Chapter 1: Summary of "The Law of the River"

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CHAPTER I 13 As a result of that Congressional action, Arizona filed a motion in the Supreme Court on August 13, 1952, for leave to file a Bill of Complaint against California and seven public agencies in the State. It alleged that Arizona's entitlement to Colorado River water was adversely affected by the California claimants and that Arizona's existing and prospective projects were" threatened. The United States was permitted to intervene as was Nevada. Utah and New Mexico were joined to the extent of their capacity as Lower Basin States. On June 1, 1954, the Court appointed George I. Haight as Special Master and on his death appointed Judge Simon H. Rifkind as Special Master on October 10, 1955. The trial before the Special Master began on June 14, 1956, in the United States Courthouse in San Francisco and concluded August 28, 1958. Follow- ing circulation among the parties of a draft report by the Special Master dated May 5, 1960, and the receipt of comments and oral arguments, the Special Master submitted his Report dated December 5, 1960, to the Supreme Court. The Supreme Court heard oral arguments in January 1962 and reargument. On June 3, 1963, it rendered its decision, 373 U.S. 546. The Special Master's Report and Recommended Decree were in large measure adopted by the Supreme Court, although departures were made in important areas. The major conclusions of the Court follow. Congress, in enacting the Boulder Canyon Project Act, under its powers granted by the Commerce and Property Clauses of the Constitution, provided a solution of the Lower Basin water controversy by establishing a statutory apportionment of mainstream waters among the Lower Basin States. The Special Master was correct in holding that the Colorado River Compact, the law of prior appropria- tion, and the doctrine of equitable apportionment do not control the issues of the case. Equitable apportion- ment was inapplicable because of the Congressional statutory allocation. The Compact was inapplicable since it provided an inter -Basin division of water and did not determine the further division of the Lower Basin's share. It was, however, relevant for some purposes, e.g., some of its terms are incorporated in the Project Act and are applicable to the Lower Basin. The Court stated that the Project Act dealt only with the waters of the mainstream and that the tributaries i were reserved to the exclusive use of the State wherein the tributaries are located. Congress made it clear that no one should use mainstream water except in strict compliance with the scheme set up in the Act; i.e., Section 5 provided that no water could be used except under contract with the Secretary; the- Secretary is- "bound to observe the Act's limitation of 4.4 maf on California's consumptive uses out of the first - 7:5 maf of mainstream water, leaving the remaining 3.1 maf for the use of Arizona and Nevada; that Nevada's needs were 300,000 acre -feet, which left 2.8 maf for Arizona; the Congress intended that the Secretary carry out the allocation of mainstream waters among the Lower Basin States and to decide which users within each State would get water; that the Secretary has, by his contracts, made this apportion- ment. The Secretary is not controlled by State law in contracting with water users within each State nor do State law priorities govern. Thus, contrary to the Master's conclusion, the priorities accorded to the water supply to Boulder City, Nevada, by the Act of September 2, 1958, were not to be determined by Nevada law. The Court agreed with the Special Master's conclusion that the Secretary cannot reduce water deliveries to Arizona and Nevada by the amounts of their uses from tributaries above Lake Mead, since Congress intended to apportion only the mainstream waters, leaving to each State its own tributaries. The Court disagreed, how- ever, with the Master's holding that the Secretary is powerless to charge States for diversions from the main- stream above Lake Mead (the Special Master had held that Lower Basin apportionment was to be made out of waters stored in Lake Mead or flowing in the mainstream below Lake Mead, and that the Secretary was without power to charge Arizona and Nevada for diversions made by them from the 275 -mile stretch of river between Lee Ferry and Lake Mead or from the tributaries above Lake Mead). The Court held that main- stream uses between Lee Ferry and Lake Mead are subject to the Secretary's control. The Court upheld the Secretary's right to subcontract with Nevada water users since to do otherwise would transfer to Nevada the Secretary's power to determine with whom he will contract and on what terms. The Court disagreed with the Master and held that the Secretary had the authority to determine the methods of apportioning shortages. The Special Master had held that shortages be pro rated among the three States in accordance with the percentages allocated to them out of the 7.5 maf apportioned to the Lower