“Prior appropriation is a doctrine of scarcity” — Greg Hobbs

Arkansas River Basin via The Encyclopedia of Earth
Arkansas River Basin via The Encyclopedia of Earth

From The Pueblo Chieftain (Chris Woodka):

If there was a message, it was: Water is everything and it starts here.

Retired Colorado Supreme Court Justice Greg Hobbs held the Arkansas River Basin Water Forum captive for about an hour with a mix of photos that ranged from historic images to family photo albums and a collection of historic maps, which he once owned but has donated to the Supreme Court.

His narrative wove a tale of almost mythical historic figures and hard-nosed facts to describe how Colorado water law took shape.

As is his custom, he opened his remarks with one of his own poems, “Colorado, Mother of Rivers.”

“When I was young, the waters sang of being here before I am, of falling wet and soft and slow to berry bog and high meadow,” Hobbs began, ending with: “I call the scarlet to the jaw as morning calls her own hatchlings, call Yampa, White, the Rio Grande, San Juan, the Platte, the Arkansas.”
Hobbs put a special emphasis on “Arkansas.”

“What a great river,” he gushed, marveling at how the Arkansas River flowed just a few yards from the auditorium at the Salida Steam Plant. “What a historical river this is.”

He then proceeded to take the crowd on a journey through time describing the state and the Arkansas River basin’s formation through civilization.

The Native Americans and Hispanic cultures that first occupied Colorado gave the state clues about how water should be managed. The people at Mesa Verde developed a domestic water system using reservoirs hundreds of years before Europeans arrived and Spanish settlers brought acequias to northern New Mexico to irrigate crops at a time when America was not yet a country.

“The more we get urbanized, the more we get dissociated from the land,” Hobbs said. “We need to recognize our Native American and Hispanic roots.”

North American Indian regional  losses 1850 thru 1890.
North American Indian regional losses 1850 thru 1890.

Maybe that kind of thinking led to his own son’s path in life. Hobbs talked about his son, Dan, who carried a sketch book with him everywhere as a child to plan the farm he one day hoped to own. Dan Hobbs now is a farmer on the Bessemer Ditch.

The elder Hobbs’ interest in water was more shaped by a career as first a water lawyer — he jokingly said it is not an honorable profession — and then as a Colorado Supreme Court Justice for nearly 20 years before his retirement last year.

And an intense interest in history.

Hobbs tried to set the record straight on John Wesley Powell, an early explorer of the Colorado River who argued for division of Montana counties along the lines of watersheds, but is often “misquoted” as trying to divide the entire American West in the same way.

In the Arkansas River basin, the Santa Fe Trail brought the first outside settlers to Bent’s Fort, and the discovery of gold in 1858 led to the formation of the Colorado territory in 1861 — a rectangular shape that took land from Utah, New Mexico, Nebraska and Kansas territories. The action also set up the “Mother of Rivers” status for Colorado, which now encompasses the headwaters for the Platte, Colorado, Arkansas rivers and the Rio Grande.

In 1861, Colorado developed the first concept that makes its water law unique, the idea that water can be separated from the land. Unlike a riparian system, Colorado water can be moved to farms that are not located beside a river. It set up a system of prior appropriation, where the first farmer to use the water is entitled to the first diversion.

When Colorado became a state in 1876, another layer of law was added to declare public ownership of the water, rather than individual users.

“What a profound statement our ancestors made,” Hobbs said.

As a result, the senior agricultural water rights remain the most valuable in Colorado, Hobbs said.

“We have a system in place where we can transfer water rights, and the most valuable water rights are our senior water rights,” Hobbs said.

He called periodic attempts to change Colorado’s system to a market- based exchange at one end of the spectrum or a public trust doctrine at the other are equally dangerous because they could leave some without water.

“Prior appropriation is a doctrine of scarcity,” Hobbs emphasized.

During his talk, he also outlined Native American water rights, the formation of compacts with other states, the development of cities on agricultural land and his personal reflections on state water leaders like Wayne Aspinall, Felix Sparks, Jim Isgar and Diane Hoppe.

It was like watching a river of information flow quickly by, hard to grasp in one sitting. Understanding water is like another passage from Hobbs’ poem: “And shape the stones to carry me, when I am young and full of fight for roaring here and roaring there, for pouring torrents in the air.”

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