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Show APPENDIX VIII VIII-3 801 PARTIAL DOCUMENT Special Master's Analysis of Compact I therefore conclude that the provisions of the Compact, unless made operative by relevant statutes or contracts, do not control the disposition of this case. Nevertheless, in view of the urgent arguments of the sovereign parties and against the eventuality that the Court may take a different view of the matter, I set forth my views regarding the meaning of some provisions of the Compact. The limits established by the Compact on the acquisition of appropriative rights are applicable to the mainstream of the Colorado River and to its tributaries. Arizona has contended otherwise, claiming that the Compact relates to the mainstream exclusively. To support this contention, Arizona advances a number of arguments: 1. That the events leading to the adoption of the Compact, already mentioned in this Report, reveal an intention to deal with mainstream problems rather than with problems on the tributaries; 2. That the Upper Basin could physically control and acquire rights, against the Lower Basin, in mainstream and Upper Basin tributary water only, and hence was not interested in Lower Basin tributaries; 3. That the Compact purports to apportion only part and not all of the water in the River System; 4. That the obligation specified in Article HI(d) necessarily refers to mainstream water only; 5. That subdivisions (a) and (d) of Article HI are correlative and that III(b) refers to additional mainstream water; 6. That Article VIII deals with mainstream water. At best, these arguments suggest two things: (1) that some provisions of the Compact relate to mainstream water exclusively, and (2) that the Compact might have been limited to the mainstream in all of its provisions if the negotiators had chosen to have it so confined. However, the plain words of the Compact permit only one interpretation -that Article HI(a), (b), (c),(f) and (g) deal with both the mainstream and the tributaries. Article II(a) states: "The term 'Colorado River System' means that portion of the Colorado river and its tributaries within the United States of America." Article III(a) apportions "from the Colorado River System . . . the exclusive beneficial consumptive use ... of water." Article IH(b) allows the Lower Basin "to increase its beneficial consumptive use of such waters. ..." "Such waters" can only refer to System waters, that is, to mainstream and tributary water as defined in Article II(a). In Article III(c), (f) and (g) System water is specified by name. The various arguments of Arizona fail before this unmistakable language of the Compact. The historical fact that the Upper Basin was primarily concerned with the mainstream will not nullify language of the Compact that subjugates both mainstream and tributaries to its rule. Nor is the argument persuasive that because some provisions deal only with the mainstream, all provisions are so limited. It is certainly true that the second sentence of Article VIII deals with the mainstream only. It very clearly says so. The preceding and the following sentences, however, speak of the Colorado River System, indicating the draftsmen's intent to distinguish the two terms. Article I states that "an apportionment of the use of part of the water of the Colorado River System is made" by the Compact, and Article VI speaks of "waters of the Colorado River System not covered by the terms of this Compact". From this Arizona would have me infer that tributaries are not subject to the limitations of Article HI (a) and (b). The provisions of Articles I and VI can be given full effect without thus overriding the plain language of Article II (a). Article I is consistent with Article III(f) and (g) which provides for further equitable apportionment of the use of System water. The 1922 Compact apportioned the use of 16,000,000 acre-feet of water to the two Basins; a later compact could make a "further equitable apportionment" of remaining System water. Article VI demonstrates that the Compact governs inter-basin and not interstate relations. If a controversy should arise, for example, between two Lower Basin states over the mainstream, or over a tributary, that Article provides for alternative modes of adjusting the dispute. As |
