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<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 />