*1 ARIZONA v. CALIFORNIA et al. Orig. Argued
No. 1982 Decided March December *2 Burger, J., Court, opinion of the in which C. White, J., delivered O’Connor, JJ., Rehnquist, joined, in Part III of Powell, and and and Brennan, Stevens, J., Blackmun, JJ., joined. Brennan, and which in which Black- dissenting part, concurring part and opinion filed an Marshall, J., part Stevens, JJ., joined, post, p. 642. took no mun and of the case. or decision consideration argued Boronkay Ralph E. Hunsaker the cause and Carl Boronkay on the Mr. Arizona et al. With for the State Agencies Abbott, were J. 'Warren for the California brief McCarthy, Reiner, Ira Gil- Justin Sherrill, Maurice C. Joseph Fitzpatrick, M. C.Witt, John W. Lee, bert W. Boronkay on the briefs Hunsaker and Kase, Messrs. Jr. With GeorgeDeukmejian, At- of Arizona et al. were State Gregory N. torney R. H. California, Connett General Douglas Attorneys *3 and Taylor, B. Noble General, Assistant Roy Attorneys Deputy H. Stipanovich, General, Jr., Emil Fitzpatrick, Sherrill, Witt, Reiner, Lee, Mann, Messrs. Attorney Bryan, of McCarthy, Richard General Kase, and Attorney Deputy Gen- LaVelle, and James Chief Nevada, of Arizona. filed a brief for the State Mr. Hunsaker eral. argued for the the cause A. Aschenbrenner Lawrence him the briefs al. With on Indian Tribe et Chemehuevi Mullins, Thomas W. Jr., J. Locklear, Arlinda F. John were Simpson. Raymond Pelcyger, and C. Robert S. Fredericks, Simpson Tribe. brief for the Quechan filed a Mr. argued for the cause
Deputy General Claiborne Solicitor were Solicitor him on the briefs With States. the United Myles Attorney E. Dinkins, General Assistant Lee, General McElroy.* B. and Scott Echohawk, Tom W. Flint, opinion of the Court. the delivered White Justice irrigating lands of the Colorado problem the arid The region peoples confronted has been Basin River Thorp R. Pyramid filed Michael for the curiae were of amici *Briefs Weldon, Jr., for the Salt Byron Lewis and JohnB. by M. Tribe; and Lake al. District et Improvement and Power Project Agricultural River years by Congress many 2,000 for and and this for Court dec- Today chapter original ades. we conclude another in this ac- brought rights tion to determine to the waters of the Colo- proceedings In case, rado River. earlier this United principal acquired an States, intervenor action, water dependent upon for five Indian reservations that are the river for their water. The United States, the Tribes action, which ask to intervene now seek to have those increased.
I Compact The Colorado River of 1922 divided waters of Upper- the Colorado River between the and Lower-Basin apportioning respective States, but fell short shares among Canyon the individual States. Nor did the Boulder Project Act of Stat. amended, U. S. C. (1976 V) § Act), seq. (Project Supp. 617et ed. and a vast federal put effort to harness use waters of the lower Colo- expressly apportionment. River, rado effect such principal dispute increasingly pressing that became over the years respective concerned shares of the Lower-Basin particularly shares California and Arizona. began
This in 1952when to settle Arizona, dispute, original jurisdiction, our invoked U. Const., S. Art. by filing Ill, cl. §2, motion leave to file a bill of com- plaint against public agencies California and seven sought State.1 Arizona to confirm its title to water in the *4 system Colorado River limit and to California’s annual con- sumptive use of river’s waters. Nevada intervened, praying rights; for determination of water its Utah and New joined Mexico were defendants; and the United States seeking intervened, on behalf of various fed- including establishments, eral of reservations five Indian Irrigation District, 1 PaloVerde Imperial Irrigation District, Coachella Valley County District, Metropolitan Water Water District of Southern California, City Angeles, Los City Diego, of San County and of San Diego.
609 Mojave In- River Indian Fort Tribes, Tribes—the Colorado Cocopah Tribe, Indian Indian Tribe, Tribe, dian Chemehuevi (Quechan) Yuma Indian Tribe. and Fort Special lengthy proceedings, Master Simon Rifkind After recommending report filed a a certain division of the Colo- among California, Arizona, rado River waters and Nevada. exceptions report parties’ respective The to the Master’s extensively argued. briefed and the case was twice were part agreed Special Master, the most with the The Court for (1963), in and our views were carried forward U. S. (1964). at 376 the decree found U. S. story long rich of the efforts on behalf of the
The and mutually satisfactory plan at a involved to arrive States apportionment report Special Master’s and is set forth opinion repeated here. and need not be We Court’s Special agreed Master that the allocation Colo- with governed the standards set rado River water was to be Project principles of Act rather than forth statutory apportionment equitable which the absence disputes applied has between States directive this Court Nor was to water from interstate streams. over entitlement necessarily controlling. prior appropriation local law of comprehen- Project Act itself was held to have created among apportionment California, Ne- scheme for the sive of the main- Arizona of the Lower Basin’s share and vada, leaving its River, of the Colorado each State stream waters Congress that a fair division of the had decided tributaries. would million acre-feet of such mainstream waters first 7.5 give 2.8 millionacre-feet to California, million acre-feet to 4.4 to Nevada. Arizona Cali- 300,000 acre-feet Arizona, any surplus. equally 565. S., 373 U. share fornia would strong objection, agreed with the we also Over rights had reserved water that the United States as of the time of their cre- reservations, effective the Indian Id., v. United at 598-600. See Winters ation. (1908). having rights, vested before These water
U. S. 564 *5 Project Act June 25, 1929, became effective on were rights,”2 “present perfected other ranked with such priority atS., were entitled to under the Act. 373 600. U. Rejecting measuring more restrictive for standards rights reservations, water intended to reserved for the we agreed speaking with the Master and the United on “only way by behalf of the that the Tribes, feasible and fair which reserved water reservations can be measured is irrigable acreage.” Id., at 601. We further sustained the findings, proceed- adversary full, Master’s arrived at after ings, acreages practicably irrigable as to various land findings on the different reservations. Ibid. These were subsequently incorporated in our decree March 1964. 11(D) specified Article of our decree each enti- reservation’s tlement to diversions from the mainstream. aspects finally
Not all of the case were in the resolved determining irrigable acreage First, decree. the course of dispute on the reservations, the Master resolved a between respect the United States and the States with to the bound- Mojave aries of the Colorado River and Fort Indian Reserva- generally finding tions, that the reservations were smaller Although than the United States claimed them to be. we based the water decreed to these two reservations irrigable acreage on the within the boundaries determined by Special it Master, we found that had been “unneces- sary” finally for the to have determined these 2 “perfected right” A right acquired is a “water with accordance state law, right which has specific been exercised the actual diversion of quantity applied of water has been to a defined area of or to defi land works, municipal nite or industrial and in addition shall include water created reservation of water mainstream for the use of fed eral establishments under law or federal whether not the has been applied S., to beneficial use.” 376 U. perfected rights” 341. “Present perfected rights means existence as of June the effective date Ibid. Project Act. *6 11(D) provided quantities in boundaries3 and Article that the provided Mojave of water for the Fort Indian Reservation subject and the Indian Colorado River Reservation be “shall adjustment by appropriate agreement to or decree respective Court in the event the that boundaries of the res- finally ervations are 376 determined.” U. 345. S., at See provided Part V, Second, Article of the VI decree infra. parties, years, provide that the two within the should Court outstanding present perfected rights with a of the list in the Finally, mainstream waters. IX Article of the decree we jurisdiction purpose retained over the case the for of further proper. modifications and orders that we deemed January supplemental On we 9, 1979, entered decree present perfected identifying rights the to use of the the priority mainstream water in each State and their dates as by agreed parties. to 439 419. U. S. We also decreed shortage, Secretary that, the event of of the Interior providing present shall, before for the satisfaction of these perfected rights, provide first for the satisfaction in full of the rights Indian forth in water set the 1964 decree for the five expressly quantities, reservations. We noted that these 11(D) paragraphs through fixed in 1 5 Article 1964 subject appropriate adjust- to decree “shall continue to by agreement ment or decree of this Court in event that respective finally the boundaries of the reservations are de- at termined.” U. 421. The 1979 decree thus S., re- outstanding litigation. solved issues before But that questions decree was entered new arose: The five Indian ultimately joined Tribes, the United made claims water to additional reservation lands. disagree “We with the Master’s disputed decision determine the boundaries of Colorado River Indian Fort Reservation and the Mohave unnecessary Indian Reservation. We hold it is those resolve dis putes dispute here. Should a over title arise because of some future re Secretary area, dispute fusal deliver to either can be S., settled at that time.” U. 601. represented
Because the United States had their interests, previously part litigation. the Indian Tribes had no In Mojave, 1977, however, the Fort Chemehuevi, and Quechan (Fort Yuma) Indian Tribes moved for leave to intervene as indispensable parties. By April 10, Colorado Cocopah River Indian Tribes and the Indian Tribe had also petitions sought filed for intervention. Three of the Tribes oppose entry intervention to of the 1979 decree that was to priority set the order for water in the Colorado River. *7 rights The Tribes also raised claims for additional water (1) appurtenant types to two of land: the so-called “omitted” irrigable recognized lands, within the 1964boundaries lands— of the reservations, for which it was said that the United rights litigation; States failed to claim water in the earlier (2) “boundary” lands—lands that were or should have officiallyrecognized part been of the reservations and that assertedly finally had been determined to lie within the res- meaning ervations within the of the 1964decree. Initially, parties both the state and the United States opposed Subsequently, intervention. the United States dropped opposition its to the Tribes’ intervention. Still joined later, on December 1978, United States the In- moving supplemental grant dians in for a decree to additional to the reservations. In our 1979 decree, we de- Mojave, nied the motion of the Fort Chemehuevi, and Que- they sought chan Tribes oppose to' intervene insofar as entry supplemental by decree. Other matters raised their motion, as well as that of the United States’ and the appointed other two Tribes, were not resolved. We Senior Judge Special Elbert P. Tuttle Master and referred these motions to him. 439 S., U. at 436-437. conducting hearings, Special
After Master issued a preliminary report August granting on 28, 1979, In- subsequent dian hearings Tribes leave to intervene on the Special merits. In addition, Master concluded that cer- finally tain boundaries of the had reservations now been de- 11(D) meaning termined within the Article of the 1964 primarily decree, because of administrative decisions taken by Secretary purported of the Interior. These decisions considerably enlarge the reservations and, affected with respect Mojave to the Colorado River Reservations, part positions were for the most reassertions of the submit- Special rejected ted the United States to Master Rifkind, open by him, and left us to later final resolution. We exceptions refused to allow the States to file at that time, (1980), Special 444 U. and the S. Master held further hearings on the merits. February Special 22, 1982,
On' Master issued his final report. Special findings entirely Master’s were almost position consistent with the of the United and the In- Rejecting strong objections dian Tribes. the States’ to re- opening question practicable irrigable of whether more acreage actually Spe- existed than the United States claimed, opinion cial found, Master Rifkind and our 1963 and 1964de- specified, cree Master concluded that each of the Tribes was entitled to additional water based on land *8 irrigable beyond pre- that he determined to be over and that viously boundary Furthermore, found. based on his earlier determination, the Master determined that there was addi- practicably irrigable acreage tional for which the Indians rights. entitled to further water The were States have exceptions to both of well determinations, filed these as to findings concerning practicably various factual irrigable acreage. the amount of
Ill exceptions Special The have also refiled their States findings allowing preliminary the Indian Tribes to Master’s in the action. We consider this first. intervene matter agree We with the Master that the Indian Tribes’ granted. oppose motions to intervene should be The States 614
the
that,
motions and insist
without their
consent,
Tribes’
participation violates the Eleventh Amendment.4 Assum-
ing, arguendo,
may interpose
immunity
that a State
its
to bar'
brought against
by
a suit
it
an Indian tribe,
States v.
United
(1926),
Minnesota,
270 U. S.
193-195
in-
States
longer may
immunity
respect
volved no
assert that
with
to
subject
right
matter of this action. Water
claims for the
brought by
Nothing
Tribes were
United States.
seriously supposed
Eleventh Amendment “has ever been
prevent
being
a State’s
sued
United States.” United
(1965).
Mississippi,
g.,
v.
States
380 U.
140
See,
S.
e.
(1892);
United
v. Texas,
States
143 U. S.
646
United
(1936);
v.
297 U.
California,
S.
United States v.
(1947).
California,
The States also intervention on that the presence representa adequate of the United States insures tion of the Tribes’ interests. States maintain that the prerequisites right for intervention as set forth Rule 24 of the Federal Rules of Civil not Procedure are satisfied. Aside from the fact that our own Rules clear make that only guide procedures original Federal Rules are a in an action, see this Court’s 9.2; Rule Utah v. United (1969), U. S. 89, 95 it is obvious that the Indian Tribes, at satisfy permissive minimum, standards intervention 4There suggestions papers are in the sovereign the States’ immu *9 nity is in respect immunity some distinct from the afforded the Eleventh Amendment. question Insofar as the posed intervention here is con cerned, appreciate we no such difference.
615 in set forth the Federal in Rules. The Tribes’ interests water of the Colorado basin have been and will continue to in determined since the United States’ action as representative any judgment. their will bind the Tribes to (1912). v. 224 Heckman United States, U. S. 444-445 place the Indians are entitled Moreover, “‘to take their independent qualified body politic.’” members of the modern Poafpybitty Shelly (1968), v. 390 Co., Oil U. S. 369 quoting County Board Comm’rs v. 318 Seber, U. S. (1943). Accordingly, participation litiga 715 the Indians’ discouraged.5 tion critical to their welfare should not be present any persuasive why have failed to reason their prejudiced litigation unduly interests would be or this de layed by presence. the Tribes’ The Tribes’ motions to inter sufficiently timely respect phase vene are with to this litigation. permission carry course, Of to intervene does not right relitigate already it the with matters determined subject the case, unless those matters would otherwise be granted. reconsideration. The motions to intervene are l—i <1 major question turnWe now to the first m the case: practicably irrigable acreage whether determination of recognized reopened within reservation boundaries should be to consider claims for “omitted” lands for which water sought litigation preceding have could been the 1964 Special agreed decree. The with the United States day modify and the Tribes that it is not too late adjudication notwithstanding decree, his own find- ing original “[t]he claim in . . . case embraced the totality of water for the Reservation lands.” Tuttle Report, disagree at 31. We with the Master and sus- York, Jersey the States’ reliance on New v. New reason, For this (1953) curiam), (per city where the denied the U. S. Court Philadel phia’s request dispute grounds to intervene in that interstate water on the represented by Pennsylva adequately that its interests were the State of nia, misplaced. is
616
exceptions
by
agencies
tain the
filed
the States and state
opinion,
prior
his conclusion. In our
In-
determination of
rights
precludes relitigation
dian water
the 1964decree
irrigable acreage
issue.
many
disputes
Arizona v.
unlike
California,
other
over
rights
adjudicated,
water
that we have
has been and contin
governed mainly by statutory
ues to be
considerations. The
primary
isfeue
the case—the allocation of the waters of
among
the Lower Colorado River Basin
the States —was re
by
by Congress
solved
the distribution of waters intended
Project
question
and written into the
Act. The
of Indian
rights
important
ancillary
water
but
concern—was also
—an
by
congressional policy
judi
decided
recourse to
rather than
equity.
by
cial
We held that the creation of the reservations
implied
the Federal Government
an allotment of water neces
sary to “make the reservation livable.” 373
atS.,U.
599-
(1908);
600. See Winters v.
States,
United
We
on to
Arizona’s further
Hagan,
(1845),
the doctrine of Pollard’s Lessee v.
The standard for the reserved water hotly argued was also contested the States, who that the adopted a much too liberal measure. Our decision to rely upon practicably irrigable acreage the amount of con- rejection tained within the reservation constituted a of Ari- *11 proposal quantity-of zona’s that the water reserved should “reasonably be measured the Indians’ needs,” foreseeable e., i. practicably-irrigable- the number of Indians. The acreage preferable many standard was because how Indians “only there will be and what their future needs will be could guessed,” By irrigable-acreage id., at 601. contrast, the present ap- standard allowed a water allocation that would be propriate for Id., future water needs. at 600-601. There- respect question fore, with to the of reserved for the rights, reservations, and the measurement of those the Indi- represented by ans, the United States, won what can be only complete victory. victory, described as a A it should be part stressed, was to attributable the Court’s interest Applying in a calculation of future water needs. fixed irrigable-acreage standard, we found that the Master’s deter- practicably irrigable acreage, mination as to the amount of subject adversary proceedings, issue also was reasonable. subsequent judgment. Our decree reflected this 376 U. S. (1964). The Tribes and the United States now claim that certain practicably irrigable acreage was “omitted” from those cal- question culations.6 There is no that if these claims were presented proceeding, in a different a court would be without power reopen operation the matter due to the of res judicata. That would be true here it were not for Article IX provides:7 of the 1964 decree which 6The irrigable acreage United States attributes the omission of complexity parties of the case. The state maintain that the omission was part portray tactical decision made to the irrigable-acreage standard as calculating a reasonable basis the reservations’ water needs. parties The do not contend that IX absent Article the decree would not Although be final. present this Court had not entered a decree on other may apply “Any parties this decree of the at the foot of farther relief. The Court re- for its amendment or for purpose any jurisdiction of this suit for the tains any or modification of the or direction, decree, order, may any supplementary decree, that time be deemed subject controversy.” proper matter in in relation to the agree and the that this with the United States Tribes We grants power provision certain to de- errors, us to correct necessary, questions, if to make modi- and, termine reserved understanding differ our fications the decree. We power of the circumstances which make exercise of this appropriate. Master believed that the decision whether governed by
exercise that discretion should be “law precise principles. requirements the more case” Unlike amorphous concept. judicata, law of the case is an As res *12 commonly posits defined, the doctrine that when a court most upon a rule of that decision should continue to law, decides govern subsequent stages in the same the same issues IB T. Prac- Currier, case. J. Moore & Moore’sFederal See (1982) (hereinafter Moore).8 ¶ tice 0.404 Law of case discretion, directs a court’s it does not limit the tribu- power. R. v. 260 319 Clift, 316, nal’s Southern Co. U. S. (1912). (1922); Messenger v. 225 444 Anderson, 436, U. S. might appear applicable sense, In that the doctrine here. understandably doctrine was crafted with But law of case (1979), perfected rights, 439 419 at the time the United moved U. S. irrigable-acreage question, pendency of the former reopen to does finality not undermine the of our earlier determination of the latter. See e (Second) (1982) (“A Judgments 13, judgment § Restatement Comment may judicata part although in a sense as to a of an action be final res rest”). litigation as to the continues 8 doctrine, understood, commonly as now most it Under law of the case is prior holding if improper depart not for a court to from a convinced that it g., e. White injustice. See, clearly is erroneous and would work a manifest Murtha, (CA5 1967). 428, F. 2d 431-432 v. 377
619 pro- ordinary litigation in mind. Such the course of stages, generally through preliminary trial, matures ceeds binding appeal, judgment, produces after which, a estoppel finality judicata attach. To will and collateral of res extrapolate of our the case into the situation law of wholesale jurisdiction original jurisdiction, to accommodate where changed weaken to an retained,9 would circumstances is often original finality ac- of our decrees extent the intolerable statutory turning particularly on as this a case such tions, equitable criteria. rather than Court-fashioned following IX must be that Article we hold reasons, For the gen- subject reading given and should be a narrower changed finality repose, circum- principles absent eral litigated. previously not or unforeseen issues stances preclusion are not technical rules of the the First, while upon principles rules are strictly applicable, these which that res It is clear our decision. inform founded should apply party estoppel if moves judicata not a do and collateral proceeding rendering or mod- to correct in the same court ¶ pp. R. ify judgment. Field, 0.407, 931-935; IB Moore its Procedure Kaplan, Materials on Civil Clermont, K. B. & 1978). (4th precept of a fundamental Nevertheless, ed. adjudication determined that an issue once is common-law competent Montana v. United court is conclusive. (1979); Department Stores, Inc. Federated 440 U. S. (1981); County v. Cromwell v. 452 U. S. Moitie, (1877). parties preclude from “To 352-353 S. Sac, U. opportu- they contesting a full and fair have had matters that expense protects nity litigate from the their adversaries *13 judicial multiple attending conserves lawsuits, and vexation by judicial minimiz- action on fosters reliance resources, v. Montana ing possibility decisions.” of inconsistent supra, at 153-154. States, United 9 to proper of the standard present the issue course, does not this case Of and retains equitable decree issues an district court applied when a jurisdiction.
620 respect rights
In no context is this more true than with property. in real Abraham Lincoln once described with combing scorn those in the who sat basements of courthouses property upset reports records to established titles.10 Our replete questions affecting are with reaffirmations that titles longer open. to land, decided, once should no be considered (1866); Minnesota Co., Co. v. National 3 334 Wall. (1924). United States v. Title Ins. 265 Co., U. S. Certainty rights particularly important respect is with develop- in water the Western United States. The ment of that area of the United States would not have been possible adequate supplies without in an otherwise part country. water-scarce of the River Colorado Water Conservation District v. (1976). States, United U. S. prior appropriation, prevailing
The doctrine of largely product law the Western is itself compelling certainty holding need for in the and use of water rights.11
Recalculating practicably irrigable acreage the amount of directly strong finality runs counter to the interest major purpose litigation, inception case. A of this from its present day, provide necessary has been to assurance private to States of the Southwest and to various interests, of they anticipate the amount of water can to receive from the system. parts Colorado River “In the arid of the West. . . inescapably claims to water for use on federal reservations Kempf, 10 SeeE. Abraham Philosophy Sense, Lincoln’s of-Common Part (1965). 1, p. 346 appropriation Prior law serves western encouraging interests irrigating diversion of water for otherwise barren pro lands and for other uses, by ensuring ductive developers they enjoy will continue to “Appropriation use of the law, developed water. West, the arid is usually thought system of as a for water-short areas. Where there is enough everyone, not priority the rule of insures that those who obtain will not have their water taken others who start later.” Trelease, (3d 1979). F. Cases and Materials on Water Law 11 ed.
621 public private quan- vie with other and claims for the limited in the tities be found rivers and streams.” United States (1978). New If Mexico, v. 438 U. S. there is sur- no plus of in water the Colorado an increase in re- River, federal rights require “gallon-for-gallon served water will a reduc- water-needy tion the amount water for available state private appropriators.” Id., and As at 705. recognized, great really “[n]ot
Tuttle a deal evidence is anyone rely needed to convince that western states would upon adjudications.” Report, only water at 46. Tuttle Not Metropolitan did the Water District California and Project predicate plans Central Arizona their on the basis high priority allocations, but, the 1964 due Indian enlargement water an Tribes’ claims, of the allocation cannot help potential shortage problems but exacerbate projects these their and States.12 contemplate departure IX Article did not from these fun- permit legal principles damental so as to of factual retrial or fully fairly litigated years ago. issues that were The changes explicate Article does not the conditions under which appropriate. Very in the decree little sur- are discussion Article, which rounded the was included Master Rifkind’s dissenting The United contend that States and Justices the States enjoy certainty not quantifica did extent of their water until perfected present accomplished of non-Indian was tion 1979. Of course, important not settled in most were everything things was but irrigable acreage one of extent of within the them was the uncontested presence of other did boundaries of the reservations. uncertainties interlocutory judgment subject relitiga not render 1964 decree Moreover, respects. argument, in all tion under the United States’ line of dissent, aspect safely echoed no of our 1964 decision could relied upon incomplete present perfected rights. due to the As determination of already noted, judicata aspects final require res does not all of a case to be finality agree supra. See n. with the before attaches. We States magni until not of a the uncertainties not resolved 1979 were nature and relying upon from respect tude to deter the our 1964 decree with irrigable litigated acreage on reservations. issue of *15 agreed-upon provision.13 recommended decree as an This in suggests mainly safety itself that the Article was net added jurisdiction to retain and to ensure that we had not, virtue judicata, precluded adjusting of res ourselves from the de- light changes cree in of unforeseeable in circumstances. reading supported by proceedings This is the before Mas ter Rifkind. The record demonstrates that it was the under standing parties and Master Rifkind’s intention that practicably irrigable acreage the calculation of be final.14 Report, Imperial Irrigation Rifkind at 360. The District only was the party expressly IX, noting to address Article that the pre Article would power serve the Court’s to correct determinations that are “erroneous or Supplement unworkable.” Imperial and Amendment Irrigation Dis (Dec. 1963). trict’s Form of Decree of Court favoring District’s the may inclusion of Article IX predicated have been gen on the States’ more argument eral equitable apportionment, under open-ended which an permit adjustments decree could as increases in non-Indian water needs outstripped Indian water utilization. We do not read the District’s sub recommending relitigation mission as the of settled issues nor do we attach particular weight to the source as an indicium of the Court’s intent in in cluding Article IX. 14Master Rifkind’s intention that the irrigable calculation of acreage be clearly final is most evident in exchange one with United States counsel on precise subject. Upon being informed that some mesa in lands not cluded within the Government’s might irrigable submission if an addi pumping plant tional constructed, were inquired Rifkind whether maps Government’s “illustrate and define” irrigable acreage. Warner, representing Mr. the United probably stated that he was give not “authorized anything away ought claim,” that we but could offer propose assurance that “we do not to ask a decree allowing water. . . for use on the Indian proof reservations in excess of the we are now offer ing in this matter.” Master inquired: Rifkind then although “And there may irrigable be other reservations, lands within you those lay those do not any claim for the upon?” service of water replied: Mr. Warner “That is correct,” and Master way Rifkind noted: “that going is we are to be bound. This is a statement that I seriously.” will take Counsel then re sponded that if there was a mistake in rights claims, the Indian water United [for] States would “ask leave to correct suggestion it.” This was clearly Master, rebuffed categories who labeled the irrigable maps lands indicated on the constituting Particulars,” as a “Bill of sub- understanding reflected and was well, That was our practicably-irrigable-acreage stand his and our choice of present deter allow a would ard as a measure which fixed that the It is untenable needs for water.15 mination of future in have parties, would Master, and Court understanding prevailing IX to undercut the tended Article irrigable acreage practicably was to be that the calculation subject. discussing much as final so without interpretation our ac- Article IX is consistent with This resolving long history original prior dis- cases. Our tion simple putes fact: reveals a and water over boundaries original adjudication reopen ac- in an This does not Court were factual determinations *16 whether initial tion to reconsider Mas- Arg. Special Tr. of before ject only to for clerical error. correction 649, seizing upon dissent, in 14,154-14,157. post, The at ter Rifkind anything give to he was not “authorized statement that Mr. Warner’s exchange that it reflects Master interest in the is away,” forgets that our irrigable by the submission on parties that the be bound Rifkind’s intent acreage. A Appendix in to import are collected passages of similar Additional 1982). (May 20, also Exceptions of See Support Parties in
Brief for State n. infra. 15 open-end decree disadvantages an of the of Rifkind’s discussion make this clear: decree, stating simply adopt open-end an possibility would be to “One rea- any particular time all the water may Reservation divert that each those who against necessary agricultural and related uses sonably for its However, such a subsequent to its establishment. appropriated water jeopardy of the uncer- rights in place junior all water claim would limitless irrigation projects would be se- Financing of tain and the unknowable. expand- possibility were faced with verely hampered if investors in reduction of the might result Reservation ing needs on an Indian Report, at 263-264. supply.” Rifkind project’s water feasible decree” reason, that “the most the Master concluded For this in the each of the reservations right water for to establish a would be irrigable acreage on practicably necessary irrigate to all of amount would uses. This satisfy related stock and domestic and to reservations provide to cer- magnitude priority so as fixed water of “establish Id., at 265. users.” and non-Indian tainty the United States for both 624 In two cases in
correctly made.
which
original
provisions
to
IX
virtually identical
Article
were included, subsequent
were
in
modifications
made
reaction to
circum-
changed
Illinois,
Wisconsin
stances.
v.
278
(1929),
U. S. 367
281
U. S.
U.
696
entered,
(1930),
decree
281
S.
temporarily
modified,
In Wyoming (1922), v. U. S. the Court corrected an *17 entry inadvertent four omission months after the of a 260 decree. U. 1S. (1922). (1967). Clark, 2 Rights See R. Waters and Water 338 17 Report Illinois, Special See Re-Reference Wisconsin v. of Master on in (“It 1929, 7, 11, O. T. 12, Orig., Nos. and 145 p. is that recommended jurisdiction Court questions should retain as there are it impossi which is ble dispose justice parties. of at this time full . . and unforeseen arise”); Jersey Master in New contingencies may Report v. New Special of York, 16, 1930, Orig., No. p. (recommending O. T. juris 199 retention of uncertainties”). necessarily diction future is fraught because “the with Master in Nebraska v. Wyoming, O. T. See Report also (“Recommendation 6,No. Orig., p. 10 is further made of retention jurisdiction upon Court of to amend showing change the decree a such operation render the might inequitable”). conditions as of the decree
625 Railway Employes Wright, v. 364 conditions.” U. S. (1961); 114 286 Co., 647 United States v. & U. S. Swift (1932). juris- note that our cases with similar reservations We equitable apportionment latitude diction involved where our injustices inequitable is at its broadest. to correct allocations jurisdiction If was limited to the even there our retention of changed circumstances, consideration of new issues and relitigation permit rather than to of factual determina- a res- based, a decree has been tions on which fortiori governed by equita- jurisdiction in this not case, ervation of apportionment, is no broader.18 ble urge relitigate, loosed, once will fear that the We also already easily indicated, have not cabined. The States reopened, irrigable-acreage stand- if that the the issue were light of our decisions be reconsidered ard itself should (1978), Mexico, v. New U. S. United States Passenger Fishing Washington Washington v. Commercial (1979), persuaded and we are not Assn., 443 U. S. Vessel the reasons for line can be drawn between that a defensible reopening the Tribes and the advanced and the on the other. the one hand States United States on parties the interests of all to this case counter to It would be may upsetting open Box, become a Pandora’s what aspects certainty of the decree. These considera- of all practice original cases and the our combinedwith tions, predi the claim omitted lands is seriously contended that for It is not only suggested change in circumstances. upon an unforeseeable cated adjudication more prior is the advent of pertinent development since increase the amount of irrigation technologies that would sophisticated however, technological im acreage. Clearly, such irrigable practicably indefinitely, recalculating if a basis for provements will continue finality at all. The acreage, the decree would have no irrigable extent of ought “technological alone not to call advances United concedes decree,” Reply 18. We complete Brief for United States re-opening agree. *18 judicata
strong res interests lead involved, us to conclude irrigable-acreage question relitigated. that the should not be principles judi- we have determined that the of Because res against reopening cata advise calculation of the amount of irrigable practicably acreage, and that Article IX does not unnecessary demand that we do it is so, resolve the bit- terly question contested of the extent to which the States detrimentally have relied on the 1964 decree. Detrimental certainly balancing equities reliance is in a relevant determining changed justify when whether circumstances modification aof decree. We believe that a certain manner swpra, of occurred, reliance has at 621, but even the ab- open of sence detrimental cannot reliance an final otherwise fully litigated Finality principles determination issue. meaningless adversarially would if become determined only equities against revising were issue final if the were it.19 Similarly, hardly changes it is determinative that the re- quested by the United States and the Indian Tribes do not involve reallocations of much water as was in involved litigation. requested initial from Aside the fact that the in- percent irriga- creases of between 15 in the amount of acreage hardly ble determined the initial decree constitute “relatively adjustments,” magnitude adjust- minor requested only ment is relevant it is established that the after underlying legal issue is one which should be redetermined. Finally, prior pro- the absence of the Indian Tribes ceedings relitigation in this case does not dictate or authorize rights. fiduciary, of their reserved As a the United States authority bring had full the Winters claims for the 19We are not convinced dissent’s assessment that “the balance hardships decidedly Post, this case is in the Tribes’ favor.” 655. As recognizes, the dissent currently “the Tribes are not able to use all the them decree,” post, allocated to under the 1964 at 653. When against shortages viewed the serious water all people, including faced Tribes, other hardly the Lower-Basin this is the mark of mani injustice. fest
627 litigation. Heckman v. United in the and bind them Indians (1912).20 in the find no merit 224 413 We States, U. S. representation of States’ contention that United Tribes’ inadequate of a claimed whether because was their interests arising interest the Government’s interests from conflict of property, securing rights or other- federal for other water represents interests varied often wise. The United States large given rights, particularly involving holdings variety See, in the West. land of federal extent g., District v. United River Water Conservation e. Colorado representation S., The Government’s 424 U. at 805. States, deprive our decisions does not varied interests of these finality. that the is no demonstration case, In this there fiduciary, in an actual con- involved as a was States, United case, initiation of this Govern- From the flict of interest. represent seriously responsibility to its has taken ment that the no indication Govern- and we have interests, Tribes’ respect representation interests with of the Tribes’ ment’s acreage legally irrigable practicably inade- was amount of Recognition not di- quate. would Indian water 20 Heckman’s holding that post, at dissent, square Contrary S., 224 at binding, U. of Indian claims is representation the United States’ by subsequent undermined, “repudiated,” alone 443-446, let has not been States, (1923), brought was a suit 261 U. 219 cases. Cramer United v. S. Indians right several individual to confirm the United States id., citation, A party. bare patented to a third possess certain lands Tribe v. in the case. Shoshone Heckman’s role is the extent of at Nation, v. Creek and United States (1937), United 299 U. S. dissent, involve upon by the (1935), cases relied the other 295 U. S. seeking compensa by Indian Tribes brought in the Court of Claims suits Neither of alleged takings of Indian lands. for from the United States tion Heckman. Nor does either mentions, qualifies, let alone even these cases in court. If binding interests of Indian the Government’s case involve case appropriate in an relevant, suggest it at all is cases are these may representation the Government remedy inadequate the Tribes’ any view now as We, course, not intimate do of Claims. lie in the Court remedy is available. such to whether federally rights.21
minish other reserved water Under the Project Act, there was no basis for the Government to be- lieve that Indian water and water needs for other fed- property competition. opinion eral were direct Our 1963 perfected rights bore this out: for the use of federal establish- charged against apportionment, ments were the States’ shortage, S., U. and, times of under decree, Secretary power of the Interior retained broad to ensure that *20 perfected rights for the use of federal establishments are sat- Id., isfied. S., at 593-594; U. at 343-344. Indeed, the substantial water allocations awarded the Tribes reflect the competency representation. of the United States’ We be- practicably irrigable acreage fully lieve the issue of was and fairly litigated in 1963.
Accordingly, exceptions we sustain the States’ to this as- pect Special report. Master’s
V dispute We now address the over reservation boundaries, during hearing which first arose before Rifkind.
A proof by In the course of the the United States as to the irrigable acreage extent of the of the Colorado River and Mojave disputed Fort Reservations, California the location of 21 Abreach of duty the United represent States’ the Tribes’ interests is merely not demonstrated showing that the Government erred in its cal irrigable culation acreage, or, whether oversight viewed retro spect, by unnecessarily cautious strategy. Certainly, a claim of inadequate representation is not found —at least not in a court of law— by sifting through testimony in Congress, speeches, Presidential and other commentary which discuss whether the Government has at other times other circumstances been press “slow to Indian claims.” The dissent’s post, sources, reliance on such 650-652, at only highlights that a claim of inadequate representation supported cannot be on Indeed, this record. the dissent concedes that the United States has not ordinary violated attorney standards of care as to be inadequate liable for representation. theory that reservations. On the
the boundaries of these adjudicate non- these controversies would leave failure to use, their as to the water available for Indian users doubt Secretary operate leave the doubt as to how and would the former below, Dam and the mainstream works Hoover boundary necessary dis- Master deemed it to resolve Report, putes, he held several 256-257, see Rifkind hearings seq. days Tr. et 19,992 on these matters. Cali- objected proceedings. The felt it fornia to these State authority represent private individuals who lacked part contended was claimed title to land the United States never- Id., at The Master 19,998-20,000. the reservations. boundary part in issues, for the most theless ruled on that the res- the Master concluded is, favor—that California’s a smaller area than the United States ervations covered irrigable acreage reserved water that the claimed and be determined on this basis. should position that the maintained its before Court California boundary disputed have Master should not determined contended that River Reservation. California the Colorado *21 any parties prejudice liti- of the future it would be unfair to by political jurisdiction approving gation titles or over land pleaded by findings tangential issue never United on a postponing determina- The also observed States. State boundary materially dispute affect the would not tion of the right disputed priority land was en- to which the of the water Irrigation both the Indians and the Palo Verde titled, since place disputed land, would District, which California specificallyobject high priorities.22 did not had California Mojave boundary dispute, Master’s resolution of the Fort issue, of this the Master because, on the merits no doubt entirely position. agreed with the State’s prop- responded acted that the Master
The United boundary disputes: erly by resolving the Exceptions Support of Their Opening Brief of California Defendants 1961). (May 279-283 boundary
“The determination of the of each Reservation prerequisite anis essential to the determination of the quantum rights of the water for that Reservation. question jurisdiction There is no theof Court’s to resolve boundary questions authority nor of the of California to parens patriae act as for its citizens in such matters.”23 any exceptions boundary The United States did not file to the determinations of the Master. accept boundary
We did not the Master’s resolution of the disputes: disagree
“We with the Master’s decision to determine disputed boundaries of the Colorado River Indian Reservation and the Fort Mohave Indian Reservation. unnecessary disputes We hold that it is to resolve those dispute here. Should a over title arise because of some by Secretary future refusal to deliver water to either dispute area, the can be settled at that time.” 373 S.,U. at 601.
The decree that we entered limited the water two reservations to those awarded the Master, based on irrigable acreage within the boundaries as he had found respect boundary disputes, stipu- them, but with 11(D)(5) parties,24 provided: lated Article of the decree quantities “[T]he [of water] [the paragraphs fixed in set- ting the of the Colorado River and Fort Mo- jave subject Reservations] appropriate shall be ad- justment by agreement or decree of this Court in respective event that the boundaries of the reservations finally are determined.” 376 U. at S., 345.
B disputes about the boundaries of the Colorado River *22 Mojave and the Fort Reservations are still with us. And 1961). Answering Brief (Aug. 16, of United States 95 (Dec. Agreed 1963). Provisions Final Decree 10 original since the time our decree was entered in 1964, dis- putes about the boundaries of the other three reservations emerged. necessary any have It is thus to decide whether boundary disputes “finally or all of these have been deter- meaning 11(D)(5), mined” within the of Article if and, so, upward adjustment whether the Tribes are entitled to an rights. begin summary their water We with a of each of the boundary issues.
We describe first the Colorado River Reservation bound- ary dispute. agreed Master Rifkind with California that the disputed portion boundary of the western of the reservation along ran the west bank of the Colorado River as it moved subject ordinary from time to time, rules of accre- rejected tion, erosion, and avulsion. The Master the United boundary point States’ claim that the was fixed at the where May the west bank of the river existed on 15, 1876, the date revising of the relevant Executive Order the boundaries of unnecessary the reservation. Because we found it to resolve question, dispute open remained for later settlement. January Secretary relying On 17, 1969, of the Interior, opinion Department’s on an of the Solicitor, issued an order directing approximately northerly two-thirds of the disputed boundary was to follow the meander lines of 1879 changing and 1874and was not to followthe west bank of the unilaterally Colorado River. This order, issued and with- hearing, out a 4,400 added some acres to the reservation. Later, the United on behalf Tribes, obtained judgment disputes private parties quieting final in title with parcels title the Tribes to various in the area added to the establishing reservation. Also, course of the western boundary, Secretary corrected what he deemed to be survey. approved plat error an old He the corrected add- ing 450 acres to the reservation on December 18, 1978. dispute boundary
Second is the as to the of the Fort Mo- jave specifically, westerly Reservation, the location of the boundary Hay portion of the so-called and Wood Reserve *23 632 reservation. Master Rifkind found the area officially surveyed survey,
had been in 1928 and that adopted by Depart- General Office of Land the Interior binding ment in 1931, was on United Water States. accordingly were awarded on this On June 3, basis. Secretary by 1974, however, the of the Interior, order, de- survey upon Spe- clared null void the 1928 relied survey cial Master and directed that a new be made so as to acreage description Hay reflect the total recited of the and Wood Reserve when it added was to the reservation survey accordingly prepared, plat 1890. A new was the final being approved plat on November 1978. This added to part some 3,500 reservation acres not treated as Mojave Fort Reservation when water were de- allocations litigation, creed in In 1964. this the United States claims approximately irriga- that this additional tract 2,000 contains provided priority ble which acres for should on a basis. post-1964 substantially enlarging
Third, a secretarial order engendered controversy. the Fort Yuma Reservation has question The that arose was whether some 25,000 acres of proceedings land, which in earlier in this case were not part claimed the United to be States of the Fort Yuma part Reservation, should now be deemed of the reservation, thereby entitling appropriate the Tribe to additional water rights. Department opinion, A 1936 Interior Solicitor’s agreement based on an 1893 with the Fort Tribes, Yuma had part ruled that these lands were not reservation. Op. Dept, Relating Solicitor of of Interior to Indian Affairs p. Department 596. In 1917-1974, Interior opinion. Solicitors reaffirmed the 1936 But on December prior parties participated 1978, with no notice to who had proceedings leading opinion, to the 1977 the Solicitor of the Department Interior opinions overruled the three earlier Solicitor agreement
and concluded that was invalid. (1978). Secretary opinion, 86 I. D. 3 The acted on that thereby adding acres to 25,000 the reservation. The next day, proceeding the United filed a claim in assert- ing irrigable. that some acres of this area were 5,800 *24 irrigable. Tribes claimed that even more of this tract was The Chemeheuvi Indian Reservation boundaries have also changed been 1964. acres 2,430 since Some were “restored” by August to this reservation secretarial of 15, order 1974. part This resulted a secretarial from determination that of the land taken the from reservation for construction Parker Dam needed. neither However, was not the United nor the claimed Tribe before the Master that any acreage irrigable there is within this addition. boundary developments There have been still other in the years in In since our decree this case. Fort 1977, first Mojave stipulated judgment Tribe a in obtained its favor against grant. assignees patent Nearly a railroad a thereby section of land added to the reservation, was irrigable. of which, claimed, Also, acres it is are since along acres there has been an accretion of some 883 the west Cocopah boundary Reservation, of the Indian accretion part that United States asserts has been confirmed as by May 12, a final the reservation court decree entered on 102(e) § Finally, 1975. River Basin Colorado Salin- (June ity 1974), L. 93-320 Act, Control Pub. Stat. Congress Secretary a directed the to cede tract of federal Cocopah to res- land Indians as an addition to their was to be full ervation. This cession intended considered payment right-of-way Cocopah for certain across Res- (1974). Rep. ac- No. 93-906 Between the ervation. See S. congressional and the the United States claims Act, cretion irrigable Cocopah acres have been added to the 1,161 Reservation. page, swpra, all recited, at 630-632 and this
As we have respect developments foregoing to with reservation entry place long prior supple- of our took boundaries apprised of them the mental decree in 1979. We were motions of the Tribes intervene and the motion of the by awarding United States filed 1978to amend the decree alleged water, additional based on what were to be final enlarging determinations the reservation boundaries and irrigable acreage supplemental therein. Our decree of 1979 did not rule on these motions or resolve these dis- putes. only expressly Rather, it not left unaffected Article 11(D)(5)providing possible adjustments respect with Mojave the Colorado River and Fort Reservations, but it open also left the issues about the boundaries of the other reservations: quantities
“[T]he
[of water]
[the
fixed
1964decree sec-
setting
tions
forth the water
of each of the five
Tribes]
subject
appropriate
shall continue to be
ad-
justment by agreement or decree
of this Court
*25
respective
event that the boundaries of the
reservations
finally
are
determined.”
The motions of the United States and the Tribes were re- Special ferred to the Master. Id., at 436-437.
C In its motion to amend the decree, the United States, with support the of the five Tribes, contended that the above- described events constituted “final determinations” of the meaning boundaries within of our 1964 decree. The parties agencies objected state and the California that the quiet judgments secretarial orders and the title were not 11(D)(5) meaning “final determinations” within the of Article they given of our opportunity decree, since had not been participate any proceedings, of these and since the ad- susceptible judicial ministrative orders were still They argued, review. boundary however, that controversies ripe judicial they urged were review, legal arguments, Master to receive evidence, hear and re- boundary disputes, only solve each of the but for the limited purpose establishing rights, any. additional Indian water if
Observing the former Master’s had rebuffed that we disputes, Special attempt Tuttle Master to resolve these rejected novo make a de that he should the contention recognizing that While determination of the boundaries. appropriate might in an be set aside the secretarial orders judgments, although judicial “ac- court and that the forum, judicata Secretary, cepted” by as to the not res were agencies, parties never- the Master the California state or finality “provide[d] the sort of these acts theless found boundary contemplated it left the dis- when the Court concerning putes later determination.” Reservations for boundary regarded Report, dis- He the two at 64. Tuttle involving “conflictingposi- putes 1963as Court before ambiguities Department in the or Interior tions within sec- description the recent “definitive” Had of boundaries.” “swe[pt] aside inconsistencies have orders, retarial which hearing ambiguities,” time of the before at the existed they any that the prior have removed choice “would Master, regarding proper may bound- prior had have Department sur- fixed Interior boundaries aries,” because proceedings.” veys at 67-69 Id., in collateral are “conclusive Angeles, (citing 296 U. S. Consolidated, Ltd. v. Los Borax (1935); 240, Stoneroad, v. U. S. 16-17 Stoneroad (1895); Knight Assn., 142 Land v. United States 250-252 (1891);Cragin Powell, v. U. S. 176-187 U. S. (1888)). 698-699 parties’ argument by the state unmoved was
The Master *26 any “day ad- they in court” before their not receive that did of judicial he was “aware decisionmaker, since or ministrative any by any disputed of the areas of the to land no claim Any remaining Report, con- at 74. Tuttle Parties.” State by the in the final decree of inclusion met the could “be cerns now provision the allotment reduce that would of a Court pro to be for lands found sought tanto of the Tribes on behalf subsequent irrigable determines practicably which Accordingly, the Master at 75. Id., Indian land.” not to be of boundary almost all the set forth the accepted changes motion the the and States, of United and the agencies filed their exceptions.
D with We cannot the Master that the reserva- agree tion boundaries “fi- by extended secretarial order have been 11(D)(5) nally determined” within the of Article of meaning our 1964 lines, decree. With to these we respect boundary sustain the and decline to increase the Tribes’ exceptions water at time.25 However, with respect boundaries determined by judicial we overrule the decree,26 the Master’s conclusions. exceptions adopt In our 1963 when we set aside Master Rifkind’s opinion, determinations as boundary and referred to unnecessary pos- sible future final we no that settlement, way intended parte ex secretarial determinations of the issues boundary would “final constitute determinations” that could adversely affect the their or agencies, private users hold- 11(D)(5) In ing priority rights. place, the first Article was a it stipulated provision; is implausible suggest that the 25 Itfollows a from this conclusion that we must overrule the fortiori United subsequent States’ claim that action administrative to the date the report “finally his filed has determined” the boundaries of another disputed alleged part tract —the so-called “Checkerboard to be of area”— Mojave the Fort Report, Reservation. See Tuttle at 81-83. (1) boundary by 26 Theseinclude: the fixed judgment the in favor Mojave against assignees Fort patent grant; Tribe of the railroad (2) boundary by May determined court decree which part confirmed Cocopah certain accreted land Reserva supra, only tion. judgments See at 633. The other court relevant to this by case are those obtained the United States on behalf of the Colorado River judgments Tribes. quieted parcels These title Tribes’ to certain totally land within the area added to reservation the secretarial January 17,1969. order of See supra, Accordingly, 631. in view of our holding determinations,” secretarial orders do not constitute “final River Colorado Tribes will have await the litiga results of further they tion before can receive increase their water allotment based on part land determined to be judgments. the reservation these latter *27 parte meekly stipulated secre- to ex have so would States judicial beyond review. the reach tarial determinations insisted that that Furthermore, it was the United States boundary disputes. adjudicate the Rifkind should Master complied, Special filed no and the United The parties objections all of the Indeed, conclusions. to his fully adjudicable boundary issues of matters as treated the those mat- wanted fact or law. The United States material apparently adjudicated wanted here; California ters be they But no one contended elsewhere. them resolved judicially Present and former resolved at all. should not be Department and co- Interior testified officials of the hearing fully operated at the before with the United States appeared Department’s as to be The views Master Rifkind. suggested they No one final as ever would be. definitive and being con- determinations were that future administrative pur- any proceedings templated, future would or that such conclusively port the issue then before to determine Court. Secretary’s nothing to the intimate course, we now
Of authority power or as to the the actions that he did or to take It must the merits. his determinations on soundness of accept Master Rifkind’s we did not that while remembered boundary under our to the Tribes decisions, water allocations irrigable the reserva- to the lands within were limited decree to be. had determined them as the Master tion boundaries present up the benefit of the States have had Thus, boundary victory issues; Rifkind on the before Master their something they might to set have done if there were and even disputes judicial proceeding left to resolve the in motion some obviously great they open by incentive to had no decree, our the intervenor hand, on the other do so. United rights, might proving have insti- reserved the burden of with judicial proceedings appropriate Courts, District tuted Master would tried event the issues which Secretary relitigated. presumably Instead, have been *28 bring by chose to matters to a head a series of secretarial or- culminating moving ders, with the 1978 in motion this Court irrigable acreage for a determination of the within the bound- ary recognized by Secretary, lands appropriate and for additional water allocations. agencies
While the California have filed suit to set aside extending the secretarial orders reservation boundaries, the yet sought litigation. States have not to intervene in that They, along agencies with the state themselves, insist that refusing adjudicate in Tuttle erred boundary exceptions respect issues, that their in this should appropriate be sustained, and that action should be taken to disputes original respect, resolve the in this action. In this disagree we enough with the States. It is clear us, and it enough opin- should have been clear to others, that our 1963 anticipated possible, ion and 1964 decree if that, at all boundary disputes would be in settled other forums. At this juncture, we are unconvinced that the United States District Court for the Southern District of California, which the challenge Secretary’s actions has been filed, is an not available disputes. and suitable forum to settle these We note that the United States has moved to dismiss the action agencies standing, filed based on lack of the absence of indispensable parties, sovereign immunity, appli- and the cable statute of enough, limitations.27 There will be time if any grounds of these for dismissal are sustained and not over- appellate turned on review, to determine whether the bound- ary issues open foreclosed such action are nevertheless litigation litigation goes in this Court. If the forward and is enough concluded, there will then also be time to determine impact judgment outstanding on our decree with respect rights.28 to Indian reservation water 27The agencies’ District Court in stayed suit has proceedings further pending this Court’s present decision in the case. Metropolitan Water District v. United 81-0678-GT(M) 1982). Civ. No. (Apr. 28, post, dissent, ascertains “no purpose” discernible in our re fusal to award the Tribes immediate increase in their in the judgment,
Hence, our filed in the United States District Court for the Southern District of California go any should forward, intervention if motions, are to be promptly litigation expe- made, should be made, and the ditiously adjudicated. If there are issues that action with- original out substantial connection to the issues in this action, they adjudicated separately should be severed and if their substantially delay consideration would the final resolution questions necessary keep which have made it our open decree this action to accommodate the results of *29 unresolved issues.29 part
areas by determined to be parte reservations the ex secretarial agrees orders. The with Special dissent the Master that the Tribes should increase, given qualified by now be an proviso the that these will be pro practicably irrigable acreage reduced tanto for in an area which subse- quent litigation determines not to be Indian land. Unless it is assumed any challenges Secretary’s that the fail, are determinations bound to the approach dissent’s has little to in judicial economy commend it terms of or Its, finality. our, anticipates as well as resolution further that may Moreover, affect the our terms of decree. it require would us to de- now, perhaps unnecessarily, propriety cide findings the of the Master’s on irrigable acreage. reasoning deprive The dissent’s would also basis,” 656, on a post, albeit “conditional at of valuable water now them, affording vested in without slightest them the semblance of a fair (1972)(invali- hearing Shevin, on their claims. Cf. Fuentes v. 407 U. 67S. dating procedure allowing prejudgment taking property without notice hearing). plausible or The dissent identifies no basis for its conclusion that parte an ex determination party litiga- executive officer of a to this tion should constitute a “final determination” meaning within the of our decree. observes, post, 657-658, 10, that, dissent also at n. under our hold-
ing, bring real pending litigation States have no incentive to to a prompt approach adopted, however, conclusion. If his were the United similarly present, States and the Tribes would lack At incentive. we have no reason to believe the District Court will fail to ensure that the pending litigation promptly will be concluded. agencies If the challenge recently States and/or wish to final regarding area,” ized administrative action the “Checkerboard see n. supra, they complaint their should amend and raise the issue in the District Court suit. judicial adjudications boundary
As for the several dis- putes very lands, that determined certain lands to be Indian Special little need be said. The Master observed, and the proclaim, parties States that the States were not to these ad- judications judicata and are not bound them a res sense. This is but correct, neither the nor the California agencies, exceptions any briefs, their or have asserted that mistakenly parcels of the decrees determined that the of land adjudications at issue were reservation lands. To the contrary, support exceptions States’ brief of their de- challenge “[w]e clares that any do not seek to title determined in upon by Excep- of the cases relied the United States.” tions of State of Arizona al. 64. et being adjudications practical
This so, these are final as a only remaining concerning par- matter, and the issue these cels, which the land, States concede are Indian is the same Special issue that would remain if the Master had made the boundary same determinations and the States were content accept namely, practicably irrigable how much them— acreage parcel? exists in each such That issue Mas- parcel litiga- ter Tuttle determined as each involved in this tion. Insofar we id., can discern from States’ brief, Table not States do differ with the Master’s deter- *30 irrigable acreage of mination in the areas added to the res- by judicial way except perhaps ervations decree, the ex- to by parties.30 tent few of a acres the tract labeled FM-11 the argued portion The States to the Master that a small sandy irrigable. FM-11 is too to be Master, The however, 30Seventeen acres of FM-11 were part determined to be Fort the Mo jave by judgment Mojave Reservation the Follette, Fort v. La Tribe Civ. 1977). (Ariz., 7, No. Supplemental 69-324MR Feb. See Memorandum for 1982). Respect Exception (Sept. United States with to First 27, Its The of FM-11 has remainder not been added judicial to reservation de cree; part it id., 3; 25, is of the “Checkerboard area.” See at n. supra. sandy The States claim that acres of FM-11 are too to practicably be irrigable, appears few, it if any, but that of these 24 acres are within the part of FM-11 awarded the Tribe in La Follette decree. See State 158(G). Parties’ Exhibits sandy
recited there evidence that is no land the FM-11 suggest rejecting tract, and the for States no basis the Mas- practicably irrigable.31 ter’s that determination this land is Therefore, we conclude that the should decree be amended by providing respective appropriate to the reservations irrigable acreage to service the the Master adjudicated by to be found contained within the tracts court decree be reservation lands. expansion Cocopah
There is no issue about the of the Res- by congressional right ervation statute. The water for given addition given could not be not was reservation right a The retroactive date. accorded dates priority prior from June and hence not 24, 1974, will disturb the parties of the or the other States this case. HH < disposition Because of our issues, the above it is not nec- essary exceptions brought by to resolve the other the States agencies pertaining irrigable and state to the amount of acre- age within the so-called omitted or within lands the bound- recognized finally not aries that we have at determined similarly unnecessary pass this time. It is us to on exceptions brought concerning the United rec- States parties The be- submit, ommended decree. are directed to September proposed carry fore decree to opinion into effect.
It is so ordered. hearing Tuttle, expert At presented before Master the States testimony sandy who acreage practi of economists stated that could not cably crop yields production be farmed because would too low and costs eco high. excepted rejection have too to the Master’s of this testimony. However, accepted nomic testimony soils expert, sandy who no on United States’ concluded that lands existed Report, Tuttle have not FM-11. 188-189. The States contested *31 sandy, finding that the soil on FM-11 and mat Master’s is not this ends the unnecessary arguments It re ter. is thus us to consider States’ feasibility sandy farming the economic of soil. garding on part Marshall in Justice took no the consideration or decision of this case. Brennan, with Blackmun and
Justice whom Justice join, concurring part dissenting in Justice Stevens part. join opinion, granting petitions
I III Part of the Court’s Mojave, to intervene this action filed the Fort Colorado (collec- Cocopah, River, Chemehuevi, Quechan Tribes Tribes). tively, premise agree I also with the basic opinion IX Part of the that in Article of our 1964 IV Court’s power decree, 376 retained the to recon- 340, 353, U. S. we quantification rights, sider our of the Tribes’ reserved water 11(D) 343-345. decree, id., as set out Article part company I ante, however, See at 618. with the Court, power, given unique its refusal to exercise circum- timing of this and the stances the Tribes’ and inexplicable addition, motions. In I find United States’ exceptions to sustain the of Arizona, Court’s decision Califor- (hereinafter States) agencies and the nia, California Special proposed boundary Master’s solution to the lands controversy.
I irrigable The so-called “omitted” lands are areas, within reservations, the Tribes’ identify during which the United States failed to proceedings Special
the extensive before preceded Master Rifkind that our 1964decree. The fact that irrigable lands were not called to the attention of the Master significant or the Court is because the Master and the Court that the amount held of water which the Tribes were entitled depended from the mainstream the divert Colorado on “irrigable the number of acres” each within reservation. 373 (1963); Report U. S. Master Rifkind (hereinafter Report). Although 263-265 Rifkind the States vociferously dispute exactly how much of the omitted lands *32 they dispute irrigable, in fact do not two facts critical to are question First, the Court. even the the now before under legal portion a substantial of theories the omitted States’ irrigable Report Spe- acres, least see 18,500 are of lands —at (hereinafter Report) Tuttle Master Tuttle cial —and rights supported have award of additional diversion would they 1964 decree had been identified at that our time. completely present failed to Second, the United States evi- regarding irrigability lands the of these until after the dence sought proceedings in leave to intervene in these Tribes 1977. arguments correcting strong quantifica-
There are for in- tions the Tribes’ diversion decree, economically the amounts of water that could be used clude irrigate the omitted lands. As this now stands, finality strong, are not nor considerations of so the interests justice sys- weak, so Court would have them. The contemplated by allocating tem our 1964 wa- decree yet River’s ters Colorado Lower Basin has to become practical final, either or as a formal as a matter, correc- way compromise tion the decree at this time in no would continuing our intention to final effect a allocation of awarding Basin Lower mainstream. Furthermore, addi- irrigable acreage tional diversion to reflect not con- prior in- sidered to the 1964decree would correct a manifest justice who were before Tribes, not themselves any, prejudice if little, Court and it would do so with parties litigation. to interests of other to this
A opinion excessively principle The Court’s extols “finality,” “finality” but dif- overlooks the caveat means that things in ferent finality different that the law accords contexts, and weight depending
different context. First, on the nondiscretionary support largely from Court borrows formal, judicata. doctrines such as res admits, however, res It judicata applicability has no to this case, ante, 619, for the simple reason that the omitted lands claims have been raised proceeding they in the course of the same in which were supposedly proceeding yet decided and that before, has not stage judgment. reached the of final In a case such as this, party questions when a seeks reconsideration of decided at an *33 stage single, continuing litigation, earlier of a the law allows party courts more discretion than a case in which the upset judgment proceeding, wants to a final in another before judge. generally another See IB J. Moore T.& Currier, (1982) (herein- 0.404[1J Moore’s Federal Practice ¶¶0.401, Moore); Smelting after cf. United States v. United States (1950). Refining Mining & 339 Co., 186, U. S. 199 judgment A final makes a difference. It marks a formal point economy, certainty, at which considerations of reliance, comity strength they take on more than have before the judgment. A prior ruling court’s decision to reconsider a be- ultimately fore the case becomes final, however, is a matter “good of sense.” Moore at §0.404[10], 573. Concern for finality important policy, judg- remains an even before final ment. In overriding the absence of some reason, a court reopen should be reluctant to that which has been decided merely though power correct an error, even it has the Messenger do so. See v. 444- Anderson, U. S. (1912). traditionally Nevertheless, federal courts have thought correcting injustice a manifest was reason enough prior ruling, to reconsider a see Moore ¶0.404[1], p. although they may party and, hold a to its failure litigate opportunity, they claim when it had the have re- garded finality compelling question concerns as less when the actually at issue has never been see contested, Hartford Life (1921).1 Ins. v.Co. Blincoe, 255 U. S. equity 1 The doctrine ante, “changed circumstances,” 624-625, see many reflects of the same principles. changed Yet even if circumstances are necessary to modify injunction I equity doubt that an court —and would turn its back on injustice they manifest have never been the sine — “finality” practical ap- The Court uses also a more sense, pealing society having property to the obvious benefits to meaning finality be certain. This underlies the development Court’s invocation of Abraham Lincoln and the needs importantly, of the West. at 620-621. Ante, More it “irrigable acreage” was central to the Court’s choice of an highest standard in 1963, for that measure accorded the degree certainty to all Lower Basin interests. rejected proposal Master Rifkind Arizona’s that the Indians only enough satisfy presently be allocated water to their fore- precisely needs, seeable because that solution would be sub- ject “placing] junior rights to re-evaluation in the future, all jeopardy of the uncertain and the unknowable.” Rifkind Report urged 263-264. Therefore, he the Court held, —and S., 373 U. at 600-601:
“[T]he adopted most feasible decree that could be accepting even case, Arizona’s contention, would be right to establish a water for each of the five Reserva- *34 necessary irrigate tions the amount of water to all of practicably irrigable acreage on the Reservation. preserve .. . This will the full extent of the water rights created the United States and will establish rights magnitude priority provide fixed and so as to certainty for both the United States and non-Indian Report users.” Rifkind 265. although Special
Thus, the Court stresses Master Rifkind’s interest in a fixed and final decree, see ante, 622-624, largely n. 15,that question interest is irrelevant to the at hand. having One can share Rifkind’s interest a fixed decree, and even Abraham Lincoln’s scorn for scoun- drels in courthouse basements, still think it desirable to correct the decree before it becomes fixed. Our interest enough fixed, reliable decree is well if served we make clear qua non adjusting a decree in process making ques- it final. The tion before us is whether we should do that. subject reopening,
that it should not be
to
even to correct the
kind of clear error that the Tribes and the United States have
litigation
here,
shown
once this
becomes final.
acknowledges
The Court
that this
was far from
final when the United
and the
Tribes raised the claims
now at
because the
issue,
Court had not confirmed a list of
“present perfected rights,”
rights
or
to use Colorado
River mainstream flows that vested before the effective date
Canyon Project
§
of the Boulder
Act of 1928,43 U. S. C. 617.
system
Ante, at 611. The allocation
for the Lower Basin
“present
could not become final until an authoritative list of
perfected rights”
priority
and their
dates had been estab-
lished.2
II
Article
of the 1964decree identified a number of
“present perfected rights,” including
federal
those of the
representing rights
Tribes,
to divert about 900,000acre-feet
per year.
of mainstream flows
The 1964 decree, however,
any “present perfected rights”
did not
acquired
address
“present perfected
under state
rights”
law. The full list of
was not submitted to or confirmed
this Court until 1979.
quantified by
See
2It unnecessary is fully complex describe structure of our 1964 de cree. say Suffice it to that the Indian Tribes’ at issue in this case among are “present perfected rights,” they only but are not the such rights. These important are Secretary because the of the Interior obligation has an satisfy them extent, to their full and that water is charged against the States’ overall entitlements under the 1964 decree. Furthermore, in drought years “present perfected rights” cannot be made pro to bear rata along reductions users; rather, with other water the Secre tary obligated is satisfy full, them in starting right with the established *35 in first time and proceeding chronologically (except for the rights, Indian which must be regardless satisfied first priority, 419, of 439 U. S. 421 (1979)). practical As a matter, then, “present perfected the more rights” are, there the less certain it is that other users will specific receive a amount of any water in given year, especially years in when mainstream flows are less than the 7.5 million acre-feet benchmark in used the 1964 decree.
647 litigation sought in for intervene to first Tribes when-the in raising claims, and purpose lands their omitted of entry supplemen- a for moved the United when concerning to issues critical lands, omitted tal decree finally yet system had to be allocation 1964 decree’s determined.3 recognized primary long been it has
Furthermore, regimen allocat- for object to establish was of this permit sufficiently reliable to ing Basin waters Lower go Ari- Congress with the Central to forward and Arizona public make Project, works effort to Colorado a massive zona agricultural in Ari- interests central to available River water Meyers, Report River, The Colorado 38-39; Tuttle zona. (hereinafter (1966) Meyers). pur- That L. Rev. Stan. Project accomplished. pose The Central Arizona has been has now reached and construction was authorized Project stage. is still But even at this late date advanced begin ready completion. years to And until it is from several system diverting allocation our water, River Colorado importance, practical because Arizona little 1964 decree has capacity use most of the water allocated lacks the init the 1964decree. dispose “finality” not of this
In the interest does sum, judicial economy provide Principles the sole basis case. But 1964 decree. for the Court’s refusal to correct the significant adjudicative expended on the no resources were prior proceedings 1964de- in the to the omitted lands claims although they all. cree, And, because were not raised at identify irrigable lands United failure to the omitted States’ years join depriv- ago should I cannot excused, not be ing permanently significant rights to water on the Tribes especially prejudice I that basis when see little alone, mo The 1979 decree we acted on the Tribes’ was handed down before any tions to intervene the Court. The decree or claims now before Judge expressly open left these and referred them matters resolution Id., 421-422, Tuttle as Master. 436-437. *36 1964 decree to the extent neces- from the reopening States to correct error.4 sary
B if The Tribes will suffer a manifest we fail to con- injustice claims. Under the sider the omitted lands uncorrected 1964 the Tribes stand to lose forever valuable decree, are entitled under the Court’s construction they which of the Executive their creating reservations, S., Orders U. at 595-601. This loss occurs because the United entirely failed to its as trustee and advocate perform obligations all present evidence to Court of lands within irrigable at reservations, or least to make a record of its justification for not such evidence. presenting
It is not certainly the case that the United States made a considered decision to waive the Tribes’ claims to water for ante, the omitted lands. Cf. at 617-618, 7,n. and 622-623, otherwise). n. 14 (suggesting The existence of some omitted suggests The Court if reopened that we question irrigable acre age we would also have to “irrigable reconsider the acreage” standard it ante, self. See at raising 626-626. In specter, that ignores the Court obvious distinction between the application standard and its to the omitted lands. No issue subject was the controversy of more proceedings in the leading up to our 1964decree than “irrigable acreage” standard. Un quantification like the actual acreage, of the the standard was discussed ex tensively, in Special both Master report, 257-266, Rifkind’s opinion, Court’s (1963). 373 U. S. 600-601 “irrigable acreage” standard has fully been fairly litigated. Nor opinion does the Court’s or report Rifkind’s indicate that some other standard of measurement would have been chosen had the apprised Court been irrigable acreage in the omitted lands. This adopted “irrigable Court acreage” standard for the reasons stated in opinion its only is the “feasi —it ble and way by fair which reserved water for the reservations can be meas ured,” id., at 601. It purposes reflects the for which the reservations created, were and once final it need not readjusted be in light changed circumstances, equitable unlike an measure linked to expected current or population. If a few acres worth of water more or less would have changed decision, our we would rejected not have argument that In dian determined equitable familiar principles rather than objective the more standard. hearings, point light in the irrigable at one lands came specialist mesa agricultural mentioned some when *37 by acreage irrigable adjacent the United claimed to lands App. irrigated. to Brief for State could also States Special Exceptions Rifkind Support 11. in Parties representative immediately pressed for an the States’ United irrigable spot express all to water for the claims waiver on pre-1964 hearings, acreage the at- but the not identified give probably torney responded, “I to am not authorized away ought anything at 12.5 Id., we to claim.” that (1912), ante, 224 U. 413 see States, v. S. Heckman United require Tribes cost us to make the bear the 627, does not at question The in Heck- error. relevant of the United States’ by defendants, non-Indian was whether individ- man, raised by necessary parties in a suit the United ual Indians were by conveyances lands to aside those Indians of States set by they and alienate, to over which were forbidden statute significant responsibilities. 224 the United had trust States had at The held that the United S.,U. 444. Court statutory power to the the ac- enforce restrictions without quiescence by that virtue of restric- Indians, of the subject no tions individual Indians had interest passing, In noted Id., matter of the suit. at 445. the Court representation that Indian interests United States Congress legis- plenary “traces its to the source control of lating protection it its care, of the Indians under recognizes the dis- no limitations that are inconsistent with charge duty.” Ibid. the national
5 ante, 622-623, reading exchange See n. 14. A close of the between Spe attorney Master Rifkind and reveals the Government cial Master In press binding did not continue his for a waiver. to demand light responsibilities United States’ trust delicate Indian cases, it improper require attorney split- would have to been make important response second decision to concede an claims in to sur class of 1.80, prise testimony Complex § Litigation from a witness. Cf. Manual for (1982); p. Chayes, Litigation, 89 Judge Role of the in Public Law (1976). 1281, 1291, Harv. L. 89 Rev. 1297-1298 650 relationship recognized in not for the trust
itWere cases, the United States’ deci- Heckman and other estop separately Tribes, who were not not sions could represented. Insofar as Heckman intimates that the United to-compromise subject power Indian interests not is States’ long scrutiny, repudiated judicial it has since been g., e. Shoshone Tribe v. See, States, this Court. United (1937); United States v. Creek Nation, 299 U. S. (1935); v. Cramer United S. U. S. U. (1923). recognized we Instead, 227-229 have that the relationship Indian United States’ interests is much like beneficiary. fiduciary that of a to a Under the modern view, duty” “discharge requires sharp of the national attention quality of the United States’ fulfillment itsof trust ob- *38 ligations, including obligation represent the Indian inter- litigation. ests question quality
There often has been reason to of that representation, especially rights when to scarce water in the In West were at stake. 1973, National Water Commis- reported: history “In sion of the United States Govern- protect ment’s treatment of Indian Tribes, its failure to rights Indian water use on the Reservations it set aside chapters.” for them is one of the sorrier National Water Report Comm’n,Water Policies for the Future —Final Congress President and to the of the United States 475. President Nixon message admitted as much in a 1970 Congress: legal
“The United States Government acts as a trustee rights for the land and water of American Indians. rights These importance are often of critical economic people; frequently they Indian subject are also the legal dispute. many extensive legal In of these con- government frontations, the Federal is faced with an in- herent conflict Secretary of interest. The of the Inte- Attorney rior and the General must at the same time both advance the national interest use land and private in land of Indians rights interests water government as trustee. holds which that the Indians evidence There is considerable . . H. R. Doc. arise.” such situations when the losers are (emphasis Cong. pp. Rec. 23261 9-10, 91-363, No. original). explains carefully had no that the United States
The Court regard to Lower Basin water with interest” conflictof “actual recognition apparently means that the rights, it which federally reserved diminish other did not Indian agree. rights. Nevertheless, I at 627. ante, See water history always not taken States has that the United discloses in water controver- its interests narrow view of such a it has con- elsewhere, River and On the Colorado sies. projects nonfederal inter- to serve extensive water structed Canyon congressional Dam of the Boulder authorization ests; development Basin, of the Lower the crucial event was inception. shaping atS., from its See U. been slow to has sometimes The United States 564-590. they politi- press conflicted with those Indian claims when g., Pyramid cally e. See, interests. influential non-Indian Supp. 256-257 Morton, v. 354 F. Lake Paiute Tribe (DC 1973). generally of Indian Federal Protection See Hearings Adminis- on Resources: before Subcommittee on Practice and Procedure of the Senate Committee trative *39 (1971) Judiciary, Cong., 907-914 Sess., 235-249, 92d 1st (hereinafter Hearings); F. Handbook of Fed- Cohen, Senate (1982) (hereinafter Cohen).6 We eral Indian Law 596-599 ways making a deci many compromising There are a claim besides investigating pre and press Devoting sion not to it. fewer resources to paring importance warrant has the same the claim than its economic would this, responsible Department effect. In eases such as the Justice is for court, Department pressing the Indians’ claims in but the Interior and experts employs responsible developing it are for the facts of the claim and Department. practical it bringing to the attention of the Justice responsibility may to confer effective result of this bifurcated often be irriga- leap conclusion that the therefore, not, should including bility lands, the omitted lands, of all reservation fairly litigated fully 628. 1963,” ante, “was (if needed) any proof provides is that those with This case spiritual historical, the out- economic, direct interests — —in representatives. Upon their own best en- of a case are come swiftly exposed tering litigation, the Tribes extent of this pre-1964 neglect. I not would hold that the United States’ ordinary had so standards the United States attorney violated representation “inadequate” to be liable care as for litigation, if of the Indian interests this that were the liability, standard of on the basis of the mere fact that it rights irrigable acreage. failed to claim water for some But justification any I not find in record do the United present States’ failure on evidence the omitted lands. if Even States United did intend to waive the omitted good judgment, I claims, reason, lands see no before final deny hearing the Tribes a on claims that have never been liti- gated. justice, As a matter of the Tribes deserve this rights chance to defend which should have been theirs.
C deciding In whether to correct the 1964decree, we should any possible prejudice also might consider which the States suffer prefer as a result. Of course, the States would rights we not allocate additional water to the Tribes; at least point at some may future, additional Indian junior make the appropriators state less certain. regard With finality, prejudice to timeliness and however, prejudice procedure means from rather than from the result. important question Hence, the is whether would power to waive Indian claims on Interior Department hydrologists agricultural experts. See Hearings Senate (testimony 445-449 Kiechel, Jr., W. Deputy Attorney General, Assistant Land and Natural Division). Resources *40 were Indian additional the because off worse any 1964. than rather in 1983
confirmed and de- at length issue considered Master The Special preju- significantly not be would the States that termined Report Tuttle decree. the 1964 by adjustments diced how- States, by reliance question The whole 38-46.7 First, of speculation. degree highest involves ever, Ferry, at Lee Basin the Lower entering of water amount has Basin interests Lower use by available Ariz., million acre-feet the 7.5 more than far averaged historically 117. Rifkind Report See 1964 decree. by contemplated Basin in the Upper occurs development far more Until Further- to continue. be expected can that situation and conservation farming, in irrigation, more, improvements efficient exploitation more well permit technology may that more water, so of available and future quantities present or less amounts the same be accommodated users will water. all the able to use not currently Tribes are addition,
In sub- 1964 decree.8 Until under the to them allocated con Congress authorized in 1968 observed The of main projections Project based on Arizona struction of the Central pro than current by Arizona far lower for diversion stream flows available Project Arizona possible argue that the Central jections, so that it is not receive additional commercially viable if the Indians not be would Sess., Cong., 1st 90th Report 38-41; Rep. see No. rights. Tuttle S. (1967). would be that water 18-21, Special Master also found 32-35 begun capacity projects full of water available to meet the diversion Dis Metropolitan Water Report 44-46. The after 1964. Tuttle Nevada junior major appropriator California— trict of Southern California —the why will “fully explain [it] reliance, did not presented some evidence of but Id., rights.” if the receive additional water receive less water Tribes Metropolitan any event, projections of demand 42. In under current before ready existing its entitlements Water District will not be to use Ibid. year 2010. water for Mojave began Tribe to use its
8 From when the Fort time, collectively only 77% of through 1981, diverted first the Tribes In individual they water to which were entitled under the 1964 decree. *41 654 plants systems irrigation built, industrial are or
stantial new rights any Tribes receive will have that the water additional availability practical to other on the of water effect little or no probably their The Tribes can lease interests. Lower Basin rights consent of the United but with the to others option extensively. they explored Cohen not this See have Meyers Op. Dept, of cf. 2 Solicitor of Interior 71; 592-593; (1964). p. Relating 1930 1917-1974, Indian Affairs Even to rights if their to other the Tribes leased all of Lower Basin existing merely mean with it would interests users, pay means water the Colorado River to divert from would If market rate for additional water. the Tribes do not lease rights, simply their the water will be available for use in interests, other Basin accord with Lower the allocation system any In established decree. non- event, deprived in Indian users will not be of water the near future rights on account of the issue in case. correcting
In sum, decree to reflect additional irri- gable acreage in the lands omitted would not harm the States they more than would been have harmed had the omitted framing lands been in considered the 1964decree. In truth, rights unlikely Indian water are to affect state interests to any significant degree generation, until well into the next years, ranged (1981) diversions from of 83% the 1964 decree awards to 72% (1978). Dept. Interior, U. S. of Reclamation, Bureau Compilation in Records Accordance with Article V of the Supreme Decree of the Court of the United Arizona v. 9,1964 Dated March California —Calen dar Years 1925-1981. all, The Chemehuevi no although diverted water at they ibid., 11,340 are to entitled year, acre-feet a appears because there system be no diversion place on reservation, their either purposes for irrigation or for other development. See Hearings (testimony Senate of R. Esquerra). The Report Master’s makes clear that substan capital tial investment required would be begin before Tribes could use g., See, additional e. water. Report 165-184,242-248. Tuttle On the Mojave Fort Reservation expert alone United States’ estimated that over $2.1 million would required develop six units of for land which the United States claimed additional rights. water See Ex United States hibits 132-140. have of time to all will had plenty prepare.
when concerned Tribes from their rights if now asserting Yet we foreclose for- those will be lost lands, to water the omitted own. balance of hard- no fault their ever, through Tribes’ In order decidedly is favor. this case ships to the Tribes before this injustice litiga- to avert a manifest the allocation in the 1964 de- system tion final and becomes I would the 1964 effect, a practical reopen cree to have begins additional for the Tribes. decree to recognize
HHH-4 some of this differ over might aspects Reasonable judges solu- I have the Master’s case, Special but would not thought the lands was them. boundary controversy among tion to to a decree that includes a approve quan- The Court’s failure of the rights disputed tification the water to appurtenant no and it is boundary purpose, pro- areas serves discernible with its Part of its opin- inconsistent IV foundly emphasis judicial ion on the ideals of finality, economy, predictabil- its water At no does the explain of Court ity rights. point of the Master’s reasonable rejection Special entirely proposal regarding boundary the lands.
In our we Rifkind’s Master opinion, rejected Special de novo determination of boundary disputes two concerning 373 U. and our 1964 decree reservations, S., of at addi- left the extent an of open was to of award permitting deter- “finally tional water should the boundaries decree mined,” 11(D)(5), Art. at 345. The 1979 S.,U. actual of all five reservations recognized that the boundaries the out- are 421-422. At subject S., to U. dispute. of all agreed set of current this phase litigation, parties certainty it degree that was time to the maximum bring to task requir- the Lower Basin allocation possible system, at least boundaries, “final ing determination” the disputed for the Tribes’ entitlement purpose quantifying before water. States the Tribes urged The United determinations Master that certain administrative Special Secretary finally had of the Interior determined disputed where the reservations, boundaries bound- lay aries between reservation land and other federal lands.9 argued, they as The had that this Court should determine the relevant boundaries de novo. put chose a middle course, calculated further in this Court. He end to took evidence irrigable acreage
on and the amount determined within the recognized Secretary boundaries of the Interior, and corresponding he calculated the for inclusion the final also However, decree. he recommended that proviso: following final decree include the presently . . that “Provided, further, . lands deter- purpose mined to be within the boundaries of the above-named Reservations and later determined to be outside the boundaries of the above-named Reserva- any tions, as well as accretions thereto which own- may ers of such land be entitled, should not be included irrigable acreage within the Reservations and that the specified requirements above diversion of such land *43 irrigable is quanti- shall be reduced the unit diversion Report [1979decree].” ties Usted the Tuttle 282-283. proviso grant The effect of this would be to the Indian Tribes rights appurtenant the disputed boundary water areas on a conditional basis. If the States succeeded overturn- ing any Secretary’s boundary ap- of the determinations in an propriate corresponding rights precisely forum, the water — quantified Special Report, for each area in the Master’s id., automatically at 192-196, 239-277—would be subtracted from the Tribes’ entitlements. 9 The Court determines that disputed “finally other have boundaries been by judicial determined” adjudications challenged. the that States have not approves It amending the 1964 rights appurtenant decree to include water Ante, parcels.
to these extent, at 640-641. To this I concur in V of Part the opinion. Court’s advantages Special proposal of the Master’s are obvi- approach
ous. remains to foremost, First and it faithful the opinion. the hand, taken in On one it our does not re- quire to in the first decide instance either what this Court are the of the reservations or exact boundaries whether the Sec- boundary retary’s binding administrative determinations are parties purposes. hand, on all for all On the other it settles possible rights. the maximum extent Indian water It absolutely figure, rely to on allows the States and it precisely they much at informs them how water is stake if litigate particular boundary questions choose other fo- adopt us rums. In the same considerations led the “irrigable acreage” Special itself. standard Rifkind open-ended rejecting recommended an decree because it place junior rights jeopardy all “would water of the uncer- Report tain and Rifkind unknowable,” whereas a “provide certainty fixed would decree for both the United Finally, Spe- States and non-Indian at users,” id., 265. proposal preclude litigation cial Master’s would further in this quantification rights Court over reserved for any boundary areas in fact within reservations. disregards Simply turning
The Court these virtues. guarantees original jurisdiction clock back it that the proceed over Lower Basin water will to an- possibly other “round,” and more thereafter, still “rounds” one-by-one by litigation. questions the border If are settled any Secretary’s upheld, of determinations are Court duplicate present will have to Mas- the efforts ter. ante, See full 638.10 The extent of the Tribes’ 10 The pending litigation Court seems to in the Dis believe that Southern presented by trict of involving only boundary California issues some case, only appropriate parties, provides as well as some of Ante, *44 resolving disputes forum for all. at 639. boundary once and for suggests It parties voluntarily, they that other and that the lawsuit enter Ante, However, use it to decide additional under at n. 29. issues. ruling today prosecute absolutely Court’s have no reason to States decided, additional long boundary claims —as the water as the issues are not to divert will remain uncertain for the mainstream water begins just finality practi- near this case to have future, importance. supra, cal at See 647. supra, awarding I-C,
For Part the reasons described rights the Tribes works additional water no immediate preference prolong- harm The to state interests. Court’s for ing uncertainty attendant and its is at odds upon principles with the which it resolves the omitted lands Special accept issue. I would Master’s resolution of the boundary purposes framing lands issue for of final decree this action. Ill disposition boundary
The Court’s of the omitted lands and unnecessary lands it issues makes for it to reach the remain- ing Although my issues in this case. own views re- would quire I issues, us to reach those do not think it worthwhile to any length. at discuss them The have States filed a number highly specific exceptions of Master’s deter- regarding irrigability particular parcels. minations of Although concepts “plain formal error” and “abuse of dis- apply special cretion” do not to the recommendations of mas- original jurisdiction litigation, ters in care with which the present Special explained Master has his conclusions on these respect, technical issues demands I and would overrule the exceptions. States’ has United States also filed four ex- ceptions. recognize purposes The first asks that we Secretary our decree the of an Interior’s resolution rights (As that turn on belong defendant, course, them to the States. the United has litigate.) no choice but The Court also makes the unprecedented suggestion might willing boundary that we decide the questions de if novo States’ District is lack of Court suit barred standing, sovereign immunity, Ante, or statute of limitations. at 638. I would impression. not leave “[c]ertainty par- Because is ticularly important respect with to water in the United Western States,” ante, “finally such in the results District Court would de- termine” the boundaries of the meaning reservations within the of Article 11(D)(5) of the 1964 decree. *45 concerning Mojave question the Fort Res- border
additional essentially clerical matters of the others involve ervation; conforming Master’s recommended decree our exceptions prior I sustain the decrees. would two United States.