Charles T. DuMars - Water Resources Research Institute

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Charles DuMars 10 A MEMORY OF AL UTTON, PERSUASION THROUGH CIVILITY AND HUMOR Thank you Tom for that introduction. It is indeed an honor to be here today to give the Utton Memorial Lecture. Before going into the substance of my talk, I want to say something about Al Utton and what he did for water law in New Mexico and all around the country and the world. He was a man who lived a commitment to a principle that I share: the principle that approaching people with fundamental honesty and civility under all circumstances, in the end, will yield positive results. An example of this comes to mind. Al once put together groups of experts in Belagio, Italy, to discuss transboundary water issues. The groups came from all over the world. Their goal was to have a discussion about optimal resolution of international and interstate water conflicts. At the opening session some participants from regions involved in a tacit cold war with one another We must have spent five minutes, maybe 10, maybe 15, looking for the green flash and then Al says, “there it was!” refused to speak. Rather than yield to this behavior, he simply observed, “I understand the dissonance, but we can work through this.” It was an amazing phenomenon to see Al charm people into resolution of heated issues. I also observed him use these skills as chairman of the New Mexico Interstate Stream Commission and as Dean of the law school where he was a fellow colleague of mine. He wrote prolifically on a number of topics and always within the text of a conflict discussion he signaled a way out with a compromise making both sides better off. I remember in Belagio at that conference he turned to me as we walked into a room of angry faces and said “looks like this might be a hard audience.” There was a Palestinian water lawyer, an Israeli water lawyer, and a Russian. They had already had heated arguments and were not speaking. The sun was going down, and we were scheduled to begin our opening session. Bad feelings filled the room. Suddenly Al said “see that sunset over there” They all looked. “Just before the sun sinks into the ocean there is a moment of green, a green flash. You’ve got to look for it.” All turned to look. These enemies were all looking for the green flash. Al suggested he had heard it was caused by the weather. This led to a discussion of the weather in a border part of Russia where the rivers were facing drought. The representative from Israel looked unconvinced. We must have spent five minutes, maybe 10, maybe 15, looking for the green flash and then Al says, “there it was!” They all said, “I didn’t see it.” And Al said, “I did,” and I said, “I saw it.” The topic turned slowly to the Jordon River and the death of the Black Sea and a number of topics that were very important to these people, all of which happened to be on the agenda for the meeting. I don’t believe there was a green flash in the sky, it was a flash of affective brilliance that defused borders and brought people together in a way few will ever duplicate today. It was really a loss for me when Al passed away. There was something the other day that I found that refreshed my recollection as to his incredible sense of humor. He did funny things, but not always so funny if you were the recipient. Because he was known around the world he would get a lot of different material on water law. The humor was that he would often like to “share.” One day when I arrived at my office at the law school, I looked on my desk and there were five, big, 5-inch thick notebooks. On them was a note written in Al’s large handwriting. He said “Chuck, I know in your work with the World Bank, this should prove very useful to you.” And on the caption of the notebooks it said: The Water Law of China. I thought this is incredible; this is great. Then, when I opened the first volume and looked, it was all in Chinese. Another example of Al’s humor was his behavior on airplanes. He would get on an airplane, turn to the flight magazine and make gifts to people of all the free offers from those planes. He would sign you up for free information on obscure acupuncture correspondence courses or information on strange get rich schemes. He would fill out the postcards with something like your name and the law school address. I once received three huge magazines on cosmetics and youth potions addressed to Charles Dinglemars, Professor Shyster Emeritus of lawyering. That was his sense of humor. That humor, that respect for others and his gift of charm made him a man I and many of you in the audience will miss today and continue to miss in the future.
Prior Appropriation Law and Future Water Allocation: Preserving Water for Future Generations THE PRIOR APPROPRIATION DOCTRINE, ITS BENEFICIARIES AND THE NEED FOR CHANGE The topic, prior appropriation, requires a little bit of definition. Most of you understand the basic definition, but we sometimes lose track of which members of society benefit the most from this doctrine. The prior appropriation doctrine of water law is of course that the first person to place water to beneficial use has the better right to use of that water. It exists in virtually all Western State constitutions. The principle is that if you beneficially use the resource, then you are entitled to have a better right in times of drought than someone else, that right being determined by the date you first applied the water to beneficial use. Who are the beneficiaries of that doctrine The beneficiaries in the Western United States can be loosely described as follows. Our economist friend will like this functional definition; the beneficiaries are the hardy risk-taking individuals who invest capital first by diverting the water and creating wealth. They are rewarded for their investment by being allowed the privilege of receiving the most water in times of shortage. There is, in effect, a bargain struck between those expending their capital to develop that resource and produce things and the state. For expenditure of their capital and producing wealth, these individual water right owners are given the best right in times of shortage. There are other beneficiaries. The courts throughout the nation recognize that Congress or mere aboriginal presence can offer benefit under that doctrine. Native American tribes are provided a priority date. Their quid pro quo for receiving an early priority date is not the actual use of the water but their mere presence of holders of an historical equity in the resource irrespective of use. If we think about it, if it were not for the prior appropriation doctrine establishing an early priority date, their aboriginal presence or the latter date of their treaty, or act of Congress creating a reservation, would be assigned a value of zero. The tribes would be forced to bargain in today’s society for a share of the resource in a way that under values their special value to the overall culture of this nation. Thus, the prior appropriation doctrine is vital in preserving their special place in our society. A third set of beneficiaries in New Mexico is the traditional Hispanic cultures of New Mexico, built around acequias. These are families whose use of water and physical presence predate the Treaty of Guadalupe Hidalgo and are the earliest documented non-Native American uses of water in this region. While the rights of land grant residents were dramatically watered down by the unfortunate Supreme Court cases interpreting the treaty of Guadalupe Hidalgo, the prior appropriative water rights of these groups survived those cases and give them a deserved special place as a function of their early use of the resource. Finally, the most important characteristic of the water resource under the prior appropriation doctrine is that the rights can be transferred, sold, or leased to others in times of shortage. The beneficiaries of this Finally, the most important characteristic of the water resource under the prior appropriation doctrine is that the rights can be transferred, sold or leased to others in times of shortage. characteristic are the entities that do not have sufficient water to survive a drought, but who can acquire rights from others in dry years and survive the weather extremes of our arid state. This ability to acquire rights from others through a market transaction is of course now loosely referred to as acquiring water rights in the water market. Prior appropriation doctrine works best if water can move from one set of users to another while maintaining the same priority date. In this example, economists would tell you that both the buyer and seller are made better off when such a sale or transfer takes place. Under this system, people with early priority dates will get the benefit of the capital value of that water right and the property it represents. This benefit could come in the form of a cash exchange to a private individual, a government loan or grant to build a water system for an Indian tribe in exchange for a sharing of shortages, or a program of forbearance whereby individuals are paid to forbear from use of their priority date and leave water in the stream for wildlife purposes. 11
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Charles T. DuMars - Water Resources Research Institute

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