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Show -109- Internatipnal law, so accepted by the United States, logically may be ap- plied to the relations of the States of the American Unicn unless inconsistent with the interstate law established among them by their-federal constitution, their compacts and customs, and the decisions of the United States Supreme Court rendered in controversies between them. Little, if any, inconsistency appears. In many respects the nationally accepted principles have been utilized by the States in the making of compacts establishing condominiums over rivers, bays and inlets of the sea; notably over the Delaware River, Chesapeake Bay and the waters of the Port of New York. And in most recent years, these same principles have been amplified and specifically applied by compact to the division between States of the waters of La Plata River, South Platte River and the Colorado River; while the Congress of the United States, by advance declarations of assent, has invited the States to make like dis- position of the waters of nearly all the rivers in the arid west, and the Supreme Court of the United States has expressly directed attention of the States to the advantages of such compacts over decisions of the Court hampered by its constitutional and inherent limitations. These limitations arej lack of power in the Court to arbitrate; or to prescribe any future rule of action; or to render any declaratory judgment; or otherwise to aot except to determine and protect (usually by negative decree) the present rights of litigating States upon the facts of the precise controversy actually before the Court at the time of its decision* The Supreme Court cannot permit,, .approve or ignore diversion of national waters by the States for any purpose detrimental to navigation which, under the federal constitution, is the highest use of waters accessible from the soa or from two or more States, in the absence of oon~ grecsional declaration or assent to the contrary** The United States may co-operate with the States in, or may undertake alone, any enterprise naturally and reasonably adapted to the discharge of its treaty obligations; or to the betterment or maintenance of navigation in waters common to two or more States or accessible from the sea; or to the reclamation, improvement or preservation of its public lands or other property. And the United States may do all things incidental to such principal activities. oil, or mining thereon for gold, or tilling the valleys thereof for the pro- duction of farm products* The Court has never yet gone so far* But all of these things the federal government may do incidentally while engaged in a proper discharge of the trust under which it holds the public lands and pro- perty, or when otherwise acting primarily under the powers directly granted by the federal constitution. To this extent only does the United States have any "police power" over, or "ultimate sovereign interest" in, the Colorado River. The federal government has no constitutional power to take over and assume control and development of the river without unanimous consent of the riparian States, and probably riot even with*it, unless the government acts "to fulfill international obligations in respect to which there is no reserved' power in the States. The Boulder Canyon Project will rest upon much safer legal footing when the contemplated Colorado River treaty with Mexico shall have become a reality; especially if the precedent set by Elihu Root in the Rio Grande treaty of I906 is followed. |
