Justices to Name Referee in Fight for Water Share

The Supreme Court announced Tuesday that it will appoint a referee to decide whether three Indian tribes bordering the Colorado River are entitled to water currently flowing to Southern California.

At stake are billions of gallons of water serving the annual needs of half a million residents of Southern California, according to attorneys for the Metropolitan Water District of Southern California.

In a landmark 1963 Supreme Court ruling, shares of the Colorado River water were divided among Arizona, California and Nevada. California was supposed to siphon off part of its share for three relatively small tribes living along the river in the state, but the court did not decree how much.

California has been setting aside 121,000 acre-feet for the tribes. But in 1969, the Interior Department claimed broader boundaries for the reservations and said the Indians are entitled to an additional 104,000 acre-feet of water, or enough to serve 500,000 people annually. Attorneys for California and the MWD disputed those claims and have been trying to get a final resolution of the matter ever since.

Now there is an “urgent need” to settle the matter, the MWD told the court, because Arizona will soon be using all of its share of water. For years, California has used all of its share, as well as the unused portion of Arizona’s allotment.

It is “essential that the reservations’ water rights . . . be finally established in order to facilitate necessary water planning in California and Arizona,” the MWD said.

The “special master” named by the court first will determine land boundaries for the reservations of the Ft. Mojave, Colorado River and Ft. Yuma Indians. Under previous high court decisions, the tribes’ share of the water has depended on the “practicably irrigable acreage” within their reservation. Since the needs of the Indians along the river take priority over any water going to Southern California, any increase granted the three tribes will reduce the water available to the MWD.

California is entitled to 4.4 million acre-feet of water, which is more than half of the total available from the river. The MWD supplies water to 27 water agencies stretching from Ventura to the Mexican border, which serve half of the state’s population.

The issue of how much water the tribes should get has been fought in various arenas for 20 years. The MWD lawyers at one point took their case to a federal judge, only to have the U.S. 9th Circuit Court of Appeals later rule that the judge had no jurisdiction to decide the issue. The Supreme Court agreed to hear the MWD’s appeal of that ruling but was split, 4 to 4, and unable to decide the question. Justice Thurgood Marshall takes no part in cases growing out of the 1963 ruling because he represented the government at an early stage of the dispute. MWD lawyers went back to the Supreme Court this summer and asked the justices to settle the matter by appointing a master. The court has the power to decide boundary disputes involving the states and that power was invoked Monday in the case (Arizona vs. California, No. 8).

The justices did not name a special master Monday but said merely that they had agreed to “reopen” the case to settle the “disputed boundary claims.”

“We will litigate this before the special master just as if it was a trial court,” said Jerome Muys, a Washington lawyer for the MWD. Both sides will present testimony and a written decision will be entered.