Louis Brandeis

“ This court may not assume that Congress had no purpose to aid navigation, and that its real intention was that the stored water shall be so used as to defeat the declared primary purpose. Moreover, unless and until the stored water, which will consist largely of flood waters now wasted, is consumed in new irrigation projects or in domestic use, substantially all of it will be available for the improvement of navigation. The possible abuse of the power to regulate navigation is not an argument against its existence. ”

“ Under the law of Arizona, the perfected vested right to appropriate water flowing within the state cannot be acquired without the performance of physical acts through which the water is and will in fact be diverted to beneficial use. ”

“ The Colorado River Compact is an agreement for the apportionment of the water of the river and its tributaries. After several years of preliminary informal discussion, Colorado, Wyoming, Utah, New Mexico, Arizona, Nevada, and California-the seven States through which the river system extends-appointed commissioners in 1921 to formulate an agreement; and Congress, upon request, gave its assent, and authorized the appointment of a representative to act for the United States. ”

“ The compact provides that no part of the 3,000,000 acre-feet of the estimated annual flow, not now apportioned, shall be appropriated until after October 1, 1963, as such water may be required to satisfy rights of Mexico, through which country the river flows after leaving the United States. If the satisfaction of recognized Mexican rights reduces the unappropriated water below 1,000,000 acre-feet annually, the Lower Basin States may require the Upper Basin States to deliver from their apportionment, one-half of the amount required to meet the deficit. ”

“ The opportunity and need for further appropriations are fully set forth in the bill. Arizona is arid, and irrigation is necessary for cultivation of additional land. The future growth and welfare of the state are largely dependent upon such reclamation. It is alleged that there are within Arizona 2,000,000 acres not now irrigated which are susceptible of irrigation by further appropriations from the Colorado river. ”

“ It charges that Wilbur is proceeding in violation of the laws of Arizona to invade its quasi sovereign rights by building at Black Canyon on the Colorado river a dam, half of which is to be in Arizona, and a reservoir to store all the water of the river flowing above it in Arizona, for the purpose of diverting part of these waters from Arizona for consumptive use elsewhere, and of preventing the beneficial consumptive use in Arizona of the unappropriated water of the river now flowing in that state ”

“ To appropriate water means to take and divert a specified quantity thereof and put it to beneficial use in accordance with the laws of the state where such water is found, and, by so doing, to acquire under such laws, a vested right to take and divert from the same source, and to use and consume the same quantity of water annually forever, subject only to the right of prior appropriations. ”

“ Arizona contends both that the river is not navigable, and that it was not the purpose of Congress to improve navigation.
The bill alleges that 'the river has never been, and is not now, a navigable river.' The argument is that the question whether a stream is navigable is oe of fact; and that hence the motion to dismiss admits the allegation that the river is not navigable. It is true that whether a stream is navigable in law depends upon whether it is navigable in fact, United States v. ”