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<br />[Vol. '9: Page I
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<br />lerstanding that the
<br />iction, Arizona filed
<br />, to get a judicial de_
<br />devoted to the liling
<br />ences, and the prep.
<br />venty-six years after
<br />I of her water rights
<br />,ptcial Master.
<br />s Were there, repre_
<br />other states baving
<br />I-all of which had
<br />: also, of course, was
<br />Id have been going
<br />n to a large part of
<br />
<br />Por Arizona there
<br />ned and weathered
<br />, Theodore KendJ,
<br />ks on law, ex-Iaw-
<br />;h hardly a native.
<br />e case in the hands
<br />
<br />gh not of the same
<br />Ig against Arizona
<br />Iso of suppressing
<br />:t Ely, a Washing-
<br />.) River beginning
<br />~ior Secretary and
<br />.ith the California
<br />dry, unemotional,
<br />able. At his right
<br />mperial Irrigation
<br />nd a quick-witted,
<br />he California side
<br />rrigation District,
<br />the justice of his
<br />) of his erstwhile
<br />
<br />:ning day, and an
<br />: there was sharp
<br />I Evil. Men were
<br />n the battle over
<br />
<br />^<f.] THE COLORADO RIVER 43
<br />!l:o.-cmber Iyvv
<br />
<br />CoI do. And for Arizona it was the long-awaited moment; it was
<br />!he orav__ For California, who had long played the waiting game, the
<br />oW or ne 1-1.
<br />n. . noW at hand-having contracts and works for 5.362 million acre-
<br />cnnl was . I
<br />I sl had nothing to gam, only water to ose.
<br />r<'~r~~puy at ten o'clock, !udge Simon H. ~kind t~ok hi~ place on the
<br />be cl to begin the trial. He IS a short, energetIc man WIth qUIck, alert eyes.
<br />A ~ . :hl)' respected federal district judge who resigned to engage in an ex-
<br />""1)' successful New York litigation practice, Rifk.ind very quickly cap-
<br />:;; the respect of the lawyers for his rapid perception, his intelligence,
<br />~ his foruHight willingness to rule. He was, however, not much of a
<br />an.rhet, for his opening remarks were: "It is good to see a lot of friendly
<br />ks ag::ain after a long lapse of time. I am very hopeful that we will get
<br />salted this time and really move along at a very fast pace.''''' This was
<br />June 14, 1956. On December 5, '91>0, he liled his linal report with the Su-
<br />preme Court, having heard some 106 witnesses (who lilled 22,500 pages of
<br />lr:mseript) and having received volumes of exhibits numbering in the
<br />hundreds. In addition, depositions were taken from 234 witnesses, lilling a
<br />transeript of 3,742 pages, on a minor dispute between Arizona and New
<br />Melico. The final report (with a proposed decree) ran 433 pages.
<br />Coming then before the Supreme Court, the case was first argued for
<br />sixteen llOurs in the 191>1 term and then, with the retirement of Mr. Justice
<br />Whitlaker, was set for reargument in the 191>2 term. By the time the second
<br />ar~ment was held, Mr. Justice Frankfurter had also retired; so the bench
<br />contained two new Justices, Goldberg and White. Both voted with the
<br />majority, providing the necessary difference in the live-ta-three division
<br />(Mr. Chief Justice Warren not participating). The Supreme Court gave its
<br />judgment on June 3, 1963,''' and entered the deClee on March 9, 1964.'"
<br />
<br />B. TM D~cision in Arizona v. California
<br />
<br />The Supreme Court's opinion has been extensively commented upon,'"
<br />and perhaps the only excuse for another, and much delayed, comment is
<br />Ihe opportunity to evaluate the Court's opinion in the light of the full dis-
<br />cussion the opinion has received.
<br />The main points of the decision will be brieRy stated first and com-
<br />mented upon thereafter.
<br />(I) Under its power over navigable streams granted by the commerce
<br />
<br />J81. Reporw's Transcript, vol. I, at'l Ari.2.0na v. California, 373 U.S. ,,,6 (1963).
<br />,s" 313 U.S. 5.6 ('963).
<br />,S). )76 U.S. 340 (196,,).
<br />IS". The fullest and best discussion is TreIease. Anzontl II. Cllli!ornill: A/loC'tJlion of Wilt" to
<br />Irapl,..51111~/1 tI~J Nil/ion. 1963 SuPREME CaVItT R.:r;:v. 158. Other comments are: Clyde, Th~ Colo-
<br />raJo.. Rille'''' D~nn.(nI-rr;63. 8 UTAH L. REv. 299 (1964)i Haber. An'zontJ II. CtJ],f""mQ-A Bri~f
<br />/l,n,,,,... NA'T'UUL RuoUJ,cu J. 17 (1964); Wilmer. Arizonll v. CIIi;/orm6, A SUI1U/()rY Cons/ruc-
<br />tIolt CUt, 6 A"IZ.. L. REv. 40 (J964). Professor Sax has also made a thorough study of the opinion.
<br />I'rohJ~1Pl1 oj F~J"tJliJm in R,c/amalion LA"" 37 U. CoLO. L. REv. "9 (1964).
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