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<br />46
<br />
<br />STANFORD LAW REVIEW
<br />
<br />[Vol. '9: Pag< 1
<br />
<br />-during periods of plenty as well as periods of drought-would be de-
<br />pendent upon an agreement among the states. If there is no agreement the
<br />rights would depend upon the principles of equitable apportionment ap-
<br />plied by the Supreme Court, wherein priority of appropriation has been a
<br />very substantial ingredient. It also follows that the Secretary has no pOWer
<br />to allocate water intrastate-that is, state law, not federal law, controls
<br />water rights within each st3te-a conclusion buttressed by express provi_
<br />sions of the act.
<br />
<br />C. Anal)'sis of th~ D~cisjon
<br />
<br />t. Congr~ssional pow~r to mak~ int"stat~ apportionm~nts.
<br />
<br />We turn now to a critical examination of the principal points of the
<br />decision, the dissents, and the co=entary thereon. Dean Trekase, whose
<br />discussion of the case is the most thorough and the most thoughtful, ex-
<br />pressed reservations about the congressional power to make an interstate
<br />apportio~ent of a stream.'" Two questions arise: (1) Can this congres-
<br />sional power be found in the Constitution? (2) Even if the answer to this
<br />question is yes, is the power one that Congress ought to have or, having it,
<br />ought to use?
<br />The constitutional power for congressional apportionment is easy
<br />enough to find for a navigable stream. Before Arizona 1/. California the
<br />Supreme Court found plenary power in Congress to manage navigable
<br />streams'" as well as nonnavigable streams when Congress had declared
<br />that their regulation was related to downstream navigation.'" The only
<br />question for serious debate is whether a congressional apportionment that
<br />destroys vested water rights gives the user a fifth amendment claim for
<br />compensation. This question did not arise in Arizona 1/. California because
<br />Congress protected present perfected rights, which the Court defined as
<br />"a water right acquired in accordance with state law, which right has been
<br />exercised by the actual diversion of a specific quantity of water that has
<br />been applied to a defined area of land or to definite municipal or industrial
<br />works. . . .''''' Such a right was preserved if it existed on the effective date
<br />of the Project Act. It could be argued that this definition excludes rights
<br />
<br />J 88. 'I'rclea~, supra note: 184. :ilt 172-83.
<br />189_ Unit~d States 'Y. Twin City POWtl Co., 350 U.S. 2::1:1 (1956). '1t is not fOf courts. . . to
<br />lubstitutc their judgment (or congressional decisions on what is or is not m:ccssary for the improve-
<br />ment or protection of navigation. . . . The decision of Congress that this projecl will ~rv(' the inter-
<br />ests of o.2vig.acion invol"es engineering .and pol;cr comidtrations for Congrcu and CODgTe5.5 .:Ilene 10
<br />cvalu2tc." ld. at :2.24.
<br />190. Uni[cd Su.t~ 'Y. Grand Riv~r D,;,m Authority, 363 U.S. :::129 (1960); Oklahom,;, ~z rn.
<br />Phillips 'Y. Guy F. Atkinson Co., 313 U.S. 508 (1941). "Th~r~ is no constitutional rt=ason why Con-
<br />gress cannot. under th~ commerc~ power, lr~,;,t the: "'';'Ie:rsh~d5 as a k(:y 10 flood contra! on navigablt
<br />str"(:,;,ms and th~ir tributaries." Id. at 525.
<br />191. 376 U.S. 340, 341 (1964) (decrt=e). Section 6 of the Bouldt=r D.nyon Project Act provides
<br />that the dam and re~voir sball b~ used for "s.atisIaction of present perfected rights in pursuanQ of
<br />Article VlU" of the: compact.
<br />
<br />1'10\."",ber 1966]
<br />
<br />rrcognized und,
<br />Dlenced before t!
<br />after. Such a sta:
<br />C2USC no divers;,
<br />cffective. So far a
<br />Ib..in, but, if it h:
<br />tions which coul
<br />(1) Apart fr,
<br />phle streams, d,
<br />. . . taken for p:
<br />It''led investInen
<br />apportionment b
<br />an affirmative an'
<br />lion, for it has 5:,
<br />works and puts tI
<br />(or l.he act of C,
<br />kClion 8 of the ]
<br />more than overf
<br />Ri,'er.'" Similarl
<br />before a zoning c:
<br />10 ti,e second qu,
<br />portioned stream
<br />(2) Is a cons:
<br />ril'hl is perfected
<br />in ti,e exercise of
<br />allSwered by the ;
<br />permil a negativ,
<br />Cun!';ress has pov
<br />tlream and there]
<br />c11<lOses. However
<br />ClnWe.ss chose to
<br />compensation hal
<br />^ pari from th
<br />bc~I)' of water Co:
<br />l>c:an T release no;
<br />JIOtlionment of a ,
<br />
<br />'9J. United Stales'
<br />. 193. Sn, ~.g., JODt
<br />......p. w. \\'onbin~on 04
<br />'V", Su Uni[ed St;
<br />1"'-" In Morreale, Supr,
<br />h...1: 'e,. Sn- Uniled St;
<br />l' IpI W. Guy F. AUi.il
<br />.... '" u.s. 377 (194(
<br />It'. SU Trt:lC2~, s.
<br />
<br />
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