WSP05725

• File Number: 8210.140.20
• Description: Colorado River Basin Organizations and Entities - Colorado River Basin States Forum - California
• State: CA
• Basin: Western Slope
• Date: 1/1/1961
• Author: CO River Board of CA
• Title: Californias Stake in the Colorado River
• Water Supply Pro - Doc Type: Publication

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CALlFORNlA.'S STAKE IN THE COLORADO RIVER

have decided the justiciable issue before the courts, or draft new legis-
lation tbat will create 8 jWlticiable issue without authorizing a project
of undetermined feasibility. II

Arizona Suit

In August 1952, Arizona, completel,)" reversing its former position,
brought suit in the United States Supreme Court against California
and the California agencies involved, seeking court resolution of the
very same issues which Arizona had previou!lly contended were ~lready
settled. California marshaled its forces, led by the Attorney Gelleral
and tbe Colorado River Board, in vigorollS defense of itB rights.
Nevada, a Lower Basin state, intervened as a party oyer the opposi-
tion (If Arizona. The United States intervened in the suit, which was
necessary because it had been detennined to be an indispensable party
by the Supreme Court in a previous suit brought by Arizona which
ended in 1936.
The basic isaueEl in the suit involve all states of tbe Colorado River
Basin and all water developments tberein including new projects pro-
posed or already authorized in Arir.:ona aDd the Upper Basin. How.
ever, 8. motion by California to join tbe Upper Basin states waa opposro
by those states and Aruona Bnd WBS rejected, except tha.t Utah and
New Mexico were made parties in their Lower Basin capacities.
In ,June 1954, a Special Master, George 1. Ha.ight of Chicago, IIIi.
nois, was appointed by the Supreme Court. After conducting pN'lim-
inary meetings and hearings, Mr. Haight died in September 1955 and
was replalled in October 1955 by Simon H. Rifkind of Ne~' York City.
The newly appointed Special Master held pre.trial hearings in April
1956 in 8n effort to define the issues for the trial and procedural rules.
The trial began in San Francisco in June 1956 and continued intermit-
tently through August 1958, with 132 days of bearings. Tbe transcript
f:overs more than 22,000 page!!., containing thf' te.'1timony of 106 wit-
nesses. Nearly 4,000 exhibits were received in E'\'idence or marked for
identification.
Following the filing of proposed findings of fact. conclusions of law,
and briefs bj' the parties in 1959, the Special Master on May 5, 1960,
is..'1ued a draft of his report and proposed decree which if entered would
be disastrous to California. Comments and suggestions were tiled with
tbe Master by the parties and upon motion by California orRI argu-
ment and conference with the Master emlUed in New York City in
August 1960. In December 1960 Judge Rifkind Ilubmittcd to the
Supreme Court hi.li> final report and propoli>E'd decree, little cha.nged in
substance from his May draft.
The proposed decree would render the Colorado River Compact
irrelevaut to any issue in the suit. The Master conclndes in his report
that the Compact is not a guarantee of right to either the Uppt'r or tbe
Lower Basin, but merely a ceiting on appropriations of water and that
the ultimate division of the available suppl:r between the basins is a
problem for the Congress, not the Court, to resolve.

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CALIFORNIA. 's STAKE IN THE COLORAl>O IlrVEB

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The proposed decree would remove two million acre-feet C)f ann'.1aJ
water uses on the tributaries in Arizona from any accountiug with
respect to iuterstate apportionments. Instead it would divide ouly the
use of ......ater in tbe main stream bE'low tbe head of Lake Me-aJ. under
a formtJla which the MlI..9ter concedf's is based upon a novel interpreta-
tion of tbe Boulder Canyon Proje-ct Act, and which would sub.~tantially
abrogate the traditional western appropriation doctrine of I. first in
timE' first in right. " The effect, if the Upper Basin contioues to develop
and if Arimna and Nevada are able to put to use all the water avail.
able to them wlder the proposed decree, would be to reduce the depend-
able water supply permanently available from the Colorado River for
use ill California to annual amounts less than the quantities used for
mally years past by the agricultural agencies. and to drj' up the Colo-
rado Rivf'r Aqueduct of the MetropolitJin Water District.
Exceptions to the Master's rf'port and proposed decree were tiled
with tbf' Supreme Court 011 February 27,1961, by Arizootl., California,
Nevada, and thf' United States, followed by tbe submission "f briefs
in support tbereof. Final briefs are scbeduled to be submitted to the
Court October 2, 1961. Sub!;equenlly the case will be decided by the
Supreme Court, doubtless after oral argument by the partif's.
There are three issues of overriding importance raised by tbe Mas-
ter's proposed decre-e;

(I) What is thf' meaning of tbe limitation, prescribed by section
4(8) of the Boulder Canyon Project Act (quoted p. 18) and accepted
by the California Lf'gislaturf' because of Arizona's failure to ratify
the Colorado RivPr Compact' Does the limitation refer to the Colorado
Ri\'er Compact and th@ rights which tbe Compact expressly prescribes
for the Lower Basin from the main streliD1 and tributarie-r;; in the Lower"
Basin, as CaLifornia says, or does the limitation refl'r only to the main
rivl'r from Lake Mf'ad to the international boundary without rE'ference
to the Compact. as the MEiBter say,,'

(2) Are shortages to be allocated 00 the principle of first in time
first in right, \0 proteet c1isting pr()j~ts, as California says, or are
they to be allocated among tbe states on the haaUl of parity, 88 the
Master says' This issue is rendered e:s:tremel;r acute if the Master's
interpretation, eliminating all Lower Basin tributary uses and uses
from the main slrettm fr(>m Lee Ferry to Lake Mead, should be
Ddopted.

(3) Call aD rfff'ctive al1d useful decilJion be rendered, as the MlI..9ter
proposE'S, without determilliDI!: dependable Lower B~in water supply
and without dE'terminiog the effect of the Compact'
The final outcome of the suit cannot be forecll..9t but California is
e:ertain thllt her cause i!l honorable. California seeb a decree which is
believed to) be fair aud just, ba.<;t'd upon a recognition of interstate
priorities and priu<'.iples of equitable apportionment and within tbe
limitations of the Colorado River Compact and the California Limita-
tion Act-a decre-e which would confirm California '9 rights to enougb

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