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Show CHAPTER X 179 The States of Arizona, California, and Nevada and the other California Defendants filed a Response, dated May 22, 1978, to the Petition of Intervention and brief of the Tribes filed April 7, 1978, in which they opposed the Tribes Petition of Intervention and urged that the proceedings to carry out the Court's mandate under Article VI of the Decree be continued. Their prior arguments were repeated, including the statement that Article VI is not the proper vehicle for asserting additional Indian water rights but that Articles II(D)(5) and IX are available. It was noted that the Colorado River and Cocopah Indian Tribes had recognized this fact (see Part Q below), and had requested entry of the supplemental decree in the form approved by the States and the United States. (While the Colorado River Indian Tribe was named in the Tribes Petition as a party, it withdrew therefrom.) Q. Intervention Sought by the Two Tribes A new development occurred in April 1978. On April 10, 1978, the Colorado River and Cocopah Indian Tribes (the "two Tribes," which had not joined in the Motion for Leave to Intervene filed December 23, 1977, by the Fort Mohave, Chemehuevi and Fort Yuma Indian Reservations) filed a Motion for Leave to Intervene and a Petition for Intervention. In a departure from the position of the three Tribes, the two Tribes stated that they approve and request the entry of a supplemental decree but in a modified form agreed to by the States in their Reply of February 27, 1978. However, in arguments similar to those of the three Tribes, intervention was sought because of inadequate Government representation causing irreparable harm to the Tribes in their inability to develop their water rights. The two Tribes alleged a Governmental conflict of interest and the Government's failure to timely assert their claims of additional PPRs resulting from the resolution of boundary disputes which the Tribes recognize comes within Articles II(D) and IX and not Article VI of the 1964 Decree. The Motion of the two Tribes stated that as a result of judgment in Cocopah Indian Tribe v. Morton, on May 12, 1978, an additional 883.53 acres were part of the Reservation, of which 780 are practicably irrigable and have a right to 4,969 acre-feet of diversions of mainstream water. The Motion further stated that by Secretarial Order of January 17, 1969, an additional 4,439 acres were within the Colorado River Indian Reservation, of which 2,710 were practicably irrigable and have a right to divert 18,076 acre-feet of water. Further, the United States failed to assert claims in Arizona v. California to approximately 37,449 practicably irrigable acres within the Colorado River Indian Reservation and for acreage within the Cocopah Indian Reservation now being computed. Finally, the Motion argued that while the subjects of their Motion may not be within Article VI they should be entertained by the Court to avoid piecemeal proceedings. In their Petition for Intervention the two Tribes moved for the entry of a supplemental decree confirming their rights to the quantities of water set out above for the indicated above acreages and prayed that the Court decree to them additional PPRs pursuant to Articles II(D)(5) and IX of the original Decree of March 9, 1964. The reliance on these Articles was consistent with the States arguments but not those of the three Tribes. R. Responses in Opposition Three responses were filed to the April 10, 1978, Motion of the Colorado River and Cocopah Indian Tribes for Leave to Intervene. On June 1, 1978, California, Nevada, the Coachella Valley County Water District, and the Imperial Irrigation District argued that the intervention would authorize a suit by the Tribes against the States (since claims for additional PPRs would be contrary to the interests of the States) and therefore requires their consent which is lacking. The response reviewed the contrasting position of the three Tribes and that of the current Petitioners; i.e., the two Tribes, and contended that claims for "omitted" lands are barred by res judicata. It also contended that intervention, if allowed, must be permissive and not as a matter of right, and that the United States representation of the Tribes has not been inadequate. |