9407

• UCREFRP Catalog Number: 9407
• Author: Water Education Foundation.
• Title: 75th Anniversary Colorado River Compact Symposium Proceedings.
• USFW Year: 1997.
• USFW - Doc Type: \
• Copyright Material: NO

Compact. It interpreted the Boulder Canyon Project
Act and talked about the rights and authorities of the
secretary of Interior under the Boulder Canyon
Project Act. By allocating 7-112 million acre-feet out
of the main stem, it made clear what was obvious
under the Compact, and that was that the 1 million
acre-feet of additional development in the Lower
Basin is tributary development, and to the extent that
the Lower Basin has exceeded 8-1/2 million acre-feet,
the Upper Basin has no obligation to contribute to a
Mexican treaty delivery.

Muys: Speaking of that, Mike Ely keeps floating
through my mind because I practiced with him, but
the hardest rhing I ever did with Mike was help him
write a speech that he delivered to the town hall in
Los Angeles after the Supreme Court's decision in
Arizona v. California explaining how California really
won the case. Mike had a strong ego, like a lot of
water lawyers.
And the other thing he told me, and I assume it's
true, and I perpetuate it in a footnote someplace, is
that Justice Frankfurter had told him after the oral
arguments in Arizona v. California, which was the
longest in Supreme Court history at that time - I
think 16-1/2 hours - when the eight justices took a
straw vote, it was five to three to overturn the special
master's report and buy the California position. And
then after two justices retired over the summer and
Goldbergand White came on - we had six more
hours of argument - they went to another straw
vote, which was five to three the other way. So it is
from such fragile reeds great policy and legal
decisions are made.

QUESTION FROM THE AUDIENCE: A lot of
the material on this subject talks about the potential
reformation and rescission. And we have the seven
leaders of water in the seven states ... being asked
what would you want to change? And I heard nobody
say we should rescind or reform the Compact. Does
that mean we can avoid talking about that over the
next three days?

LOCHHEAD: If you interpret the Compact
as a 50-50 allocation between the Upper Basin and
Lower Basin, then there would be no need for
reformation.

Muys: Upper Basin writers have suggested that if
they had known how little water there was they never
would have agreed to the 75 million acre-feet 10-year
obligation. The Lower Basin says if they had known
how little there was, they never would have given the

Upper Basin so much water. I guess the reality is, it's
more than a contract after Congress approved it. It
became a statute, and I don't think any of us can
rescind it any longer. I think it's up to Congress.

QUESTION FROM THE AUDIENCE: Jerry and
several of the panelists have talked about the doctrine
of equitable apportionment. And I'm interested to
hear the seven different definitions of that, and how
that was brought into play here in the Compact
formulation.

PEARSON: Interestingly, the doctrine of equitable
apportionment raises to mind just simply that each
one of us can make an argument that there was
probably a need for more water somehow. Certainly
in California they
could say that
development justified
them getting more
water. They were the
senior user on the
system. In Arizona we
argue that we're a
major contributor to
the system and that
our tributaries of
course supply a
majority of the water
in the Lower Basin.
It's all a question of
how you look at the
Issue.
As a consequence
of that, I think that the decisions that have come
out through the Compact, through the court decree,
have really been very good decisions overall. It is a
working, living document, and so I have yet to hear a
really credible atgument to open up the Law of the
River again 75 years later, given the controversy that
has ensued over the last 75 years to develop a working
body of law to appropriate this system of water. It is a
remarkably viable document even today.

STATES'
PERSPECTIVES

I heard nobody say we
should rescind or

reform the Compact.

Does that mean we

can avoid talking

about that over the

next three days?

- Question

QUESTION FROM THE AUDIENCE: It would

seem that the shortage problems have perhaps been
ameliorated by the federal government. Would
someone comment on whether a shortage really
exists?

LOCHHEAD: If you accept the view that the
Upper Basin is obligated to deliver an average of
7 -112 million acre-feet a year, plus or minus any share
of the Mexican treaty obligation, the Bureau of

SYMPOSIUM
PROCEEDINGS
MAY 1997

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