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Show CHAPTER IX 147 /. Apportionment in Time of Shortage The Master had concluded that the Project Act and the Secretary's contracts required the Secretary in case of shortage to divide the burden among the three States on a pro rata basis in accordance with the percentage allocated to each State out of the 7.5 maf apportioned to the Lower Basin. The Court concluded that while this seems equitable on its face, the Secretary should be free to choose among the recognized methods of apportionment or to devise reasonable methods of his own, and that requiring him to pro rate shortages would impair the power vested in him to make decisions which would affect not only irrigation uses but also flood control, improvement of navigation, regulation of flow, and generation and distribution of electric power. For those reasons the Court refused to accept California's contention that in the case of shortage each State's share of water should be determined by the judicial doctrine of equitable apportionment or by the law of prior appropriation. J. Arizona-New Mexico Gila Controversy Arizona and New Mexico had conflicting claims to water in the Gila River. Having determined that tributaries are not within the regulatory provisions of the Project Act, the Master held that this inter-State dispute should be decided under the principles of equitable apportionment. The Court accepted the Master's recommendations that a compromise settlement of the claims of Arizona and New Mexico to water in the Gila River, agreed upon by these States, be included in his recommended decree. K. Claims of the United States The United States had asserted claims to waters in the main river and in some of the tributaries for use on Indian Reservations, National Forests, Recreational and Wildlife areas and other Government lands and works. The Court approved the Master's conclusions as to which claims required adjudication and in declining to reach other claims, particularly those relating to tributaries. The Court likewise approved the decree recommended by the Master for the Government's claims to waters of the mainstream and discussed the claims of the United States on behalf of the five Indian Reservations for which rights were asserted to mainstream water. "The aggregate quantity of water which the Master held was reserved for all the Reservations is about 1,000,000 acre-feet, to be used on about 135,000 irrigable acres of land." K. 1 Indian Reservations - Winters' Doctrine The Court followed the doctrine enunciated in Winters v. United States, 207 U.S. 564 (1908) that the United States, when it created the Indian Reservations, intended to reserve for them the waters without which their lands would have been useless, and that the water rights were reserved as of the time the Indian Reservations were created. The Court concurred with the Master that these water rights, having vested before the Boulder Canyon Project Act was passed in 1929, are "present perfected rights" and as such are entitled to priority under the Act. The Court also agreed with the Master as to the quantity of water intended to be reserved in his ruling that enough water was reserved to irrigate all of the practicably irrigable acreage on the Reservations. K.2 Inappropriate to Determine Boundary Disputes The Court disagreed with the Master's decision to determine the disputed boundaries of the Colorado River Indian Reservation and the Fort Mohave Indian Reservation and held it unnecessary to resolve those disputes at this time. The Court stated: "Should a dispute over title arise because of some future refusal by the Secretary to deliver water to either area, the dispute can be settled at that time." (Opinion, page 601.) |