Charles Wilkinson died last summer. In June. He was the emeritus Moses Laskey Professor of Law at the University of Colorado Law School. He was a great water lawyer. His book, Treaty Justice, the Northwest Tribes, the Boldt Decision and the Recognition of Fishing Rights, was published by the University of Washington this year. “I have taught Indian law, water law, and federal public land law, all oriented toward the American West,” he said in his preface. “I did plenty of book research. I also made a priority of getting out on the ground and conducting interviews with, among others, federal and corporate officials, conservation groups, ranchers and farmers, scientists, and Indian leaders and tribal members.” “The definition of the Pacific Northwest,” he said, “is anywhere that Pacific Salmon run.” “Since the ice ages, this muscular fish has embodied the health and vitality of this region.” It’s a good book. If you have lived on Puget Sound any time at all, you will recognize the story Wilkinson tells.

In an older writing, thirty five years ago, Wilkinson said a few things about the “prior appropriation doctrine,” a legal principle that will implicate folks in Whatcom County in the next several years. It’s worth thinking about.

“[A]lthough western water law has been modernized in some respects, prior appropriation presents a classic example of how the passage of time and a changed social consciousness can make legal rules archaic. The ‘first in time, first in right’ rule, developed as a matter of judge-made common law [citing Irwin v. Phillips, 5 Cal. 140 (1855)] is a rule of capture, a blunt instrument, one of the most primitive forms of property ownership. Originally the law of prior appropriation grew up from and conformed itself perfectly to the society it was expected to serve, just as good law should. But the time has long passed when prior appropriation met all of the calls of western states.”

He wrote that in 1989. He went on.

“Prior appropriation was cemented in place, in its mid-nineteenth century form, by state water agencies. They were chartered at the behest of water interests at the turn of the century for the twin purposes of protecting existing appropriative rights and creating a sense of order. The United States insisted upon this as a requisite for the big reclamation projects so cherished by western water developers. From the beginning these were captured agencies in the fullest sense: publicly-funded bodies whose mission was to protect and promote a limited class of private rights. Despite improvements in western water administration during the last decade or so, the interests that created the agencies in the first place, and served as the agencies’ sole constituency, had already locked in well over a century of private uses.

“One can sense that modern courts find in the extreme reaches of prior appropriation, both in its substance and its administration, a one-dimensional rule of law, founded in another time, that is ill-suited for this age. Faced with overriding natural resource calamities, such as a massive drawing-down of a major lake, the relentless salt water intrusion into one of our great deltas, or the drying up of a whole river, the courts understandably respond to a doctrine that can, in a principled way, provide balance. That is precisely how the traditional doctrine arose in the first place, with the dedication of far too much . . . to the private interests. Then, as now, judges can be expected to employ old and honored notions of trusteeship in order to fulfill the interests and the expectations of the public.” (1)

Wilkinson was talking about the “public trust doctrine,” a federal servitude imposed on states by Congress under authority of the Commerce Clause when each state was created. The doctrine he says is the “essence” of the “right of the public to obtain access to waters,” such as the Nooksack, overlying land granted to states by Congress. Pursuant to that servitude, Washington’s Legislature has now defined “beneficial use” broadly. Prior appropriation now fits awkwardly in the legislative directive to find “maximum net benefit” within competing beneficial uses.

Footnote (1):  Wilkinson, Charles, “The Headwaters of the Public Trust, Some Thoughts on the Source and Scope of the Traditional Doctrine,” in Symposium on the Public Trust and the Waters of the American West, Yesterday, Today and Tomorrow, Environmental Law. Vol. 19, No. 3, Spring 1989, pp. 425-472.