What If California Had Won the 1963 Case Over the Division of the Colorado River?

By Felicity Barringer

This is the first of a series of occasional posts looking at at how the West would have changed if a major historical event had — or had not — occurred. Scholars are often wary of such counterfactual explorations, but, carefully framed, they can help our understanding of today’s disputes. Here, we look at the implications of a different Supreme Court decision in the 1963 Arizona v. California case.

When the Court took the case in 1961, it was thought that a ruling could resolve nearly 50 years of bitter water wars. Arizona’s government long believed California was stealing a march on them and stealing their water in the process. This sense of being bilked had for 20 years prompted Arizona’s refusal to sign that the 1922 Colorado River Compact. In 1952, Arizona went to the Court, saying its ability to use Colorado River water was hampered by California’s excessive claims.

Such cases are often turned over to a special master; so was this. In 1962, reviewing the master’s report, eight Justices found themselves split, four to four. (Earl Warren, a former governor of California, recused himself.) Four felt that deference to the doctrine of prior appropriation called for a ruling in favor of California, with the older claims. Four were swayed by Arizona’s equity arguments.

As described in a 2013 Arizona Law Review article, Justice Felix Frankfurter, before a stroke forced him to retire, wrote a long memo on the case favoring most of California’s claims. Had it convinced just one colleague, the memo could have been the deciding opinion. We asked economists and water lawyers to speculate how Arizona might have evolved if California had prevailed 53 years ago.

There are two big questions:

• Would Arizona have been guaranteed 2.8 million acre-feet of Colorado River water annually?
   
• Would it have been able to get more than $4 billion to build the Central Arizona Project and bring the water to its population centers?

Arizona’s victory allowed it to create the Central Arizona Project, which pumps about 1.5 million acre-feet of water uphill from Lake Havasu to a point just south of Tuscon, as described in this 2002 paper by Michael Hanemann of the University of California, Berkeley. Three counties along the way have tripled or quadrupled their populations since 1970.

This was a dream of Arizona’s 20th-century leaders. From the 1920s on, they fought to get a secure supply of Colorado River water to the center of the state. Backpedaling to Arizona’s dreams of the 1950s, we find a time when the seven states of the Colorado River basin had agreed to divide the river’s bounty with half of what was supposed to be 15 million acre-feet annually going to the Upper Basin, and half going to the Lower Basin states of California, Nevada and Arizona.

In 1928, the Boulder Canyon Project Act authorized construction of what is now Hoover Dam. It also authorized the lower basin’s share to be divided between the states with California getting 4.4 million acre feet — about 1 million less than it had been taking — while Nevada got 300,000 and Arizona 2.8 million. But the states themselves did not agree to that apportionment. Without the Supreme Court decision, which confirmed 1928 law’s water division, would Arizona have had a guaranteed water supply?

“I tend to doubt it,” said Rita Maguire, who for a decade was director of the Arizona Department of Water Resources and is now a partner at Maguire, Pearce & Storey in Phoenix. For decades, she said, Arizona had been in unequal combat with California in Congress; its path to guaranteed water was blocked “not only [by] the power of the California congressional delegation but the power of California farmers.”

Without a guarantee of 2.8 million acre-feet of Colorado River water, would the Central Arizona Project, known as CAP, have been built? Barton “Buzz” Thompson, a Stanford law professor, believes it probably would not have been constructed in its current form. “It could have made it impossible for Arizona to convince banks or politicians that they had enough water to provide a secure water project,” he said. Demonstrating there was a reliable supply of water to sell, and thus make money to repay the cost of the project, was critical. But, he speculated, Arizona could have built a smaller project, carrying less water, to the state’s population centers.

Less water, less development. As Timothy James, an economist at Arizona State University said, “Arizona trades on people.” Without CAP, he said, “it definitely would have been difficult for developers to build more housing and would have constrained the number of people who moved here.” In reality, as described in his 2014 paper, CAP’s impact was transformative. From 1970 to 2015, Maricopa County, which includes Phoenix and Scottsdale, grew from 982,000 people to more than 4 million.

Did the 1963 ruling help or hurt the environment? Imposing the environmental ethos of the 21st century on the mid 20th century is risky. As Dr. James said, “Humans are incredibly ingenious — without CAP, that would have meant maybe we would have started to be much more careful about our uses of water 40 years ago.” And had California gotten more water then, it might have been profligate with it. But if California had more access to the Colorado River now, it would be easier to restore the dewatered Colorado River delta in Mexico or replenish the depleted Salton Sea, which is slowly disappearing.

And had Arizona failed to get a guarantee of Colorado River water, its farmers might have continued the unsustainable pumping of groundwater; in 1980, under duress from President Jimmy Carter (who had threatened to cut funding for CAP), Arizona passed a strict groundwater management bill. That bill, and the cost of CAP water, prompted many farmers to sell agricultural land, fueling the swift suburban development.

As Mark Squillace, a specialist in natural resources law at the University of Colorado Law School, said, “The one devastating environmental consequence [of the Court decision] is the loss of water to the Colorado River delta.” And, he pointed out, the coal-fired Navajo Generating Station in northern Arizona, built primarily to run the pumps pushing CAP water uphill, remains a source of significant air pollution.

Obviously, counterfactual speculation can soon run down a rabbit hole. But the views of these specialists make it plain that, had Justice Frankfurter written a more convincing memo in 1962 and found one more vote, Arizona would be a different state today.