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Show 323 rights to the use of water from these tributaries for Indian Reservations and other federal establishments.18 As stated above, the Supreme Court will not apportion the waters of an interstate stream unless the state seeking the adjudication establishes "by clear and convincing evidence" that there exists a substantial conflict over the present use of the water. The burden is on the state seeking the adjudication to prove the necessity for it. See cases cited at page 320, supra. Neither Nevada, New Mexico nor Utah has met this burden as to any of the tributaries except the Gila River. None of the downstream tributary states contests existing upstream uses on any of the tributaries. Arizona, a downstream state on each of the tributaries, maintains that existing upstream uses on the tributaries do not interfere with her uses,19 and she does not challenge existing uses on any of the tributaries. Nor does Nevada, the only other downstream state, contest existing upstream uses on the Virgin River System in Utah. Thus Nevada, New Mexico (except as to the Gila) and. Utah are, in effect, asking for a declaratory decree confirming their respective existing tributary uses despite the fact that such uses are unchallenged. Such a decree would be wholly without precedent. Indeed, an unbroken line of decisions requires that jurisdiction not be exercised. See e.g., Colorado v. Kansas, 320 U. S. 383 (1943); New York v. Illinois, 27A U. S. 488 (1927); Missouri v. Illinois, 200 U. S. 496 (1906). It is equally clear that rights of tributary users inter sese to make increased uses of tributary water in the future ought not to be adjudicated. There is presently unused tributary water regularly flowing into the mainstream from all of the tributaries except the Gila. The record 18See U. S. Proposed Conclusions 4.1, 4.2, 4.3, 4.12, 4.13, 4.21, 4.22.2, 8.1, 9.1. "Ariz. Proposed Findings 159, 161, 163-164. |
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Original Report: State of Arizona, complainant v. State of California, Palo Verde Irrigation District, Imperial Irrigation District, Coachella Valley County Water District, Metropolitan Water District of Southern California, City of Los Angeles, California, City of San Diego, California, and County of San Diego, California |