Bankrupt Rivers

44 Pages Posted: 2 Sep 2015

See all articles by Rhett Larson

Rhett Larson

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Kelly Kennedy

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: August 31, 2015

Abstract

Consider a pool of resources to which multiple parties have legal claims, and where there are more claims to the pool than there are available resources, and the priority of those claims are sorted according the date the claim was originally made. This scenario describes both typical bankruptcy proceedings and general stream adjudications. General stream adjudications involve state courts adjudicating the relative priorities and apportionment of all water rights claimants over a river basin, including the rights of Native American tribes, cities and towns, mines and industries, utilities and farms. These adjudications often involve tens of thousands of parties, cost hundreds of millions of dollars, and last for decades. As the western United States copes with continuing drought conditions, the uncertainty and acrimony of general stream adjudications presents a major obstacle to water resource management and drought resilience. This Article describes the obstacles that make general stream adjudications the protracted and contentious affairs they are, and relies on the economic theories underlying bankruptcy law to propose reforms to facilitate equitable and efficient resolution of general stream adjudications. These reforms include (1) lowering transaction costs through more efficient dispute resolution; (2) avoiding hold-outs by implementing improved water resource management; and (3) increasing available water for claimants and the environment through water markets.

Keywords: water law, sustainability, general stream adjudication, dispute resolution

Suggested Citation

Larson, Rhett and Kennedy, Kelly, Bankrupt Rivers (August 31, 2015). UC Davis Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2654032

Rhett Larson (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

Kelly Kennedy

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Box 877906
Tempe, AZ 85287-7906
United States

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