Battle of the Colorado

What the Nile is to Egypt, the Colorado is to the Great American Desert. Without the waters of the mighty Colorado, fifth longest of U.S. rivers, prosperous cities and fertile farms would wither and be layered over with wind-blown sand. Long before white men invaded the desert, Indian tribes constructed elaborate canals to irrigate their fields with Colorado River water. Today, by way of a vast system of aqueducts, canals and tunnels, the Colorado quenches the megalopolitan thirst of Los Angeles and keeps a million acres of Southern California farm land green in what used to be an arid wasteland.

In 26,242 Pages. Along its lower reaches, the Colorado forms the boundary between California and Arizona, and since the early 1920s the two states have been quarreling over the division of the waters. The dispute almost came to Wild West gunplay in 1934, when the Governor of Arizona sent state militiamen up the river on a scow to halt work on a dam that was being constructed to divert water to Los Angeles. Three times in the 1930s, Arizona unsuccessfully brought suit against California in the U.S. Supreme Court. In 1952 Arizona sued again. The Supreme Court assigned Simon H. Rifkind, New York lawyer and former federal district judge, to assemble facts and shape a recommendation. Rifkind held a marathon trial in 1956-58, gathered testimony from 340 witnesses, accumulated a transcript of 26,242 pages, and eventually, in early 1961, submitted to the Supreme Court a 433-page report.

Last week, having taken another two years to puzzle over Rifkind's tome, the Supreme Court handed down a decision that largely affirmed his conclusions. In essence, the court upheld Arizona's claims and knocked down California's.

The Main-Stream Question. In 1928's Boulder Canyon Project Act, authorizing the Hoover Dam system on the Colorado, Congress settled on water quotas for the states involved. Assuming the normal flow of the lower Colorado to be 7.5 million acre-feet per year *Congress assigned 4.4 million to California, 2.8 million to Arizona, 300,000 to Nevada. Any flow in excess of 7.5 million was to be divided equally between California and Arizona. The essential question was whether the 1928 formula applied only to the main stream of the river, as Arizona contended, or to the main stream plus the tributaries. as California claimed. California's interpretation, unsurprisingly, would work greatly to California's advantage. Not a single river in California flows into the Colorado, but virtually the entire state of Arizona lies within the Colorado River Basin. If all of Arizona's streams and rivers that feed into the Colorado were included in the waters to be divvied up between the two states, Arizona would be entitled to a lot less water from the main stream and California could take a lot morea million acre-feet more by the Supreme Court's reckoning.

This dispute, the court decided by a 7-to-l vote, turned not on any principle of law but on the intent of Congress in framing the 1928 statute. Associate Justice Hugo Black's majority opinion concluded from the record that "with minor exceptions, the proposals and counterproposals over the years . . . consistently provided for division of the main stream only, reserving the tributaries to each state's exclusive use." On a different interpretation of the record, William O. Douglas delivered a dissent so violent that it visibly jolted other members of the court. Black's opinion, said Douglas, "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." By giving the U.S. Secretary of the Interior power to adjudicate Arizona-California water issues, said Douglas, the court majority was granting "the federal bureaucracy" something "it has never had but always wanted." The attack was all the more startling because Douglas, himself an old hand at trying to spin his philosophy into the law, has long been allied with Black in the court's liberal wing.

On the Rocks. The court's ruling cast a smog of gloom upon California. The state is currently using more than 5,000,000 acre-feet a year from the Colorado, and water needs are increasing relentlessly, so the 4.4 million quota seemed dismayingly skimpy. "If you order Scotch on the rocks in 1972," said Attorney General Stanley Mosk, "it may be really on the rocks."

California, however, faces no immediate water shortage as a result of the decision. Arizona uses only about half of its 2.8 million quota, and California can go on swallowing Arizona's unused share of the river. In the decade or more that it will take Arizona to acquire facilities for diverting its full quota, California will have had time to complete the $1.7 billion Feather River project for bringing water from northern California to the arid south.

* An acre-foot is the quantity of water it would take to cover a flat one-acre surface to a depth of one foot-325,851 gallons.

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