U.S. Supreme Court Litigation in the
case of Arizona v. California
Following execution of the Arizona Water Delivery Contract
on February 9, 1944, the Bureau of
Reclamation, in cooperation with Arizona, studied the
Central Arizona Project (CAP). An Interior
report submitted to Congress on September 16, 1948,
concluded that the CAP was feasible if
Arizona's claim to water were valid, but if California's
contention was found correct that Arizona's
claims to water were not valid, there would be no
dependable water supply for diversion to Arizona.
In the 79th through the 82nd Congresses, Arizona sought
approval of CAP. Although the Senate
passed CAP bills in 1950 and 1951, the House never did act.
On April 18, 1951, the House Interior
and Insular Affairs Committee adopted a resolution that CAP
action be deferred until rights to the
use of water are adjudicated or agreed upon.
The inability of the three Lower Basin States to agree on
the sharing of the Colorado River Compact
water and the position adopted by Congress in 1951 that it
would not authorize the long sought
Central Arizona Project, opposed by California, until
Arizona's right to the necessary Colorado River
water supply was clarified led to the Supreme Court suit
filed by Arizona in 1952.
As a result of that Congressional action, Arizona filed a
motion in the Supreme Court on August 13,
1952, for leave to file a Bill of Complaint against
California and seven public agencies in the State. It
alleged that Arizona's entitlement to Colorado River water
was adversely affected by the California
claimants and that Arizona's existing and prospective
projects were threatened. The United States
was permitted to intervene, as was Nevada. Utah and New
Mexico were joined to the extent of their
capacity as Lower Basin States.
On June 1, 1954, the Court appointed George I. Haight as
Special Master and on his death appointed
Judge Simon H. Rifkind as Special Master on October 10,
1955. The trial before the Special Master
began on June 14, 1956, in the United States Courthouse in
San Francisco and concluded August 28,
1958. Following circulation among the parties of a draft
report by the Special Master dated May 5,
1960, and the receipt of comments and oral arguments, the
Special Master submitted his Report
dated December 5, 1960, to the Supreme Court. The Supreme
Court heard oral arguments in
January 1962 and reargument. On June 3, 1963, it rendered
its decision, 373 U.S. 546.
The Special Master's Report and Recommended Decree were in
large measure adopted by the
Supreme Court, although departures were made in important
areas. The major conclusions of the
Court follow. Congress, in enacting the Boulder Canyon
Project Act, under its powers granted by
the Commerce and Property Clauses of the Constitution,
provided a solution of the Lower Basin
water controversy by establishing a statutory apportionment
of mainstream waters among the Lower
Basin States.
The Special Master was correct in holding that the Colorado
River Compact, the law of prior
appropriation and the doctrine of equitable apportionment
do not control the issues of the case.
Equitable apportionment was inapplicable because of the
Congressional statutory allocation. The
Compact was inapplicable since it provided an inter-Basin
division of water and did not determine
the further division of the Lower Basin's share. It was,
however, relevant for some purposes, e.g.,
some of its terms are incorporated in the Project Act and
are applicable to the Lower Basin. The
Court stated that the Project Act dealt only with the
waters of the mainstream and that the tributaries
were reserved to the exclusive use of the State wherein the
tributaries are located.
Congress made it clear that no one should use mainstream
water except in strict compliance with the
scheme set up in the Act; i.e., Section 5 provided that no
water could be used except under contract
with the Secretary; the Secretary is bound to observe the
Act's limitation of 4.4 maf on California's
consumptive uses out of the first 7.5 maf of mainstream
water, leaving the remaining 3.1 maf for the
use of Arizona and Nevada; that Nevada's needs were 300,000
acre-feet, which left 2.8 maf for
Arizona; the Congress intended that the Secretary carry out
the allocation of mainstream waters
among the Lower Basin States and to decide which users
within each State would get water; that the
Secretary has, by his contracts, made this apportionment.
The Secretary is not controlled by State law in contracting
with water users within each State nor do
State law priorities govern. Thus, contrary to the
Master's conclusion, the priorities accorded to the
water supply to Boulder City, Nevada, by the Act of
September 2, 1958, were not to be determined
by Nevada law.
The Court agreed with the Special Master's conclusion that
the Secretary cannot reduce water
deliveries to Arizona and Nevada by the amounts of their
uses from tributaries above Lake Mead,
since Congress intended to apportion only the mainstream
waters, leaving to each State its own
tributaries. The Court disagreed, however, with the
Master's holding that the Secretary is powerless
to charge States for diversions from the mainstream above
Lake Mead (the Special Master had held
that Lower Basin apportionment was to be made out of waters
stored in Lake Mead or flowing in
the mainstream below Lake Mead, and that the Secretary was
without power to charge Arizona and
Nevada for diversions made by them from the 275-rnile
stretch of river between Lee Ferry and Lake
Mead or from the tributaries above Lake Mead). The Court
held that mainstream uses between Lee
Ferry and Lake Mead are subject to the Secretary's control.
The Court upheld the Secretary's right to subcontract with
Nevada water users since to do otherwise
would transfer to Nevada the Secretary's power to determine
with whom he will contract and on
what terms. The Court disagreed with the Master and held
that the Secretary had the authority to
determine the methods of apportioning shortages. The
Special Master had held that shortages be pro
rated among the three in accordance with the percentages
allocated to them out of the 7.5 maf
apportioned to the Lower Basin. (The Court's holding was
later modified by Section 301(b) of the
Colorado River Basin Project Act which also provided
California with a 4.4 maf priority over
diversions for the Central Arizona Project.)
The Court upheld the Master's finding that the Arizona-New
Mexico dispute regarding Gila River
waters be decided by equitable apportionment (since the
Congressional statutory apportionment of
mainstream water was not applicable thereto) and that the
States compromise settlement be included
in the Decree.
The Court followed the "Winters Right Doctrine" that the
United States, when it created the Indian
Reservations along the Lower Colorado River, intended to
reserve for them the waters without
which their lands would have been useless. It upheld the
United States claims for the quantity of
water necessary to irrigate all the practicably irrigable
acreage on the five Reservations along the
Lower Colorado River. This was about 905,496 acre-feet for
136,636 irrigable acres.
The Court disagreed with the Special Master's decision to
determine the disputed boundaries of the
Colorado River Indian Reservation and the Fort Mohave
Indian Reservation and delayed a ruling
until a dispute develops over title because of some future
refusal by the Secretary to deliver water.
The Court agreed with the Special Master that the principle
underlying the reservation of water
rights for Indian Reservations was equally applicable to
other Federal establishments such as the
Lake Mead National Recreation Area, the Lake Havasu and
Imperial National Wildlife Refuges, and
the Gila National Forest, and that sufficient water was
reserved for the purposes for which these
reservations were created.
The United States cannot claim the entitlement to the use
without charge against its consumption of
any waters that would have been wasted but for salvage by
the Government on its wildlife refuges,
because of the Project Act's command that consumptive use
from the mainstream be measured by
diversions less returns to the river.
Finally, the Court agreed with the Special Master that all
uses of mainstream water within a State are
to be charged against that State's apportionment and that
included uses by the United States.
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