. Bishop backed amendment of the abandonment statute in 1973, with language (passed by the legislature with little hesitation) that explicitly states a water right would be forfeited if its holder “fails, either intentionally or unintentionally, to use the water . . . during any five (5) successive years”; Wyo. Stat. Ann 41–3-401(a). Wyoming, Digest of Senate and House Journals, 645–49. But members of the Board of Control believe the state court essentially demands evidence of intent to abandon. The court pronouncement in Scott v. McTiernan, 974 P.2d 966 (Wyo. 1999) that abandonment must be “voluntary” seems to require inquiring into the state of mind of the water user who failed to use water. In Scott, irrigated lands once held by the same owner had been split up. One owner of a resulting portion filled in the ditch that took water to lands now owned by a neighbor, making that water unavailable for five years—while reassuring the neighbor that he would open the ditch back up again. Then this deceptive landowner brought an abandonment charge against the neighbor after the requisite five years had passed. The board found that the neighbor’s failure to take the recourse available in civil law to get the ditch opened back up was sufficient “fault or neglect” (under earlier Wyoming Supreme Court cases) to justify a declaration of abandonment. The Wyoming Supreme Court disagreed, based on a somewhat abstract sense of equity that contrasted with the board’s practical sense of how water use and water users actually work on the ground. The court’s result suggested that the board should weigh the attitude of water users, which to a practical mind means examining their intent. For more on the board’s wrestle with Supreme Court abandonment decisions, see Cooper, History of Wyoming Water, 89–90.
42. Wheatland Irrigation District v. Laramie Rivers Co., 659 P.2d 561 (Wyo. 1983) at 565–66. In most of its abandonment decisions, the court did not take the modest approach articulated in Wheatland Irrigation. Here, however, the court found abandonment where the Board of Control (attempting to follow the court’s earlier decisions) had found none. The court held that an irrigation company that had spent years to get state financial aid and had finally gotten the funds and put repairs underway on its reservoir nonetheless could lose its water right to abandonment when the abandonment claim was filed before the repairs could be completed and water put to use. The case complemented the holding of Sturgeon v. Brooks, 281 P.2d 675 (Wyo. 1955) that successful repair of a reservoir and the putting to use of its water could defeat an abandonment claim filed two years after the water use recommenced. The state’s investment of major funds in Laramie Rivers Co.’s repair of its dam at Lake Hattie may, however, have persuaded the Board of Control that in this case the company had made enough of a revival effort to defeat abandonment.
43. Cooper, History of Wyoming Water, 89–90. Administrators have also been aware of how difficult, and therefore unlikely, it can be for water users to bring an abandonment action against a neighbor. For that reason, administrators have long sought a legislative reversal of the original court decision on Horse Creek and Crow Creek in 1917, which said that Wyoming water administrators could not themselves use abandonment as a tool to clean out old unused rights. Administrators felt they had to get authority to bring abandonment actions themselves, since “the people evidently are not interested in the matter” and rarely file abandonment claims, the northwest Wyoming Water Div. III superintendent Lou Blakesley wrote in 1920; in Emerson, Fifteenth Biennial Report, 83. Quotations from Bishop, Thirty-seventh Biennial Report, 24; Bishop, Thirty-eighth Biennial Report, 37. State Engineer Floyd Bishop requested research on the problem of unused rights that resulted in a 1970 Land and Water Law Review article detailing the problem in Wyoming; see McIntire, “The Disparity Between State Water Rights.” In 2012 State Engineer Pat Tyrrell told the Board of Control that he would like to see a legal requirement that the State Engineer’s Office review water rights periodically and abandon those not in use. “There are 200k acres of adjudicated rights in this state that aren’t used,” Tyrrell said (Board of Control, August 2012, notes in author’s files). The Wind-Big Horn River adjudication discussed in chapter 5 did review and cancel unused permits in that river basin, and superintendents in other divisions, as in Division IV, have attempted “clean-ups” of unused rights when the opportunity presents itself in a petition coming before the board that reveals the existence of unused rights. Jade Henderson (former superintendent Div. IV), personal communication with the author, October 8, 2018.
44. In Hughes v. Lincoln Land Co., 27 F. Supp.972 (Wyo. 1939), US District Court Judge Blake Kennedy (who had vivid memories of the early 1900s in Wyoming, when he had been active in Republican politics) ruled that the owner of a territorial water right could use the water to irrigate different lands he owned, since the water right was a property right. (The case involved the same townsite company, Lincoln Land, with different lands and water rights on Horse Creek, as in the case discussed in this chapter.) Kennedy relied on the Little Horse Creek case of 1904 to say that water rights in Wyoming had been held to be property rights and “no statute which the State might subsequently pass could abridge that property right or reduce its value without intrenching upon the constitutional right of the owner.” He acknowledged the 1909 statute passed in reaction to the Little Horse Creek case but said that statute could not be implemented to violate constitutional rights; Hughes v. Lincoln Land Co. at 973–74. Kennedy’s ruling has been subsequently applied to mean that pre-1909 water rights were not affected by the 1909 no-transfers statute. This is relevant to the transfer of rights from the Ringsby Ranch to the Wheatland Irrigation District in the 1960s, discussed later in this chapter.
45. Larson, History of Wyoming, 414–16; Cassity, Wyoming Will Be Your New Home, 251–91.
46. At issue in water transfer laws is not the question of whether a user can sell his water right to another person who will use the water in the same place in his stead. Water rights can be sold along with the irrigated fields or industrial sites they serve—and irrigation water rights have since early statehood in Wyoming considered to be sold along with the land even if the deed fails to mention them; Frank v. Hicks, 35 P. 475 (Wyo. 1892). What has caused struggles over water transfers is not the sale to another person, but the sale to another kind of use, or another place of use—the transfer of water away from the original purpose for which the right to the water was established. For the 1909 exception to the ban on such transfers, see Wyo. Stat. Ann. §41–3-102, 103.
47. Emerson went on to explain: “Rights acquired under certain conditions might be found worthless by changes afterwards allowed other rights”; Fifteenth Biennial Report, 50. Water managers in Wyoming and other states have consistently been motivated by a pair of longstanding concerns: antipathy to speculation in water rights, as a danger to stable communities; and appreciation of the interdependence of water users tied to stream hydrology, where use patterns could be disrupted by unfettered transfer of water rights. See also Mead, First Biennial Report, 58–59. For further discussion of western states seeking to avoid “injury to other water users” by transfers, see Trelease and Lee, “Priority and Progress,” 21–22; Robinson and MacDonnell, The Water Transfer Process, 3–3.
Wyoming was more determined than other states to enshrine those concerns into a ban on transfers. Initially focusing on surface water, Wyoming’s cautious approach to water right transfers stems from the simple facts that one person’s water use may reduce the volume of water available to others, and every stream has its own peculiar hydrology. Few streams have had their hydrology documented, as on Horse Creek, but irrigators will regularly refer to the unique hydrology they deal with—deep gravel or lack of it, for instance—and how that determines just how they’d like their neighbors to use water and whether they’ll call in state administrators to enforce priority. Author interviews with irrigators on Bates Creek, Natrona County, Wyoming, and East Fork of New Fork River, Sublette County, Wyoming, December 2011 through January 2012, in author’s files. The combination of water use that reduces flows and the hydrology particular to each stream creates a certain pattern of water availability on a stream. That pattern makes users interdependent and can make rules like transfer restrictions appear necessary to state staff and water users alike. See Ostrom, Understanding Institutional Diversity, 24–25.
48. Bishop family lore: Heritage Book Committee, Pages from Converse County’s Past, 56–59. The original organizers of the LaPrele Ditch and Reservoir Co. in 1905 were Dr. J. M. Wilson (born in Scotland, raised in Ohio, and moved to Douglas in 1886; manager of the Platte Valley Sheep Co., 1896–1925); B. J. Erwin, a Missouri native arriving in Douglas in 1900 as Congregational minister, who soon switched to ventures in mineral development and cattle ranching; and W. F. Hamilton, a teacher who managed the government hay farm at Ft. Laramie in 1883 and became a townsite developer in Douglas for a Cheyenne bank, as well as a sheep rancher. Eventually, a new company got the project approved in 1923 and turned over to the Douglas Reservoirs Water Users Association, under the old 1893 Carey Act. A small society grew up around LaPrele farms, as one farm girl said of life there in the 1920s: “Pioneering was very difficult as the equipment was very primitive, housing very meager, and Wyoming weather very rugged for many of these people. Many hardships were endured, many defeats and failures encountered but the challenge was great. The efforts were all worthwhile when one saw a new country developed, a community grow and prosper, and friendships made that lasted a lifetime”; Heritage Book Committee, Pages from Converse County’s Past, 77, 184, 245, 643–44, 665–67.
49. How helpful it was to a water superintendent to be a good shot is demonstrated in the story that L. C. Bishop’s son Loren Emerson Bishop, born 1911, told about his father as superintendent of Water Division I: “As water superintendent, on occasion he had to shut down headgates and stop ranchers from using water they wanted and needed. One occasion when I was with him at Pass Creek near Saratoga, a rancher threatened to shoot the local water commissioner so Dad was called to turn the water off. As we drove up to the ranch we saw a big hawk swoop near his chickens. Dad grabbed the 30–06 and killed the hawk high in the air with his first shot. After that exhibition, the headgate was closed with no trouble,” Heritage Book Committee, 57. Federal planners of Seminoe Reservoir sought an early priority date for the dam, but L. C. Bishop, whose Division I covered the North Platte, staunchly objected: the controversy is traced in the General Correspondence files, National Archives, RG 115, Entry 7. The files include North Platte Drainage Basin, Kendrick Project, subgroup 031, letters: District Counselor to Bureau of Reclamation Commissioner Elwood Mead November 8, 1933; Chief Engineer to District Counselor November 17, 1933; L. C. Bishop to Commissioner Mead June 18, 1934; Commissioner Elwood Mead to Interior Secretary Harold Ickes January 22, 1935; Commissioner Mead to Wyoming State Engineer Edwin Burritt February 5, 1935. Seminoe was built with a 1930s priority date, along with Alcova Reservoir to raise water sufficiently to enter a long canal to Casper, in an overall project known as the Kendrick Project, named for former Wyoming US senator John Kendrick; “Kendrick Project,” Reclamation (website), Projects & Facilities, https://www.usbr.gov/projects/index.php?id=340.
50. Works Projects Administration, Wyoming: A Guide to its History, 334. Trelease and Lee, “Priority and Progress,” 32.
51. On the need to divert more water than the fields can consume, which was “well understood by early Wyoming lawgivers, but finds less understanding among nonirrigators today,” see Cooper, History of Wyoming Water, Appendix A, 106.
52. Board of Control, citing Petition of Town of Greybull, November 14, 1940, Order Record Book 10, 223–35; Shell Creek, Permit 430 in BOC, Tabulation of Adjudicated . . .Div. III, 1999, 158.
53. Town of Lander in BOC, Order Record Book 7, 593; Town of Greybull, BOC, Order Record Book 10, 223–35 (1940); Union Pacific Railroad in BOC, Order Record Book 11, 56; Trelease and Lee, “Priority and Progress,” 33–34.
54. Casper Star-Tribune, “1st Lt. Floyd Bishop, Cheyenne” (in series “They Served with Honor: WWII”), July 17, 2011, https://trib.com/honor/wwii/st-lt-floyd-bishop-cheyenne/article_3630aea5–1491–532d81a6–1d099a88f0a3.html.
55. Reisner, Cadillac Desert, 225–63; Cooper, History of Wyoming Water, 67–69.
56. Trelease and Lee, “Priority and Progress,” 64–68; Wyoming Statutes Annotated §41–3-110,111, “right to acquire temporary water rights for highway or railroad roadbed construction” first adopted in 1959.
57. Bishop, Thirty-seventh Biennial Report, 24; Bishop, Thirty-eighth Biennial Report, 37.
58. Trelease and Lee, “Priority and Progress,” 62–64; Barnes, “Dave Johnston Power Plant Water Rights,” 4, 6, 7–9; Randall Tullis, Water Division I Superintendent, interview with author, January 11, 1999.
59. The Laramie River was adjudicated by the Board of Control in 1903, and after litigation the final adjudication was made by the District Court of Laramie County at the end of 1912. BOC, Tabulation of Adjudicated . . .Div. I, 1996, 70. The earlier board action is noted by the Wyoming Supreme Court in Laramie Rivers v. Levasseur, 202 P.2d 680 (Wyo. 1949) at 682; Teele and Ewing, The Economic Limits, 8; Trelease and Lee, “Priority and Progress,” 40–43. A Carey partner there was a young Irish nobleman, Horace Plunkett, later famed for work with Irish farmer cooperatives. The Wyoming Development Co. project and the town it called “Wheatland” was not a cooperative, though Plunkett and Carey did once discuss cooperatives with Wheatland farmers. The original project intent was for-profit; investors however often found themselves underwriting the company and scrambling for loans to keep afloat. Woods, Horace Plunkett in America, 52–54, 85, 109, 150, 155–58.
60. Trelease and Lee, “Priority and Progress,” 43–67. Banner Engineering, “Proposed Methods for Augmenting”; Wyoming, Opinions of the Office of the Attorney General, 55–56 (April 1957).
61. After a review of the historic use, diversion, and return flow patterns on the ranch, the Board allowed a transfer of some of the pre-1909 rights in their entirety, while cutting other pre-1909 rights by one-quarter to one-half their original amount of water as a condition of the transfer. Board of Control, “Wheatland Irrigation District,” BOC, Order Record Book 16, 1–26; Trelease and Lee, “Priority and Progress,” 44–46.
62. Trelease quotation on “property aspects” is from 1960: Trelease, Severance of Water Rights, 39–40. For economic arguments in favor of water markets and transfers, see Trelease in 1960 citing J. W. Milliman, “Water Law and Private Decision Making” 54. In 1966, Trelease published his seminal law review article on transfers, expanding upon his 1960 report to the legislature, with Trelease and Lee, “Priority and Progress,” see especially 70–73, 75.
63. Trelease and Lee, “Priority and Progress,” see especially 70–75; quotation at 70.
64. Some legislators read the 1966 Trelease and Lee article closely: the copy owned by Willard Rhoads of Cody was heavily marked up (in author’s possession). But a large majority in the Legislature, including Rhoads, endorsed the bill embodying the Board’s view of transfers rather than Trelease’s. Wyoming, Digest of Senate and House Journals, 919–21; 1973 Wyo. Sess. Laws 170 §1; temporary change statute is 1959 Wyo. Sess Laws 148 §1.
65. 1974 Wyo. Sess. Laws 23 §1. The county economic loss issue was added in 1974 in response to opposition to the transfer of the hay ranch rights to Wheatland. Trelease and Lee, “Priority and Progress,” 44. Cases demonstrating application of the 1973 statute include Basin Electric Power Coop. v. State Board Of Control, 578 P.2d 557 (Wyo. 1978); Green River Development Co. v. FMC Corp., 660 P.2d 339 (Wyo. 1983); Garber v. Wagonhound Ranch & Livestock Co., 279 P.3d 525 (2013).
66. For examples of the scrutiny applied when a water right is moved to a new use, see these board reviews of irrigation rights being moved to a municipality: BOC Petitions Granted Files, City of Cody, III-2008–1-3 and City of Riverton, III-2009–2-10. The board often ends up reviewing moves that have already been made, sometimes years earlier, of water under an old water right to a new spot. Such moves can include moving an irrigation right to different lands for better crop yield or for an improved method of irrigation like pivot sprinklers: BOC Petitions Granted Files (all): James and Melisa Crouch, III-2010–2-4; MRDN Corp., IV-2011–3-4; Gordon Drum, II-2017–4-6; for examples of board scrutiny of proposed moves, looking for use either in the lands being moved from or being moved to, see BOC Petitions Granted Files (all): Overland Trail Cattle Co., I-2007–2-6; Dale E. Irthum, I-2018–2-6; D&T Ranches and S&J Farms, I-2011–3-10; Casper Alcova Irrigation District, I-2011–4-1; Walton F. and Rita Cherni Smith, II-2011–2-2. In the case of irrigation districts, where the board has focused on total diversion and return flow for the entire district, the board has in the past sometimes not required evidence from individual fields. Irrigation districts’ individual fields have increasingly been examined for evidence of use in transfer proposals; contrast BOC Petitions Granted Files (both) R.E., M., L. and S. Kautz, I-2000–1-3 with Larry and Pat Goyen and Goshen Irrigation District, I-2011–4-2. Discussion of the Goyen proposal revealed that the large Goshen district on the North Platte typically ran a “lottery” market system to move unused rights to lands that were being watered without a water right. For board recommendation of revival, see for example BOC Petitions Granted Files, James and Deborah Housel, III-2010–4-7. The board is particularly likely to make a revival recommendation if the rights involved have an old date, useful in the board’s view for keeping that water in use in Wyoming rather than flowing to downstream states.
67. A requirement for five years consistent water use to support a transfer is recorded in the latest version of the board’s written rules; State Engineer’s Office, Regulations and Instructions, Part IV, chap. 5, secs. 15(c)6, and 16(i). Even where return flows from past irrigation went into a lake in a closed basin, unused by other water right holders, the board appropriately interpreted the 1973 transfers statute to disallow transfer of more than the amount of water consumed by the irrigated crops, the Wyoming Supreme Court ruled in Basin Electric Power Cooperative v. State Board of Control, 578 P.2d 557 (1978). The court specifically noted the relevance of abandonment concerns, saying “issues of nonuse and misuse are inextricably interwoven with the issues of change of use and change in the place of use . . . even without the formal initiation of abandonment proceedings under the statutes. If an appropriator, either by misuse or failure to use, has effectively abandoned either all or part of his water right through noncompliance with the beneficial-use requirements imposed by law, he could not effect a change of use or place of use for that amount of his appropriation which had been abandoned”; Basin Electric, 564. Watering occasionally to avoid an abandonment action is not enough to establish sufficient historic use to move the water right in question to new lands, the board said firmly in BOC Petitions Granted Files, Brad Reese, I-2011–4-3 and Bard Ranch, I-2011–3-12.
68. For complaints about board transfer reviews, see “Meeting Minutes,” from Wyoming Legislature’s Joint Agriculture, State and Public Lands and Water Resources Committee, September 27, 2018, 5–6, https://wyoleg.gov/InterimCommittee/2018/05-20180927MeetingMinutes.pdf.
69. Anderson and Hill, “The Evolution of Property Rights,” 137–38; Squillace, “A Critical Look,” 307, 338, 340–41; Gould, “Water Rights Transfers,” 35–36; Squillace, 338, 340–41; Squillace, “Water Marketing,” 6–9.
70. Anderson, Tapping Water Markets, 5–16, 42–46, 51–54, 65–74, 148–60.
71. Mead, “The Growth of Property,” 12.
72. Lasky, “From Prior Appropriation to Economic Distribution,” Pts. 1, 2, and 3, (April 1929) 162, 216; (June 1929): 270; (November 1929): 35, 45–46, 58.
73. Anderson and Hill, “The Evolution of Property Rights,” 137–38; Squillace, “A Critical Look,” 307, 338, 340–41; Gould, “Water Rights Transfers,” 35–36; Squillace, “Water Marketing,” 6–9; Anderson, Tapping Water Markets, 72–73; Howe and Goemans, “Water Transfers and Their Impacts,” 1055–65; Colorado’s Water Plan, chap. 6, sec. 6.4.
74. Green River Development Co. 660 P.2d 339 (Wyo.1983). In 1977, an old irrigation venture that had largely failed, holding unused water right permits dating from as early as 1908, made a deal with Pacific Power and Light Co. to sell some of its unused permits to the power company to serve a coal-fired power plant. The plan called for changing the original permits so that the water could be used 134 miles downstream from the original proposed location and be used for industry rather than irrigation. The irrigation company, known as Green River Development Co., asked for the state engineer’s blessing. Four years later, the state engineer approved the plan. Ranchers and mining companies along the river were outraged and came to the Board of Control to protest the ghost of an old, large, and unused water permit suddenly coming to life with priority dates that would predate and disrupt some of their long-established water uses. The case led to a painful division between the state engineer and his superintendents, whose vote against allowing such a move was upheld by the Wyoming Supreme Court.
Chapter 5
1. Pomeroy, Treatise on the Law, §100. Full quote (punctuation is as printed): “But the principal defect of the system, the one capable of working the greatest injustice, is inherent in the very theory itself, in its fundamental conception. This defect is the total absence of any limit to the extent of a prior appropriation,—to the amount of water which may be taken,—except the needs of the purposed for which it is made. The prior appropriator, in order to carry out a purpose regarded by the law as beneficial, of great magnitude,—such, for example, as an extensive system of hydraulic mining, or the irrigation of a large tract of farming lands, or, doubtless, the supply of a municipality,—may divert and consume, without returning to its natural channel, the entire water of a public stream, no matter what may be its size or length, or the natural wants of the country through which it flows.”
2. As Wyoming state engineer Floyd Bishop commented in 1972, in non-drought years, “as is usually the case, most of our water administration problems involve personality differences and minor squabbles between water users which often are not directly a result of water shortages, and often originate with a quarrel over some other item”; Bishop, Forty-first Biennial Report, 4. John Teichert, superintendent of Div. IV from the 1960s–80s, said he early on found places that were “a no man’s land. No one knew which ditch was which and if they did they weren’t talking”; and elsewhere locals named as the “4th of July Ditch” a ditch that got filled up when the water commissioner was away on a bender over the 4th of July; Teichert, “Reflections of a Water Administrator,” 10, 12.
3. Two anonymous water users to author, in author’s files, September 2020; Water Division I Superintendent Randall Tullis, to author, ca. May 2005.
4. Tyrrell, “Instream Flow Overview,” slide 6, “General Water Administration,” states, “No active priority administration without a formal written call—‘Free River’ concept governs; Excess diversions for irrigation allowable if not under regulation and no waste,” State Engineer PowerPoint Presentation, January 11, 2006, in author’s files.
5. The River is Free is a pamphlet prepared by the League of Women Voters of Wyoming and a graduate student in civil and environmental engineering from the University of Wyoming, n.d., but distribution presumably preceded a league-sponsored conference on the subject of wild and scenic rivers, held in Casper in early 1972. A copy can be found in the Stroock Papers, box 97, file folder “Water, 1967–85.” The pamphlet text, discussing the antecedents and passage of the federal Wild and Scenic Rivers Act of 1968, makes it clear that the league sought to spark serious consideration in Wyoming of wild and scenic rivers–type legislation, inspired by the federal act. The first sentences of the pamphlet read, under the title “The River is Free”: “America’s recognition of the changing social values and of the diminishing unpolluted, free-flowing streams, prompted the 1963 study by the Departments of the Interior and Agriculture which led to passage by Congress of the 1968 Wild and Scenic Rivers Act, Public Law 90–542. America’s waterways have always played a prominent part in its history and growth; but until recently, the alternative of preserving our nation’s water resource as a free-flowing stream was neither recognized nor explored. The increased need for power, the affluent desires for the home, and our expanding industry have decreased the number of rivers in their natural state that are free from pollution, while the recreational need for them grows.”
6. Pomeroy, Treatise on the Law, §100.
7. Since the nineteenth and into the twenty-first century, ranchers and fishermen alike continue to be dismayed by fish ending up in irrigation ditches. A collaboration between the Wyoming Game and Fish Department and local ranchers to put in a new ditch headgate structure with special screens to keep fish from entering the ditch in the foothills by the Big Horn basin was heralded in 2018; see DiRienzo, “New Path Keeps Fish Healthy,” 9. Marc Reisner describes the flurry of post–World War II federal dam building that affected Wyoming in Cadillac Desert, 145–50, 194–202. Dates and data on individual Bureau of Reclamation dams can be found at https://www.usbr.gov/projects/, last updated April 25, 2017.
8. Knight et al., Mountain and Plains, 8, 83–85, 109–10.
9. Federal Writer’s Project, Wyoming: A Guide, 307–15, 389–91, 348, 245–47; Skaggs, “Creation of Grand Teton.” Jackson, Wyoming, ski history is summarized at “Snow King Mountain Resort History,” Snow King Mountain (website), https://snowkingmountain.com/snow-king-mountain-resort-history/. Wyoming Department of Administration, Wyoming Data Handbook, 21; “Wyoming County Profiles: Teton County,” Wyoming Department of Administration and Information, Economic Analysis Division (website), http://eadiv.state.wy.us/Wy_facts/Teton2017.htm.
10. Federal Writer’s Project, Wyoming: A Guide, 348. See, Finis, Wind River Trails, 6–10, containing a brief description of Mitchell’s mountain fish-stocking and guest-guiding starting in 1930.
11. Marjane Ambler, “Bombardier Conservationist: Tom Bell and High Country News,” Encyclopedia. Wyoming State Historical Society (website), WyoHistory.org, published November 16, 2016, http://www.wyohistory.org/encyclopedia/bombardier-conservationist-tom-bell-and-high-country-news. Ambler, who knew Bell well and interviewed him at length, describes his life and conservation passions in detail. See also Lillian Schrock, “Famed Wyoming Conservationist Tom Bell Dies in Lander,” Casper Star-Tribune, August 31, 2016, quoting a Bell nephew.
12. Discussion of Wyoming’s coal reserves and potential to host major power plants—some suggesting the state could be a “National Sacrifice Area”—produced a 1971 government-industry report predicting more than forty power plants would be built on the Northern Plains of Wyoming and Montana; Ambler, “Bombardier Conservationist.” The nuclear project is detailed in Ann Chambers Noble, “The Wagon Wheel Project,” Encyclopedia, Wyoming State Historical Society (website), WyoHistory.org, published November 8, 2014, https://www.wyohistory.org/encyclopedia/wagon-wheel-project. In 1958 the El Paso Natural Gas Co. was frustrated in attempts to produce from known reserves of natural gas on the edge of the Red Desert near Pinedale, south of the Wind River range. The company proposed to the Atomic Energy Commission in 1958 that the area be included in a program for using nuclear explosions underground to liberate natural gas as part of its search for peacetime uses of nuclear devices. In 1968, the company signed a contract with the agency to study a possible pilot explosion in the area; three pilot tests of such explosions were conducted in New Mexico and Colorado from 1967–73, but the Pinedale explosion never took place, largely as a result of local public opposition. Bell’s High Country News reported on the proposed Powder River basin coal-fired power plants and the aqueduct to serve industrial development in January 2 and May 26, 1972, editions. Archives of High Country News are available at http://www.hcn.org/issues?b_start:int=1120, and links to the 1972 articles are on p. 54 of the archives list.
13. League of Women Voters, “A Free River,” 8–10, Stroock Papers, box 97, file folder “Water, 1967–85.”
14. “Brief,” dated May 22, 1968, accompanying the water right application filed January 13, 1969 in the State Engineer’s Office (SEO) and signed by Tom Bell, as executive director of the Wyoming Outdoor Coordinating Council. The twenty-two-page brief was signed by L. W. Isaacs, C. L. Noble, Elmer George, Alvin B. Pearson Jr., Carroll R. Noble (all of the Cora-Pinedale area), and by Casper people representing the Wyoming Wildlife Federation, the Wyoming Outdoor Coordinating Council, and the Isaak Walton League. The brief and the permit application originals (along with responses from Floyd Bishop, the state engineer, and the special attorney general, Jack Gage, assigned to his office), are filed in the “Rejected Applications” files, “Thomas Bell, Temporary Filing No. 20, 1/173,” SEO (hereafter cited as “Temporary Filing No. 20”). Economic studies are cited in the brief at 7–15. The conclusion about shrinking water supplies for a growing recreation industry, due to the subsidized competition from other users, is from a 1962 study funded by Resources for the Future, Inc. and published as Wollman et al., The Value of Water, 90–91.
15. Brief, 2, “Temporary Filing No. 20.”
16. Application text, “Temporary Filing No. 20.”
17. T. Paul Stauffer, interview with the author, May 11, 2017; Stauffer, “Did I Fish Too Much?,” 238–44.
18. For reservation size since 1950 and today, see Eastern Shoshone and Northern Arapaho Tribes, Draft Agricultural Resource Management Plan, 15; O’Gara, What You See in Clear Water, 50–53, 165–67. For the Shoshone and Arapaho tribes’ push for federal creation in 1934 of the roadless area of wilderness in the Wind River Mountains that still exists today, see Aragon, “The Wind River Indian Reservation,” 15–16.
19. O’Gara, 32–33, 49–53; US BOR, Riverton Project History: 1976, 15; 1977, 6–17.
20. Quotations from the Treaty of 1868 between Shoshone and Bannock Tribes and the United States, Article II and IV, cited in Roncalio, Report Concerning Reserved Water Right, 59. Riverton’s interest in groundwater and tribal response are cited in Roncalio, 7, from testimony from the Riverton city manager.
21. Susan Williams, remarks, to 2008 conference “The Winters Centennial: Will the Commitment to Justice Endure?,” reprinted in Cosens and Royster, The Future of Indian and Federal Reserved Water Rights, 170–72.
22. Wilson, “Farming and Ranching,” 325–26, 242–45, 328–29, 148–55; Shoshone Tribe v. U.S., 299 U. S. 476 (1937) (the tribe won compensation for the permanent settlement of the Northern Arapaho on the reservation). Act of July 27, 1939, 53 Stat. 1128–30 was enacted by Congress to follow the US Supreme Court’s directions in the Shoshone suit. It also restored to the reservation the unclaimed ceded acreage. Reservation unemployment was 24 percent in 1960, but with only 37 percent of employable adults working full time, underemployment was also high; Wilson, 151, citing Bureau of Indian Affairs, 1960 Population and Income Census for the reservation. For the 1968 Senate report, see US Congress, Indian Education: A National Tragedy—A National Challenge, 13–14, 21; for the effort to create tribal-run schools at Wind River, see Hipp, Sovereigh Schools, especially 22–64 on conditions prompting that effort; the quote on what tribal schools provide is from Wyoming Indian Schools (webpage), https://www.wyomingindianschools.com/32479.
23. In 1988, state agencies estimated reservation unemployment at 79 percent, according to a brief filed with the US Supreme Court by the tribes in the water case; cited in Rusinek, “A Preview of Coming Attractions,” 382; Champagne, “Organizational Change and Conflict,” 14–15; and Rusinek, 404, citing Susan Williams’s argument to the US Supreme Court. See Cosens, “The Legacy of Winters v. United States,” in Cosens and Royster, The Future of Indian and Federal, 5–14; Roncalio, Report of Special Master, 13–16; Robison, “Wyoming’s Big Horn General Stream,” 267–72; O’Gara, What You See In Clear Water, 172–76. In 1952, Congress waived US sovereign immunity from suit in state courts if the suit was for “general adjudication” of an entire stream system; Robison (264–66) details the law on this point. As trustee for the tribes, the United States would be the defendant in the case regarding Indian water rights created by treaty (the tribes entered the case on their own behalf, as defendants, in 1978). The state of Wyoming much preferred a Wyoming state court to decide the question of tribal water rights. But to achieve that, the state had to undertake adjudication of all rights in the quarter of the state traversed by the Wind-Big Horn River (one river, changing its name on entering the Big Horn basin). The result was that, as the special master put it, the case included “several thousand defendants” claiming privately held Wyoming water rights (Roncalio, 2). One result, after the case ended nearly forty years later, was a massive cleanup of the unused portion of old, never-adjudicated permits in that part of the state.
24. Christopulos, Annual Report of the State Engineer, 1977, 16 (State Engineer George Christopulos had long been deputy to Bishop). Christopulos wrote that through the lawsuit, he expected an end to uncertainty about federal claims in the basin—not only claims for the tribes (the United States acting in its trust capacity) but for federal lands such as national forests. Richard Baldes, personal communication with author, April 19, 2017.
25. For coal-fired power plants, see US Bureau of Reclamation, Report of Phase 1. The projected spate of coal-fired power plants was never built. Most Wyoming coal was shipped out of state to power plants elsewhere, as railroads competed fiercely for the business. But a few new power plants were built, including one in Wheatland (see chapter 6 for discussion of environmental concerns raised by construction of the Wheatland plant). For the plant’s boost to Wheatland’s economy, see a discussion in 2000 by the 1980 town planner, Steve Achter, in Wyoming Rural Development Council, Wheatland Community Assessment, 9. Wyoming’s one-term (1969–1971) US congressman John Wold, geologist, invested in federal coal leases in the Powder River basin east of the Big Horns that paid off well as big mines were built there in the 1970s. Newcomer Casper (website) Obituary, http://www.newcomercasper.com/Obituary/131341/John-Wold/Casper-Wyoming; Bishop, Forty-first Biennial Report, 17–19.
26. For federal development on the Colorado, see a brief version in US Bureau of Reclamation, Upper Colorado Region (website), “Colorado River Storage Project,” https://www.usbr.gov/uc/rm/crsp/index.html, last updated November 13, 2018. For detail on the 1948 compact, see www.ucrcommission.com). Riesner’s Cadillac Desert provides a richly detailed version. For Wyoming’s disappointing reservoir project on the Green River, see Linenberger, “The Seedskadee Project,” 1997, and Wyoming Water Development Office (website), “Feb. 2011 Technical Memorandum: Use of Wyoming’s Contract Storage Water in Fontenelle Reservoir,” 2, http://waterplan.state.wy.us/plan/green/2010/finalrept/fontenelle.html.
27. Bishop, Thirty-eighth Biennial Report, 20–21; Bishop, Forty-first Biennial Report, 1–2.
28. Teichert, “Reflections of a Water Administrator,” 3; Bishop, Thirty-eighth Biennial Report, 6–7.
29. Bishop, Thirty-seventh Biennial Report, 9–10.
30. Bishop, Thirty-eighth Biennial Report, 48. The superintendent commented: “Almost without exception whenever I have discussed the potential use of water for industrial purposes with local water users, I have observed a negative attitude on the part of most irrigation water users, which would appear to be the results of a lack of knowledge relative to laws and procedures which must be complied with before an irrigation right can be changed to an industrial use.”
31. “The mortmain grip,” in Trelease and Lee, “Priority and Progress,” 70; Trelease and Lee, 73.
32. Bishop, Fortieth Biennial Report, 30–31; Bishop, Forty-first Biennial Report, 21–22.
33. State engineer-initiated abandonment actions were officially authorized by statute in 1973 Wyo. Sess. Laws chap. 176, sec. 1 W. S. 41–3-402(a). But as an assistant attorney general who represented the State Engineer’s Office recalls, water users deeply resented seeing a Wyoming water rights administrator (not just a neighbor) trying to prove that a user had abandoned a water right. No state engineer has tried to use that tool again, according to Lawrence Wolfe; personal communication with author, February 2010. The statute lies on the books unused. Meanwhile, unused adjudicated rights and unused permits, with the shadows of uncertainty they cast on active rights, still abound on state records today. Wholesale review of unused rights has occurred only in the extraordinary case of the Wind-Big Horn and Shoshone Rivers, brought on by the state of Wyoming’s decision to challenge tribal water rights on the Wind River. More commonly, unused rights or permits are dealt with one by one, if at all. Unused permits, when encountered, are considered expired after twenty years and can be “reinstated” only with affidavits that the water was in fact used; from Loren Smith, personal communication with author, May 24, 2018. Cases involving unused adjudicated water rights come regularly before twenty-first century water administrators. Often, a superintendent of one of the state’s four water divisions will seek to clean up the record books so distributing water properly will be easier, especially in dry years. A superintendent can sometimes manage to convince water users formally to give up some old unused water rights. See, for instance, in BOC Petitions Granted Files, Gaspar Wright, I-U-2007–1-4 and I-U-2006–2-8 through 14. Or in other examples, new owners of land with water rights attached decide to put in a residential subdivision, or sometimes a pivot irrigation system, and they may give up some old water rights that simply don’t fit the new picture. See BOC Petitions Granted Files: Austin, Michael and Teresa, IV-2007–2-4 (subdivision); Double L Ranch #4, IV-2009–3-9 (subdivision); Mark Lyman Revocable Trust, III-2011–1-11/12 (pivot). What the board terms “voluntary abandonment”—abandonment declaration sought and acknowledged by the water user in order to accomplish some other goal—has therefore become far more prevalent than traditional “abandonment.” In a recent example of the Board of Control’s interest, however, in preserving high-priority rights if possible; see the May 2018 petition before the Board of Control, Lonesome Star Ranch LLC et al., II-2018–2-3. The landowners installing pivot irrigation asked for a change in place of use and movement of points of diversion and means of conveyance, plus voluntary abandonment of a portion of water rights, from creeks northwest of Sheridan. Division II superintendent Dave Schroeder saw the proposal as a “good cleanup,” but there were a variety of issues to be resolved before it could occur. In an August 2018 discussion of the proposal, Schroeder suggested revival of part of a territorial right that appeared unused. State Engineer Pat Tyrrell explained to the landowner’s consulting engineer: “You could reestablish that use on existing lands, and then move them. If they’ve lapsed in use, we want to see it used. We don’t want to get rid of an 1881 or 1884 water right either, believe me”; August 2018 discussion notes on file with the author.
34. On putting standard practices into statute, Henry E. Smith, a legal theorist, has made clear how that is encouraged when the audience affected by local practice begins to widen, as happened for Wyoming when national energy development demands suddenly focused on state coal and water resources. Smith notes that the question of “information cost” affecting a new audience attempting to follow local rules can be a major driver towards rule standardization, formalization and codification of longstanding practice in property law. That pressure grows as the potential audience grows wider and wider. See Merrill and Smith, “Optimal Standardization in the Law of Property’; and Smith, “Community and Custom in Property,” and “The Language of Property.” In addition to the transfers statute of 1973, in the mid-1960s, soon after Bishop came into office, the Wyoming legislature accepted his request to codify other state water management practices. See, for instance, codification of the administrators’ long-time practice of requiring water users to seek administrative approval of changes in point of diversion and/or means of conveyance of water: Bishop, Thirty-seventh Biennial Report, 21–22; 1965 Wyo. Sess. Laws 138.
35. Wyoming water users’ belief that Wyoming still has a prohibition on transfers, even into the twenty-first century, have been expressed to author in numerous conversations in various parts of the state.
36. Chris Propst, “Rock Springs, Wyoming,” Encyclopedia, Wyoming State Historical Society (website), WyoHistory.org, published November 8, 2014, http://www.wyohistory.org/encyclopedia/rock-springs-wyoming; Wyoming Industrial Siting Act, 1975: Wyo. Stats. Ann. 35–12–101 through 35–12–119.
37. Sarah Gorin, “Taxing Wyoming’s Minerals: Severance Taxes and Permanent Funds,” Encyclopedia, Wyoming State Historical Society (website), WyoHistory.org, published May 1, 2015, https://www.wyohistory.org/encyclopedia/wyoming-minerals-severance-taxes-and-permanent-funds; Wyoming Taxpayers Association (website), Permanent Wyoming Mineral Trust Fund FAQ, http://www.wyotax.org/PMTF.aspx.
38. Green River Development Co. v. FMC, 660 P 2d 339 (1983) (State of Wyoming brief, author’s files, specifically identifies Jim Bridger Power Plant as the proposed recipient of the water). The State Engineer’s Office presented its case for new rules to eliminate temporary filings for water permits at a public hearing in January 1985: “Adoption of Rules and Regulations to establish a procedure for the state engineer to reject or advance to permit status all Temporary Filings”; January 17, 1985, presentation by Deputy State Engineer Jeff Fassett, author’s files. The “Problem Description” in the presentation, p. 1, states, “A great majority of these applications, filed primarily as a result of the energy development booms in Wyoming, have been in a ‘hold’ status because the project sponsors have been unable to find the necessary project financing and the demand for the water to warrant the construction of the facilities.”
39. Reisner, Cadillac Desert, 317–43.
40. Larson, History of Wyoming, 566–68.
41. Wyoming Statutes Annotated 41–2-112 through 124, first enacted in 1975 with additions running into the early 2000s. Funding ratios: Wyoming Water Development Commission, “Operating Criteria,” chap. 4, secs. D, E. See also, Warren Wilson, “Herschler’s Water Package Put Together Without Needs Study,” Casper Star-Tribune, February 25, 1982. Total water development spending 1908–2015: Wyoming Legislative Service Office, Wyoming Water Development Commission, 6–7. The “informal political alliance” that kept the federal Bureau of Reclamation amply funded for decades has been described as an “iron triangle.” It allows congressional committee members to “bring home the bacon,” the agency to expand its budgets and staff, and interest groups to get federal funds. The costs of projects are thus dispersed to taxpayers nationwide, but project benefits are concentrated on certain groups; McCool, Command of the Waters, 5–12.
42. Wyoming Water Development Commission (WWDC), “Operating Criteria,” chap. 3, prov. A. Wyoming Legislative Service Office, Wyoming Water Development Commission, contains examples of WWDC spending in grants and low-interest loans for agricultural projects (rehabilitation projects were funded largely from oil and gas tax revenues; new reservoirs were funded largely from coal tax revenues): Wheatland Irrigation District on the Laramie River received about $1 million for rehabilitation projects 1994–2010 (107–9); Horse Creek Conservation District received $8.5 million to rehabilitate Hawk Springs Reservoir in 1989 (49); LaPrele Irrigation District received nearly $1.5 million for repairs to its tunnel and canals in 1985 (59); the Greybull Valley Irrigation District (including landowners from both the Bench and Farmer’s canals, among others), received $40 million to build Roach Gulch Reservoir in 2005 (47); Midvale Irrigation District on the Wind River received $6.4 million for a variety of rehabilitation projects completed 1999–2013 (67–68); Heart Mountain Irrigation District and Shoshone Irrigation District, on the Shoshone, received $2.3 million and $10.7 million respectively for rehabilitation projects completed 2001–2015 (50, 89–92); Goshen Irrigation District on the North Platte received $5.1 million for rehabilitation projects completed 1991–2013 (44–45); the state shouldered the entire $31.5 million cost to complete the High Savery reservoir for southern Wyoming irrigators in Carbon County, completed in 2010 (52). Wyoming’s contribution of nearly half the cost of the expansion of the Buffalo Bill Dam and Reservoir came largely from coal tax funds; WWDC (website), “1996 Legislative Report: Completed Projects, Project 9,” http://wwdc.state.wy.us/legreport/1996/comproj.html. The $40 million Shoshone Municipal Pipeline, serving towns along the Shoshone River, was completed in 1992 largely with coal tax funds, and rehabilitated in 2012 largely with oil and gas tax revenues; WWDC, 2017 Legislative Report, 90–91.
43. Criteria required for water development projects, with the emphasis on putting to use previously unappropriated water, and on new storage capacity, are listed in Wyoming Statutes Annotated, 41–2-121 (a)(ii)(A) and (B). University critiques of Wyoming water development included Jacobs and Taylor, “Wyoming’s Water Development Policy,” 261–67.
44. For the proposed “Deer Creek Dam” authorized by the legislature in 1985, see Wyoming Water Development Commission (website), “1996 Legislative Report: Completed Projects, Project Reports, 23,” http://wwdc.state.wy.us/legreport/1996/proj23.html. For the Laramie River Power Project in Wheatland, see discussion in chapter 6.
45. The 1985 agreement between the US Bureau of Reclamation and Wyoming for modifications of Buffalo Bill Dam: of the total expected cost of $106.7 million, Wyoming agreed to contribute $47 million; “A Partnership for the Future,” US Bureau of Reclamation Agreement #5–07–60-WR175, March 29, 1985, in box 97, folder “Water,” Thomas Stroock Papers. For Governor Milward Simpson and his work on North Platte River pollution, see Larson, Water Quality of the North Platte, 1; Mixer, “Brief History of the North Platte River.” “What I remember most about the river in those days was the smell. In the spring of the year, when the water was released from the dams for irrigation, it picked up the human sewage and refinery waste that had accumulated over the winter and carried them downstream. That slug of stuff eliminated not only all of the fish along the way, but the bottom food as well. You could smell it for 3, 4 miles away”; Larry Peterson, District Fisheries Manager, Wyoming Game and Fish Department, quoted in Gannon, “A Sick River is Returned to Nature,” 35–37, 83–85. For discussion of the Bureau’s review of its North Platte dam operations under Endangered Species Act requirements, see chapter 6.
46. The proposed Sandstone Dam was expected to yield thirty-two thousand acre-feet of water downstream. Jacobs and Taylor, “Wyoming’s Water Development Policy,” 261–67 found that dam benefits were far outweighed by costs (including foregone interest on funds that could have been invested), and public investment in the projects should be limited to the public benefits projects could legitimately be shown to provide—usually quite a limited amount. Summary of this research was circulated to the Wyoming Legislature in February 1988. The University of Wyoming’s president’s disavowal is marked in a letter to colleagues; “Dear Colleagues,” from February 17, 1988, UW Pres. Terry Roark and College of Agriculture Dean Lee Bulla Jr. in author’s files. Representative Pat O’Toole was interviewed by the author, as news reporter, on March 10, 1988.
47. For US Army Corps of Engineer’s 1992 denial of a Clean Water Act sec. 404 permit for Sandstone due to lack of identified industrial buyers (a problem also noted by the University of Wyoming economists), and the revised proposal for “High Savery” dam, yielding twelve thousand acre feet, plus irrigator inability to pay a 25 percent share of the smaller dam’s costs, see Wyoming Water Development Commission (WWDC), Sandstone Dam: Project Summary, 1–6; and WWDC, “2004 Legislative Report, #69 Project: High Savery” (website), Active Projects, http://wwdc.state.wy.us/legreport/2004/chap4.html#a. For the subsequent West Fork Dam proposal in the same area; see Angus M. Thuermer Jr., “Fight For $80M Dam Boils as House Strips Funds,” WyoFile (website), February 27, 2018, https://www.wyofile.com/fight-80m-dam-boils-house-strips-funds/; Thuermer, “West Fork Dam Kept Alive With $4.7 Million,” WyoFile (website), March 13, 2018, https://www.wyofile.com/west-fork-dam-kept-alive-4–7-million/; Andrew Graham, “Legislature Ends Session With Education Cuts, Again,” WyoFile (website), March 30, 2018, https://www.wyofile.com/legislature-ends-session-education-cuts/. For former legislator Pat O’Toole, see Brian Almer, “Family Farm Alliance Op-Ed by President Patrick O’Toole—CSU’s Water in the West Symposium,” Barn Onair & Online (website), April 26, 2018, https://brianallmerradionetwork.wordpress.com/2018/04/26/04–26–18-family-farm-alliance-op-ed-by-president-patrick-otoole-csus-water-in-the-west-symposium/.
48. From 1980 through 2015, nearly $647 million from Wyoming water development funds went to planning and building municipal projects, with about $120 million of that for rehabilitation; some $276 million went to purely agricultural projects, with about $143 million of that for rehabilitation; Wyoming Legislative Service Office, Wyoming Water Development Commission, 7; WWDC, 2017 Legislative Report, 1–8.
49. “Subject: Application for Permit to Appropriate Water on the Green River from Green River Lake to Warren Bridge,” memorandum, January 28, 1969, Jack R. Gage, special assistant attorney general to Floyd A. Bishop, on file with author; Mike Purcell, personal communication with author, July 11, 2018.
50. Floyd A. Bishop, state engineer, to Thomas A. Bell, executive director, Wyoming Outdoor Coordinating Council, Inc., July 17, 1969, copy on file with author.
51. The State Engineer’s Office posts on its website under its “Home” tab a list of beneficial uses, some tallied in statute and additional uses recognized by the state engineer. One recent legislative attempt to require that water uses under consideration as “beneficial” must be officially recognized and listed as such by the legislature was in 2012, proposed SF 76, which died in committee: https://www.wyoleg.gov/Legislation/2012/SF0076.
52. League of Women Voters, The River is Free, Thomas Stroock Papers (full citation in note 4); Rauchfuss, Final Report of the Stream, see “History and Committee Formation,” 2.
53. T. Paul Stauffer (Stream Preservation Feasibility Study Committee Chairman) in discussion with the author, May 4, 2017.
54. Stauffer, discussion; and Stauffer, “Did I Fish Too Much?,” vol. 1, 246.
55. In Rauchfuss, Final Report of the Stream, see: “History and Committee Formation,” 2; secs. 41-(3) to (5), (9) of proposed bill “Creation of Wyoming River Protection System,” pp. 23–30, 34 of Report; secs. 41–1.24 thru 1.25 of proposed bill “Protection of Stream Channels,” pp. 11–13 of Report.
56. Rauchfuss, Final Report of the Stream, 2.
57. T. Paul Stauffer (committee chairman) to Governor Stanley K. Hathaway, October 1, 1974, included in Final Report.
58. For the arguments by agricultural interests in legislative debate more than ten years after the Stream Preservation Committee Final Report, see multiple news reports, MacKinnon, Anne, Casper Star-Tribune, February 13, 1985. In 2006, State Engineer Pat Tyrrell explained to the Wyoming Water Development Commission that instream flow rights could “somewhat reduce the amount of time a stream is in ‘free river’ condition” if the state Game and Fish Commission sought regulation to ensure the flows covered by a right and the State Engineer’s Office considered the regulation justified to avoid potential damage to the fishery; State Engineer PowerPoint Presentation, January 11, 2006, slides 15 and 13, in author’s files. Among the legislative proponents of legislation allowing recognition of a water right to protect instream flows was Tom Stroock, an independent oilman in Casper and avid fly fisherman, who described opponents’ arguments as summoning up chimeras and “things that go bump in the night”; MacKinnon, “Instream Flow Bill Historic Marker,” Casper Star-Tribune, March 17, 1986.
59. Stauffer, “Did I Fish Too Much?,” 245–48. The Wyoming Supreme Court decision on river floating, see Day v. Armstrong, 362 P.2d 137 (1961). Written comments to the committee are preserved in Letters, Testimony, and Minutes of the Stream Preservation Feasibility Study, October 1, 1974, bound, unpaged volume at Wyoming State Library. Wyoming Outdoor Council comments, July 8, 1974, are in section titled “Letters and Testimonies to the Stream Preservation Committee from the Public at Large.” Wyoming Farm Bureau and Ruth Rudolph letters are in section titled “Testimonies from the Public Hearing Held on Nov. 19, 1973.”
60. State Engineer Bishop’s comments to the League of Women Voters Seminar on Wild, Scenic, and Recreational Rivers, held in Casper April 30, 1972, are in the volume cited above, enclosed with his June 19, 1973 letter to the committee, in section titled “Letters Submitted to the Stream Preservation Feasibility Committee from Committee Members and State Agencies.” Bishop letter to Governor Stan Hathaway, February 12, 1969, box 208, folder 2, McGee Papers.
61. On make-up of the Wyoming Legislature, mid-1980s, see Miller, State Government: Politics in Wyoming, 84. For initiative process and requirements, Larson, History of Wyoming, 322–23, 562–63; and Wyoming Secretary of State, “Initiative and Referendum Summary” (with erroneous date of final instream flow bill passage: it was 1986, not 1985).
62. For competing forces and legislative maneuvers in 1986, see Anne MacKinnon, “Instream Flow Bill Historic Marker,” Casper Star-Tribune, March 17, 1986.
63. Wyoming Laws 1986, chap. 76, sec. 1; Wyoming Statutes Annotated, 41–3-1001 through 1014: Instream Flows; Anderson, Tapping Water Markets, 47.
64. Wyoming Game and Fish Department, “Instream Flow Legislation—1986,” 4–6, internal departmental memo, copy in author’s files; Tom Annear speaker profile, Instream Flow Council “Flow 2018” (website), https://www.instreamflowcouncil.org/flow-2018-main/flow-2018-speaker-profiles/#Annear; Burkhardt, “An Implementation Case Study: Wyoming’s Instream Flow Law,” app. B, contains a list of Wyoming instream flow permits approved as of the end of October 1992. A comment in the University of Wyoming’s law review in 1986, by Matthew Reynolds, was titled “Wyoming’s New Instream Flow Act: An Administrative Quagmire.”
65. Stauffer, “Did I Fish Too Much?,” 246, 248, 251–61. Record of House votes on final passage of instream flow bill in author’s files. Jade Henderson (retired Division IV superintendent), personal communication with the author, October 8, 2018.
66. US Geological Survey Gage Data, “U.S.GS 0622800 Wind River at Riverton, 1912–79” (website), https://waterdata.usgs.gov/wy/nwis/dv?cb_00060=on&format=gif_default&site_no=06228000&referred_module=sw
&period=&begin_date=1912–04– 01&end_date=1979–09–30; US Bureau of Reclamation, “Pick-Sloan Missouri Basin Program, Riverton Unit,” 1–3 (1980) and 1–5 (1984). In 1928, after the diversion dam to serve Midvale’s long canal had been completed, the project hosted only sixteen farmers. More settlers came in during the Depression as the Dust Bowl drove them off Midwestern farms, and more again after World War II. In the 1960s, however, the federal government had to buy back from farmers some lands that turned out to have bad soils; see Autobee, Riverton Unit, Pick-Sloan, 23–29, quotation 32. Wyoming US senator Gale McGee praised Midvale in support of a bill adding it to the Pick-Sloan program for the entire Missouri basin, which meant program hydropower revenues could help pay Midvale’s Reclamation debt, see March 20, 1970, testimony, p. 5, box 237, folder 6, McGee Papers. Subsidies went to Bureau of Reclamation projects across the West, through foregone interest payments on production costs, and shifting of costs to non-irrigators benefiting from projects; see Wahl, Markets for Federal Water, 27–46; and US Government Accountability Office, Bureau of Reclamation: Availability of Information, app. 3, 41–47, with summary figures for the Riverton Unit (covering Midvale), Shoshone, and North Platte Bureau of Reclamation projects, showing that of the three federal irrigation projects in Wyoming the Riverton Unit has received the largest proportional share of subsidies.
67. US Bureau of Reclamation, “Pick-Sloan Missouri Basin Program, Riverton Unit,” 1–3 (1980), 1–5 (1984).
68. Blomberg, “Tribal Fishery Restoration”; Bergersen and Cook, “Impacts of Water Level Manipulations,” 1; Bergersen, Cook, and Baldes, “Winter Movements of Burbot,” 141–45; US Bureau of Reclamation, 1–3 (1980), 1–5 (1984); Autobee, Riverton Unit, Pick-Sloan, 23–29. The “first dibs” on Wind River flows under the 1906 water right were provided to the LeClair and Riverton Valley Irrigation Districts when the State Board of Land Commissioners gave those districts portions of the 1906 right in 1916–17; Hoopengarner, “To Make the Desert Bloom,” 165–66, 176. The “Tri-Partite Agreement” between Midvale, LeClair and Riverton Valley districts, modified over time, details exactly how the sharing of the 1906 right works, and is described in Wyoming Water Development Commission, LeClair Irrigation District, 3–4, 61–63. The first statute generally authorizing exchanges, with approval of the state engineer and no injury to other water right holders, was passed in 1947; Wyo. Stat. Ann. § 41–3-106.
69. Bergstedt, “Fishery and Macroinvertebrate Response,” iii–iv, 2–5, 25, 32–33, 37–39, 56–57, 67–71: at 2, “Because these sediments impede the flow of water into the Wyoming Canal (the Midvale canal served by Diversion Dam), canal operators routinely flush them from above the dam by opening the dam gates and sluicing the material downstream. Irrigation company records indicate that this was done twenty-five times during the 1988 irrigation season and thirty-two times in 1989. Suspended solid levels during these events have increased from as low as 2 mg/L to over 14,000 mg/L in minutes.”
70. For tribal oil revenues, see O’Gara, What You See in Clear Water, 133–39. The voluminous filings and decisions in what became known as the Big Horn Adjudication are all compiled in a comprehensive database, the Big Horn River Adjudication Case (BHRAC), housed at Wyoming State Engineer’s Office. Key court decisions related to the tribes’ reserved rights include General Adjudication of All Rights to Use Water in the Big Horn River System, District Court of Fifth Judicial District, Wyoming, May 10, 1983, BHRAC index JoffeDec05101983.pdf; General Adjudication of All Rights to Use Water in the Big Horn River System, District Court of First Judicial District, Wyoming, June 8, 1984, and May 24, 1985, BHRAC index N5M6UK0000.pdf and 11112t.pdf, respectively; General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo. 1988) (Big Horn River System), affirmed by an evenly divided US Supreme Court, Wyoming v. United States, 492 U.S. 406 (1989)—the divided court issued no written opinion. One western justice, Sandra Day O’Connor, had to recuse herself because of a conflict of interest, as water claims of other tribes affected her family’s Arizona ranch. A draft opinion she wrote for a proposed majority before realizing that she had to recuse herself was likely to have considerably reduced the tribes’ water right, in consideration of conflict with existing non-Indian water use on the river and an assessment of whether new irrigation projects were likely to be built on a reservation. O’Connor’s recusal left the court divided 4:4 on the case, so the Wyoming Supreme Court decision was left standing as the final decision of Big Horn River System; 753 P.2d 76 (Wyo. 1988). Presentation by Susan Williams (attorney representing Shoshone tribes at the US Supreme Court) cited in Cosens and Royster, The Future of Indian and Federal Reserved Water Rights, 10–11, 172.
71. Cosens, “The Legacy of Winters v. United States,” in Cosens and Royster, 5–9; Shurts, Indian Reserved Water Rights.
72. In periodic snowmelt forecasts, the Bureau of Reclamation from 2002–18 has estimated the thirty-year average annual flow of the Wind River as 540,000–570,000 acre-feet. See for example, Basin 2002–18, at US Bureau of Reclamation, Wyoming Area Office, 2008 (website), “Bighorn River Basin Snowmelt Runoff Forecast,” published May 2008, https://www.usbr.gov/newsroom/newsrelease/detail.cfm?RecordID=21821.
73. O’Gara, What You See in Clear Water, 80–81, 88–93. Review of the claims of non-Indians for treaty-date rights took years and three more decisions: General Adjudication of All Rights to Use Water in the Big Horn River System, 803 P.2d 61 (Wyo. 1990) (Big Horn II), General Adjudication . . . in the Big Horn River System, 899 P.2d 848 (Wyo. 1995) (Big Horn IV), and General Adjudication . . . in the Big Horn River System, 48 P.3d 1040 (Wyo. 2002) (Big Horn V); Cosens and Royster, The Future of Indian and Federal, 172–75, featuring presentations by attorney Susan Williams (former attorney representing the tribes before the US Supreme Court) and Gordon “Jeff” Fassett, former Wyoming state engineer.
74. Memorandum Opinion, Judge Alan B. Johnson, April 29, 2010, at 2–3, in James E. Large v. Fremont County, 709 F. Supp. 2d 1176 (D. Wyo. 2010) (No. 05-CV-0270), at 1–15. This was a federal Voting Rights Act violation case, brought by the Northern Arapaho tribe, which successfully forced Fremont County to drop its at-large districting for county commission elections. The court found such a system tended to prevent tribal citizens from electing a commissioner who might represent their interests.
75. Cosens and Royster, The Future of Indian and Federal, 172, with Susan Williams (former attorney representing the tribes before the US Supreme Court) and affidavit of State Engineer Jeff Fassett; October 3, 1990, BHRAC index 10–8-14t.PDF (full citation in note 68); O’Gara, What You See in Clear Water, 226; Rusinek, citing news reports and briefs filed in the appeal of Big Horn River System, 753 P.2d 76 to the US Supreme Court, in “A Preview of Coming Attractions?,” 392–93.
76. Special Master Teno Roncalio, the initial reviewer of evidence and arguments who filed recommendations with the state district court, found that congressional intent in the 1868 treaty was “to provide a permanent homeland for the Indians,” and therefore water had been reserved for many purposes beyond agriculture, including fish and wildlife. Roncalio argued that to say that water for the reservation was reserved only for an agricultural way of life (as the district courts and the Wyoming Supreme Court subsequently did) “is to unreasonably limit the terms of the Treaty entered into by a Congress and a nation whose own history surpassed its narrow agricultural beginnings”; Report of Special Master, 274. Both the state district court and the Wyoming Supreme Court rejected this argument and ruled that the treaty terms clearly established the reservation for use by the tribes for agricultural purposes, and that purpose therefore governed how much water the tribes’ reserved water rights would cover; Big Horn River System, 753 P.2d at 94–97, 99. For the Arizona Supreme Court’s endorsement of interpreting a reservation as “homeland” for tribes on the Gila River in that state, see General Adjudication of All Rights to Use Water in the Gila River System and Source, 35 P.3d 68, 76 (Ariz. 2001).
77. Cosens and Royster, The Future of Indian and Federal, 10; Rusinek, “A Preview of Coming Attractions,” 372; Franks, “The Use of the Practicably Irrigable Acreage,” 549, 578; Shay, “Promises to a Viable Homeland,” 578–79.
78. Arizona v. California, 439 U.S. 419 (1979), at 421–22, said tribal water awards quantified under the “practicably irrigable acreage” (PIA) standard did not afterwards have to be used for irrigation. Big Horn River System, 753 P.2d at 100 suggested the “futures” award measured by the PIA standard could be used for non-irrigation purposes. A final version of the Wind River Water Code, after some time as an interim policy, was adopted by the Shoshone and Arapaho Joint Business Council in 1991.
79. Big Horn River System, 753 P.2d at 99; Parshall, Twelfth Biennial Report, 133–34 (gauging station reports); Cosens and Royster, eds., The Future of Indian and Federal Reserved Water Rights, (Williams’ presentation); O’Gara, What You See in Clear Water, 193, 228–29. The lower court, in First District Court June 8, 1984 decision, said, “The reserved water right quantified by [the lower court] does not deny the Tribes the ability to regulate instream flows in order to maintain what may be considered necessary water for optimum fish habitat, nor does the opinion limit any such power that may exist on the part of the Tribes. The Tribes may seek to dedicate their stream flows for fish habitat by using water reserved to them by the decision”; 10–11. The Wyoming Supreme Court was silent on this issue in Big Horn River System, 753 P.2d 76—leaving room for the instream flow dedication and litigation of 1990.
80. Tribes’ Motion for Order to show cause why further relief should not be granted, July 30, 1990, with attached affidavit of Tribal Water Engineer Catherine Vandemoer, and Exhibits A-C, located in the BHRAC database, index 10–8-14r.PDF, at State Engineer’s Office (full citation in note 68). Tribes’ Memorandum in support of the Shoshone and Arapaho Tribes’ Motion for Order to show cause why further relief should not be granted, July 30, 1990, 3–5 (includes schematic map of river and gauging points, referred to in Vandemoer’s affidavit) in the BHRAC database, index 10–8-14s.PDF.
81. States’ Exhibit 1, affidavit of State Engineer Jeff Fassett, August 3, 1990, attached to State’s Response to Tribes Motion for Order to show cause why further relief should not be granted, August 3, 1990, in BHRAC database, index 10–8-14t.PDF, pp. 1–3; State’s Response, August 3, 1990, at 10–8-14t.PDF, pp. 4–5, 8–9. For later descriptions of the issues and actions of the summer of 1990, see General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn III), 835 P. 2d 273 (Wyo. 1992) at 275–76; Cosens and Royster, The Future of Indian and Federal, 173–75 (presentations by Williams and Fassett, 2008); Robison, “Wyoming’s Big Horn General Stream,” 288–90.
82. Tribes’ Motion for Order to show cause, July 30, 1990, in BHRAC index 10–8-14r. PDF. The district court ruling in the case that became Big Horn III, 835 P. 2d 273 in the state supreme court was issued March 11, 1991, in BHRAC index GQVXO70000.pdf (full citation in note 69), with key language at pages 12–14, 18–19, and the quotation in text at 14. The district judge commented, at 13: “The fact that a Tribe changes the use of its reserved water from agriculture to something else does not mean, ipso facto, that the reserved water loses its special status, and that the Tribe is suddenly subject to the jurisdiction of the state.”
83. Big Horn III, 835 P. 2d at 278–85, 290. Under Wyoming’s 1986 instream flow law, an “existing right” transferred to instream flow use had to go through all the standard scrutiny under Wyoming’s transfer law, including historic use of the right, and the tribes’ “futures” rights had not been used; and, of course, the right would have to be handed over to the state of Wyoming, see Wyoming Statutes Annotated § 41–3-1007.
84. Katharine Collins, “Fear of Supreme Court Leads Tribes to Accept an Adverse Decision,” October 19, 1992, High Country News; O’Gara, What You See in Clear Water, 243–44; Cosens and Royster, The Future of Indian and Federal, 174 (Fassett presentation, 2008).
85. Rusinek, “A Preview of Coming Attractions?,” 398–404. He cited Official Transcript of Proceedings before the Supreme Court of the United States; Wyoming v. United States, and a Casper Star-Tribune newspaper report of the oral argument, April 26, 1989, both of which were available to the Wyoming Supreme Court justices in Cheyenne.
86. Big Horn III, 835 P. 2d at 278–80.
87. Id. at 295, referring to the landmark US Supreme Court school desegregation case, Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
88. Big Horn III, 835 P. 2d at 294.
89. Id.
90. Id. at 296.
91. Id. at 297, 298–300, 303.
92. Id. 303–4.
Chapter 6
1. Ginger Paige, (associate professor of water resources, University of Wyoming Department of Ecosystem Science and Management) interview with the author, March 1, 2018.
2. Colorado River Research Group (CRRG), “When is a Drought not a Drought?,” 2018. CRRG is a “self-directed” group of ten veteran Colorado River scholars in water resource management, river science, water law and public policy. https://www.coloradoriverresearchgroup.org/.
3. Eric and April Barnes, interview with author, April 16, 2017. For origins of “Fontenelle” name, see “Wyoming Places,” Wyoming State Library (website), http://places.wyo.gov/. The near-failure of Fontenelle Dam in 1965 is described with references on the website of the Association of State Dam Safety Officials, http://damfailures.org/case-study/fontenelle-dam/; Baker, “The Fontenelle Dam Incident,” 15. On the non-use of Fontenelle for irrigation, a summary report for the Wyoming Water Development Office puts it this way: “Because of the relative aridity of the central Green River Basin, irrigation first began along the tributaries leading from the various mountain ranges that fringe the basin. As happened early on in much of Wyoming, tributaries were more quickly developed than the larger watercourses they fed. Today, the development of irrigation works in the basin still is defined by these early efforts. The bulk of irrigation in the basin occurs along tributaries. The largest reservoir in the interior of the basin, Fontenelle Reservoir, is downstream of virtually all of the upper Green River irrigated areas, unavailable to other sub-basins, and therefore is virtually unused for irrigation,” in “Technical Memoranda, Green River Basin Plan” Wyoming State Water Plan (website), http://waterplan.state.wy.us/plan/green/2001/techmemos/aguse.html. For details on the refuge, see “Seedskadee National Wildlife Refuge: About the Refuge,” US Fish and Wildlife Service (website), updated June 24, 2015, https://www.fws.gov/refuge/Seedskadee/about.aspx.
4. The Civil War veteran and lawyer who settled on Fontenelle Creek was Charles Holden, a delegate to Wyoming’s constitutional convention who argued there for women’s suffrage; the New York farm boy who went off to California in the gold rush, came to settle on Fontenelle creek, and married a young Illinois woman teaching school in nearby Green River was Daniel Rathbun, whose ditches now water the Barneses’ ranch. Progressive Men of Wyoming, 235–36, 154–55; Eric and April Barnes, interview with the author, April 16, 2017.
5. Eric and April Barnes, April 16, 2017.
6. Dave Rosgen, professional hydrologist and geomorphologist, spent twenty years with the US Forest Service and in 1985 created the consulting group Wildland Hydrology to design and implement river restoration and to train professionals in watershed assessment and management, river restoration, and monitoring; in “About Us,” www.wildlandhydrology.com/about. For fish habitat restoration structures and discussion, see Rosgen, Applied River Morphology, 8–20 to 8–43. His is one of the major approaches to understanding and working with rivers that have been adopted by federal agencies, including the Forest Service. He described the motivation for his lifework at the Applied Fluvial Geomorphology Short Course, in Pinedale, Wyoming, July 15, 2002, attended by the author.
7. “Building Wyoming’s Tax Structure for the 21st Century,” Report of the State of Wyoming Tax Reform 2000 Committee (website), https://www.wyoleg.gov/1999inte/t2000/final1.htm. Charts depicting state revenues overall and from the minerals sector, 1981 to projected 2010, found in Consensus Revenue Estimating Group, Wyoming State Government Revenue, 2005.
8. Dustin Bleizeffer, “Coalbed Methane: Boom, Bust and Hard Lessons,” Encyclopedia, Wyoming State Historical Society, WyoHistory.org, published March 29, 2015, https://www.wyohistory.org/encyclopedia/coalbed-methane-boom-bust-and-hard-lessons.
9. State Engineer’s Office, “Guidance: CBM/Ground Water Permits,” issued in 2004, describes the rationale for the declaration that production of water from coalbed methane wells would be considered a beneficial use of Wyoming water, as well as consequent permitting requirements.
10. Ruckleshaus Institute, Water Production from Coalbed Methane, v, 10–32. The report shows that in 2003, coalbed methane wells, most of them in the Powder River basin, produced just under seventy-five thousand acre-feet of water. For the obstacles to centralized treatment, transportation, and use of CBM gas, see Kimball et al., “Technical Memorandum,” to the 2006–2007 Wyoming Coalbed Methane Task Force, summarizing a Wyoming State Geological Survey report on the feasibility of a desalination plant for coalbed methane water in the Powder River Basin, and Bleizeffer, “Coalbed Methane: Boom, Bust” (full citation in note 8). The state of Montana sued Wyoming claiming that pumping of groundwater in CBM production in the Tongue River basin in the early 2000s had depleted water flow in the Tongue River that Montana should have received, but the special master appointed by the US Supreme Court to hear that case ruled that CBM production in Wyoming had not depleted water available to Montana. WY State Engineer’s Office (SEO), State of Wyoming Water Year 2015, 106. For summary of SEO action by 2006 and the legal basis for SEO and Wyoming Department of Water Quality regulation of coalbed methane water to avoid the problems it created, see MacKinnon and Fox, “Demanding Beneficial Use,” 369–99. For landowner complaints of CBM water releases in ephemeral streams creating water quantity and quality problems, as well as lack of adequate monitoring and enforcement under the Clean Water Act by state officials in the Wyoming Department of Environmental Quality, see Swartz v. Beach, 229 F. supp. 2d 1239 (D.Wyo. 2002), at 1248–49 (eventually settled out of court after the federal judge in Wyoming dismissed most of the state and company defendants’ motion to dismiss the landowner’s complaint). In December 2007, the SEO office issued a press release stating, “This week, State Engineer Pat Tyrrell asked for an explanation of how natural gas operations are putting water to ‘beneficial use’ when little to no gas is being collected from some of their wells. The wells of interest are at least five years old, and are located in the Clear Creek and Crazy Woman Creek drainages (in the western portion) of the Powder River basin. A total of 296 wells are involved.” For cancellation of groundwater permits for excess water production, see Tyrrell, State of Wyoming 2008, 43, stating, “Forty seven (47) Coal Bed Methane (CBM) Use permits were suspended due to the long-term production of water and the failure to produce gas.”
11. For Wyoming CBM production data, see “Wyoming Natural Gas Gross Withdrawals from Coalbed Wells,” US Energy and Information Administration (website), https://www.eia.gov/dnav/ng/hist/ngm_epg0_fgc_swy_mmcfa.htm; Bleizeffer, “Coalbed Methane: Boom, Bust” (full citation in note 8); MacKinnon and Fox, “Demanding Beneficial Use,” 373–78.
12. Bureau of Reclamation (BOR), Platte River Recovery Implementation Program, 24 (hereafter cited as PRRIP FEIS); Farrar, “Platte River Instream Flows,” 39. On BOR subsidies to irrigated agriculture, see Wahl, Markets for Federal Water, 3–126. For unrepaid costs for the Goshen Irrigation District, Wyoming’s share of the North Platte Project served by Wyoming reservoirs including Pathfinder, see Wahl’s chart, 35. Wahl explains that the ongoing federal subsidies for federal irrigation projects derive from such factors as the federal reclamation office not charging interest on construction costs and shifting costs to other users, like hydropower consumers, 27–39. Recent Bureau of Reclamation figures (2016) show that of the three federal irrigation projects in Wyoming, only the irrigation districts on the Shoshone have paid over half of project construction costs—for the North Platte, the irrigation districts have paid around a third of construction costs and on the Wind River, the Midvale Irrigation District has paid less than 5 percent of construction costs, according to BOR Great Plains Region, “Statements of Project Construction Cost and Repayment, as of 9/30/2016, for the Shoshone Project, the North Platte Project, and the Riverton Project”; report created on author’s request.
13. Flows of Wyoming’s major rivers are tabulated in WWDC, Wyoming Framework Water Plan, vol. 1, 4–2. US Army Corps of Engineers summary of existing storage in the Platte basin as of the mid-1970s is quoted by the federal district court in Nebraska, in Nebraska v. REA, 12 Env’t Rep. Cas (BNA) 1166 (D. Neb 1978), appeal vacated and dismissed, 594 F.2d 870 (8th Circ. 1979), at 1178.
14. Currier, Lingle, and VanDerwalker, Migratory Bird Habitat on the Platte, 13–18.
15. The 30 percent of annual flows reaching the habitat area in 1970 reflects flows there versus total river flows measured in the 1890s—when thousands of irrigation canals tapping into the river had already been built. PRRIP FEIS, 26–31; Farrar, “Platte River Instream Flows,” 38–42; Currier, Lingle, and VanDerwalker, 14 (flows and channel width), 18: “Little remains today of the open-channel, nearly treeless floodplain of pre-settlement times. During the past 100 years, reductions in peak and average flow in the Platte have resulted in a decrease in scouring and shifting of the alluvial streambed and allowed extensive forest development on the floodplain” (citations omitted). The pallid sturgeon fish is also one of the species of concern. Found in the Missouri River and the lower (mainstem) Platte, the fish is not well adapted to the channelized river conditions created in the last one hundred years: PRRIP FEIS, 33.
16. Nebraska v. REA, (D. Neb 1978), appeal vacated and dismissed, 594 F.2d 870 (8th Circ. 1979), 1179–90. Nebraska, and other intervenors, successfully argued that the Rural Electric Association had failed to meet the requirement of §7 of the Endangered Species Act (ESA), in approving a loan guarantee for the project based only on its own determination (not a biological assessment by the Fish and Wildlife Service) that the habitat would not be adversely affected. Similarly, the court agreed with the challengers to the project that the Corps of Engineers had violated the ESA’s §7 requirement by issuing a permit for the project under the Clean Water Act, before the Fish and Wildlife Service completed its biological assessment of the habitat impact. The ESA § 7 requires all federal agencies to consult with the Secretary of the Interior before authorizing, funding, or carrying out an action which may jeopardize an endangered or threatened species; 16 U.S.C. §1536 (a)(2). One commentator describes Nebraska’s lawsuit against the power plant as an “end-run” to protect not so much the endangered species, but downstream Nebraska irrigators: “It was easier to get water for this purpose [the endangered species] than to reopen a 1945 equitable apportionment” of the river made by the US Supreme Court in Nebraska v. Wyoming (325 U.S. 589, 1949); Tarlock, “The Endangered Species Act,” 20–21. After Wyoming launched plans for a $45 million dam on a North Platte tributary in 1986, however, Nebraska did launch a new Nebraska v. Wyoming lawsuit to reopen the original US Supreme Court decree allocating North Platte water between the two states (and also raised claims of impact on habitat in that suit). See further discussion in text.
17. PRRIP FEIS, ii–5; Fassett, “Endangered Species Management,” 19.
18. Fassett, 19; Zallen, “Integrating New Values with Old Uses,” 1–4; Pinchot, “The Long Struggle for Effective Federal Water Power Regulation,” 9; “About the Program,” Platte River Recovery Implementation Program (website), https://platteriverprogram.org/about/program-details; PRRIP FEIS, Summary, 1–2.
19. Fassett, “Endangered Species Management,” 19–20; WWDC, “PRRIP versus Individual Consultation (Program vs. No Program),” presentation regarding the proposed Platte River Recovery Implementation Program (PRRIP), at a meeting hosted by the WWDC, January 20, 2004, in Casper, and public discussion (notes in author’s files); Zallen, “Integrating New Values with Old Uses,”18.
20. For the Deer Creek Dam, a $45 million project authorized by the Wyoming Legislature in 1985, see chapter 5 and WWDC, 1985 Legislative Report, 38–41, and WWDC, 1986 Legislative Report, 34–36; for the Nebraska v. Wyoming lawsuit, see Tyrrell, State of Wyoming 2002 Annual Report, 65–73 for a summary of the original filings, the progress of the litigation, and the final settlement—giving a good sense of the time, effort and multiple hearings and negotiations entailed in the Nebraska v. Wyoming lawsuit, filed in 1986.
21. Compare irrigated acreage maps, Wyoming State Water Plan, Platte River Basin Water Atlas (2006); above Pathfinder, http://waterplan.state.wy.us/plan/platte/2006/atlas/above/above_agricultural
_irrigated_acreage.htm; and near the Nebraska state line, http://waterplan.state.wy.us/plan/platte/2006/atlas/guernsey/guernsey
_agricultural_irrigated_acreage.htm. The plan notes that there are no irrigation districts above Pathfinder but thirteen on the Wyoming stretch of the river near the Nebraska line.
22. Randall Tullis (Wyoming Division I superintendent), “Wyoming Compliance with Key Issues Related to Modified North Platte Decree Implementation,” presentation to CLE International Conference on Wyoming Water Law, April 25, 2008, in author’s files. Nebraska v. Wyoming was settled in 2001, after agreement on key principles were settled almost literally on the courthouse steps in 2000, and all the parties hammered out the details in ensuing months. Tyrrell, State of Wyoming 2002 Annual Report, 71. For the settlement on the courthouse steps, see Brodie Farquhar, “Wyo, Nebraska Approve North Platte Deal,” Casper Star-Tribune, March 14, 2001, quoting Wyoming Assistant Attorney General Tom Davidson. The settlement dealt with allocation issues and included Wyoming’s commitment not to pursue the Deer Creek Dam. It also reflected the determination of both Wyoming state engineer Fassett and water development director Purcell that the endangered species habitat issues would not be addressed in the settlement of the lawsuit over decree violations; rather, they were kept for the Platte River Recovery Implementation Program which achieved final adoption by all three states and the federal government in 2006.
23. For a description of the governance committee, its origins and operations, see “Governance Committee,” Platte River Recovery Implementation Program (website), https://platteriverprogram.org/group/governance-committee. For the matter of water under the first increment of the program not amounting to what US FWS wanted, see PRRIP FEIS, 48–50.
24. Tyrrell, State of Wyoming 2002 Annual Report, 71–73; “Modified North Platte Decree,” Wyoming State Engineer’s Office (website), http://seo.wyo.gov/interstate-streams/know-your-basin/platte-river-basin; documents on “North Platte River Settlement,” Nebraska Department of Natural Resources (website), https://dnr.nebraska.gov/water-planning/north-platte-river-settlement; and see citations in footnote 22 above.
25. PRRIP FEIS, 45; WWDC, 2007 Legislative Report, 87–89 (Pathfinder Modification) and 91–93 (PRRIP). Legislative approvals 2006 information at PRRIP FEIS, 2006 Session Laws chap. 99, Section 6 and Pathfinder Modification, 2006 Session Laws chap. 105, 99–3-105 (b). See also Theesfeld and MacKinnon, “Giving Birds a Starting Date,” 110–19. The idea of replacing storage space lost to sedimentation, as a means to expand an existing dam, was applied to Pathfinder from the experience of the state of Wyoming and the Bureau of Reclamation (i.e., John Lawson) in expanding Buffalo Bill Dam on the Shoshone River. Mike Purcell, personal communication with the author, October 29, 2018.
26. The largest irrigation district served by the Bureau of Reclamation dams on the North Platte is the Pathfinder Irrigation District in Nebraska. In 2005 the president of the district commented, “Dealing with endangered species issues is very difficult, and for most water users they find it hard to understand why they are even affected. Bottom line the Endangered Species Act is not going to go away. The PRRIP (Platte River Recovery Implementation Program) provides a reasonable basin-wide approach to addressing endangered species, which as water users we find much more palatable than what might result from individual consultations with FWS (US Fish and Wildlife Service). For this reason the Pathfinder Irrigation District supports the implementation of the PRRIP”; Pathfinder Irrigation District letter to Director, December 9, 2005, located on file at the Wyoming Water Development Office, Cheyenne. A letter in support of the related Pathfinder Modification project, from a member of the Pathfinder district, had also commented: “Fish and wildlife people need to remember that 110 years ago before the Pathfinder and other dams were built for irrigation there was no water in the river for fish and wildlife after the spring run-off,” (emphasis in the original). Kelley Brothers letter to Director, on file at Wyoming Water Development Office, Cheyenne; WWDC, 2007 Legislative Report, 87–89 (Pathfinder Modification).
The Bureau of Reclamation’s Kendrick Project to irrigate lands near Casper envisioned sixty-six thousand irrigated acres but as of the early 2000s irrigated only twenty-four thousand acres. Anderson Consulting Engineers (ACE), Executive Summary for Casper Alcova Irrigation, 1–2. State aid to the Casper-Alcova Irrigation District included over $1.3 million from state water development accounts for water delivery system rehabilitation and digital mapping. State of Wyoming, Session Laws 2004, chap. 118; 2005 chap. 147; 2006, chaps. 99 and 105. Bureau of Reclamation correspondence files from 1933–35 show the pressure to get the project going, for jobs and more agriculture around Casper. Mead, heading the bureau, determined from Orville Beath of the University of Wyoming that at Kendrick, soils containing selenium (a necessary nutrient but dangerous in concentration) were unlikely to cause problems under irrigation. Letters in General Correspondence, Water Appropriations, Entry 7, RG 115, Subgroup 031, National Archives, Denver: November 8, 1933, District Counselor to Bureau of Reclamation Commissioner Elwood Mead; November 17, 1933, Chief Engineer to District Counselor; June 18, 1934 L. C. Bishop to Commissioner Mead; January 22, 1935, Commissioner Elwood Mead to Interior Secretary Harold Ickes; February 5, 1935, Commissioner Mead to Wyoming State Engineer Edwin Burritt. In RG 115, Entry 7, Correspondence, Subgroup 400.02, Land Classification and Soil Surveys: December 5, 1934 Commissioner Mead in discussion with Orville Beath of selenium research on project lands; January 3, 1935 Commissioner Mead to Orville Beath; January 11 and January 14, 1935 Orville Beath-Commissioner Mead; and February 1, 1935 Construction Engineer Bashore to Commissioner Mead.
Fifty years later, studies in 1986–96 documented that irrigation of soils on the Kendrick lands near Casper had led to selenium content in irrigation drainage waters high enough to kill or deform the embryos of birds using the area, and impair reproduction of fish; other studies showed potential public health risk from consumption of too many ducks and geese on the project, or fish from the North Platte near Casper. Peterson, Jones, and Morton, Reconnaissance Investigation of Water Quality, 39–41; Klasing, Agricultural Drainage Water Contamination, i–ii; Ramirez and Dickerson, Monitoring of Selenium Concentration, 1. Selenium contamination from irrigation drainage water gained national attention in the 1980s at the Kesterson National Wildlife Refuge in California; the Department of Interior later identified the Kendrick project near Casper as one of nine top areas of selenium concern in the western United States. Remediation after 2000 included state of Wyoming funds for project irrigators to switch from flood irrigation to pivots and line dirt canals to reduce water use—thus addressing both selenium issues and the likely water supply shortages to the project due to the Pathfinder Modification plan. Harris, Death in the Marsh, 1–13, 190–213; Natrona County Conservation District, Casper-Alcova Irrigation District, and Kendrick Watershed Steering Committee, Technical Bulletin #1, January 2003, in author’s files; ACE, Executive Summary for Casper Alcova, 1; and “Cody Shale, Selenium & Water Quality,” Natrona County Conservation District (website), http://natronacountyconservationdistrict.com/whatisselenium.html discusses ongoing monitoring and selenium management with landowners.
27. WWDC, 2007 Legislative Report, 87–89 (Pathfinder Modification); Stipulation and Settlement Agreement before the Wyoming State Board of Control, Docket No. I-2008–1-7, filed October 16, 2008; and US Bureau of Reclamation, amended petition, Docket No. I-2008–1-7; Board of Control hearing, Docket No. I-2008–1-7, October 20, 2008.
28. “Proposed First Increment Extension Environmental Assessment,” Platte River Recovery Implementation Program (website), https://www.usbr.gov/gp/nepa/platte_river/index.html. Platte River Recovery Implementation Program, February 9, 2018, Power-Point presentation by Harry LaBonde, director, Wyoming Water Development Office, in author’s files. Audio recordings of public meetings for the Platte River Recovery Implementation Program (PRRIP), held in several locations, are in the author’s files and available from Wyoming Water Development Commission (WWDC). They include February 6, 2018 in Torrington, WY, just west of the Nebraska line; February 7 in Saratoga, Wyoming, in the upper Platte basin; and February 8 in Casper, Wyoming, just east of Pathfinder Reservoir.
29. Audio recordings of public meetings on PRRIP, held February 7, 2018, in Saratoga, Wyoming, available from WWDC, and in author’s files.
30. Wohl, Ellen E. Virtual Rivers: Lessons from the Mountain Rivers, 1–37, esp. 25: Wohl provides an excellent description for the lay person of river geomorphology. Sheridan, joint City of Sheridan-US Army Corps of Engineers project, “Sheridan Ecosystem Restoration Project,” US Army Corps of Engineers (website), http://www.nwo.usace.army.mil/Missions/Civil-Works/Planning/Planning-Projects/Sheridan-WY/. For City of Casper (website), see “Platte River Revival,” http://www.casperwy.gov/residents/environment_and_waste/platte_river_revival. The history of the restoration effort in Casper, starting with the launch of a riverside walking trail in the 1980s and moving toward the 2006 public-private creation of the Platte River Revival to clean river banks, eliminate non-native trees, and restore fish habitat through the city, is outlined in “North Platte River Restoration,” a downloadable 2006 presentation at https://wgfd.wyo.gov/WGFD/media/content/PDF/Habitat/Aquatic%20Habitat/WWA_RiverRestoration_PlatteRiver.pdf. City of Laramie’s brochure, “Laramie River Greenbelt Trail” https://cityoflaramie.org/DocumentCenter/View/2709. For the City of Evanston (website), see Bear River Greenway “History,” http://www.evanstonparksandrec.org/153/History. Cheyenne Chamber of Commerce’s (website), “Crow Creek,” http://www.cheyennechamber.org/crow-creek. For Pinedale, see Annear and Bulger, “Progress at Pine Creek,” 34–39.
31. The author participated in the state engineer’s ad hoc group in the 1990s. Feck and Nibbelink, in two stream studies, Watershed Analysis of Steam Flow . . . Clear Creek Watershed, 15, and Watershed Analysis of Steam Flow . . . Popo Agie Watershed, 14. Examples of failed temporary instream flow bills: SF 72, 2003 (died in Senate committee), SF 106, 2005 (died in Senate committee), SF 51, 2007 (passed Senate but died in House), SF 71, 2009 (died in Senate committee). In fall 2004, the Wyoming Water Development Commission (WWDC) director successfully opposed funding for the City of Evanston for its project to “rehabilitate” the Bear River flowing through the city. In 2015, the commission turned down a City of Casper proposal for restoring the North Platte through the city on a stretch where the work would protect the city’s drinking water well fields. WWDC project applications and recommendations, 2004 and 2015, in author’s files. In 2004, a lead staffer at the WWDC noted in an email that in rejecting past proposals to fund stream restoration projects, “the reasoning was that there is a huge volume of stream channels that need work and this tends to divert resources away from water development”; John Jackson, September 24, 2004, in author’s files. For Board of Control adjudications of instream flow water rights, see board agendas and minutes from 2011 and 2012.
32. For a description of Bureau of Reclamation water releases on the North Platte above Casper to clean spawning gravels for trout, see Dallman, “Flushing Flows to Enhance Trout Habitat,” 1. And for an example of how those “flushing flows” have become standard, see USBR, Wyoming Area Office, “Fluctuation of North Platte River flow Downstream of Gray Reef Dam,” press release February 26, 2004, https://www.usbr.gov/newsroom///newsrelease/detail.cfm?RecordID=701. For other Bureau activity to improve fish habitat on the Platte, see Dallman, “Pathfinder Dam Celebrates Restored Flow,” 13; Copeland, “Birth of a Fishing Town,” 12–19. For flows from the enlarged Buffalo Bill Dam, see John H. Lawson, “Buffalo Bill Reservoir Enlargement Winter Release Operation Agreement,” PowerPoint presentation June 18, 2004 (in author’s files); Annear, “Securing the Shoshone,” 37–43; and letter, August 18, 2004, Heart Mountain Irrigation District to Wyoming Water Development Commission, Cheyenne office files (Heart Mountain is one of the biggest single irrigation districts served by the Buffalo Bill Dam and other facilities in the Bureau of Reclamation’s Shoshone River Project). Though Wyoming law requires that reservoirs can fill only once each year—allocating to the reservoir owners only enough water from a stream to fill the reservoir to capacity once—the high flows of the Shoshone had meant that with the original dam, “the Irrigation Districts enjoyed multiple fills on their storage account in most runoff periods,” the Heart Mountain district said. Adding new storage space to the dam meant new accounts in the dam, new contenders for Shoshone River water, including fish that needed winter flows, and irrigators being limited to “one fill” of their accounts. Most irrigators had not contemplated that when they supported state investment in Buffalo Bill expansion. “We do not believe that the Senators and Representatives of the State of Wyoming, at the time of the dam modification project was undertaken [sic], intended to spend in excess of $50 million to mainly benefit the Shoshone fishery,” the Heart Mountain district complained in its letter. For Popo Agie River, see “Healthy Rivers Initiative,” at Popo Agie Conservation District (website), http://www.popoagie.org/.
33. The “Just Add Water” series in the Game and Fish Department’s Wyoming Wildlife magazine is focused “on how some of Wyoming’s once languishing rivers have been developed into prolific fisheries for anglers and precious resources for communities. Though it may seem it’s as easy as just adding water, far more goes into the work of shaping world-class fisheries.” See for instance Annear and Bulger, “Progress at Pine Creek,” 34, which begins: “Rivers give us a lot, but maybe their best lesson is teaching us about hope. No matter how bad things get for a river, it never quits working. A river never loses sight of its duty to provide life, even while holding out hope for better times. Sometimes it takes human intervention to steer back to those better times.” Others in the series include Annear, “Securing the Shoshone,” 37–43. For Game and Fish Department work with Wheatland Irrigation District to improve water levels for fish in one of the district’s reservoirs, see Bulger, “Polishing a Gem,” 31–37. For Paul Hagenstein, the first irrigator to donate an irrigation water right to become an instream flow right, see Sweetwater Now “Obituaries,” https://www.sweetwaternow.com/paul-carl-hagenstein-jr-august-03–1927-may-26–2018/; Annear and Bulger, 34; and Anne MacKinnon, “From Hay Fields to Fish Flows: Pinedale Irrigator First in Wyoming to Convert Water Right for Fish,” WyoFile (website), published November 15, 2011, https://www.wyofile.com/?s=Hagenstein. For water markets aiding instream flow in other states, see Anderson, Tapping Water Markets, 87–106 (“Buy that Fish a Drink” chapter).
34. Johnson, “Reclamation and Water Conservation,” 1–2; John Lawson, personal communication to author, April 9, 2020; Natrona County Conservation District, “Cody Shale, Selenium, and Water Quality,” http://www.natronacountyconservationdistrict.com/whatisselenium.html. WWDC, 2019 Legislative Report, pp. 4–83 through 4–85; www.gillettewy.gov/city-government/departments/utilities/water/water-conservation; www.cheyennecity.org/1456/Water-Conservation.
35. Peck et al., “Irrigation-Dependent Wetlands Versus Instream Flow,” 842–55; Blevins, “Valuing the Non-Agricultural Benefits of Flood Irrigation”; Blevins et al., “The True Value of Flood Irrigation”; Intermountain West Joint Venture, 2020 “Digging Deeper into Flood Irrigation,” https://iwjv.org/wp-content/uploads/2020/01/IWJV_9927_Intermountain-Insights_Irrigation_v4.pdf. One proposed conservation incentive is allowing users to sell the rights to any water they conserve. Several western states authorize that. Wyoming maintains the policy that unused water left in a stream becomes available to the next user in priority. Anderson, Tapping Water Markets, 63–70. For potential complexity in changes to sprinkler irrigation, see BOC Petitions Granted Files, Bates Creek Cattle Co., I-2018–3-1 and I-U-2018–3-2.
36. O’Toole is the Wyoming 2014 Leopold Conservation Award Recipient, Ladder Ranch, Savery, WY, https://sandcountyfoundation.org/our-work/leopold-conservation-award-program/otoole-family-ladder-ranch; and board member of the Intermountain West Joint Venture, created by the US Fish and Wildlife Service with private partners to spur migratory bird habitat conservation, https://iwjv.org/management-board/. “Little Snake River Small Dams and Reservoirs,” WWDC, 2000 Legislative Report, 4–54 to 4–56. Ron Vore, former head of Small Water Projects Program, WWDC, personal communication with the author, November 17, 2018.
37. Sunrise Engineering, Inc., Kirby Creek Water Watershed Plan, 1–8; Post, Buckley, Schuh & Jernigan, Kirby Creek Watershed Level 1 Study, Executive Summary, 1–3; Wyoming Department of Environmental Quality, Wyoming’s Draft 2016/18 Integrated, 38–39; Wyoming Association of Conservation Districts, Wyoming Watersheds Progress 2009, 4, 16–17. For a description of the small water projects program, see “Small Water Projects,” WWDC (website), http://wwdc.state.wy.us/small_water_projects/small_water_project.html. Watershed degradation through erosion on western rangelands generally was highlighted starting with the 1936 report to Congress, in US Department of Agriculture, Forest Service, The Western Range: A Report on the Western Range.
38. In 1980, US senator Malcolm Wallop, R-Wyoming, successfully amended the introductory portion of the Clean Water Act to include section 101(g): “It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. It is the further policy of Congress that nothing in this Act shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.” Adler and Cameron, “Virtually Nonexistent Poison Runoff Controls,” 171–98, in The Clean Water Act Twenty Years Later; Eddy-Miller and Gerhard, Results of Nitrate Sampling in the Torrington, Wyoming, 1999; “Reverse Osmosis Tackles Nitrates in Wyoming Wells,” WaterWorld (website), published May 1, 2004, https://www.waterworld.com/articles/print/volume-20/issue-5/awwa-exhibitors/reverse-osmosis-tackles-nitrates-in-wyoming-wells.html. Denise Lucero, district manager for the North Platte, Lingle-Fort Laramie, and South Goshen Conservation Districts, personal communication with the author, December 13, 2018.
39. “About Us,” Wyoming Association of Conservation Districts (website), http://conservewy.com/ABOUT.html; Wyoming Association of Conservation Districts, Wyoming Watersheds Progress 2009, 4; Wyoming Department of Environmental Quality (DEQ), Wyoming’s Draft 2016/2018 Integrated, 38–39 (Kirby Creek), 74–80 (Little Snake River); Anderson Consulting Engineers, Inc., Final Report for Little Snake River, 3–11/4, 3–108/125 (All three watershed studies cited are accessible at http://library.wrds.uwyo.edu, under Wyoming Water Development Commission Watershed Studies). Two “Section 319 Nonpoint Source Pollution Stories” written for EPA by the Wyoming DEQ regarding Muddy Creek, are https://www.epa.gov/sites/production/files/2015–10/documents/wy_lowermuddy.pdf, and https://www.epa.gov/sites/production/files/2015–10/documents/wy_muddymckinney.pdf. Little Snake River Conservation District Director Larry Hicks, as a state senator, successfully sponsored legislation in 2015 requiring the state water quality agency to create new water quality standards to accommodate streams that could not meet extant standards, due to irrigation withdrawals (Wyo. Stats. 35–11–302(c) (sponsorship and legislative history available at http://www.wyoleg.gov/Legislation/2015/SF0126). The agency, noting it had no power under the Clean Water Act to regulate water quality problems created by the exercise of water rights, avoided time and expense by simply taking the few streams once noted as locations where irrigation withdrawals affected stream water quality potential and moving them into categories whose standards the streams could meet; Lindsay Patterson, (Wyoming DEQ), personal communication with the author, May 24, 2018. After the 2016 fish kill on the Shoshone River when Willwood Dam spewed sediment down the river, Wyoming DEQ created three working groups to restore aquatic life and habitat and “reduce and/or eliminate” future need to release damaging amounts of sediment from the dam, while “Willwood Irrigation District’s right to divert water under state water laws shall not be impacted by the efforts of this initiative.” Opening paragraph of “Willwood Dam Advisory Committee and Working Groups”; in Wyoming DEQ, Willwood Working Group 1 Final Report. US Geological Survey, 2017, “U.S.GS Real-Time Monitoring of suspended-Sediment Concentrations” in Willwood Dam Operating Recommendations Summary of November 7, 2017, and Willwood Dam Operating Recommendations. The Willwood Dam Work Groups document series and activities are accessible for navigation and download, as of December 26, 2018, at http://deq.wyoming.gov/wqd/willwood-dam-and-shoshone-river/.
40. Anderson, Tapping Water Markets, 8; WY State Engineer’s Office, 2010 Annual Report, 40 and 2018 Annual Report, 24; Angus Thuermer, “Why a Wrinkle in Wyo Water Law is Worth Millions,” WyoFile (website), published September 4, 2018, https://www.wyofile.com/water-sale-state-property-private-profits-and-zero-taxes/; Bob Davis, “Municipal Temporary Transfers,” presentation at Wyoming Water Association Annual Meeting, October 17, 2019. Hydraulic fracturing was associated with groundwater contamination in Fremont County (western Wyoming) but state government resisted a finding that drinking water wells were affected, so no regulatory action affected the drilling company, DiGiulio, “Reconciling Oil and Gas Development and Groundwater Protection,” and Andrew Graham, “Missing Science, Disagreement Surrounds DEQ’s Final Pavillion Report,” WyoFile (website), published December 6, 2016, https://www.wyofile.com/missing-science-disagreement-surrounds-deqs-final-pavillion-report/.
41. Wyoming Wildlife and Natural Resource Trust (WWNRT), Status Report 2018, 3-5.10. 20. For trends in land use and ways to preserve open space in Wyoming, see Ruckelshaus Institute, “Wyoming’s State of the Space,” 2009.WWNRT, 3–4, 9, 11, 16–19. For one example of work involving the Wildlife Trust, Trout Unlimited, and other partners including the US Natural Resource Conservation Service, the US Fish and Wildlife Service, the Bureau of Land Management, the National Fish and Wildlife Foundation, the Wyoming Landscape Conservation Initiative and the Rocky Mountain Elk Foundation, see “Lonetree Ranch,” in Wyoming Wildlife, 28.
42. While Wyoming coal burned in out-of-state power plants made Wyoming a major US energy supplier by the mid-1980s and for the next two decades, by 2021, renewables like solar and wind were expected to surpass coal in electric power generation nationwide; “EIA expects US electricity generation from renewables to soon surpass nuclear and coal,” US Energy Information Administration (website), published January 30, 2020, https://www.eia.gov/todayinenergy/detail.php?id=42655. Wyoming coal production and mineral revenue figures: Wyoming State Geological Survey, https://www.wsgs.wyo.gov/energy/coal-production-mining; Consensus Revenue Estimating Group, “Wyoming State Government Revenue,” tables 4 and 7; Katie Klingsporn, “Powering Down: Examining Coal’s Shaky Ground from Jim Bridger,” WyoFile (website), published September 3, 2019, https://www.wyofile.com/powering-down-examining-coals-shaky-ground-from-jim-bridger/; Michael Madden, “No Easy Answers,” WyoFile (website), published November 26, 2019, https://www.wyofile.com/no-easy-answers-wyo-wrestles-with-a-tangle-of-fiscal-worries/; WWDC, 2019 Legislative Report, pp. 2–8 to 2–10; Nick Reynolds, “307 politics: Voters show continued distaste for tax increases as budget questions continue to mount,” published August 22, 2020, https://trib.com/news/state-and-regional/govt-and-politics/307-politics-voters-show-continued-distaste-for-tax-increases-as-budget-questions-continue-to-mount/article_0c36a505–328–59a7-ad9e-19aa6dd12714.html; Wyoming governor Mark Gordon, “Governor calls first 10 percent state budget cuts devastating but necessary,” August 26, 2020, https://governor.wyo.gov/media/news-releases/2020-news-releases/governor-calls-first-10-state-budget-cuts-devastating-but-necessary; Camille Erickson, “Proposals to raise sales and use taxes dismissed by Wyoming lawmakers,” published August 25, 2020, https://trib.com/news/state-and-regional/proposals-to-raise-sales-and-use-taxes-dismissed-by-wyoming-lawmakers/article_400aae83-f5ca-5c2a-b345-d9a90f208295.html.
43. Third National Climate Assessment vol. 2 (website), Great Plains 2014, https://nca2014.globalchange.gov/report/regions/great-plains#statement-16856. National Science Foundation grants to the University of Wyoming fostered improved computer modeling and then, with a five-year award through 2018, detailed work in environmental hydrology and geophysics (establishing a center with that focus) to understand and model how water moves through Wyoming’s complex geology and landscape. For examples, see UW News 2011 (website), “Wyoming, Utah Researchers Join Forces to Understand Complex Water Problems [ . . .],” published November 3, 2011, http://www.uwyo.edu/uw/news/2011/11/wyoming,-utah-researchers-join-forces-to-understand-complex-water-problems-facing-western-states.html; and the Wyoming Center For Environmental Hydrology and Geophysics (WYCEHG) and Wyoming EPSCOR websites, http://www.uwyo.edu/epscor/wycehg/ and http://www.uwyo.edu/epscor/about/. Ginger Paige, personal communication with the author, March 1, 2018.
44. Ginger Paige, personal communication with the author, March 1, 2018.
45. Wyoming State Climate Office (website), “Percentage of Wyoming in each Drought Category by Week,” http://www.wrds.uwyo.edu/drought/droughttimeline.html. A summary of findings from a 2006 workshop is Steve Gray’s “Water, Drought and Wyoming’s Climate: Final Report.” Gray moved on to become director of the US Geological Survey’s Alaska Climate Science Center, and his predecessor Jan Curtis joined the National Water and Climate Center of the US Department of Agriculture’s Natural Resource Conservation Service. WWDC’s statewide water plan, issued in 2007 (known as the Wyoming Framework Water Plan), avoided any use of the words “climate change,” see especially secs. 3.1.3, 7.1.4, 7.1.5, 7.1.6.
46. WWDC, “Middle Big Horn River Watershed, Level I Study, Consultant Contract for Services, Attachment A” 1–30, is part of larger PDF document generated from the July 15, 2018, WWDC and Select Water Committee meeting. Available at http://wwdc.state.wy.us/commission/eNotebook/201806-eNotebookMeeting.html; 14 of 30 (289 in the PDF) states, “In effort to provide information to the conservation districts’ future water use and management efforts, the Consultant shall provide a section in the final report that summarizes current climate science. The intention is not to debate whether climate change is real, perceived, or human caused. Rather, the Consultant will present a state-of-the-art science summary so that the Sponsors can use the information for planning purposes, allowing for better planning and preparation for climate variability and associated extreme weather events.” Barry Lawrence (WWDC deputy director-planning), personal communication with the author, June 11, 2018. Presentation to WWDC by commission staff, “River Basin Planning: What Does the Future Hold?,” August 23, 2017, PowerPoint slides in author’s files. Jason Mead (WWDC deputy director-dams and reservoirs) personal communication with the author, June 13, 2018. See also WWDC staff PowerPoint update on modernization, “What Do We Have up Our Sleeves,” published March 10, 2020, http://seo.wyo.gov/interstate-streams/water-forum/presentations. The engineering community has been engaged for a decade in debates on how to plan water management infrastructure now that engineers can no longer rely on the idea of “stationarity”(stationarity is defined as “the idea that natural systems fluctuate within an unchanging envelope of variability”); Milly et al., “Stationarity Is Dead: Whither Water Management?”; Galloway, “If Stationarity Is Dead, What Do We Do Now?”; and Milly et al., “On Critiques of ‘Stationarity Is Dead: Whither Water Management?’”
47. Ginger Paige, personal communication with the author, March 1, 2018; WYCEHG website, http://www.uwyo.edu/epscor/wycehg/; Gordon, “Return Flow in Northeastern Wyoming,” 11; Blevins et al., “The True Value of Flood Irrigation”; John Fialka, “Drought: Cataclysms Were Predictable for 1,000 years. That’s Changing,” ClimateWire (website), published June 8, 2018, https://www.eenews.net/climatewire/stories/1060083879.
48. DeVisser and Fountain, “A Century of Glacier Change,” 103–16; VanLooy et al., “Spatially Variable Surface Elevation,” 98–113; Hall et al., “Snow Cover, Snowmelt Timing,” 87–93; Cheesbrough et al., “Estimated Wind River Range,” 818–28.
49. Gary Collins (tribal water engineer), “Wind River Reserved Water Rights,” Wind River Reservation Tour Booklet, August 24, 2000, in author’s files; Eastern Shoshone and Northern Arapaho Tribes, “Looking to the Future of the Wind River Indian Reservation,” in Wind River Indian Needs Determination Survey; Aragon, “The Wind River Indian Tribes,” 17; Mitch Cottenoir (tribal water engineer), personal communication with the author, October 25, 2018.
50. John Fialka, “Drought: A Slow Disaster Scorched Wyo. No One Saw It Come or Go,” ClimateWire (website) June 6, 2018, https://www.eenews.net/climatewire/stories/1060083629. In DeVisser and Fountain, “A Century of Glacier Change,” tables 2, 3, and 8, pp. 109–12: the authors estimate contributions to snowmelt for Dinwoody Creek, in turn tapped by Dinwoody Canal for the reservation system, and Bull Lake Creek, which runs to the Bull Lake Reservoir serving Midvale irrigation district. Cody Knutson, “Project Proposal: The Wind River Indian Reservation’s Vulnerability to the Impacts of Drought and the Development of Decision Tools to Support Drought Preparedness” (estimated project duration: 6/2015–5/2017), in author’s files; McNeeley, “Sustainable Climate Change Adaptation”; Cohn et al., “Seems Like I Hardly See Them around Anymore,” 405–29; Jonathan Friedman, S. McNeeley, M. Cottenoir, A. C’Bearing, J. Wellman, “The History of Water on Wind River Reservation to Inform Climate Adaptation,” PowerPoint presentation to Wind River Water Resources Control Board, n.d., notes in author’s files; Jennifer Wellman, “Wyoming EPSCOR Program at Wind River,” presentation October 30, 2017, http://www.uwyo.edu/epscor/_files/documents/wig/wig%202017%20wellman.pdf.
51. Wyoming Session Laws, 1989, chap. 145; Wyoming Session Laws, 2003, chap. 78; Wyoming Water Development Commission, Annual Legislative Reports, 1992–2014 (on file at the Wyoming Water Development Office, Cheyenne, and 1996–2014 accessible online at http://wwdc.state.wy.us/legreport/legreports.html); Mitch Cottenoir (tribal water engineer), personal communication with the author, October 25, 2018; Cottenoir and Baptiste Weed (deputy tribal water engineer), personal communication with the author, March 15, 2018.
52. Eastern Shoshone and Northern Arapaho Tribes, Agricultural Resource Management Plan, 30; McNeeley, “Sustainable Climate Change Adaptation”; Hanna, “Native Communities and Climate Change: Executive Summary”; Cottenoir and Weed, personal communication with the author, March 15, 2018.
53. Preston and Engle (1928) “Report of Advisors on Irrigation on Indian Reservations,” from US Congress Committee on Indian Affairs Hearings. This and later reports through 1981 are cited in McCool, Command of the Waters: Iron Triangles, Federal Development, and Indian Water, 154; Shay, “Promises to a Viable Homeland,” 557–58; John Anevski (Chief, Division of Water and Power, Office of Trust Services, Bureau of Indian Affairs), Statement before the Senate Committee on Indian Affairs, Field Hearing on the Wind River Irrigation Project, April 20, 2011, https://www.bia.gov/sites/bia.gov/files/assets/as-ia/pdf/idc013562.pdf; Anne-Marie Fennell (Director, Natural Resources and Environment, General Accounting Office), “Indian Irrigation Projects: Deferred Maintenance and Financial Sustainability Issues Remain Unresolved,” testimony on March 4, 2015 to the Senate Committee on Indian Affairs, reprinted in Flores, Indian Irrigation Projects, 1–16.
54. “Testimony of Mitchel T. Cottenoir, Tribal Water Engineer, Shoshone and Arapaho Tribes of Wind River Reservation. Legislative Hearing on S. 438,” on March 4, 2015, reprinted in Flores, Indian Irrigation Projects, 31–37; “Barrasso Secures Key Wyoming Project in Bipartisan Water Infrastructure Bill,” October 10, 2018, https://www.barrasso.senate.gov/public/index.cfm/news-releases?ID=A3C64752–3229–4C11– 9793–37961CE394D7; “President Trump Signs Barrasso’s Water Infrastructure Legislation into Law,” October 23, 2018, https://www.barrasso.senate.gov/public/index.cfm/news-releases?ID=D1E986DB-466E-4CF2–9253–9C4734605076. Mitch Cottenoir and Baptiste Weed, personal communication with the author, March 15, 2018; Wind River Water Resources Control Board, discussion notes in author’s files, August 16, 2017, and June 20, 2018; WWDC, 2019 Legislative Report, 3–60.
55. Cottenoir and Weed, personal communication with the author, March 15, 2018; Eastern Shoshone and Northern Arapaho Tribes, Agricultural Resource Management Plan, 8–9; Tetra Tech, Executive Summary, Little Wind River Drainage Level II; Wind River Water Resources Control Board, discussion notes in author’s files, August 16, 2017, June 20, 2018 and August 1, 2019; WWDC, 2019 Legislative Report, 2–8 to 2–10.
56. WWDC, 2019 Legislative Report, 3–8.
57. Tetra Tech, Big Wind River Drainage Level II, 1–4.
58. For WWDC plans for improvements at Midvale, Leclair, and Riverton Valley irrigation districts, see listings of plans under those headings at the Water Resources Data System library at the University of Wyoming, http://library.wrds.uwyo.edu/wwdcrept/wwdcrept.html.
59. McNeeley, “Sustainable Climate Change Adaptation,” 400–401. Elsewhere in the United States, tribes and their non-tribal neighbors have similarly fought divisive legal battles over natural resource use, for many years. Yet where there has been imperative need for a resource, and it becomes impossible to access it without cooperation, there have been examples of progress—slow but steady—in cooperating tribal-state management of natural resources. Singleton, Constructing Cooperation: The Evolution of Institutions, 66–80, 143–45 (discussing an example of work on salmon fishing allocation and habitat undertaken by Puget Sound area tribes and the state of Washington after bitter litigation on salmon issues.)
60. WY State Engineer’s Office, Wyoming and the Colorado River: A Report, 3, 45.
61. WWDC, “Technical Memorandum,” 2011.
62. US Bureau of Reclamation, Executive Summary: Colorado River Basin, 1–10; Water Education Foundation, Colorado River Project River Report, 1–4; US Bureau of Reclamation, “Another dry year in the Colorado River Basin increases the need for additional state and federal actions,” press release May 9, 2018, https://www.usbr.gov/newsroom/newsrelease/detail.cfm?RecordID=62170.
63. “The law and politics of the Colorado River have long been driven primarily by the efforts of all the basin states, except California, to prevent California’s actual use from ripening into a permanent right,” water law commentator Dan Tarlock noted in 2001, Tarlock, “The Future of Prior Appropriation,” 784. State Engineer’s Office (SEO), Wyoming and the Colorado River, 11–32, 49–51 provides succinct descriptions of key actions related to the Colorado River compacts in recent years. To guide the state of California in cutting its use of the Colorado River back to its actual compact allocation of 4.4 million acre-feet per year, all seven Colorado River states and the Department of Interior negotiated for years to produce the Interim Surplus Guidelines issued in 2001, and California succeeded in adopting a plan for its major water users to accomplish the cutback in 2003, but the drought forced California to implement that cutback much more quickly than originally planned; see Water Education Foundation (website), “Colorado River Water Use 4.4 Plan,” https://www.watereducation.org/aquapedia/colorado-river-water-use-44-plan. For the 2007 Interim Shortage Guidelines, see US Bureau of Reclamation (website), “Colorado River Interim Shortage Guidelines and Coordinated Operations for Lake Powell and Lake Mead,” updated June 5, 2015, https://usbr.gov/lc/region/programs/strategies.html; and SEO (cited above), 29–30. Pat Mulroy, former longtime manager of the Southern Nevada Water Authority, June 6, 2019, conference presentation describes how the states achieved the 2007 shortage guidelines during the drought: available on video at https://www.getches-wilkinsoncenter.cu.law/2019/06/20/40th-annual-gwc-summer-conference/ (Day 1 Video). For a general discussion of why the many deals and compromises involved in politics are more likely to lead to successful water solutions than centralized management, see Tarlock (2001), and Schlager and Blomquist, Embracing Watershed Politics.
64. State Engineer’s Office (SEO), Wyoming and the Colorado River, 60–61; Bidtah Becker, “Water & Tribes Initiative,” conference presentation, June 7, 2019. Work addressing the water rights, uses, and needs of key tribes on the Colorado River (all outside Wyoming) is discussed in the December 2018 Colorado River Basin Ten Tribes Partnership Tribal Water Study (website), updated December 13, 2018, https://www.usbr.gov/lc/region/programs/crbstudy/tribalwaterstudy.html. The Colorado River Salinity Control Program was enacted by Congress at the behest of basin states in 1974 (see http://coloradoriversalinity.org/). The Upper Colorado River Endangered Fish Recovery program was started in 1988 with a cooperative agreement among the governors of Colorado, Utah, and Wyoming, the secretary of the interior and the administrator of the Western Area Power Administrations (producing power from major federal dams on the river), http://www.coloradoriverrecovery.org/general-information/about.html. The program website includes considerable historic information on the fish involved (humpback chub, bonytail, Colorado pikeminnow, and razorback sucker). A succinct analysis of what caused those native fish to become endangered is provided in Valdez and Muth, “Ecology and Conservation of Native Fish,” 157–78. For experimental releases for the Grand Canyon, see Melis et al., “Three Experimental High-Flow Releases.” Information on the subsequent 2016 and 2018 releases, see Glen Canyon High Flow Experimental Release (website), ethttps://www.usbr.gov/uc/rm/gcdHFE/index.html. For releases to the Colorado River Delta, see International Boundary and Water Commission, Minute 319 Colorado River. For pulse flows into Mexico, see Postel, Replenish: The Virtuous Cycle, 19–42. For overviews of these recent issues on the river, see also SEO, 51–61.
65. The Colorado River Research Group (CRRG) published in 2014 a paper titled “Charting a New Course for the Colorado River: A Summary of Guiding Principles.” While praising notable policy reforms on the river since 2000, the paper argues that “few have addressed the underlying problems, but rather have ‘bought time’ and planted the seeds for more lasting and comprehensive solutions to emerge.” Among the group’s recommended guiding principles are, “The solutions that are most cost-effective, reliable, equitable and quickly implemented are those focused on conservation, reallocation, and voluntary shortage sharing”; and, “Preferred policy options are those that are flexible and iterative, use science and economics, and that feature a sound collaborative structure that allows constant reassessment and adjustment over time (within well-defined rules and process),” 3–4. Brad Udall of Colorado State University warned in September 2017 of the inadequacy of Colorado River basin response to climate change; Water Education Foundation, Colorado River Project River Report, 7; Brad Udall, personal communication with the author, October 2, 2018. Udall and a colleague reported in early 2017 that the impact of climate change on the Colorado River is likely to be much more serious than had been assumed by that time; Udall and Overpeck, “The 21st Century Hot Drought,” 2404–18. In 2018 he and other colleagues reported on research into the causes of low flows on the river, Xiao, Udall, and Lettenmaier, “On the Causes of Declining Colorado River,” 6739–56.
66. CRRG, “When is a Drought Not a Drought?,” 2018.
67. Purcell Consulting, “Colorado River Compact Administration Project Prepared for Wyoming Attorney General’s Office and the State Engineer,” 2005, in author’s files; State Engineer’s Office, Colorado River Compact Administration Program, 2008, in author’s files. The 2005 report said that “given the competition for water in the Colorado River Basin, Wyoming should be the leading authority on its water use in the Green River Basin. It is not good business to rely on information developed by others in the event of a controversy or a valid call for curtailment of use under the Upper Colorado River Basin,” 14. The 2008 report adopts that mission (cover letter, January 2, 2008).
68. The 2016 State Engineer’s Office report, Wyoming and the Colorado River, 32–33, 49, 61, contains clear descriptions of what could prompt a Colorado River curtailment affecting Wyoming and the work being done to prepare for such an event including compiling better data on the Wyoming’s consumptive use of water in the Green and Little Snake basins.
69. A State Engineer’s Office PowerPoint presents data on the river and its reservoirs and projections for the future, as of fall 2019; at http://www.uwyo.edu/uwe/wy-dm-ucrb/meeting-documents/november-2019-wy-dm-public-meetings.final.pdf. The website contains materials from the SEO outreach efforts on the feasibility of a demand management program through 2020.
70. Quotes from Wyoming state engineer Pat Tyrrell and figures and descriptions of the provisions negotiated come from the public presentation Tyrrell held in Baggs, Wyoming (in the basin of the Little Snake River) on October 9, 2018; background information at http://www.uwyo.edu/uwe/wy-dm-ucrb/index.html. Members of the Wyoming Legislature started paying close attention to Colorado River matters, holding several committee meetings including an educational session on Colorado River issues and possible conservation approaches: see materials and minutes of a June 14, 2018, meeting of the Joint Committee on Agriculture, State and Public Lands and Water Resources, and the Legislature’s Select Water Committee (overseeing the work of the Wyoming Water Development Commission), available at http://www.wyoleg.gov/Committees/2018/J05. See especially a presentation by Larry MacDonnell, “Shepherding ‘Compact Security Water’ Under Wyoming Law: What are the issues?,” https://www.wyoleg.gov/InterimCommittee/2018/05–20180613 ShepherdingCompactSecurityWaterUnderWyomingLaw.pdf.
71. Colorado River District, “West Slope Risk Study: Review and Status Report,” presented to Wyoming legislative committees June 14, 2018 (see detail regarding the committees in previous footnote), https://www.wyoleg.gov/InterimCommittee/2018/05–20180613shepardingupdate.pdf. US Bureau of Reclamation, “Agreement Among the United States of America, through the Department of the Interior,” 2014. The State Engineer’s Office announced the opportunity for using the pilot funds on its website, with links to the Pilot System Water Conservation Program RFP notices for 2016 and 2017, as well as application forms.
72. Upper Colorado River Commission, Final Report: Colorado River System Conservation, 14–15. Eric and April Barnes, interview with the author, April 16, 2017.
73. Blevins et al., “The True Value of Flood Irrigation.” Kendy, “Impacts of Changing Land Use,” 12, 25–27, 32.
74. State Engineer’s Office, “Wyoming Demand Management Feasibility for the Upper Colorado River Basin,” public presentation, November 2019, http://www.uwyo.edu/uwe/wy-dm-ucrb/meeting-documents/november-2019-wy-dm-public-meetings.final.pdf.
75. State Engineer’s Office public presentation, November 2019; state representative Albert Sommers, “Upper Green River Water Eyed by Down-river States,” Pinedale Roundup, July 18, 2019, https://pinedaleroundup.com/article/upper-green-river-water-eyed-by-down-river-states.
76. In 1929, Lasky (November, part 3, p. 56), argued that increasingly complex interstate relations and the negotiations role of a state engineer would have this effect.
77. For an initial report on state government’s latest attempt to build toward a less-minerals-dependent future, see https://www.endowyo.biz/.