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Show 16 UPDATING THE HOOVER DAM DOCUMENTS "Present perfected rights" (PPRs) were first referred to, but not defined, in Article VIII of the Compact of 1922 as "unimpaired by this compact." The term next appeared in Section 6 of the Boulder Canyon Project Act as part of the second priority in the use of Hoover Dam and reservoir. The Special Master's Report in Arizona v. California discusses the term (see pages 152-153, 161, 234-235, and 305-310) and the Supreme Court Decree of March 9, 1964, 376 U.S. 340, defines the term in Articles I(G) and (H). Article VI of the Decree gave the parties 2 years to agree on PPRs but this was increased to 3 years by a Supreme Court order of February 28, 1966, 383 U.S. 268. PPRs are important because in years in which there is less than 7.5 maf of Colorado River water for consumptive use in the Lower Basin States, which has not yet occurred, PPRs are satisfied first (Article II(B)(3) of the Decree). Further, PPRs, as well as users served under existing contracts and Federal reservations, have rights prior to the Central Arizona Project, with California's priority limited to 4.4 maf/yr (Section 301 (b) of the Colorado River Basin Project Act, September 30, 1968, 82 Stat. 885). PPRs will be viable after the Central Arizona Project is operational. K.2 Negotiations Negotiations proceeded in 1964 between the United Slates Departments of Interior and Justice and State representatives. The Arizona Interstate Stream Commission took the lead role for Arizona as did the California Attorney General's Office for California. Problems were soon apparent in attempting to comply with the Decree definition of PPRs in recreating events which occurred over 30 years ago; e.g., the acres irrigated pre-June 25, 1929, or the quantities of water applied to lands pre-June 25, 1929; the fact that current points of water diversion had changed since June 25, 1929; whether the PPRs would be written with a dual limitation similar to that in the Decree, or with a single diversion figure urged by the States; and whether the "defined area of land" could be the entire area within a district. Each State and the United States filed lists of claims with the Court. A Federal-State Task Force was created to develop relevant facts. Information was exchanged and questioned. Finally, on April 12, 1973, Interior provided Justice with a draft of proposed stipulation with a single number of acre-feet of diversions (not a dual limitation) and priority dates assigned to each claimant. Justice suggested in turn that the 1964 Decree be modified so that the PPRs for the Indian Reservations would similarly be stated in terms of a single diversion figure. In an effort to meet Justice's objections, the States agreed to insert in each claim the number of acres to be irrigated. Due to objections from the Indian Tribes further negotiations were postponed. The Tribes challenged the accuracy of their own decreed PPRs as inadequately presented to the Master by the United States and the validity of the non-Indian claims as to their quantities of water and priority dates. They challenged the States assertion that the water supply was ample to satisfy all PPRs and claimed that the doctrine of "relation back" used by the States did not apply to the United States. The Bureau of Indian Affairs in behalf of the Tribes also provided a study by Earth Environmental Consultants, Inc., which charged that no claim of water right had been made by the United States in their behalf during Arizona v. California for approximately 50,000 acres of land on the five Reservations even though they were irrigable. (The study did not assert that these lands were "practicably irrigable" which was the test adopted by the Court. Reclamation and the State parties questioned the adequacy of the EEC study.) On July 2, 1976, the States reversed their prior position and agreed to subordinate all major non-Indian PPR claims (but not the miscellaneous claims which were numerous but minor) to PPRs of the Indians as stated in the Decree and to list all non-Indian claims in terms of a dual limitation. The subordination would also extend to not more than 4,225 acres of land within boundaries of Reservations which were enlarged "or are hereafter established by decree or future stipulation"; i.e., the States were not accepting the validity of the enlargements but only the formula for determining their right to water. Further negotiations were unsuccessful and on January 19, 1977, Interior's Solicitor Austin advised the States that he was rejecting their proposed Stipulation as well as any agreement on the miscellaneous claims as urged by the States. The rejection, according to the States, was because of alleged prejudice to the Indian claims. |
