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Last modified
1/26/2010 12:48:15 PM
Creation date
10/11/2006 11:29:58 PM
Metadata
Fields
Template:
Water Supply Protection
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
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<br />OJ3313 <br /> <br />. the boundaries as to litigants who were not parties to <br />such proceedings. I consider only whether the acts of <br />the Secretary and the acts of the courts in private liti- <br />gation accepted by the Secretary fall within the spher~ <br />, of finality to permit the parties to act on them until <br />some interested party succeeds by a plenary action in <br />vacating or setting aside such determinations. For pre- <br />, sent purposes, I believe that these acts provide the <br />sort of finality contemplated by the Court when it left <br />the boundary disputes concerning the Reservations for <br />, later determination. <br />At the outset, it is important to bear in mind the <br />I role which the boundary determinations play in this <br />case. This is a water rights case, not a land case. The <br />acreage of the Reservations is an issue because practi- ' <br />, cably irrigable acreage is made the measure of the Res- <br />ervations' water rights. In Winters v. United States, <br />207 U.S. 564 (1908), the Court established that the <br />, United State!!. when it creates an Indian reservat~on, <br />impliedly reserves water for needs of the reservation, <br />I and that water rights established subsequent to those <br />of the reservation give way to those of the reservation <br />as its needs expand. The Court applied the Winters <br />doctrine in its original opinion in this case, holding <br />, that at the time it created the five Reservations at is- <br />sue here, the United States reserved enough water "to <br />satisfy the future as well as the present needs of the <br />, Indian Reservations." 373 U.S. at 600. The Court COD- <br />cluded, agreeing with the Master, "that the only feasi- <br />ble and fair way by which reserved water for the reser- <br />I vations can be measured is irrigable acreage." [d. at <br />I 601. The Master's choice of irrigable acreage as a mea- <br />: sure was based on the conclusion that it provided an <br />I estimate of the amount eventually needed to make the <br />I otherwise arid lands productive. The Indians' actual <br /> <br />64 <br /> <br />use of the water relT'AinA unrestricted. Practicsbly irri- <br />gable acreage, then, is a rough measuring stick a tool <br />toward an informed equitable estimate of the I~dians' <br />needs, both present and future. To use this measuring <br />device, in turn, it is necessary to know the extent of <br />the Reservations, and to measure-tile latter the <br />boundaries. The boundaries are a reference pOfut for <br />an issue itself secondary to the central concern of this <br />case, water rights. <br />The model or the previous treatment of the bound- <br />ary determinations by the Court itself much weakens <br />the contention or the State Parties. They say that I <br />should now receive de novo evidence of the correct <br />boundary lines and the claims of private individuals <br />,for a recommendation to the Court so that it would <br />make a determination of the correct boundariea in this <br />litigation. In the original litigation of this case the <br />Master received evidence touching on the boun~es <br />of two of the Reservations drawn in question bel ore <br />him. UPOD its later adoption of most of his report, the <br />Court disapproved of his attempt to adjudicate the ' <br />boundary lines. The Court said: <br /> <br />We disagree with the Master's decision to <br />determine the disputed boundariea of the Colo- <br />rado River Indian Reservation and the Fort Mo- <br />have Indian Reservation. We hold that it is un. <br />necessary to resolve those disputes here. Should <br />a dispute over title arise because of some future <br />refusal by the Secretary to deliver water to ei. <br />ther area, then the dispute ClUJ be settled at <br />that time. <br /> <br />373 U.S. at 601. Rather than resolve the boundary dis- <br />pute then and there, the Court provided for an acljust- <br />ment in water rights "in the event that the boundaries ' <br />. . . are finally determined." 376 U.S. at 345. Except <br /> <br />65 <br />
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