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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 />that fact at this time..' Under these principles, there <br />was no issue for trial when there was no dispute over <br />the acreage covered by the Secretarial Orders."e <br />The State Parties are not necessarily foreclosed <br />from challenging these orders. Rather the questions <br />raised by the State Parties appear more properly <br />raised in a direct proceeding. See Cragin v. Powell, 128 <br />U.S. 691, 699 (1888); Steel v. Smelting Co., 106 U.S. <br />447, 453-55 (l882). Such a conclusion is also suggested <br />by the type of review the. State Parties sought of the <br /> <br />97. Ther. is authority which indicates that Interior Department ec- <br />tion such os surveys cannot limit an Indian reservation to a 8JD8ller area <br />than originally set asid. for tho Indiana. See Northern Pac. RlI. v. United <br />States, 227 U.S. 335, 366.67 (1913); Sekaquaptewa Y. MacDonald, 626 <br />F.2d 113, 118 (9th Cir. 1980); United States Y. Romain., 255 F. 253, 260 <br />(9th Gir. 1919). Perhaps such a reason motivated tha Court to reject tha <br />prior Master's findings that land department surv.ya and other Interior <br />Department action limited permanently tho ."tent of tho ReaervatioD8' <br />water rights. See SPECIAL MASTEII'S REPORT at 274-78, 283.87. Th. Tribes <br />do not now alleg. 'that any lands in tho particular areas arB .rroneoualy <br />excluded from tho ReaervatioDJ by tho Secretarial Orden. <br />98. Similarly, I conclude that the two court decisioDJ affecting respec- <br />tiyely ihe Cocopah and Fort Mojay. ReservatioD8 should bo treated 811 <br />finel for present purposes. Certainly the Interior Department accepta <br />those boundaries as affected by tho decrees. Any challenga by the State <br />Parties to these boundari.. should proceed in a manner similar to the <br />! contests regarding the other boundaries. The moat complete articulation <br />I of tbe State Parties' opposition on this isau. was that they ahould bo <br />"free l<l adjudicate tho proper boundaries in a separate action to estab- <br />lish weter righta which depend, in part, on the true reservation bounds- <br />ties." Motion of the State Parties for Leaye to File E%ceptiona to the <br />Memorandum and Report of the Special Master; E%ceptiona; and Open- <br />ing Brief 25 (Noy. 1979). Giyen that such an DlpreBBion is u far u I <br />understand their argument to .nelld, the State Parti..' failure to pro- <br />po.e any perBODJ with a colorable claim l<l the.land makes it appear ~t <br />if thooe decisioD8 arB not final by now the UDlted States and the Tribea <br />mighl need to wait iDdefinileJy f~ a claimant who ia 1I0t precluded to <br />appear. The a1ternatiye of relitigation over the "true boundaries" with <br />the State Parlje. opposing the Tribes makes little BeD88, absent further <br />elplanation, when those perBODJ with a colorable claim have aurrendered. <br /> <br />72 <br /> <br />. <br /> <br />, <br /> <br />00331: <br /> <br />Secretarial Orders in this action where the question <br />was raised collaterally." Perhaps the State Parties are <br />correct in arguing that the Interior Department's ac- <br />tion constitutes agency action creating a legal wrong <br />for which they are entitled to judicial review under the <br />Administrative Procedure Act, 5 u.s.d I 702 (1976). <br />The appropriate standard of review'" and the ques- <br />tion of the appropriate time-bar,e, were questions not <br />resolved here. But it would appear that for such action <br />to be undertaken in the original jurisdiction of the Su- <br />preme Court would be highly unusual. . <br />Moreover, the present inquiry regards water rights <br />oni!. The actions upon which the boundary lands <br />claiD1ll rest should be challenged in a direct action <br />where their validity or correctness may be tested for <br />all purp.oses.,oa Absent such a direct challenge the <br />boundanes stand determined by the various proceed- <br />ings described in the United States' motion. If the <br />boundaries are not accorded finality for purposes of <br />this litigation, the Tribes might be required to wait in. <br /> <br />99. See notes 95-96 '"pra. <br />100. The United States argued that the arbitrary and capricious stan- <br />dard would epply. M.morendum of tha United Stala on Pre\iminary h- <br />suea 9 (ApT. 1979). The State Parti.. propoeed no atandard but would <br />have lICCOrded the orden far 1_ deference. Tranacript of Formal Hear- <br />i1II in San Francisco 50, 93 (Apr. 17, 1979). <br />101. Only upon the fultlIIm.nt of the water righls claiJna would the <br />egeney action affect the Stata Parties. See Nuclear Data, lne. v. AEC, <br />3<< F. Supp. 719, 727 (N.D. IlL 1972). <br />. 102. ~ State Parties esp.... COncern recardIna thaIr .la11diDc to <br />nuaa these ISSues ellawhere. See Motion of the State Parties for Leave to <br />File E%ceptiOD8 to the MelOorandum and Report of the Special Maller. , <br />Esceptiona; and OJl8Dinl Brief 33-3li (Nov. 1&'79). Thole partie, wowd <br />appear to be injured by the llllelley action and thut have Itanding. The <br />100re doubtful Proposition would appear l<l bo th.ir ability to eatabIiah <br />that the federal government 1DI\Y not dra_ lu boundaries sa they have <br />been drawn. ' , <br /> <br />73 <br />
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