WSP02650

• File Number: 8200.700
• Description: Law of the River
• Basin: Colorado Mainstem
• Date: 1/1/1980
• Author: Carlson and Boles
• Title: Chapter 21 Contrary Biews of the Law of the Colorado River: An Examination of Rivalries Between the Upper and Lower Basins
• Water Supply Pro - Doc Type: Publication

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21-31

LAW OF THE COLORADO RIVER

9 21.04[3]

of individual residents of a particular state, it may be a "tak-
ing" compensable under the fifth amendment to the Consti-
tution.

Nonetheless, the long-standing and detailed federal in-
volvement in the negotiation of the Colorado River Compact,
in the construction and operation of the vast system of dams
and diversion works on the River, and in the management
and delivery of the water of the River, and in the manage-
ment and delivery of the water of the River, may peculiarly
qualify Congress to intervene in the delicate matter of the
Compact's scheme for apportioning water between the Ba-
sins. This federal intimacy in the affairs of the River clearly
influenced the Supreme Court in deciding in the fourth Ari-
zona v. California 115 that Congress had apportioned the
River water among the Lower Basin states by passing the
Boulder Canyon Project Act.116

Although Congress probably has the power to modify the
Compact, it is more doubtful whether it has the inclination
to do so. In a contest of political might between the Upper
Basin state and California, Nevada, and Arizona, the latter
must always be expected to prevail. Unless extraordinary
circumstances arise, Congress is very unlikely to legislate an
adjustment to the Compact.

[3J Litigation in the United States Supreme Court

The Upper Basin's brightest hopes of achieving a favorable
interpretation of the 1922 Compact may lie in a suit under
the originaljilrisdiction of the Supreme Court.117 Such a suit,
though, would not be free from perils. The Supreme Court
might simply decline to exercise jurisdiction. The United
States might be deemed an indispensable party, and its con-
sent to be sued would be necessary for the action to sur-
vive.ll8 The Supreme Court also implied that it would have
dismissed the third Arizona v. California on the ground that

115 373 u.s. 546 (1963).
116 See id. at 551-52.
117 See U.S. Const. Art. II, ~ 2.
118 See, e.g., the third Arizona v. California, 298 U.S. 558 (1936).