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Show 17. The Arizona-New Mexico compromise concerning the use of the waters of the Gila River is approved. 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 interstate 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 intrastate 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 mainstream. 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 interstate 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 amng the four states; and, therefore, should be sent back for a complete record. California's rehearing attack upon the decision primarily concerned itself with the problem of reconciling the Court's decision with the Colorado River Compact so far as the accounting of tribu- 33 |
