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<br />002tlH <br /> <br />ARIZONA V. CALIE'ORNIA AND PACH'lC SOUTHWEST WATER PROBLEMS 47 <br /> <br />This is most important. It is because of the transfer of responsibil- <br />ities to the secretary and Congress that California interests are sponsor- <br />ing legislation to establish a shortage formula whereby existing Cali- <br />fornia projeets will be protected. In effect, the court left the matter to <br />the Congress and to the secretary. <br />Much concern has been expressed over the impact of this portion of <br />the court's decision on the role of the secretary in water development. <br />The court's construction of the Bouldcr Canyon Project Act was <br />strongly opposed by Justice Douglas who commented: <br /> <br />The present dccision . . . grants the federal bureaucracy a power <br />and command over water rights in the 17 western states that it <br />never has had, that it always wanted, that it could never persuade <br />Congress to grant, and that this court up to now has consistently <br />refused to recognizc. Our rulings heretofore have been consistent <br />with the principles of reclamation law . . . The rights of the <br />United States as storer of waters in western projects has been dis- <br />tinctly understood to bc simply that of "a carrier and distributor <br />of water. " 10 <br /> <br />California's former Attorney General, Stanley Mosk, expressed sim- <br />ilar views: <br /> <br />The court will review any allocation the Secretary makes for <br />abnse of this descretion, but there are precious few controls on that <br />discretion, which the secretary might abuse. The secretary's power <br />may be enlarged or it may be contracted by Congress. <br />'rhe remarkable part of the decision cannot be stated in terms <br />of whieh state gets how much water. The remarkable part is the <br />vast, unprecedented, uncontrolled, and uncontrollable power con- <br />fcrred on one man, the Secretary of the Interior. In dissent, Mr. <br />.Justice Douglas, who is the most knowledgeable member of the <br />court with respect to water rights, summed up the result like this: <br />"Now one can receive his priority because he is the most worthy <br />Democrat or Republican, as the case may be. " <br /> <br />That sentence dcscribes why I am confident that executive fiat <br />as the basis of water rights will ultimately prove as unacceptable <br />to Arizona, to Nevada, and to the rest of the country as it is to <br />California. Law-not the caprice of any execntivc official, however <br />wise and howevcr fair hc may try to be - must bc the basis of <br />water rights.u <br /> <br />The following table illustrates the difference in result under Cali- <br />fornia's original contention in the suit (including tributaries), the <br />master's proration formula, and the court's opinion (assuming a 4.4 <br />million acre-foot priority to California) based upon the same shortage <br />conditions assumed in previous charts: <br /> <br />lQ 10 L..Ed. 2d 581. <br />11 Mosk, op. cit.~ at 6-7. <br />