Law partner Star Waring and I are recently returned from a teaching junket. We traveled to the television studios of NBI – National Business Institute – to record a seven hour program on the law and practice of water title examination in the western United States. Those 17 states – California, Oregon, Washington, Idaho, Montana, Wyoming, Nevada, Arizona, Utah, Colorado, New Mexico, and parts of Kansas, Oklahoma, Nebraska, North and South Dakota – follow the doctrine of prior appropriation. It is a continuing education class for attorneys. In Colorado we are required to have 45 units of continuing legal education credit, including 7 units of study in legal ethics, every three years.
Prior appropriation is the “first in time, first in right” rule which has held sway over Western water law since the days of the California Gold Rush. That’s about 165 years of water law. Some water disputes (and I can say this from experience) have been initiated at the muzzle of firearms. It’s that whole “whiskey is for drinking and water is for fightin’ over” thing. Our class was a bit more prosaic.
When you buy land, you also ordinarily purchase a policy of title insurance – a guarantee by an insurance company that the seller really does own the property which they are selling. In Colorado, and most other western states, there usually is no title insurance available for water rights. This is a tough state of affairs because for many properties, especially those used for agriculture, buying land without water is a little bit like buying a car without an engine. Sure, you could rent an engine to put into the car, but sooner or later you are going to want to have control over the water without which your land cannot be productive.
In an unusually old-school fashion, title to water rights involves attorneys investigating the state of title to real property and reporting their findings to their clients. It is a labor intensive undertaking, and as a result it can cost the client significant money to obtain a determination of who really owns the water right, and to perform any curative work to clarify the state of the title to water rights. It also entails a certain degree of risk to the practicing attorney. If you perform a title search without understanding, or carelessly, liability can result for the practitioner. As a result, it is worthy of a class for attorneys who will do this sort of work.
Star and I are fortunate to have between us over 70 years of experience in Colorado water matters. We’ve handled some large water right transactions. We’ve journeyed to remote, and often stunningly beautiful, parts of Colorado and other Rocky Mountain states to conduct field inspections and to review courthouse records. (One of the best perquisites of being a water lawyer is getting to travel to some of the extraordinary places where the water is used.) All the lawyers with whom we practice, and almost all those we practice against, are genuinely nice people. It is quite a pleasant way to practice law. And at this juncture, it is also time to give back to the profession a bit as well. So we teach a little bit.
I’ve found it particularly instructive to think about water rights when flying over the landscape of the United States. Much of our history, and especially the culture of the West, is driven by access to water. You literally can “see” western water law from 35,000 feet: reservoirs, center-pivot irrigation systems (and the crop circles they create), ditches and canals, green irrigated fields and tawny landscapes where only native precipitation slakes the thirst of earth. It is, as Thomas Hornsby Ferrill wrote, “a land where life is written in water.”
Flying in an arc from Denver to Minneapolis (where our webinar was recorded) we crossed the 100th meridian of longitude west of Greenwich, England. By cosmic accident, that arbitrary line coincides almost exactly with the division of the eastern part of the United States, where there is adequate precipitation to grow crops without irrigation and the area where irrigation is required for most forms of agriculture (the West). As a result, two different systems of water allocation, usage and law exist on either side of the 100th. The 100th runs along the east side of the Texas panhandle. It runs nearly through Dodge City, Kansas and Pierre, South Dakota. As a result, the 100th is also considered by many, myself among them, to be an important dividing line between the Eastern and Western United States.
Wallace Stegner wrote about John Wesley Powell, and the 100th, in 1954. His book, Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West, traces the celebrated life and career of a Euro-American who understood the West with unusual clarity. As the title suggests, the landscape is always looming behind the text, just as the land looms behind our water law, water culture and our way of life . . . whether we recognize it or not.
That got me thinking, in turn, about missed educational opportunities.
Stegner had been a faculty member at my college until a few years before I enrolled there. As I recall, he was on campus a time or two but I never went to hear him speak. Juan B. Rael, a noted Hispanic ethnographer, was on faculty when I was there. I now read and research in the area in which he taught, but, again, I never took a class from him. Never stopped by his office. Nowadays, I try to meet people whose research, writing or teaching are of interest to me. I do this because I realize that people – especially those who think deeply or uniquely are like our landscape. They are treasures which enrich our lives.
It has been more than 30 years since I first read Stegner’s book. I think I need to go back and revisit a missed opportunity. And I have some people to meet, as well. That’s some of my continuing education.