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001532 936 AJUZONA LAW REVIEW clearly involves the use of discretion.67 It is here, however, that a certain , ambiguity arises within the preference clause of the BCP A itself. The e:en- eral provision of the Federal Power Act cited in the BCPA clearly m~kes preference rights subject to "public interest criteria, as decided by the Sec- retary."68 Because the sentence of the BCPA granting the states a Special preference is set off from the public interest criteria by an "except that" clause,69 an argument can be made that the BCP A's intent is to exempt states from these criteria. It is this special preference right, which may not be subject to any form of secretarial discretion, that is the statutory provi- ) 'sioJ?- over w~ch .the controversy has arisen between the states regarding theIr respective nghts to power., , --:-~e~; ..,~. THE NEVADA-ARIZONA POSITION Arizona and Nevada, through the Nevada-Colorado River Commis- sion and the Arizona Power Authority, take the position that section 617d(c) of the BCPA creates a mandatory right in California, Arizona, and Nevada to one-third each of the entire power output of Hoover Dam.70 Arizona and Nevada argue that this interpretation is necessitated by tbe Act's language,71 its legislative history,72 and its original administrative implementation?3 The two states assert that this right to one-third of ihe power takes precedence over any renewal rights under section 617d(b) of the Act if compensation is paid to any current power allottee for the losses occasioned by nonrtnewal of its contract.74 They also argue that this right is not subject to any form of administrative discretion based on the public interest criteria of section 617d(c) of the Act.7S The Slale Preference Nevada and Arizona initially argue that the plain language of section 617d(c) that preference "shall be given, first, to a state for the generation or purchase of electric energy for use in the state, and the states of Arizona.. Nevada, and California shall be given equal opportunity as such appli- cants,"76 gives each state a "super-preference" right to a minimum of one- third of the Hoover power output.77 Ne~ada finds its primary support for 67. See City of Santa Clara v. Andrus, 572 F.2d 660, 666-68 (9th Cir. 1978). 68. See 43 U.S.C. ~ 617d(c) (1976); Interpretations of BCPA, supra note 66, at 7; WAPA Sid Discussion Paper, supra note 10, at 5-6; supra notes 52-57 and accompanying texL 69. See 43 U.S.C. ~ 617d(c) (1976). 70. See Proposed Marketing Criteria, supra note 4, at 46,864; Joint Statement of the APA and NCRC, supra note 8; Nevada Brief, supra note 8, at 8-9. 71. See infra notes 76-80 and accompanying text. 72. See i'!fra notes 81-85 and accompanying text. 73. See Nevada Brief, supra note 8, at 8-9. 74. Id , 75. Id See 43 U.S.C. ~ 617d(b) (1976) (providing for renewal unless compensation is pUS for the taking or loss of usefulness of property used in transmitting and distributing Hoover f?O,.'et' under the existing contract); id ~ 617d(c) (providing that the Secretary apply the preference m ~ case of conflicting applications with "due regard for the public interest" and in accordance W1lh the policy of the Federal Power Act). 76. 43 U.S.C. fi 617d(c) (1976). . 77. See Nevada Brief, supra note 8, at 69.70. Nevada terms this allegedly mandatory nght a "super-preference." Id at 68. / //' ~ th .' t;" p t ea t i zo lh , th on I I eq .- r va .~- gr ; th ! i -f n t " to Se J po Se , t ~ ~ ~ i ~ . i 89 Ca < reI i G hy i na 1 Th i BC (19 ',\ _?I " I t -. '. ~