602
Opinion of the Court
D
In its counterclaim, Wyoming alleged that Nebraska was violating the decree by demanding natural flows and storage water from sources above the Tri-State Dam and diverting those waters to uses below Tri-State that are not recognized in the decree. Wyoming also alleged that Nebraska was improperly demanding North Platte flows for diversion by canals at and above Tri-State Dam in excess of the irrigation requirements of the Nebraska lands entitled to water under the decree. Increased diversions by the Nebraska canals above Tri-State evidently benefit users below Tri-State because they create increased return flows.
Neither Wyoming nor Nebraska sought summary judgment on Wyoming's counterclaim. Rather, both States and Colorado have sought a number of more limited rulings with respect to the below Tri-State issues. We agree with the Master that most of these claims are " 'too theoretical and not sufficiently anchored to concrete pleadings or an adequately developed factual [r]ecord' " to be susceptible of summary resolution at this time. Second Interim Report 92 (quoting Post-Argument Comments of United States 6 (July 29, 1991)). We further agree that one issue is sufficiently crystallized to warrant partial summary judgment for Nebraska.
Nebraska requested a determination that the decree does not impose absolute ceilings on diversions by canals taking in the pivotal reach. As the Master explained, the irrigation requirements of the lands the canals serve were calculated in the prior proceedings. But the requirements were calculated for the purpose of determining the appropriate apportionment of the pivotal reach, not to impose a cap on the canals' total diversions, either individually or cumulatively. See Doherty Report 161 ("[T]he findings herein as to requirements cannot, I think, be deemed a limitation upon individual canals or groups, in actual administration, either as to natural flow or storage water, nor do I think any such limita-
Page: Index Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: October 4, 2007