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Show 148 UPDATING THE HOOVER DAM DOCUMENTS K.3 Other Federal Establishments The Court also agreed with the Master that the principle underlying the reservation of water rights for Indian Reservations was equally applicable to the reservation of water for other Federal establishments such as the Lake Mead Recreational Area, Havasu and Imperial Wildlife Refuges, and the Gila National Forest. The Court rejected Arizona's contention that the judicial doctrine of equitable apportionment should be used to divide water between the Indians and the non-Indians in Arizona. Its reason was that the doctrine is applicable to disputes between States and that an Indian Reservation is not a State. Arizona's contention that the Federal Government had no power, after Arizona became a State, to reserve waters for Federally reserved lands was also rejected as was Arizona's arguments that water rights cannot be reserved by Executive Order. The Court's adherence to the Winters Doctrine was also a rejection of Arizona's claims that there was no evidence that the United States, in establishing the Reservations, intended to reserve water for them and even if it was intended to be reserved the Master had awarded too much water to them. K.4 Uses by United States The Court also rejected the claim of the United States that it is entitled to the use, without charge against its consumption, of any waters that would have been wasted but for salvage by the Government on its wildlife preserves. The Court stated that whatever its intrinsic merits, such a claim is inconsistent with the Boulder Canyon Project Act's command that consumptive use shall be measured by diversions less returns to the river. Finally, the Court noted its agreement with the Master that all uses of mainstream water within a State are to be charged against that State's apportionment, which of course included uses by the United States. L. Dissents to Opinion The Court allowed the parties to submit the form of decree to carry this opinion into effect, failing which, the Court stated it would prepare and enter an appropriate decree. There were two dissents to the majority opinion. One dissent was only a partial dissent. This was written by Mr. Justice Harlan with whom Mr. Justice Stewart was a party. Mr. Justice Douglas also joined in the dissent, insofar as it objected to the majority opinion. Generally speaking, the partial dissent agreed with the majority opinion, except that Mr. Justice Harlan did not believe that the Project Act granted to the Secretary the authority to make an apportionment of the mainstream in the Lower Basin to the States of Arizona, California, and Nevada, either in times of surplus or shortage. It was the position of the partial dissent that "equitable principles established by the Court in inter-State water right cases, as modified by the Colorado River Compact and the California Limitation" was intended by Congress to govern any Lower Basin apportionment. Also, this partial dissent believed that State water laws were intended to control the intra-State uses of Colorado River water. Mr. Justice Douglas wrote a separate dissenting opinion in which he took issue with the whole of the majority opinion of the Court. Mr. Justice Douglas stated it was not a question of the power of Congress to act, but rather the question was how Congress had acted in its passage of the Boulder Canyon Project Act. He found from the study of the same legislative history and historical background relied upon by the majority that Congress did not intend to replace State water laws by a Federal allocation system under the absolute control of the Secretary of the Interior. The Project Act did not limit the quantity of water to which the California Limitation Act applied to only the main stream. For Mr. Justice Douglas the Colorado River system; i.e., Lower Basin mainstream and tributaries, was the area with which the Project Act dealt. In other words California was limited to 4,400,000 acre-feet of Colorado River system water, and the balance of Colorado River system water was to be divided between the other four Lower Basin States according to the principles of equitable apportionment as has been developed heretofore in other inter-State water suits. Mr. Justice Douglas found that the record before the Court did not allow for an equitable apportionment of the balance of the Colorado River system water among the three States; and, therefore, should be sent back for a complete record (page 33, Fifteenth Annual Report of the Upper Colorado River Commission, September 30, 1963). |