Prior Appropriation and the Commons.

• Author: Abrams, Robert Haskell

TABLE OF CONTENTS INTRODUCTION I. SELECTED KEY IDEAS IN HARDIN'S "TRAGEDY OF THE COMMONS" II. WATER ALLOCATION BY PRIOR APPROPRIATION: TRADING ONE TRAGEDY OF THE COMMONS PROBLEM FOR OTHERS A. Solving the Security of Right Problem via Prior Appropriation in the Arid West B. Prior Appropriation's Attempts to Limit Overuse and Monopolization C. Prior Appropriation's Doctrinal Hindrance of Instream Flow Protection and "Stitching and Fitting" to Avoid Dewatering III. THE DIRECT APPROACH: MINIMUM FLOWS AND LEVELS A. Minimum Flows and Levels in Action B. Addressing the Consequences of Minimum Flows and Levels C. An Excursion Into Takings Law as Applied in the Water Rights Setting CONCLUSION INTRODUCTION

It has been a full half century since biologist Garrett Hardin published the seminal article, The Tragedy of the Commons. (1) Sometimes forgotten in subsequent discussions is Hardin's thesis centered on what he termed the "population problem." The population problem, as Hardin framed it, is the attempt to use finite material resources to sustain the needs of the world's population, which grows without limit absent a change in values or morals. (2) What Hardin argues is that the population problem is one member of the class of problems for which there is no "technical solution, which is a solution that can be had by changing the techniques of science alone, without a need to change values or morals. (3)

A key aspect of Tragedy of the Commons is the attack and effort to "exorcize" reliance on Adam Smith's "invisible hand," (4) whereby the individual who "intends only his own gain will also promote the public interest," as a viable response to the population problem. Particularly in the environmental and natural resource arena, Hardin's article is renowned for its demonstration that when finite resources are matched against unchecked human behavior, the result is the destructive overuse of common pool resources. As Hardin puts it, when the carrying capacity of a commons is reached and exploitation of the commons is not limited, "the inherent logic of the commons remorselessly generates tragedy." (5)

The focus of this Article is to consider several of Hardin's observations and conclusions regarding management of the commons and apply them in the context of a classic common pool resource: water. Watercourses, in the absence of constraining laws limiting their use, are a quintessential common pool resource. Writing in 1968, prior to the passage of the Clean Water Act when most legal remedies for water pollution were failing to prevent widespread degradation of the resource, Hardin cited destructive water pollution as a commons problem where "[t]he law, always behind the times, requires elaborate stitching and fitting to adapt it to this newly perceived aspect of the commons." (6)

As a parallel, this Article is concerned with water quantity allocation in the American West under the doctrine of prior appropriation, deeming it an equally vital commons problem where the law lags and has been "stitched and fitted" to address the problem with unsatisfactory results. The Article explores how the initial adoption of prior appropriation can be understood as a legal response to one form of destructive behavior that attends an unregulated commons. Prior appropriation allocates quantified amounts of the limited water resources amongst the water users on the basis of priority in time. This response to the tragedy of the commons (7) problem is, essentially, a form of privatization of the resource that averts the commons problem that arises from free-for-all competition. By assigning hierarchical water rights to water users (prioritized by their seniority in time), seniors can enforce those rights to prevent interference by later-in-time users who could otherwise supplant the rights holder's uses and negate the value of their previous investment made in reliance on use of the water. Prior appropriation largely has done its job in eliminating the free-for-all commons problem of the West's available water resources by prohibiting self-help redistributions of the water by those who would otherwise treat it as a commons. For example, with prior appropriation in place, a downstream senior-in-time water user has a legally enforceable remedy against an upstream junior-in-time water user whose diversion and use of the water interferes with or frustrates the right of the downstream senior. (8)

The greatest failing of the prior appropriation doctrine has been its inability to foresee and respond to the second central commons problem, destructive overutilization of water. Centrally, for this Article, prior appropriation creates strong incentives for rapid development of water-dependent and excessive uses designed to obtain the right to use as much water as possible in perpetuity. (9) On this front, the checks included in the prior appropriation system have failed to do their job. The doctrines that should curb wasteful and excessive use are almost universally unenforced or underenforced, and the doctrines intended to limit speculative water holdings have a checkered record of success.

These failures of prior appropriation have led to stream dewatering and the loss of vital riparian habitat and ecosystem services. In fact, efforts to forestall speculation and monopolization have impeded protection of instream flows. In the past few decades, changes in the law of prior appropriation evince clear recognition that the older way of thinking--that any water left in a stream was wasted--has outlived its time and waned. Here, prior appropriation doctrine provides a striking example of another great maxim in Tragedy of the Commons: "the morality of an act is a function of the state of the system at the time it is performed." (10) Recent trends in prior appropriation law include some doctrines that begin to protect living streams. Even the Colorado Supreme Court, a champion of strict application of prior appropriation doctrine, now recognizes that "full utilization" of water does not call for dewatering streams. Many states have added public interest criteria to the calculus for evaluating applications for new and changed water uses, and those public interest criteria include ecosystem maintenance values.

Contemporary situations are forcing courts and legislatures to address a constellation of issues that touch upon protecting water flows and levels. A case playing out in Nevada's Walker River and its terminus, Walker Lake, (11) reprises the famous National Audubon (Mono Lake) case (12) seeking to establish water level protection under the public trust doctrine. Similarly, Washington State's legislature is now attempting to chart a path around the roadblock to development created by the state supreme court's rulings (13) enforcing MFLs, even when doing so barred regional development.

The changing attitudes toward dewatering of streams already has given rise to legal approaches intended to limit or avoid that overuse of the commons. In practice, however, the add-ons to prior appropriation law are proving to be insufficient to ensure adequate stream flows. The more direct and aggressive approach for combatting dewatering, though still in its fledgling stages in most states, is to mimic the addition of separate laws to combat water pollution. This independent legal approach to the dewatering problem that has not been redressed internally by prior appropriation law is scientifically grounded establishment of minimum flows and levels (MFLs) and their steady enforcement. The last portions of this Article address issues that arise when rigorously implementing MFLs.

To a degree, the problem remains one of public attitude. While the desire for live streams is widely shared, there remains resistance to taking MFLs seriously. The keenest resistance comes from the self-interested water users whose current and anticipated future entitlements might be diminished or eliminated. Rigorously set and enforced MFLs limit water-dependent growth. In some settings, MFLs require displacement of existing uses, including uses established before science and social attitudes would have deemed those withdrawals of water from the streams unwise or no longer morally supportable. Reducing or eliminating any established usufructuary rights based on prior appropriation potentially can be argued by affected rights holders to be a taking of property requiring compensation. If those takings claims prove successful, the cost of averting the tragedy of the commons issues may be out of economic reach in many locales. This Article will argue that MFLs can be imposed and enforced without creating takings liability.

Considerable sophistication now surrounds the types of coercive measures used to limit or reduce the tragedy of the commons in many fields. For stream dewatering, MFLs provide a direct and potentially effective protection. As Hardin demonstrated, under changed conditions, it is necessary to place new restrictions on users of the commons whose acts were permitted by the law and morality at the time the uses were initiated, in order to protect the commons from tragedy.

1. SELECTED KEY IDEAS IN HARDIN'S "TRAGEDY OF THE COMMONS"

   This Part will describe those aspects of The Tragedy of the Commons that bear on the commons problems addressed in this Article.

   The principal manifestation of "tragedy" as seen by Hardin is overuse of the commons. His initial example of this is of multiple herders grazing livestock on a finite-sized commons. So long as the number of animals is small enough, the commons has enough grass to support them all. The individual incentive facing each herder is to add another member to his herd to increase the individual herder's utility obtained from exploitation of the commons. Even when the commons becomes sufficiently congested and overgrazing occurs due to the increased number of animals, the utility calculus facing each herder continues to call for adding...