OCR Text |
Show COLORADO RIVER LITIGATION 597 The men who wrote the Project Act were familiar with western water law. Wyoming v. Colorado, 259 U.S. 419, had recently been decided, holding that priority of appropriation was the determining factor in reaching an equitable apportionment between two Western States. Id., at 470. Yet, S. Rep. No. 654, 69th Cong., 1st Sess. 26-27, contains no suggestion that Congress, by § 5, was displacing a doctrine as important to these Western States as the doctrine of seizin has been to the development of Anglo-American property law. Instead, only 25 lines of that report are devoted to § 5, and those lines clearly sup- port Mr. Justice Harlan's conclusion that the section was designed primarily as a financial tool. The principle that water priorities are governed by state law is deep-seated in western reclamation law. In spite of the express com- mand of § 14 of the Project Act, which makes the system of appropria- tion under state law determine who has the priorities, the Secretary of Interior is given the right to determine the priorities by adminis- trative flat. Now one can receive his priority because he is the most worthy Democrat or Republican, as the case may be. The decision today, resulting in the confusion between the problem of priority of water rights and the public power problem, has made the dream of the federal bureaucracy come true by granting it, for the first time, the lif e^and-death power of dispensation of water rights long administered according to state law. II. At issue on the other main phase of the case is the meaning of the California limitation contained in §4(a) of the Project Act. The Court, however, does not use the present litigation as an occasion to de- termine Arizona's and California's rights under that Act, but as a vehicle for making a wholly new apportionment of the waters in the Lower Basin and turning over all unresolved problems to the Secre- tary of the Interior. The Court accomplishes this by distorting both the history and language of the Project Act. The Court relies heavily on the terms and history of a proposed tri-state compact, authorized by § 4(a) but never adopted by the States concerned, viz., Arizona, California and Nevada. The proposed tri-state compact provided for a division of tributary waters identical to that made by the Court, insofar as the Gila is awarded to Arizona. The Court in reality enforces its interpretation of the proposed tri-state compact and imposes its terms upon California. The Court, however, cannot find in the proposed tri-state compact (the one that was never approved) an allocation of the tributaries other than the Gila; and in order to justify their allocation to Ari- zona it is forced to turn to the terms of "proposals and counter pro- posals over the years," instead of to the language of the Project Act. The result is the Court's, not that of Congress, whose intent we have been called upon to discover and effectuate. The congressional intent is expressed in § 4(a), which provides that California shall be limited to the use of 4,400,000 acre-feet "of the waters apportioned to the Lower Biasin States by paragraph (a) of Article III of the Colorado River compact" (the compact that was approved) and to not more |