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Show 596 INTp^'PA'P^^PjtiOJQATIONS to have them taken into consideration in the formula that determines the allocation between her and Arizona. Another irrelevancy is the fact that only 2^% of the Colorado River drainage basin is in California, although 90% of the water which Cali- fornia appropriates leaves the basin never to return. If we were dealing with problems of equitable apportionment, as we were in Nebraska v. Wyoming, 325 U.S. 589, that factor would be relevant to our problem. And it would be relevant in case we were dealing with litigation con- cerning waters in excess of the amount granted California under the Project Act. But it is irrelevant here because the only justiciable ques- tion that involves the volume of water is one that concerns the source of supply out of which California's 4,400,000 acre-feet will be satis- fied-a matter which I think Congress resolved differently than has the Court. Third, is a mood about the controversy that suggests that here, as in the cases involving multipurpose federal dams, federal control of navigable streams controls this litigation. The right of the Federal Government to the flow of the stream is not an issue here. We deal with a very unique feature of the irrigation laws of the 17 Western States. The question is not what Congress has authority to do, but rather the kind of regime under which Congress has built this and other irri- gation systems in the West. Heretofore those regimes have been posited on the theory that state law determines the allotment of waters coming through the irrigation canals that are fed by the federal dams. Much is written these days about judicial law-making; and every scholar knowys that judges who construe statutes must of necessity legislate interstitially, to paraphrase Mr. Justice Cardozo. Selected Writings (1949 Hall ed.), p. 160. The present case is different. It will, I think, be marked as the baldest attempt by judges in modern times to spin their own philosophy into the fabric of the law, in derogation of the will of the legislature. The present decision, as Mr. Justice Harlan shows, grants the federal bureaucracy a power and command over water rights in the 17 Western States that it never has had, that it always wanted, that it could never persuade Congress to grant, and that this Court up to now has consistently refused to recognize. Our rul- ings heretofore have been consistent with the principles of reclamation law established by Congress both in nonnavigable streams (Ickes v. Fox, 300 U.S. 82, 94-96) and in navigable ones. Nebraska v. Wyoming, 325 U.S. 589, 612. The rights of the United States as storer of waters in western projects has been distinctly understood to be simply that of "a carrier and distributor of water." Ickes v. Fox, supra, p. 95. As we stated in Nebraska v. Wyoming, supra, p. 614: "The property right in the water right is separate and distinct from the property right in the reservoirs, ditches or canals. The water right is appurtenant to the land, the owner of which is the appropriator. The water right is acquired by perfecting an appro- priation, i.e., by an actual diversion followed by an application within a reasonable time of the water to a beneficial use." And that result was reached even though under those other projects, as under the present one, the Secretary had broad powers to make con- tracts governing the use and disposition of the stored water. See, e.g., 43U.S.C.§§389,440. |