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PEARCE: Particularly with shortage and surplus criteria, though, I think the Basin Project Act mitigates what the Supreme Court ruled in 1963 with respect to the Secretary's authority. It clearly calls for the participation and the cooperation of the governors of the seven basin states and it's not something where the Secretary has unlimited authority. And we certainly agree with that, both on practical grounds and I think on kind of a higher plane. That much discretion is something that ought to be shared, a check and balance system, and we think the Basin Project does provide that. WEATHERFORD: I think there is a consensus feeling on that among the states. I'm intrigued by the recent Maricopa Stanfield case in Arizona which Jerry [Muys] brought to our attention. It upheld the Secretary's discretion to reallocate not-contracted-for water within the CAP. That case cited a series of cases coming out of the Central Valley of California, the Patterson case, the Hancock case and the O'Neill cases, all of which suggest that the Endangered Species Act or other federally mandated objectives can result in the curtailment of water under federal contracts. And representing contractors in the Lower Basin, I've always felt fairly secure that Section 5 of the Boulder Canyon Project Act, which says that these contracts in the Lower Basin are permanent service contracts, would prevent that kind of realloca- tion or rewriting of contracts. Here in this Arizona case, we have the 9th Circuit, which was also the one that authored the various CVP cases I mentioned, giving us the first suggestion that the new federal initiatives and the vigorous ESA mandates as we've seen them in the Central Valley of California, could lap over into the Colorado River Basin. In the Hancock case, which is a 1993 case, there was a 40-year contract with a right to renew and in its opinion, the 9th Circuit construed that as a permanent service contract because of the renewal features. So the distinction I've always felt some comfort in seems to be undet attack. Regarding your states' rights position, while I think the states agree with it, isn't there a movement afoot challenging that position? PEARCE: I'm very pleased to respond and agree with the Department of Justice in their response to the petition for certiorari in that case. They argued that it was a very narrow case dealing with the congressional mandate of the AK Chin Settlement Act of 1984. Arizona is a firm believer in a theory that I first heard espoused by Sandy White in Colorado that because the government was building a huge project on the Colorado in 1928 [Boulder Dam], Congress felt that it was only appropriate to have the Secretary divvy up the water that was coming out of that project. I believe that the compromise for that, the quid pro quo, was the designation within the [Boulder Canyon] Act itself that those contracts are for permanent service. Those words were not put in there lightly. I think they are very, very meaningful. They speak to the issue that, but for that unique congres- sional authorization to the Secretary, this water would have been allocated in a different manner but it would have been allocated in a permanent manner. Muys: I'd just like to apologize for all you lawyers here to all of you non-lawyers because I know this gets a little technical. In the Maricopa Stanfield Decision the 9th Circuit's core conclusion was, quote, "The Secretary retained his discretion under Section 5 of the Boulder Canyon Project Act to allocate and reallocate CAP water under the 1983 notice and under the district subcontracts for the Central Arizona Water Conservation's District." End of quote. Now that does not leave room for a lot of interpretation, in my opinion. It was triggered by a rather narrow Indian water settlement act but the upshot of it is a very broad principle that, as Gary said, applies throughout the area where the 9th Circuit has jurisdiction, which is a good part of the Colorado River Basin. Although it doesn't necessarily mean anything, the Supreme Court declined to review that decision. That doesn't mean, as you know, that the Supreme Court agreed with it but it didn't feel, at least at this time, that it was necessary to take it up and take a look at it. I won't say it's a troublesome precedent in my mind, but it could be for a lot of individuals. LESHY: Just a couple of quick observations. One, that case shows the perils of litigation, of making an overreaching argument and ending up with some judicial pronouncements that you may not anticipate or like. I'd also remind people that the title of this panel is "The Ever Evolving Law of the River." JENSEN: I want each of you to take a few minutes to speculate on what you think may be the major issues on the river in the next century. While you're thinking about that, let me make a few practical observations based on my 30-plus years involved with the Colorado River representing Utah and later in private practice. A cynic once said that the Law of the River is what the seven basin states and the federal government says TH E EVER EVOLVING LAW OF THE RIVER SYMPOSIUM PROCEEDINGS SEPTEMBER 1999 o