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Show 146 UPDATING THE HOOVER DAM DOCUMENTS The Court stated that the arguments that Section 8 of the Reclamation Act requires the United States, in the delivery of water, to follow priorities laid down by State law had been disposed of by the Supreme Court's decision in Ivanhoe In. Dist. v. McCracken, 357 U.S. 275 (1958). Likewise, the Court concluded that Section 18 of the Project Act did not require the Secretary to contract according to State law; that Section 18 preserved such right as the States "now" have, that is, such rights as they had at the time the Act was passed; and that the general saving language of Section 18 cannot bind the Secretary by State law and thereby nullify the contract power expressly conferred upon the Secretary by Section 5. Thus, "...where the Secretary's contracts...carry out a Congressional plan for the complete distribution of water to users, State law has no place." (Opinion, page 588.) By footnote the Court stated that it follows from its conclusions as to the inapplicability of State law that, contrary to the Master's conclusion, the priorities accorded to the supply of water to Boulder City, Nevada, by the Act of September 2, 1958 72 Stat. 1726, were not to be determined by Nevada law. (Opinion, footnote 94 at page 588.) F. Secretary Can Charge For Diversions Above Lake Mead The Court discussed the provisions in the Secretary's contracts with Arizona and Nevada which provided that any waters diverted by those States out of the mainstream or the tributaries above Lake Mead must be charged to their respective Lower Basin apportionments. The Special Master had taken the position that the apportionment to the Lower Basin States was to be made out of the waters actually stored at Lake Mead or flowing in the mainstream below Lake Mead and had held that the Secretary was without power to charge Arizona and Nevada for diversions made by them from the 275 mile stretch of river between Lee Ferry and Lake Mead or from the tributaries above Lake Mead. G. Secretarial Control of Mainstream Below Lee Ferry The Court held that the Master was correct in deciding that the Secretary cannot reduce water deliveries to Arizona and Nevada by the amounts of their uses from tributaries above Lake Mead, since Congress in the Project Act intended to apportion only the mainstream, 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. Its reason was that Congress provided in the Project Act for an apportionment among the Lower Basin States of the water allotted to that Basin by the Colorado River Compact; that the Lower Basin begins at Lee Ferry; and that it was all the water in the mainstream below Lee Ferry that Congress intended to divide among the States. The Court stated: "Were we to refuse the Secretary the power to charge States for diversions from the mainstream between Lee Ferry and the dam site, we would allow individual States, by making diversions that deplete the Lower Basin's allocation, to upset the whole plan of apportionment arrived at by Congress to settle the long standing dispute in the Lower Basin." (Opinion, page 591.) H. Secretary's Sole Right To Contract For Water Nevada excepted to her inclusion in Paragraph II(b)(7) of the Master's recommended decree, which provides that "mainstream water shall be delivered to users in Arizona, California and Nevada only if contracts have been made by the Secretary of the Interior, pursuant to Section 5 of the Boulder Canyon Project Act, for the delivery of such water." Nevada contended that its contract should be construed as a contract to deliver water to the State and should not require subcontracts by the Secretary directly with Nevada water users. The Court rejected this argument and stated: "Acceptance of Nevada's contention here would not only undermine this plain Congressional requirement that water users have contracts with the Secretary but would likewise transfer from the Secretary to Nevada a large part, if not all, of the Secretary's power to determine with whom he will contract and on what terms. We have already held that the contractual power granted the Secretary cannot be diluted in this manner." (Opinion, page 592.) |