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<br />001538 <br /> <br />Z:~;} . <br /> <br />..~l-!t-; <br />:~~}.::J <br />.,~.;;;,~ <br /> <br />into a Memorandum of Understanding to conserve the population of <br /> <br />the Colorado squawfish and razorback sucker and to proceed with <br /> <br />water development in the San Juan Basin consistent with the <br /> <br />applicable state and fed.eral law and the United States' trust <br /> <br />responsibility to the five tribes situated there. <br /> <br />The point of all this is that Congress has rewritten federal <br /> <br />law applicable to the 1922 Compact in favor of preservation of <br /> <br />endangered species and protection of wetlands, and in so doing <br /> <br />Congress has fundamentally repudiated its c;ommitment to impl.ement <br /> <br />the, 1922 Compac.t. <br /> <br />And thus it is not surprising that the <br /> <br />depletions in the Upper Basin continue to remain at a level not <br /> <br />terribly different. than where they were in 1922. <br /> <br />It is clear that because Congress reserved the power to <br />approve the 1922 Compact, it has the "right" to see to its <br /> <br />enforcement. Virainia v. West Virainia, 246 U.S. 565, 601 (1917). <br /> <br />And its approval changes state compact law to federal law thus <br /> <br />immunizing the compact from commerce claim attack. <br /> <br />Intake Water <br /> <br />Co. v. Yellowstone River Compact, 709 F.2d 568 (9th Cir. 1985). <br /> <br />But while Congressional approval of a multistate compact requires <br /> <br />the state parties to honor their obligations (here, for example, <br /> <br />the Upper Basin obligation to deliver 75,000,00 acre-feet of water <br /> <br />every ten years to the Lower Basin) it is highly unlikely that the <br />courts would find that federal approval of the 1922 Compact <br />created, in and of itself, a cause of action against the United <br /> <br />12 <br />