Tyler, Daniel

English

University of Denver

Water Law Review Volume 5 Issue 1 Article 3 9-1-2001 Delphus Emory Carpenter - The Silver Fox of the Rockies Daniel Tyler Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Daniel Tyler, Delphus Emory Carpenter - The Silver Fox of the Rockies, 5 U. Denv. Water L. Rev. [viii] (2001). This Front Matter is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. IN TRIBUTEDELPHUS EMORY CARPENTERDELPHUS EMORY CARPENTER"THE SILVER Fox OF THE ROCKIES"DANIEL TYLERtWhen the United States Supreme Court ruled in 1938 that vestedwater rights in the states were subject to the terms and conditionsagreed to in interstate water compacts,' engineer Ralph I. Meeker,wrote to congratulate Delph Carpenter in a letter in which he referredto his long time friend as the Silver Fox of the Rockies. Meeker likedto call himself the lone wolf. The two men had worked together onmany interstate compacts, and they respected each other's talents.Meeker knew that the Court's decision validated Carpenter's interstatecompact work, laying to rest future challenges by private interests whobelieved their water rights could not be qualified by interstateagreements.By 1938, Carpenter had been bed ridden for four years withsymptoms of Parkinson's disease. It is not completely clear how hecontracted the disease that wracked his body, but his diaries indicatethat he began to suffer from influenza-like symptoms in 1918 when the"Spanish Flu" was taking its toll on hundreds of thousands ofAmericans across the country. He first referred to his malady as a kindof muscular neuritis, causing pains in his neck and shoulders. Laterhe developed a hand tremor that became visible in his signature after1922. By the early 1930s, he was having difficulty feeding himself. Histhroat tightened up, preventing all but whispered speech. His wife,Dot, served as his amanuensis, taking dictation so Carpenter couldrespond to the many queries he received about new compacts and theproper interpretation of those already approved by Congress. Whenthe Parkinsonian symptoms were especially severe, Carpenter couldonly communicate with Dot by winking his eyes to spell letters.Through such efforts, Carpenter managed to stay in touch with thewestern water community. Speaking for many who came to appreciatehis contributions, Colorado Congressman Edward T. Taylor sent apersonal photograph and signed it to Delph Carpenter, "the father ofinterstate water compacts."The phrase was certainly an accurate and just reflection ofCarpenter's contribution to the West. Having grown up in a pioneerfamily that came to the Union Colony of Greeley in 1872, Carpentersoon became aware of the need to comprehend the nature of waterrights as he worked on his father's irrigated farm north of Greeley.After graduation from Greeley High School, he attended theUniversity of Denver to earn a law degree. His father, Leroy, told himthat if he wanted knowledge of water law, he would have to write hisown books, but Carpenter had already learned by experience that theI Daniel Tyler is Professor Emeritus at Colorado State University. He is theauthor of THE LAST WATER HOLE IN THE WEST: THE COLORADO-BIG THOMPSON PROJECTAND THE NORTHERN COLORADO WATER CONSERVANCY DISTRIcr (1992), and THE SILVERFox OF THE ROCKIES: DELPHUS EMORY CARPENTER AND THE ADVENT OF INTERSTATE WATERCOMPACTS (2002).1. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938),reh'g denied, 305 U.S. 668 (1938).doctrine of prior appropriation was sacred to the farmers in his area.When he became the first native born Coloradan elected to theColorado Senate, he brought with him a determination to defend theprior appropriation system at all costs. Because of his oratorical skillsand his knowledge about water, the Colorado Assembly asked him tocomplete a report on the state's water supply. Many in stategovernment had been shaken by the United States Supreme Courtdecision in Kansas v. Colorado.2 The Court's ruling had suggested thatcontrary to traditional beliefs, Colorado and other basin of originstates might not own all the water flowing in their rivers. Instead, saidthe Court, a doctrine of "equitable apportionment" should prevailbetween states sharing the same surface water. Carpenter's report,delivered to the Assembly in 1911, emphasized the importance ofdefending the priority doctrine and establishing a "Defense Fund" towithstand expected interstate litigation.But in the moment of his most unbending commitment to priorappropriation, Carpenter's thoughts on water changed. To hiseverlasting credit, he saw the Kansas v. Colorado decision as a "firebellin the night." If the Court was saying that Upper Basin states of originwould have to share their water with neighbors, and if there was animplication that states operating under the prior appropriationdoctrine would have to honor the first-in-time, first-in-right principlein their relations with one another, Colorado would be foreverweighed down by the "servitude," or obligation, to provide water toneighboring states who had earlier priority dates and who mostprobably had the potential to expand economically much faster thanColorado.Kansas v. Colorado called for an imaginative response. Carpenter, astudent of the Constitution with a philosophical opposition to thefederal government's expanding powers after World War I,interpreted the Court's decision as encouragement to the states tomake treaties on interstate streams, so long as such agreements weresubmitted to Congress for approval.' The worst thing that couldhappen, he believed, was for Colorado to do nothing and let the Courtimpose the principle of priority across state lines. Consequently, whilehe continued to maintain a resolute commitment to priorappropriation as the most equitable principle in intra-state watermatters, he embraced the compact theory as a way to (1) enablewestern states to settle their own conflicts; (2) maintain state control oftheir water; and (3) keep the federal government at a safe distanceuntil compacts were written and approved by Congress. Only at thattime, Carpenter believed, should the Bureau of Reclamation and ArmyCorps of Engineers begin construction of their projects, thus avoidingthe kind of problems that had occurred on the North Platte in 1909and the Rio Grande in 1916.Both these rivers originate in Colorado. Construction downstreamof Pathfinder Reservoir in Wyoming on the North Platte and ElephantButte Dam downstream on the Rio Grande in New Mexico had placedColorado in the position of having to provide water to federal projectsin neighboring states before any discussion of Colorado's future needs.2. Kansas v. Colorado, 206 U.S. 46 (1907).3. U.S. CONST. art. 1, § 10, cl. 3.The Elephant Butte project was especially galling, because itsauthorization came with an embargo on additional development ofRio Grande waters in Colorado's San Luis Valley, a prohibition thatremained in force until 1925. Carpenter could clearly see that if thispattern were to continue on the South Platte, La Plata, Republican,Arkansas, Colorado, and other interstate streams, Colorado would bepresented with a fait accompli: a huge burden to provide water toother states that had established prescriptive claims through diversionand beneficial use. Under this scenario, Colorado would be forever incourt defending its rights and expending large sums of money in a"war" that might have been avoided by compact negotiation. Althoughhe may have exaggerated the situation, Carpenter saw that Coloradowould be under constant attack. He equated the compact process tothe diplomatic efforts to which civilized nations subscribe as a first stepin their efforts to avoid war.With this commitment to negotiation, and as Colorado's dulyappointed interstate streams commissioner, Carpenter first tried outhis compact approach in 1916 when Nebraska sued Colorado for aguaranteed supply of water from the South Platte River. Although hislife was complicated by Wyoming's challenge to Colorado on theLaramie River,4 where he served as lead counsel, Carpenter pouredhimself into research on the South Platte. He found a Nebraskahistorian who could help him locate living pioneers who rememberedthe South Platte as a much more unreliable stream prior to thebeginning of irrigation upstream in Colorado. He interviewed dozensof these freighters, hunters, and soldiers. With affidavits in hand, heovercame Nebraska's political bias against Colorado and negotiated acompact, signed in 1923, that allocated a division of water betweenupper and lower basins. It was an important principle used to evengreater benefit in later negotiations on the Colorado River.1922 was the year of the Colorado River Compact, for whichCarpenter is best known, it is also the year of decision in Wyoming v.Colorado.' Five months prior to meetings of the Colorado RiverCompact Commission in Santa Fe, the United States Supreme Courtruled that if two states recognized the doctrine of prior appropriation,that doctrine should apply across state boundaries in a dispute overinterstate water. The decision was a crushing blow to Carpenter, buthe viewed it in a positive light. After all, the Court had recognizedColorado's right to an equitable share of water on the Laramie River,although it found Wyoming's claims to that river senior. The decisionmeant, Carpenter argued, that priority by date was not the onlymeasure of an interstate water right; equity, as emphasized in both theKansas and Wyoming decisions, required the recognition of a state'spotential to grow and develop and to do so without feeling the need todivert water prematurely in a race that would exhaust local treasuries.It was this interpretation of Wyoming v. Colorado that he took withhim to Santa Fe in the fall of 1922 when he met with commissioners ofthe Colorado River Basin states and the federal representative, HerbertHoover. At Bishop's Lodge, adjacent to the home and chapel of NewMexico's first Catholic Bishop Jean Baptiste Lamy, the seven4. Wyoming v. Colorado, 259 U.S. 419 (1922).5. Id.commissioners, under Carpenter's leadership, and with considerablehelp from Hoover, negotiated the Colorado River Compact. Afterfailing in their attempt to divide the river according to estimates ofeach state's maximum irrigable acreage, Carpenter drew up a planbased on a fifty-fifty division of the river at Lee's Ferry. Because theColorado River received most of its flow above Lee's Ferry, it seemedto him that the Lower Basin states (Arizona, California, and Nevada)should be willing to accept a compact based on the Upper Basin states'(Colorado, Wyoming, Utah, and New Mexico) obligation to deliver acertain amount of water to Lee's Ferry over a ten year period. The bigquestion was, how much water? Heated discussions ensued, but thecommissioners eventually adopted the fifty-fifty idea. The Upper Basinagreed to deliver 75,000,000 acre-feet over a ten year period,calculated using a running average. Experts who advised thecommissioners believed the Colorado River flowed at an averageannual rate of 20,000,000 acre-feet, about one-third more than itsproven average. When Arizona showed signs of backing out, it wasagreed that the Lower Basin could divert an extra 1,000,000 acre-feetannually, a recognition, in fact, that Arizona had already diverted forconsumptive use all the water in the Gila River. The Colorado RiverCompact was signed by all seven commissioners on November 24,1922, at the old Spanish Palace of the Governors in Santa Fe. Threedays later, again as a result of Carpenter's work, New Mexico andColorado signed a compact governing allocations of the La Plata River.Because the political winds shifted in Arizona during negotiationof the Colorado River Compact, the Arizona legislature refused toratify the document its commissioner had negotiated in good faith.Additional ratification problems developed, especially in Californiawhere Congressman Phil Swing wanted a guarantee of a dam on thelower river before California would ratify. Carpenter played animportant role in the six year long ratification squabble among thestates, all of whom recognized that Congress would not authorizeconstruction of a dam at Boulder (or Black) Canyon until the sateshad completed the ratification process. Because he believed Arizonaneeded time to put its political house in order, Carpenter suggestedthe compact go into effect with six, rather than seven, ratifications.The states approved this change. Early in President Herbert Hoover'sfirst year in office, and under authority of the Boulder Canyon ProjectAct, Congress approved funds to begin construction of Hoover Dam.Construction began in 1931 and ended in 1935. One of thegreatest engineering projects of the United States would not havehappened without the Colorado River Compact. California's ImperialValley was protected from future floods, and hydroelectric powergenerated at the dam site contributed significantly to the success ofwar industries in the Southwest and to the post-war growth of this areaafter 1945. Carpenter did not end his compact work in Santa Fe. Heprovided much of the groundwork leading to the 1938 Rio GrandeCompact, and he contributed to compact discussions on the ArkansasRiver, the North Platte, and the Upper Colorado River Basin. In 1933,however, with Democratic Governor Edwin C. Johnson in office,Republican Carpenter was seen as an expense the state could ill afford.Johnson fired his interstate streams commissioner and assignedCarpenter's duties to state engineer Michael C. Hinderlider. Thestate's budgetary constraints were such that his removal came withlittle warning and without a pension. Debilitated physically by hisdisease, and emotionally drained by Johnson' precipitous act,Carpenter retired to his home in Greeley, depressed by a fear that hisaccomplishments would be relegated to the trash heaps of history.He was wrong. His colleagues wrote constantly to thank him forhis pioneering work in interstate water compacts. Even GovernorJohnson underwent a "burning bush" experience following hiselection to the United States Senate. As a member of the committeeon irrigation and reclamation, he spoke out on Carpenter's importantachievements, and became a strong advocate of the states' rights viewsof his one-time interstate streams commissioner. The NationalReclamation Association provided a tribute to Carpenter in 1943, andthe University of Colorado awarded Carpenter its medal of service forwork on interstate compacts.Indeed, Carpenter left a proud legacy for the modern West. Hiswork on the Colorado River Compact made it possible for Coloradoand the other Upper Basin states to develop economically at their ownpace. His opposition to federal agencies interested in constructingwater projects to meet multi-purpose and maximum use goals wasbased on his belief that the system of dual government in the UnitedStates-federal and state-was established by the Founding Fathers topreserve a balance of state sovereignty and national security. If thefederal government took control of the states' natural resources, theywould upset this balance and create a situation that would involve thestates in endless litigation. Far better, he believed, was a federalgovernment participating in the negotiation process and responsive tostate laws. The federal republic, as set forth in the Constitution, wassacrosanct. It could not survive if national centralization of powerreplaced state sovereignty.Carpenter was a second-generation pioneer. There were far fewervirgin lands to open by the time he became an adult, and theintellectual life appealed more to him than the life of a farmer. Thatsaid, he was also a great proponent of pioneer values: hard work,individualism, strong family ties, local boosterism, and service to thestate. He believed that society was progressing upward, and he livedthe words of Colorado poet Thomas Hornsby Ferrill, who noted abovethe murals of the rotunda in Denver's capitol building, "This is theland where men shall fashion glaciers into greenness and harvest Aprilrivers in autumn."What Hoover wrote to him in 1929, right after Congress agreed toproceed with construction of Hoover Dam, was probably Carpenter'smost appreciated accolade. "I am not so much interested in myworries," Hoover said, "as I am in expressing .to you the feeling I haveover the consummation of the Colorado River Compact. Thatcompact was your conception and your creation, and it was due toyour tenacity that it has succeeded. Sometime I want to be able to saythis and say it emphatically to the people of the West."

Delphus Emory Carpenter - The Silver Fox of the Rockies

https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=2522&context=wlr

Delphus Emory Carpenter - The Silver Fox of the Rockies

Abstract

Similar works

Full text

Available Versions

University of Denver