OCR Text |
Show 594 INTERSTATE ADJUDICATIONS tion of rights by the United States and not to its operation of a dam, holds only that the clear command of § 5 of the Reclamation Law, 32 Stat. 389,43 U.S.C. § 431-that water deliveries to each user not exceed the quantity required for 160 acres-prevails over stat© law, not that state law does not generally govern priorities in the use of water from federal reclamation projects under § 8.33 The Court in Ivanhoe expressly stated that it was reaching its narrow conclusion: "[w]ithout passing generally on the coverage of § 8 in the deli- cate area of federal-state relations in the irrigation field . . . ." 357 U.S., at 292. This general question, with reference to what is undoubtedly the most important single water project in the United States, is precisely the question before us today. In view of the language of the Project Act, as well as its background and legislative history, there can, I think, be no doubt of the answer. V. The Lack of Standards Defining the Limits of the Secretary's Power The Secretary, the Court holds, has already apportioned the waters of the mainstream by his contracts with Arizona and Nevada and has done so in accordance with the formula suggested as a basis for an interstate agreement in § 4(a). This holding may come as a surprise to those responsible for a statement such as that in the Arizona con- tract, which provides that its terms are "... without prejudice to, any of the respective contentions of said states and water users as to ... (5) what limitations on use, rights of use, and relative priorities exist as to the waters of the Colorado River system. . . ." But whether the quantum of the Secretary's apportionment was intentional or inadvertent, the Court holds that such an apportionment has been made, and the relevant question for the future is the one that is perhaps primarily responsible for this litigation: How is the burden of any shortage to be borne by the Lower Basin States? This question is not decided; the Court simply states that the initial deter- mination is for the Secretary to make. What yardsticks has Congress laid down for him to follow ? There is, it is true, a duty imposed on the Secretary under § 6 to satisfy "present perfected rights," and if these rights are defined as those perfected on or before the effective date of the Act, it has been esti- mated that California's share amounts to approximately 3,000,000 acre-feet annually. This, then, would be the floor provided by the Act for California, assuming enough water is available to satisfy such present perfected rights. And the Act also has provided a ceiling for California: the 4,400,000 acre-feet of water (plus one-half of surplus) described in § 4(a). But what of that wide area between these two outer limits? Here, when we look for the standards defining the Secretary's authority, we 33 Nor Is anything said in City of Fresno v. California, 372 U.S. 627,, relevant here, since the Court there stated only that if the 'Government exercises its power of eminent domain, "the effect of § 8 in such a case is to leave to state law the definition of the property Inter- ests, if any, for which compensation must be made." 372 U.iS., at 630. Fresno did not con- sider the quesition now presented: the effect of § 8 in the absence of any exercise of the federal power of eminent domain. |