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Colorado's public lands are faced with new challenges but water and land management depend on working together. Read about the relationship between water and land in Colorado and how Coloradans are converging to restore Colorado's public lands in the Spring 2018 issue of Headwaters magazine.

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Water Education Colorado

Interview: Dan Tyler, Author

By Karla Brown

Delph Carpenter (1877-1951) was Colorado's interstate stream commissioner during a pivotal time when the state was struggling to protect its water rights, while still figuring out how to share its rivers equitably with its downstream neighbors.

In Silver Fox of the Rockies, Dan Tyler tells Carpenter's neglected tale as a one of the first crop of native Coloradans uniquely prepared to deal with questions of water management in this arid land. As portrayed in a political cartoon of the day, Delph was ‘raised on a farm, punched cows, specialized in irrigation law.’

One of Delph's first tests as a lawyer came in litigating the Wyoming v. Colorado case before the U.S. Supreme Court — arguing for Colorado's right to use the Laramie River located in Colorado's North Park area. Although Delph lost the case, Tyler explains how the experience inspired Carpenter to take a different approach to future interstate water disputes.

Best known for his leadership role in creating the Colorado River Compact of 1922, Delph went on to play a key role in devising all but three of the nine interstate water compacts that Coloradans rely upon to this day.

In a style rich with legal history, Silver Fox of the Rockies gives the reader insight into the personal struggles and ambitions of a driven man, as well as one of the first models for negotiating water issues in the West.

The Foundation would like to thank Dan Tyler for agreeing to be interviewed by Headwaters magazine for this special book review section. The interview was conducted at the original Carpenter homestead, moved from its location just outside Greeley and currently residing at nearby historic Centennial Village. We would also like to thank Chris Dill, Superintendent of the Greeley Museums, and Collections Specialist, Erin Quinn, for allowing us access to the property.

November 12, 2003
Carpenter homestead, Centennial Village
Greeley, Colorado

CFWE: Your book shows Delph as an ambitious, independent man — a State Senator by 31, arguing for Colorado in front of the U.S. Supreme Court by age 39. He also really broke new ground in water law and interstate stream litigation.

DT: Yes, in fact Delph was the first native Coloradan to be elected to the Colorado Senate, and at a time and for a political party that was not dominant in the legislature. Most legislators being elected at this time were Reform Democrats. Here Delph is, a dyed-in-the-wool Republican, a Teddy Roosevelt supporter wearing the red, white, and blue elephant on his shoulder. And yet he managed to gain a great deal of respect from the Democrats, and not just for his leadership in the Senate, but for his knowledge of water.

Now, Colorado had just been hit very hard by the Kansas v. Colorado Supreme Court decision. The Supreme Court had said to Colorado, ‘this is new era, and you don't own all your water. We don't know exactly how you should divide it, but at some point down the line, there will have to be an equitable division of the water coming out of Colorado to assure these other states have a constant supply.’

I think this is where Delph began to realize that he could become a pioneer like the generation of his father. But not in terms of agriculture, and digging up new land and chasing away the Indians and all that, but in developing a stable environment for these people who were going to have to rely on water when they came out here to farm.

CFWE: Arguing the Wyoming v. Colorado case in front of the U.S. Supreme Court, Delph talks about the ‘crushing weight of the litigation’ which taxed him to the point of exhaustion. How do you think this experience shaped his future attitudes towards avoiding litigation and instead negotiating interstate water compacts?

DT: I have no difficulty saying it convinced him that he would have to represent himself as an attorney, and go out to the other states and say, ‘Listen. Litigation is not the way to go here.’ Several times, Delph compares litigation to war. You don't want to resort to war when you're in a conflict because everybody loses. What you have to do is figure a way to develop ‘diplomacy,’ and diplomacy was his word for negotiation.

…His mantra really was — you get other people across the table from you, and your job is to persuade them that it will pay them financially, economically, in some way, to negotiate. And once you accomplish that and they want to negotiate, then the sky's the limit. But as soon as you come into negotiations with a bullying, disputatious approach, people then back up and protect their turf.

And we know this is exactly what happened during the first seven meetings negotiating the Colorado River Compact in Washington, D.C. Everyone wanted to protect the potential irrigable acres within their state, and so they bankrupted the river. And poor Herbert Hoover [chairman of the negotiations] had to throw up his hands and say, ‘we're not getting anywhere here, we might as well go home.’

CFWE: What were the major factors that brought together the seven basin states to begin negotiations for the Colorado River Compact?

DT: Very simple. You can boil it down to two words. The lower states, California in particular, wanted construction of the dam [Hoover Dam] to keeps flood waters controlled. The upper basin states, particularly Colorado, wanted protection because if the river was going to be divided up in some way — Colorado, New Mexico, Wyoming, Utah — would need 50, 75, maybe even 100 years before they could use their share of the water. So Carpenter got it so that we could have enough time to put the water to use, without them using it themselves and then telling us 100 years from now, ‘sorry, we've already put that water to use in L.A. or San Diego or someplace.’

CFWE: So they began the Colorado River Compact negotiations in 1922 — were they particularly heated and acrimonious, did they stalemate?

DT: Well, Washington, D.C. was a stalemate. And when they finished the seventh meeting in Washington, and Hoover's sitting at the table and he's chairman of the conference, he looks around the room and he basically says, ‘well, we haven't accomplished anything.’

…So it wasn't until they went out to the public and had meetings in six major cities — and heard all of the complaints, arguments, and suggestions of people in all the seven states — then they realized that what they needed was something other than dividing up the water state-by-state. And that's when Carpenter presents his 50-50 plan to divide the Colorado River [into upper and lower basins].

It wasn't the first time. He had done it before in other compacts. So he already had some experience doing that. But it was new to the other Commissioners.

And there is this wonderful letter that I quoted in the book, where he writes this compact and suggests a split 50-50. Sends it to Hoover, and then puts a little P.S. on the letter saying, ‘I want you to know how alone I have felt all my life trying to come up with a solution to water problems where nobody is willing to listen, and everybody wants to fight and go to court.’

CFWE: In Colorado today, these sorts of entrenched battles are not uncommon — East Slope versus West Slope, or one interest versus another. What can Delph's negotiation skills teach us today?

DT: There's an interesting theme that runs through Carpenter's leadership, and I think it is that you not only have to get the facts out, and talk as best you can about what you know about the topography, hydrology, snowfall, rain, and all that. But you also have to understand and study the culture of your adversary. You have to understand what it is that drives people to defend that particular issue.

And that's why I think as a negotiator he has an awful lot to teach modern-day people, because when you're talking about environmentalists, bug-ologists, government people, and all these diverse entities that want to sit at the table. You have to go beyond who they are, and understand the culture they represent. And you have to understand what it is they're really saying when they spit the words out.

…I think that Carpenter, somehow, and maybe this book will help out a little bit, could tell people how to go about negotiations and how important it is to stick with it and not run when the going gets tough. Because, I tell you, people I've run into all across the state who have worked with conservancy districts or municipal organizations — they can give you dozens of examples of people just putting their papers together, getting up and walking out of the room, and saying that's enough — I'm not talking with you guys any more.

You have to have a different atmosphere when you're talking water because everybody knows that everybody's going to get some, so you might as well figure out a way to stick it out.

Dan Tyler is a Professor Emeritus of History at Colorado State University, Fort Collins. He is also the author of The Last Water Hole in the West.

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