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Show CHAPTER X 177 On February 27, 1978, the States and the California Defendants filed their reply to the response of the United States to the initial joint motion. This stated that the differences between these parties had now been resolved by negotiation. The States accepted the modification proposed by Justice deleting the reference to "and reasonable" regarding the use of water, and reached agreement on alternative language in the subordination provisions which accorded with the proposal of the United States but added "practicably" to "irrigable acres." The reply further stated that in view of the agreement these parties intend to file a joint motion for entry of the agreed upon Decree. P. Indian Tribes Intervention Motions and Opposing Responses The above agreement had not gone unchallenged. On December 23, 1977, a Motion for Leave to Intervene as indispensable parties was filed by the Fort Mohave, Chemehuevi, and Quechan Tribes of the Fort Yuma Indian Reservations, joined in by the National Congress of American Indians as Amicus Curiae. The Motion for Leave to Intervene alleged that the Tribes were the owners of the full equitable title in and to the PPRs set out in the Decree and are, therefore, the real parties in interest in regard to these rights; that these rights have to be resolved and until resolved irreparable harm to them results; that the subordination of non-Indian claims is not effective; that there are patent ambiguities in the proposed supplemental decree; that the response of the United States fails to correctly advise the Court of the status of the boundary claims; that the United States failed to present in Arizona v. California all the irrigable acreage of the Tribes which were entitled to a PPR (it omitted claims for 51,253.26 irrigable acres); and that the Tribes deny the major PPR claims of the non-Indians. The Tribes requested permission to file a Petition for Intervention within 60 days. On January 25, 1978, Arizona, the California Defendants, and Nevada filed a Reponse to the Motion of the three Tribes for Leave to Intervene. The grounds for the opposition were that intervention would constitute a suit against the three States without their necessary consent, and that the Tribes do not qualify for intervention as a matter of right or for permissive intervention. The States response further alleged that the Tribes have no remaining interest in the proceedings under Article VI of the Decree since the subordination provisions protect their Article VI rights, and that the Indian's additional claims come under Articles II(D) or IX; that Res Judicata bars any recalculation of irrigable acreage within the 1964 Reservation boundary changes. The State parties further alleged that Secretarial orders regarding Indian boundaries are functional for Interior's administrative purposes but not as the bases for asserting water rights which impinge on those of the State parties who are entitled to a court determination of the validity of Reservation boundary changes recognized by Secretarial orders. The Motion of the three Tribes for Leave to Intervene was also opposed by a Memorandum for the United States in Opposition, dated February 1978. The Memorandum for the United States states the following grounds of the Tribes for intervention and answers each claim: (1) The Tribes are the real parties in interest-while the Tribes are the beneficial owners of the water rights, this interest does not establish that they are indispensable parties. (2) The representation of the Tribes interests by the United States is and has been inadequate due to pervasive conflicts of interest-which was denied. (3) The proposed supplemental decree is patently ambiguous and does not ensure the priority of the Indian PPRs-which Justice denied since the subordination agreement gives priority to all Indian claims where there is a shortage of mainstream water and, where there is no shortage of water, the Tribes PPRs will be satisfied out of the 7.5 million acre-feet of water available. (4) The United States Response does not set forth the status of certain boundary disputes-Justice agreed with the State parties' views that these need resolution but will do so in a proceeding under Article II(D) and Article IX, and not attempt to do so in this proceeding which comes under Article VI. (5) That no claims were made for irrigable lands "omitted" from the 1964 Decree-as to which Justice stated there is not sufficient hydrological and technical data to adjudicate these claims, but a later claim is in no way foreclosed. (6) The non-Indian PPR claims have no basis in fact-Justice disagreed, but stated it accepted them only conditionally as part of a stipulation including a subordination of these claims to the Tribes PPRs. |
