Hugo Black

“ It is impossible to believe that when Congress created the great Colorado River Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind-hot, scorching sands-and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised. ”

“ On the same day, Senator Pittman, intimately familiar with the whole water problem, [76] summed up the feeling of the Senate that the bill fixed a limit on California and 'practically allocated' to Arizona her share of the water:
'The Senate has already determined upon the division of water between those States. How? It has determined how much water California may use, and the rest of it is subject to use by Nevada and Arizona. Nevada has already admitted that it can use only an insignificant quantity, 300,000 acre-feet. That leaves the rest of it to Arizona. ”

“ Arizona also challenges the Master's holding as to the Indian Reservations on two other grounds: first, that there is a lack of evidence showing that the United States in establishing the reservations intended to reserve water for them; second, that even if water was meant to be reserved the Master has awarded too much water. We reject both of these contentions. Most of the land in these reservations is and always has been arid. If the water necessary to sustain life is to be had, it must come from the Colorado River or its tributaries. ”

“ The legislative history, the language of the Act, and the scheme established by the Act for the storage and delivery of water convince us also that Congress intended to provide its own method for a complete apportionment of the mainstream water among Arizona, California, and Nevada. ”

“ The Colorado River itself rises in the mountains of Colorado and flows generally in a southwesterly direction for about 1,300 miles through Colorado, Utah, and Arizona and along the Arizona-Nevada and Arizona-California boundaries, after which it passes into Mexico and empties into the Mexican waters of the Gulf of California. On its way to the sea it receives tributary waters from Wyoming, Colorado, Utah, Nevada, New Mexico, and Arizona. ”

“ The Master refers to archaeological evidence that as long as 2,000 years ago the ancient Hohokam tribe built and maintained irrigation canals near what is now Phoenix, Arizona, and that American Indians were practicing irrigation in that region at the time white men first explored it. In the second half of the nineteenth century a group of people interested in California's Imperial Valley conceived plans to divert water from the mainstream of the Colorado to give life and growth to the parched and barren soil of that valley. ”

“ But Utah and New Mexico, as Congress knew, had interests in Lower Basin tributaries which Congress surely would have protected in some way had it meant for the tributaries of those two States to be included in the water to be divided among Arizona, Nevada, and California. We cannot believe that Congress would have permitted three States to divide among themselves water belonging to five States. ”

“ When Congress in an Act grants authority to contract, that authority is no less than the general authority, unless Congress has placed some limit on it. [79] In this respect it is of interest that in an earlier version the bill did limit the Secretary's contract power by making the contracts 'subject to rights of prior appropriators.' [80] But that restriction, which preserved the law of prior appropriation, did not survive. It was stricken from the bill when the requirement that every water user have a contract was added to § 5. ”

“ The first paragraph does not grant any water to anyone; it merely conditions the Act's effectiveness on seven-state ratification of the Compact or on six-state ratification, plus California's agreement to a limitation, i.e., a ceiling, on her appropriations. The source of authority to make such appropriations must be found elsewhere. And the second paragraph of § 4 (a) , suggesting a particular interstate agreement, similarly makes no apportionment of water among the States and delegates no power to any official to make such an apportionment. ”

“ All this vast, interlocking machinery-a dozen major works delivering water according to congressionally fixed priorities for home, agricultural, and industrial uses to people spread over thousands of square miles-could function efficiently only under unitary management, able to formulate and supervise a coordinated plan that could take account of the diverse, often conflicting interests of the people and communities of the Lower Basin States. ”

“ Those cases and others [33] make it clear, however, that this Court does have a serious responsibility to adjudicate cases where there are actual existing controversies over how interstate streams should be apportioned among States. This case is the most recent phase of a continuing controversy over the water of the Colorado River, which the States despite repeated efforts have been unable to settle. Resolution of this dispute requires a determination of what apportionment, if any, is made by the Project Act and what powers are conferred by the Act upon the Secretary of the Interior. ”

“ The river and its tributaries flow in a natural basin almost surrounded by large mountain ranges and drain 242,000 square miles, an area about 900 miles long from north to south and 300 to 500 miles wide from east to west-practically one-twelfth the area of the continental United States excluding Alaska. Much of this large basin is so arid that it is, as it always has been, largely dependent upon managed use of the waters of the Colorado River System to make it productive and inhabitable. ”

“ The impounding of these waters, along with their regulated and systematic release to those with contracts, has promoted the spectacular development of the Lower Basin. Today, the United States operates a whole network of useful projects up and down the river, including the Hoover Dam, Davis Dam, Parker Dam, Headgate Rock Dam, Palo Verde Dam, Imperial Dam, Laguna Dam, Morelos Dam, and the All-American Canal System, and many lesser works. ”

“ Nor does § 18 of the Project Act require the Secretary to contract according to state law. That Act was passed in the exercise of congressional power to control navigable water for purposes of flood control, navigation, power generation, and other objects, [88] and is equally sustained by the power of Congress to promote the general welfare through projects for reclamation, irrigation, or other internal improvements. [89] Section 18 merely preserves such rights as the States 'now' have, that is, such rights as they had at the time the Act was passed. ”

“ The United States disagrees, contending that properly construed the Nevada contract, like the Secretary's general contract with Arizona, does not exhaust the Secretary's power to require Nevada water users other than the State to make further contracts. ”

“ Other statements by Senator Johnson are less damaging to California's claims. For example, the Senator at another point in the colloquy with Senator Walsh said that he doubted if the Secretary either would or could disregard Los Angeles and contract with someone having no appropriation. Ibid. It is likely, however, that Senator Johnson was talking about present perfected rights, as a few minutes before he had argued that Los Angeles had taken sufficient steps in perfecting its claims to make them protected. ”

“ It is inconceivable that such a Congress intended that the sweeping federal power which it declined to exercise-a power even the most avid partisans of national authority might hesitate to grant to a single administrator-be exercised at the unbridled discretion of an administrative officer, especially in the light of complaints registered about 'bureaucratic' and 'oppressive' interference of the Department which that very officer headed. ”

“ Arizona, however, believes that the allocation formula established by the Secretary's contracts was in fact the formula required by the Act. The United States, along with California, thinks the Master should not have invalidated the provisions of the Arizona and Nevada water contracts requiring those States to deduct from their allocations any diversions of water above Lake Mead which reduce the flow into that lake. ”

“ First, it insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people. Second, it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged. ”

“ During the latter part of the nineteenth and the first part of the twentieth centuries, people in the Southwest continued to seek new ways to satisfy their water needs, which by that time were increasing rapidly as new settlers moved into this fast-developing region. ”

“ Nor is there warrant for the Court's reliance on the statements of such opponents of the bill as Utah's Representative Colton and Arizona's Representative Douglas. Objections of opponents of a bill are seldom significant guides to its construction. ”

“ Delph Carpenter, proponent of the § 5 contract requirement, said that it was designed to burden storage water with the Compact, and thus to protect the Upper Basin, and that ' (i) t has nothing to do with the interstate relations between Arizona and California.' [127] Senator Johnson, sponsor of the Senate bill, told the Senate the bill was made a part of the reclamation law, which 'specifically protects each State in its water rights and in the rights of the citizens of those States to water.' 68 Cong.Rec. ”