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[Vol. '9' Pag., ~ the Project Aq there are no cil.1. ~onment of water :nators concerned lcted on the oPti, If statutory COn. lrovided if it bad of appropriation ~tes followed that "ided by it in an II the other Sena, ve means of allo. vilJing as he once shortages would ndicates the need in the summer of :>ersonnel in the 'aI state agencies. n the question of ,rorationing by a lded on the basil Ie that the Court ing the standard to the Secretary ,do so. It can be Ie most likely to , of the Interior I subject invol.. b. side.... : an uncertainty ~ent. The argu' )u[ aU rights OD 1bc ,ent among us~n t:i Party Watef Agrer- agencies. S~~. e.,. J Wilbur 6: Ely, tit. a-feet, the differetlCl' lIillion acre.fert,OI would prot<<t Cali- . 6 million acre-feel lousand aac.{cd ;. THE COLORADO RIVER 55 ",...-her 1966J . defense of the Court's action would run as follows: In 1928, when IIJCf\t Ul portioned a supply of 7.5 million acre-feet plus any surplus, it C~f a~ a supply of less than 7.5 million acre-feet and accordingly Jadnotor .. f h Th f th ught to and made no provlSlon or a s ortage. e prospect 0 ,""rtnoO . . fh d P- rcsentlyexists and Ideally the apportIOnment 0 s ortages shoul J>..ru~ p' chn' ,I Illade by Congress or by compact. The te 'que that has the best :;:' lC of getting the matter back to Congress or into compact negotiations . n~a\'e the shortage rule indefinite but subject to being made definite- P'~ 'nra\'or:lble--if the parties fail to reach agreement. Of course, it fol- r, Under ,his line of reasoning that the Court should not have guessed at "~:l UCongress would have done in 1928 if it ,had consider.e? the problem an.! upon that basis laid down a rule. The 31m 15 to get a deCISIon from Con- ~ (or from the Slates in a compact) that is appropriate for present con- ditions. True, Congress could overrurn a judic!ally. created rule purporting lt1 ~t on the Project Act, but tile chances of this bemg done are much more "mOle Ulan the chances of congressional action if the Court provides no rul< at all. lIut, it can be objected, this line of reasoning really leads to the conclu- .,on ,hat the Court should have refused to rule at all on the shortage ques.- II.." on the ground that it was not yet ripe for decision. The answer to this .' thaI. if the Court had refused to pass on the question, it would have put MilOna right back where it started before filing its complaint. To satisfy chr lIureau of Reclamation, the Bureau of the Budget, and the Congress, Ariwna needed a judicial declaration of the supply legally available to her. h~ tho Court to refuse to say what amount of water the three states were .."titled 10 if the supply was less than 7.5 million acre-feet would be almost d,e I3me as dismissing the entire complaint. But, it may be claimed, Arizona U/I now come back to Congress armed with a decision that Congress has doar power to apportion the Colorado, and Arizona should thus ask Con- J:''''' lor a further apportionment. The difficulty here is that California .'uuld have no incentive to compromise. With the Court refusing to decide the question for lack of ripeness and with the Secretary lacking any power ul .\ecision, there is nothing to keep California from using her power in the Iluuse to keep the shortage question from ever being decided by Congress. And of course there would be no compact. 1l,is long and torruous tracing of a justification for the Court's finding power in the Secretary when Congress almost certainly intended no such thin!: ends up as little more than partisan help for poor, struggling Arizona -surely an indefensible thing for the Court to do. But before the whole ItrUcture is carried away with a breath, recall what Congress sought to do in 1928. It thought it had made provision for dividing the river so that develop- ment could proceed. It neglected to do the full job because it did not consider