<br />131
<br />
<br />Edward W, Clyde
<br />
<br />a hiatus in the law as to how curtailment of use required by the
<br />compacts will affect Indian water, if at all, It is, however, like Iv to
<br />remain moot because of the following factors: The Upper Basin states
<br />are going to level off their development within the now apparent
<br />limits of the available water supply; the enormous amounts of water
<br />in storage provide carryover water to meet these downstreamobliga~
<br />tions in times of drought; the Secretary of lhe InleliOl is dilected to
<br />operate those reservoilS so as to meet rhese obligations; and the Uppel
<br />Basin Commission is to supervise instate use so that these obligations
<br />can be met,
<br />
<br />in
<br />C1')
<br />0')
<br />N
<br />=
<br />=
<br />
<br />Powers of Congress
<br />
<br />The Unired Stales holds rights, under lhe reserved rights doc-
<br />trine. as a proprietary owner, and it has many other sovereign interests.
<br />The United States acquired these western lands primatily lhrough the
<br />Louisiana Purchase (1803), lhe Oregon Compromise (1846). the Mex.
<br />ican cession by the Trealy of Guadalupe Hidalgo (1848), the boundary
<br />settlement with Texas (1850), and the Gadsden Purchase (1853), The
<br />power of Congress to control these public lands and the unapproprialed
<br />watelS thereon is inherent in Article IV, Section 3, Clause 2 of the
<br />Constitution, which vests in Congress the power lito dispose of and
<br />make all needful rules and regulations respecting, , ' property be-
<br />longing 10 the Uniled Slales," This granl of power has been construed
<br />repeatedly by the U,S, Supreme Court as giving Congress the right
<br />to deal with these lands precisely as an ordinary individual mav deal
<br />with his farming plOperty, Congress may sell them or withhold them
<br />from sale and make all needful rules and regulations respecling them,
<br />The power thus entrusted to Congress is without limitation."
<br />The fedeml sovereign powelS include the right to control navi-
<br />gation in interstate streams. 46 Article II, Section 2 of the United States
<br />Constitution grants to the United Stales the exclusive right to make
<br />treaties, and under Article VI trealies once made "shall be the supreme
<br />law of the land; and judges in every state shall be bound lhereby,"
<br />The United States has the power 10 develop waler resources to provide
<br />for the general welfare.47 Congress has the power (0 apportion the
<br />waters of an interstate stream,48 and this has been extended to inter~
<br />state underground basins.4<) It also has the ultimate power to regulate
<br />
<br />::;'.
<br />
<br />!I',
<br />.J:I..
<br />,.
<br />
<br />'j ;,
<br />,,1
<br />'I
<br />,
<br />. .I~ :'.
<br />l'
<br />
<br />\.{
<br />
<br />-
<br />
<br />1'.
<br />;} ~':
<br />I,
<br />
<br />~.
<br />. '
<br />"
<br />
<br />!: 1
<br />
<br />I: ~
<br />'.' ~II
<br />i~'
<br />~
<br />".
<br />If:
<br />I.~,
<br />\; :
<br />w,
<br />.;~ :
<br />."
<br />-\
<br />
<br />
<br />~~
<br />
<br />..
<br />"
<br />l'
<br />j/.
<br />~'
<br />\1
<br />
<br />;
<br />iI,
<br />"
<br />,
<br />j\
<br />"
<br />,
<br />,I
<br />!l
<br />I'
<br />,1
<br />
<br />1"
<br />11,.
<br />~;. .
<br />,h;
<br />
<br />
<br />RESPONSE TO PROLONG EO DROUGHT
<br />
<br />133
<br />
<br />the use of lhe large quantities of waler reserved for lhe Indians, By
<br />consenting to the two Colorado River compacts, the United States
<br />did not relinquish or restrict its own sovereign powers. 50
<br />
<br />,.
<br />!
<br />
<br />Conclusion
<br />
<br />In the final analysis, il probably will be necessary and perhaps
<br />even desirable to have Congress intervene in the solution of the
<br />unsolved problems on the Colorado River, There will be many prob-
<br />lems arising in the future which are administrative or legislative
<br />(policy-making) in nature, They cannot be readily resolved by re-
<br />sorting to litigation in the United States Supreme COUll. By nature.
<br />they require change as conditions change, and lhey should nol be
<br />controlled wilh the rigidilY of a judgment under principles of res
<br />judicata,
<br />It is also evident that the other tradilional method for seuling
<br />interstate disputes (by compact) has its limitations, In nearly half a
<br />century Arizona and California were unable to reach an agreement
<br />on the division of the waters of the Colorado River, When lhe prob-
<br />lems are of an interstate or regional nature, the individual state, by
<br />itself, cannot solve them, There is a void if the affected slates fail 10
<br />reach an agreement, and the federal government must act if the prob-
<br />lem is to be solved. The Supreme Courl has clearly Slated in Arizona
<br />v. Califomia," and echoed in Sporhnse et ai, v, Nebraska, "that Congress
<br />has the constitutional power to resolve these problems by direct leg-
<br />islative action. The Upper Basin states have. under their compact, 53
<br />created a commission to constantly work toward the solution of their
<br />problems, and if rhey solve lhem in this fashion Congress may not
<br />need to intervene. However, development of the river should not
<br />again be delayed because of an impasse among the stales,
<br />Today, Hoover and the other nine dams on the Colorado, plus
<br />fourteen on tributaries, can store 61.4 million acre~feet of water. Other
<br />dams will be constructed in the future, This available storage will
<br />permit development to proceed in the Upper Basin to approximately
<br />the actual average flow of the river. The key to lhe Upper Basin Slates
<br />not being required to curtail use by their farms. cities. and industries
<br />is for them to stop development within that limit. If, for example,
<br />Utah will forego development of 1,713,500 acre.feet of water (which
<br />
|