The Supreme Court Decree in Arizona v. California

The Report of the Special Master in Arizona v. California was dated December 5, 1960. The Supreme Court rendered its opinion on June 3, 1963, (373 U.S. 546). The Supreme Court Decree dated March 9, 1964, (376 U.S. 340) confirms Arizona's right to 2.8 maf/yr when there is sufficient mainstream water available for release, as determined by the Secretary of the Interior, to satisfy 7.5 maf/yr of consumptive use in the three Lower Basin States. The Decree apportioned.4 maf/yr thereof for use in California and 300,000 acre-feet annually was apportioned for use in Nevada (Article II(B)(1)).

The Decree defines "consumptive use" as "...diversions from the stream less such return flow thereto as is available for consumptive use in the United States or in satisfaction of the Mexican treaty obligation" (Article I(A)). The Decree also defined a "Perfected right" (Article l(G)) and "Present perfected rights" (Article l(H)) as a water right acquired in accordance with State law and existing as of June 25, 1929 (the effective date of the Boulder Canyon Project Act), which has been exercised by the actual diversion of water that has been ap-plied to a defined area of land or to defined municipal or industrial works and including rights reserved for Federal establishments.

Article II(A) enjoins the United States and its officers from releasing water other than in accordance with the following order of priority:

1. For river regulation, improvement of navigation and flood control;
2. For irrigation and domestic uses, including the satisfaction of present perfected rights; and
3. For power. Provided, however, that the United States may release water for Mexico without regard to the aforesaid priorities. Note that the above order of priorities follows the provisions of Section 6 of the Boulder Canyon Project Act.

Article II(B) (2) also apportions water in excess of the 7.5 maf/yr as follows: 50 percent for use in Arizona and 50 percent for use in California, provided that if the United States so contracts with Nevada, then 46 percent of such surplus shall be apportioned for use in Arizona and 4 percent for use in Nevada.

Article II(B)(3) provides that if less than 7.5 maf/yr was available, then the Secretary, after providing for satisfaction of present perfected rights in the order of their priority dates without regard to State lines, and after consultation with the parties to major delivery contracts and State representatives, may apportion the amount remaining available, in such manner as is consistent with the Boulder Canyon Project Act and with other applicable Federal statutes, but in no event shall more than 4.4 maf/yr be apportioned for use in California including all present perfected rights.

The Decree also provides for delivery to water users only pursuant to valid contracts therefor made with users by the Secretary (Article II(B)(5)). Article II(B)(5) does not apply to "any Federal establishment" named in Article II(D).

Article II(D) provides the following quantities of water for the benefit of the named Federal establishments:

1. The Chemehuevi Indian Reservation-the lesser of either 11,340 acre-feet of diversions or water necessary to supply the consumptive use required to irrigate 1,900 acres;
2. The Cocopah Indian Reservation-the lesser of either 2,744 acre-feet of diversions or water necessary to supply the consumptive use required to irrigate 431 acres;
3. The Yuma Indian Reservation-the lesser of either 51,616 acre-feet of diversions or water necessary to supply the consumptive use required to irrigate 7,743 acres;
4. The Colorado River Indian Reservation-the lesser of either 717,148 acre-feet of diversions or water necessary to supply the consumptive use required to irrigate 107,588 acres;
5. The Fort Mohave Indian Reservation-the lesser of either 122,648 acre-feet of diversions or water necessary to supply the consumptive use required to irrigate 18,974 acres;
6. Lake Mead National Recreation Area-annual quantities reasonably necessary to fulfill the purposes of the Recreation Area;
7. Lake Havasu National Wildlife Refuge-annual quantifies reasonably necessary to fulfill the purpose of the Refuge, not to exceed 41,839 acre-feet of diversions or 37,339 acre-feet of consumptive use, whichever is less;
8. Imperial National Wildlife Refuge-annual quantifies reasonably necessary to fulfill the purposes of the Refuge, not to exceed 28,000 acre-feet of diversions or 23,000 acre-feet of consumptive use of mainstream water, whichever is less; and
9. Boulder City, Nevada-as authorized by the Act of September 2, 1958, 72 Stat. 1726.

Article III enjoins all the States and all other users of water in said States from diverting water from the mainstream, the diversion of which has not been authorized by the United States for its particular use. Article IV deals with diversions by the State of New Mexico of tributary water available to it. Article V requires the United States to prepare annual reports of water releases, diversions of water from the mainstream, return flows, consumptive use of such water, and the quantifies delivered to Mexico, in satisfaction of the 1944 Treaty and, separately stated, in excess of Treaty requirements. Article VI provides that the States are to furnish the Court a list of present perfected rights with claims of priority dates within each State, except those relating to Federal establishments. The Secretary is to supply similar information with respect to United States claims within each State. These States and the Secretary are to agree on "Present perfected rights" with their claimed priority dates, in terms of consumptive use, except those relating to Federal establishments. Lacking agreement, any party may apply to the Court for determination for such rights by the Court. Article IX provides that any of the parties may apply at the foot of the Decree for its amendment or for further relief.

Present Perfected Rights:

"Present perfected rights" (PPRs) were first referred to, but not defined, in Article VIII of the Compact of 1922 as "unimpaired by this compact." The term next appeared in Section 6 of the Boulder Canyon Project Act as part of the second priority in the use of Hoover Dam and reservoir. The Special Master's Report in Arizona v. California discusses the term (see pages 152-153, 161, 234-235, and 305-310) and the Supreme Court Decree of March 9, 1964, 376 U.S. 340, defines the term in Articles l(G) and (H). Article VI of the Decree gave the parties 2 years to agree on PPRs but this was increased to 3 years by a Supreme Court order of February 28, 1966, 383 U.S. 268.

PPRs are important because in years in which there is less than 7.5 maf of Colorado River water for consumptive use in the Lower Basin States, which has not yet occurred, PPRs are satisfied first (Article II(B) (3) of the Decree). Further, PPRs, as well as users served under existing contracts and Federal reservations, have rights prior to the Central Arizona Project, with California's priority limited to 4.4 maf/yr (Section 301(b) of the Colorado River Basin Project Act, September 30, 1968, 82 Stat. 885). PPRs will be viable after the Central Arizona Project is operational.

Back to the Supreme Court:

On May 3, 1977, a joint motion was filed with the Supreme Court by Arizona, Nevada, California and the seven California public agencies which were the California defendants in Arizona v. California, seeking the Court's determination of the non- Indian PPRs under Article VI of the Court's 1964 Decree. Objections raised by the United States in its November Response to several provisions of the proposed supplemental decree (e.g., to a reference to "reasonable" use of water; to a limitation of Reservation Boundary changes by Secretarial orders; and to a cutoff date for boundary changes) were resolved by the parties.. On May 30, 1978 a Joint Motion by all of the aforesaid parties, which now included the United States, was filed with the Court which moved that the Court enter the agreed upon Proposed Supplemental Decree. This included provisions which gave a priority to all Indian PPRs over the non-Indian PPR claimants except for the miscellaneous claims which were relatively minor (approximately 17,504 acre-feet) and largely subsequent to most Indian PPRs. It also contained provisions for recognition of Indian claims based on adjustments of Reservation boundaries.

Indian Intervention Motions:

On December 23, 1977, the Fort Mohave, the Chemehuevi, and the Quechan Tribes (the "Three Tribes") filed a Motion for Leave to Intervene, and on April 7, 1978, filed the required Petition for Intervention. The Petition included the Colorado River Indian Tribe which had itself removed as pensioner. The Three Tribes claimed in their Motion to be the real parties in interest and opposed entry of the proposed supplemental decree because it irreparably damaged the Indian PPRs; that it did not solve all the issues, such as the Indian PPRs; that the proposed decree contained ambiguities; that the proposed subordination provisions which gave priority to Indian PPRs were not effective; that the Court was not fully advised by the United States of the status of the boundary claims of the Tribes; that Justice failed to present for the Tribes all of the irrigable acreage in the Reservations totaling 51,263,260 acres ("omitted acreage"); that they denied the accuracy of each major non- Indian PPR claim; and that their representation by Justice was inadequate.

The Petition of the Three Tribes also asserted much of the foregoing as well as the conflicts of interest confronting the Secretary of the Interior and the Solicitor General, the failure to communicate with the Indians, and the Government's policy of preventing full development of Indian PPRs to the detriment of the Tribes. An exhibit to the Petition showing claims for 91,400 acres and 605,300 acre-feet of water for Indian lands was presented to the Court.

On April 10, 1978, the two remaining Tribes, the Cocopah and the Colorado River Indian Tribes (the "Two Tribes") filed a separate Motion for Leave to Intervene and a Petition in Intervention. Contrary to the position of the Three Tribes, the Two Tribes stated that they approve and request the entry of the proposed supplemental decree. However, they, too, sought intervention in the litigation in order to solve all rights, both Indian and non-Indian, and asserted that the Government has inadequately discharged its duty to them and had a conflict of interest.

The Two Tribes seek to present claims under Article II(D) (5) and IX of the Decree for additional PPRs for lands that have been finally determined to be within the boundaries of their Reservations and to present PPR claims for "omitted" lands in the presentation before the Special Master. These included Cocopah claims for 883.53 acres, of which 780 acres are practicably irrigable with a diversion right of 4,969 acre-feet, and Colorado River claims for 4,439 acres, of which 2,710 are practicably irrigable with a diversion right of 18,076 acre-feet.

United States Position on Indian Intervention: The United States opposed the Three Tribes' Motion for intervention (but favored submission of their views as amici curiae) by a Memorandum filed February 1978 and denied each Indian argument. The United States stated it would later seek a determination of additional Indian PPR claims for land involved in Reservation boundary adjustments but would do so under Articles II(D)(5) and IX of the Decree (rather than Article VI of the Decree pursuant to which the States Joint Motion was filed). It urged that the proceedings under Article VI should be concluded which would not foreclose a later claim for "omitted" lands under Article IX.

In a later Memorandum in Opposition filed May 1978, the United States continued to oppose the Motion. All of the three Tribes to intervene in order to object to the entry of the proposed decree under Article VI but stated that new non-Article VI matters, such as additional Indian PPR claims for lands in boundary adjust issues, meets and omitted lands, would not be opposed after the current Article VI proceedings were concluded by the entry of the proposed supplemental decree.

States and Other Defendants Positions on Indian Interventions:

On January 25, 1978, the three States of Arizona, California, and Nevada, and the California Defendants, filed a response to the Motion of the Three Tribes for Leave to Intervene. They opposed the intervention, which they stated should be denied, because it would constitute a suit against the States without their necessary consent and because the Tribes do not qualify to intervene as a matter of right or for permissive intervention. They argued that the Tribes are adequately represented by the United States and that the Tribes should proceed under Article II(D)(5) and/or IX for recalculation of their irrigable acreage. However, they argued that res judicata bars any added claims for "omitted" acreages within the 1964 boundaries. They also questioned whether Secretarial orders finally determine Indian Reservation boundaries as the basis for asserting water rights which impinge on those of the State parties.

In a Response dated May 22, 1978, to the Petition of the Three Tribes for Intervention dated April 7, 1978, the three States and the California Defendants repeated their views of January 25, 1978. They called attention to the fact that the Two Tribes had contrary views to those of the Three Tribes and to the fact that the Colorado River Indian Tribes, which have almost three-quarters of the total water rights quantified for the Indian Tribes in the Court's decree, are apparently satisfied they are not prejudiced by the proceedings under Article VI.

In a response dated June 1, 1978, to the April 10, 1978, Motion of the Two Tribes to Intervene, California, Nevada, the Coachella Valley County Water District and the Imperial Irrigation District stated they still oppose the intervention motion of the Three Tribes. They again raised the argument of the States' immunity to suit and urged forthwith entry of the proposed supplemental decree. These parties, however, were willing to accede to the position of the United States on intervention: if the United States supports (or does not oppose) intervention, they will not, but only subject to the condition that:

Intervention must be permissive and not as a matter of right;
Intervention must be for limited purposes; i.e., to assert additional claims under Articles II(D) (5) and/or IX only and not to attack other, previously quantified claims, or other parts of the Decree; and
To avoid multiple legal representation and undue delay, the United States should no longer represent the Tribes who would have private counsel.

Arizona's Response dated June 5, 1978, to the Motion of the Two Tribes, adopted California's and Nevada's Response above, except that, on the grounds of State immunity to suit, it would not consent to intervention even though the United States will consent. It also concurred with the view that intervention must be permissive and not as a matter of right. Therefore, Arizona argued, since the United States representation of the Tribes has been adequate and zealous, private counsel is not necessary. Arizona further maintained that in large part the claims sought to be asserted by the Tribes depend for their validity upon the determination of land title disputes which should first be finalized in lower Court decisions before the United States makes claims for water rights therefor. And, finally, if intervention is allowed it should be subject to the conditions asserted by California and Nevada, above.

On June 1, 1978, The Metropolitan Water District of Southern California (MWD), City of Los Angeles, City of San Diego, and County of San Diego (collectively termed "the Urban Agencies"), filed their Response. The Urban Agencies adopted the Response of California and Nevada, as had Arizona, and, in addition, challenged the Indian claims of increased water rights based on (1) "omitted" lands within the undisputed boundaries, and (2) additional irrigable acreage resulting from alleged boundary changes. They charged that all the increased claims in California, if allowed, would result in an Indian consumptive use entitlement exceeding the Decree rights by 237,860 acre-feet. Because of MWD's priority position in the California SevenParty Agreement, this would potentially reduce MWD's allocation of Colorado River water by approximately 20 percent.

Although the Urban Agencies opposed re-determination of irrigable acreages within the undisputed Reservation boundaries; i.e., the "omitted" lands, they believed it timely to determine the Reservation boundary issues, including those of the Three Tribes.

However, the Urban Agencies repeated the arguments of the States Response to the effect that the Secretarial orders as to boundary changes were not binding for the purpose of establishing a claim for a Federally reserved water right which would impinge on MWD’s water rights, and that this argument applied to similar claims of the Three Tribes as well. They also maintained that res judicata barred all claims for "omitted" lands as that issue had been fully tried in Arizona v. California.

The Urban Agencies did not oppose permissive intervention of the Two Tribes solely for the purpose of litigating additional water rights based on alleged expansion of Indian Reservation boundaries, nor the similar claims of the Three Tribes, and requested the appointment of a Special Master to adjudicate all these boundary disputes under Articles II(D)(5) and IX of the 1964 Decree. However, as did California, Nevada, Coachella Valley County Water District and Imperial Irrigation District, they attached conditions thereto. The proposed supplemental decree should, they said, be entered now under Article VI and if the Tribes are allowed to intervene with independent counsel that the United States not be allowed concurrently to represent the Tribes as trustee.

Supreme Court Hearing and Supplemental Decree:

On October 10, 1978, the Supreme Court heard oral arguments from the various parties to the aforesaid Motions, Petitions and Responses. On January 9, 1979, in a Per Curiam Opinion, the Court ordered that the Joint Motion of the United States, Arizona, the California Defendants, and Nevada to enter a supplemental decree (filed May 30, 1978) is granted, and entered the supplemental decree which was the subject of Article VI of the1964 Decree and of negotiation and argument since that time.

The Court appointed Judge Elbert P. Tuttle as Special Master with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings. The Court denied the motion of the Fort Mohave Indian Tribe, et al., for leave to intervene to oppose entry to the supplemental decree, and referred this motion in all other aspects and the motion of the Colorado River Indian Tribes, et al., to the Special Master.

New Phase of Decreed Rights:

Even before the Supreme Court had resolved the Article VI PPRs by its supplemental decree of January 9, 1979, the United States on December 21, 1978 filed a Motion for Modification of the Decree (of March 9, 1964) and Supporting Memorandum. The motion sought to permit additional diversions of mainstream water for the five Reservations. The reasons therefore were:

1. The boundaries of the Reservations "have been finally determined..."
   

2. The boundary adjustments, effected since the Decree of March 9, 1964, have confirmed additionally practicably irrigable lands for which the United States reserved water rights, as follows:
   

    
   	Fort Mohave Reservation 	3,000 acres in California
   	Chemehuevi Reservation 		150 acres in California
   	Colorado River Reservation 	3,110 acres in California
   	Fort Yuma Reservation   	4,200 acres in California
   					1,300 acres in Arizona
   	Cocopah Reservation 		1,112 acres in Arizona
   

3. There are within the boundaries of the Reservations practicably irrigable lands which, in approximate numbers, were erroneously omitted from consideration and are entitled to reserved water rights:
   

   
   
   	Fort Mohave Reservation		100 acres in California
   					1,000 acres in Arizona
   					150 acres in Nevada
   	Chemehuevi Reservation		500 acres in California
   	Colorado River Reservation		2,000 acres in California
   					13,000 acres in Arizona
   	Fort Yuma Reservation		500 acres in California
           Cocopah Reservation			33 acres in Arizona
   
   

4. The Reservations are entitled, with the priority dates recited in Article II of the March 9, 1964, Decree, to additional annual diversions for:

   
   	Fort Mohave Reservation		20,026 acre-feet in California
   				        6,460 acre-feet in Arizona
   				        969 acre-feet in Nevada
   	Chemehuevi Reservation		3,880 acre-feet in California
   	Colorado River Reservation	30,854 acre- feet in California
   					~89,940 acre-feet in Arizona
   	Fort Yuma Reservation		31,352 acre-feet in California	
   					8,668 acre-feet in Arizona
   	Cocopah Reservation		7,294 acre-feet in Arizona