WSP03024

• File Number: 8230.100.10
• Description: Colorado River Basin Colorado River Litigation - Interstate Litigation - Arizona Vs California
• State: AZ
• Basin: Colorado Mainstem
• Date: 2/22/1982
• Author: Elbert P Tuttle
• Title: In the Supreme Court of the US - October Term 1981 - Report - Special Master Elbert P Tuttle
• Water Supply Pro - Doc Type: Report/Study

0(33)'7

Such a modification may have been within the ex-
pectation of the prior Master. The State Parties have
placed special emphasis on his inclination to fix finally
the Indians' water rights and his statements that he
considered the United States bound on its claims
brought for the Indians. But the ineseepable fact is
that he wrote a broadly-phrased Article IX which was
adopted by the Court. The !lontext in which he wrote
it is important. In any interstate water case there will
be strong need for the retention of this sort of power
for many reasons. The Master was specially pu~ on no-
tice that the United States might have been understat-
ing the Indians' rights." Of course, the Master pressed
the United States counsel, because it was in all parties'
interest to get the Indians' rights fixed as near the per-
manent level as possible. But in view of the likelihood
of an error or omission by the United States, the for-
mer Master inight have viewed a modification of the
Indians' rights as one of the amendments which might
be necessary in the future. For this reason among
others, he may have desired that Article IX be in.
c1uded in the decree to protect the Indians' rights if an
error was made in those proceedings.
The present request for modification does not, in
my view, come too late. Obviously the decree must be
considered closed on these matters at some time. But
in the context of this case the present motions oc-
curred at a reasonable time. Only recently did the
Court upon joint motion of the State Parties and
United States enter its decree lilting the present per-
fected rights in the lower Colorado River Balin. AJ;-
cording to the 1964 Decree this prOCel8 was to have
been finished by 1966. Yet this important step, with-

same conclusion if the proposition were fairly studied.
The record does not support the State Parties' asser-
tion that the United States originally found the lands
to be non-irrigable.
I cannot imagine any legitimate reason, from the
perspective of the Tribes, that would cause the United
States to present less than the maximum claims which
may be made in good faith on behalf of the Tribes.
The State Parties' statement regarding tactical deci-
sions approaches an apmission on their part that the
United States openly failed to carry out its trust re-
sponsibility. For some reason, the United States
openly failed to present evidence of the maximum
claims for the Tribes as measured by the standard
called for by the prior Master.e.

67. The reason for the inadequacy of represenlation aeema unimpor-
tant and perhaps unknowable. Everyone recognizes that in this case as in
many others. the United Slatea represenla inlerests which conBict with
its Indian wards. There was, however, no direct evidence that such a con-
flict influenced the litigation strategy of the United Slates, largely be-
cause the United States successfully invoked claims of privilege at the
relevant points during the hearings. Perhaps the closest explanation lies
in the United States' support, in the earlier proceedings. for an open-
ended decree which allowed for relitigation of additional Indian water
rights. See, e.g., Pro Tr. 12461-69-A. See alia United Slates V. Ahtanum
Irrig. Disl., 236 F.2d 321 (9th Cir. 1966), cert. denied, 362 U.s. 988
(1967); Conrad Investment Co. v. United Slates, 161 F. 829 (9th Cir.
1908); Motion of the United Slates for Modification of Decree and Sup-
porting Memorandum 28.29 (Dee. 1978). The United Slates recognized
the conflict between a final adjudication and complete protection of the
Tribes' rights. Pr. Tr. 12466-67, 12469. Parhaps the claima were for some
reason prepared with the view that the Court would expresaly leave its
decree open-ended with respect to ths Indiana' water rights. Such an as-
sumption, of course, would have been unwarranted and at odds with the
represenlations of United Slates counsel to the prior Master. But such
an explanation has the merit of explaining farmer counsel's suggestion
that if some irrigahle lands were omitted the United Slates would later
file leave to amend. Pro Tr. 14166.

68. Pr. Tr. 12469, 12669-60, 14119-67.

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