source: Caselaw Access Project

license: Public Domain

text:
    ARIZONA v. CALIFORNIA et al.
    No. 8, Orig.
    Decided June 3, 1963
    Decree entered March 9, 1964
    Amended decree entered February 28, 1966
    Decided and supplemental decree entered January 9, 1979
    Decided March 30, 1983
    Second supplemental decree entered April 16, 1984
    Decided June 19, 2000
    Supplemental decree entered October 10, 2000
    Consolidated decree entered March 27, 2006
   CONSOLIDATED DECREE

On January 19, 1953, the Court granted the State of Arizona leave to file a bill of complaint against the State of California and seven of its public agencies, Palo Verde Irrigation District, Imperial Irrigation District, Coachella Valley County Water District, Metropolitan Water District of Southern California, City of Los Angeles, City of San Diego, and County of San Diego. 344 U. S. 919. The United States and the State of Nevada intervened. 344 U. S. 919 (1953) (intervention by the United States); 347 U. S. 985 (1954) (intervention by Nevada). The State of New Mexico and the State of Utah were joined as parties. 350 U. S. 114, 115 (1955). The Court referred the case to George I. Haight, Esquire, and upon his death to Simon H. Rif kind, Esquire, as Special Master. 347 U. S. 986 (1954); 350 U. S. 812 (1955). On January 16, 1961, the Court received and ordered filed the report of Special Master Rifkind. 364 U. S. 940. On June 3,1963, the Court filed an opinion in the case, 373 U. S. 546, and on March 9, 1964, the Court entered a decree in the case. 376 U. S. 340.

On February 28,1966, the Court granted the joint motion of the parties to amend Article VI of the decree, and so amended Article VI to extend the time for submission of lists of present perfected rights. 383 U. S. 268.

On January 9,1979, the Court filed an opinion granting the joint motion for entry of a supplemental decree, entered a supplemental decree, denied in part the motion to intervene of the Fort Mojave Indian Tribe, and otherwise referred the case and the motions to intervene of the Fort Mojave Indian Tribe and the Colorado River Indian Tribes, et al., to Judge Elbert Tuttle as Special Master. 439 U. S. 419, 437. On April 5,1982, the Court received and ordered filed the report of Special Master Tuttle. 456 U. S. 912. On March 30, 1983, the Court filed an opinion rendering a decision on the several exceptions to the report of the Special Master, approving the recommendation that the Fort Mojave Indian Tribe, the Chemehuevi Indian Tribe, the Colorado River Indian Tribes, the Quechan Tribe, and the Cocopah Indian Tribe be permitted to intervene, and approving some of his further recommendations and disapproving others, 460 U. S. 605, 609, 615. On April 16, 1984, the Court entered a second supplemental decree implementing that decision. 466 U. S. 144.

On October 10, 1989, the Court granted the motion of the state parties to reopen the decree to determine the disputed boundary claims with respect to the Fort Mojave, Colorado River, and Fort Yuma Indian Reservations. 493 U. S. 886. The case was referred to Robert B. McKay, Esquire, and upon his death to Frank McGarr, Esquire, as Special Master. 493 U. S. 971 (1989); 498 U. S. 964 (1990). On October 4, 1999, the Court received and ordered filed the report of Special Master McGarr. 528 U. S. 803. On June 19, 2000, the Court filed an opinion rendering a decision on the several exceptions to the report of the Special Master, approving the settlements of the parties with respect to the Fort Mojave and Colorado River Indian Reservations and remanding the case to the Special Master with respect to the Fort Yuma Indian Reservation. 530 U. S. 392, 418, 419-420. On October 10, 2000, the Court entered a supplemental decree. 531 U. S. 1.

On June 14, 2005, Special Master McGarr submitted his report recommending approval of the settlements of the federal reserved water rights claim with respect to the Fort Yuma Indian Reservation and a proposed supplemental decree to implement those settlements.

The State of Arizona, the State of California, the Metropolitan Water District of Southern California, Coachella Valley Water District, the United States, and the Quechan Tribe, at the direction of the Court, have filed a joint motion to enter a consolidated decree.

This decree consolidates the substantive provisions of the decrees previously entered in this action at 376 U. S. 340 (1964), 383 U. S. 268 (1966), 439 U. S. 419 (1979), 466 U. S. 144 (1984), and 531 U. S. 1 (2000), implements the settlements of the federal reserved water rights claim for the Fort Yuma Indian Reservation, which the Court has approved this date, and reflects changes in the names of certain parties and Indian reservations. This decree is entered in order to provide a single convenient reference to ascertain the rights and obligations of the parties adjudicated in this original proceeding, and reflects only the incremental changes in the original 1964 decree by subsequent decrees and the settlements of the federal reserved water rights claim for the Fort Yuma Indian Reservation.

Accordingly,

IT IS ORDERED, ADJUDGED, AND DECREED

Except where the text of this decree differs from the previous decrees, this decree does not vacate the previous decrees nor alter any of their substantive provisions, and all mandates, injunctions, obligations, privileges, and requirements of this decree are deemed to remain effective as of the date of their respective entry in the prior decrees. Entry of this decree shall not affect the validity or effect of, nor affect any right or obligation under, any existing statute, regulation, policy, administrative order, contract, or judicial decision or judgment in other actions that references any of the previous decrees, and any such reference shall be construed as a reference to the congruent provisions of this decree.

I. For purposes of this decree:

(A) “Consumptive use” means diversions from the stream less such return flow thereto as is available for consumptive use in the United States or in satisfaction of the Mexican Treaty obligation;

(B) “Mainstream” means the mainstream of the Colorado River downstream from Lee Ferry within the United States, including the reservoirs thereon;

(C) Consumptive use from the mainstream within a State shall include all consumptive uses of water of the mainstream, including water drawn from the mainstream by underground pumping, and including, but not limited to, consumptive uses made by persons, by agencies of that State, and by the United States for the benefit of Indian reservations and other federal establishments within the State;

(D) “Regulatory structures controlled by the United States” refers to Hoover Dam, Davis Dam, Parker Dam, Headgate Rock Dam, Palo Verde Dam, Imperial Dam, Laguna Dam, and all other dams and works on the mainstream now or hereafter controlled or operated by the United States which regulate the flow of water in the mainstream or the diversion of water from the mainstream;

(E) “Water controlled by the United States” refers to the water in Lake Mead, Lake Mohave, Lake Havasu, and all other water in the mainstream below Lee Ferry and within the United States;

(F) “Tributaries” means all stream systems the waters of which naturally drain into the mainstream of the Colorado River below Lee Ferry;

(G) “Perfected right” means a water right acquired in accordance with state law, which right has been exercised by the actual diversion of a specific quantity of water that has been applied to a defined area of land or to definite municipal or industrial works, and in addition shall include water rights created by the reservation of mainstream water for the use of federal establishments under federal law whether or not the water has been applied to beneficial use;

(H) “Present perfected rights” means perfected rights, as here defined, existing as of June 25, 1929, the effective date of the Boulder Canyon Project Act;

(I) “Domestic use” shall include the use of water for household, stock, municipal, mining, milling, industrial, and other like purposes, but shall exclude the generation of electrical power;

(J) “Annual” and “Year,” except where the context may otherwise require, refer to calendar years;

(K) Consumptive use of water diverted in one State for consumptive use in another State shall be treated as if diverted in the State for whose benefit it is consumed.

II. The United States, its officers, attorneys, agents and employees be and they are hereby severally enjoined:

(A) From operating regulatory structures controlled by the United States and from releasing water controlled by the United States other than in accordance with the following order of priority:

(1) For river regulation, improvement of navigation, and flood control;

(2) For irrigation and domestic uses, including the satisfaction of present perfected rights; and

(3) For power;

Provided, however, that the United States may release water in satisfaction of its obligations to the United States of Mexico under the Treaty dated February 3, 1944, without regard to the priorities specified in this subdivision (A);

(B) From releasing water controlled by the United States for irrigation and domestic use in the States of Arizona, California, and Nevada, except as follows:

(1) If sufficient mainstream water is available for release, as determined by the Secretary of the Interior, to satisfy 7,500,000 acre-feet of annual consumptive use in the aforesaid three States, then of such 7,500,000 acre-feet of consumptive use, there shall be apportioned 2,800,000 acre-feet for use in Arizona, 4,400,000 acre-feet for use in California, and 300,000 acre-feet for use in Nevada;

(2) If sufficient mainstream water is available for release, as determined by the Secretary of the Interior, to satisfy annual consumptive use in the aforesaid States in excess of 7,500,000 acre-feet, such excess consumptive use is surplus, and 50% thereof shall be apportioned for use in Arizona and 50% for use in California; provided, however, that if the United States so contracts with Nevada, then 46% of such surplus shall be apportioned for use in Arizona and 4% for use in Nevada;

(3) If insufficient mainstream water is available for release, as determined by the Secretary of the Interior, to satisfy annual consumptive use of 7,500,000 acre-feet in the aforesaid three States, then the Secretary of the Interior, after providing for satisfaction of present perfected rights in the order of their priority dates without regard to state lines and after consultation with the parties to major delivery contracts and such representatives as the respective States may designate, may apportion the amount remaining available for consumptive use in such manner as is consistent with the Boulder Canyon Project Act as interpreted by the opinion of this Court herein, and with other applicable federal statutes, but in no event shall more than 4,400,000 acre-feet be apportioned for use in California including all present perfected rights;

(4) Any mainstream water consumptively used within a State shall be charged to its apportionment, regardless of the purpose for which it was released;

(5) Notwithstanding the provisions of Paragraphs (1) through (4) of this subdivision (B), mainstream water shall be released or delivered to water users (including but not limited to public and municipal corporations and other public agencies) in Arizona, California, and Nevada only pursuant to valid contracts therefor made with such users by the Secretary of the Interior, pursuant to Section 5 of the Boulder Canyon Project Act or any other applicable federal statute;

(6) If, in any one year, water apportioned for consumptive use in a State will not be consumed in that State, whether for the reason that delivery contracts for the full amount of the State’s apportionment are not in effect or that users cannot apply all of such water to beneficial uses, or for any other reason, nothing in this decree shall be construed as prohibiting the Secretary of the Interior from releasing such apportioned but unused water during such year for consumptive use in the other States. No rights to the recurrent use of such water shall accrue by reason of the use thereof;

(C) From applying the provisions of Article 7(d) of the Arizona water delivery contract dated February 9, 1944, and the provisions of Article 5(a) of the Nevada water delivery contract dated March 30, 1942, as amended by the contract dated January 3,1944, to reduce the apportionment or delivery of mainstream water to users within the States of Arizona and Nevada by reason of any uses in such States from the tributaries flowing therein;

(D) From releasing water controlled by the United States for use in the States of Arizona, California, and Nevada for the benefit of any federal establishment named in this subdivision (D) except in accordance with the allocations made herein; provided, however, that such release may be made notwithstanding the provisions of Paragraph (5) of subdivision (B) of this Article; and provided further that nothing herein shall prohibit the United States from making future additional reservations of mainstream water for use in any of such States as may be authorized by law and subject to present perfected rights and rights under contracts theretofore made with water users in such State under Section 5 of the Boulder Canyon Project Act or any other applicable federal statute:

(1) The Chemehuevi Indian Reservation in annual quantities not to exceed (i) 11,340 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 1,900 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of February 2, 1907;

(2) The Cocopah Indian Reservation in annual quantities not to exceed (i) 9,707 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 1,524 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with priority dates of September 27, 1917, for lands reserved by the Executive Order of said date; June 24, 1974, for lands reserved by the Act of June 24,1974 (88 Stat. 266, 269);

(3) The Fort Yuma Indian Reservation in annual quantities not to exceed (i) 77,966 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 11,694 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of January 9, 1884;

(4) The Colorado River Indian Reservation in annual quantities not to exceed (i) 719,248 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 107,903 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with priority dates of March 3, 1865, for lands reserved by the Act of March 3,1865 (13 Stat. 541, 559); November 22,1873, for lands reserved by the Executive Order of said date; November 16, 1874, for lands reserved by the Executive Order of said date, except as later modified; May 15, 1876, for lands reserved by the Executive Order of said date; November 22, 1915, for lands reserved by the Executive Order of said date;

(5) The Fort Mojave Indian Reservation in annual quantities not to exceed (i) 132,789 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 20,544 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with priority dates of September 19, 1890, for lands transferred by the Executive Order of said date; February 2, 1911, for lands reserved by the Executive Order of said date;

(6) The Lake Mead National Recreation Area in annual quantities reasonably necessary to fulfill the purposes of the Recreation Area, with priority dates of May 3, 1929, for lands reserved by the Executive Order of said date (No. 5105), and April 25, 1930, for lands reserved by the Executive Order of said date (No. 5339);

(7) The Havasu Lake National Wildlife Refuge in annual quantities reasonably necessary to fulfill the purposes of the Refuge, not to exceed (i) 41,839 acre-feet of water diverted from the mainstream or (ii) 37,339 acre-feet of consumptive use of mainstream water, whichever of (i) or (ii) is less, with a priority date of January 22, 1941, for lands reserved by the Executive Order of said date (No. 8647), and a priority date of February 11,1949, for land reserved by the Public Land Order of said date (No. 559);

(8) The Imperial National Wildlife Refuge in annual quantities reasonably necessary to fulfill the purposes of the Refuge not to exceed (i) 28,000 acre-feet of water diverted from the mainstream or (ii) 23,000 acre-feet of consumptive use of mainstream water, whichever of (i) or (ii) is less, with a priority date of February 14, 1941;

(9) Boulder City, Nevada, as authorized by the Act of September 2,1958, 72 Stat. 1726, with a priority date of May 15, 1931;

Provided, further, that consumptive uses from the mainstream for the benefit of the above-named federal establishments shall, except as necessary to satisfy present perfected rights in the order of their priority dates without regard to state lines, be satisfied only out of water available, as provided in subdivision (B) of this Article, to each State wherein such uses occur and subject to, in the case of each reservation, such rights as have been created prior to the establishment of such reservation by contracts executed under Section 5 of the Boulder Canyon Project Act or any other applicable federal statute.

III. The States of Arizona, California, and Nevada, Palo Verde Irrigation District, Imperial Irrigation District, Coachella Valley Water District, the Metropolitan Water District of Southern California, City of Los Angeles, City of San Diego, and County of San Diego, and all other users of water from the mainstream in said States, their officers, attorneys, agents, and employees, be and they are hereby severally enjoined:

(A) From interfering with the management and operation, in conformity with Article II of this decree, of regulatory structures controlled by the United States;

(B) From interfering with or purporting to authorize the interference with releases and deliveries, in conformity with Article II of this decree, of water controlled by the United States;

(C) From diverting or purporting to authorize the diversion of water from the mainstream the diversion of which has not been authorized by the United States for use in the respective States; provided, however, that no party named in this Article and no other user of water in said States shall divert or purport to authorize the diversion of water from the mainstream the diversion of which has not been authorized by the United States for its particular use;

(D) From consuming or purporting to authorize the consumptive use of water from the mainstream in excess of the quantities permitted under Article II of this decree.

IV. The State of New Mexico, its officers, attorneys, agents, and employees, be and they are after March 9, 1968, hereby severally enjoined:

(A) From diverting or permitting the diversion of water from San Simon Creek, its tributaries, and underground water sources for the irrigation of more than a total of 2,900 acres during any one year, and from exceeding a total consumptive use of such water, for whatever purpose, of 72,000 acre-feet during any period of ten consecutive years; and from exceeding a total consumptive use of such water, for whatever purpose, of 8,220 acre-feet during any one year;

(B) From diverting or permitting the diversion of water from the San Francisco River, its tributaries, and underground water sources for the irrigation within each of the following areas of more than the following number of acres during any one year:

Lima Area....................................................................... 225

Apache Creek-Aragon Area........................................ 316

Reserve Area................................................................. 725

Glenwood Area...............................................................1,003

and from exceeding a total consumptive use of such water for whatever purpose, of 31,870 acre-feet during any period of ten consecutive years; and from exceeding a total consumptive use of such water, for whatever purpose, of 4,112 acre-feet during any one year;

(C) From diverting or permitting the diversion of water from the Gila River, its tributaries (exclusive of the San Francisco River and San Simon Creek and their tributaries), and underground water sources for the irrigation within each of the following areas of more than the following number of acres during any one year:

Upper Gila Area............................................................ 287

Cliff-Gila and Buckhorn-Duck Creek Area..............5,314

Red Rock Area...............................................................1,456

and from exceeding a total consumptive use of such water (exclusive of uses in Virden Valley, New Mexico), for whatever purpose, of 136,620 acre-feet during any period of ten consecutive years; and from exceeding a total consumptive use of such water (exclusive of uses in Virden Valley, New Mexico), for whatever purpose, of 15,895 acre-feet during any one year;

(D) From diverting or permitting the diversion of water from the Gila River and its underground water sources in the Virden Valley, New Mexico, except for use on lands determined to have the right to the use of such water by the decree entered by the United States District Court for the District of Arizona on June 29,1935, in United States v. Gila Valley Irrigation District et al. (Globe Equity No. 59) (herein referred to as the Gila Decree), and except pursuant to and in accordance with the terms and provisions of the Gila Decree; provided, however, that:

(1) This decree shall not enjoin the use of underground water on any of the following lands:

Owner Subdivision and Legal Description Sec. Twp. Bng. Acreage

Marvin Arnett and Part Lot 3...... 6 19S 21W 33.84

J. C. O’Dell............... Part Lot 4...... 6 19S 21W 52.33

NWVi SWV4... 5 19S 21W 38.36

SWV4SWV4... 5 19S 21W 39.80

Part Lot 1...... 7 19S 21W 50.68

NW*/4 NWV4.. 8 19S 21W 38.03

Hyrum M. Pace, SWV4NEV4... 12 19S 21W 8.00

Ray Richardson, SWV4 NEV4... 12 19S 21W 15.00

Harry Day and N. O. Pace, Est. SEj/4 NEV4 .... 12 19S 21W 7.00

C. C. Martin......... S. part SEV4

SW!/4SE!/4......... 19S 21W 0.93

wta wt& wts

NEV4NEV4........ 12 19S 21W 0.51

NWV4 NEV4........ 12 19S 21W 18.01

A. E. Jacobson...... SW part Lot 1 .... 6 19S 21W 11.58

W. LeRoss Jones.. E. Central part: 12 19S 21W 0.70

EVü EVfe Etk

NWV4 NWV4

SW part NEl/4

NW'/4................... 12 19S 21W 8.93

N. Central part: 12 19S 21W 0.51

NtS NtS NWt£

SEV4 NWV4

Conrad and James Ntk NtS NtS

R. Donaldson........... SEV4..................... 18 19S 20W 8.00

James D. Freestone................. Part WVfe NWV4.. 33 18S 21W 7.79

Virgil W. Jones........ Nt& SEV4 12 19S 21W 7.40

NWV4; SEV4

NEV4 NWV4

Darrell Brooks.. SEV4SWV4.......... 32 18S 21W 6.15

Floyd Jones....... Part NtS SEV4

NEV4..................... 13 19S 21W 4.00

Part NWV4

SWí/4 NWl/4......... 18 19S 20W 1.70

L. M. HatchSWV4SWV4......... 32 18S 21W 4.40

Virden Townsite.. 3.90

Owner Subdivision and Legal Description Sec. Twp. Rng. Acreage

Carl M. Donaldson.. SWV4SEV4............. 12 19S 21W 3.40

Part NW>/4 NWV4

Mack Johnson.......... NEV4........................ 10 19S 21W 2.80

Part NEV4 NWV4

NEV4........................ 10 19S 21W 0.30

Part Ntfc NV6 StS

NWV4 NEV4............ 10 19S 21W 0.10

SEV4 SEV4; SWV4

SEV4......................... 3 19S 21W

Chris Dotz.. NWV4 NEj/4; 2.66

NEV4 NEV4............. 10 19S 21W

Roy A. Johnson... NEV4SEV4SEV4.., 4 19S 21W 1.00

Ivan and Antone NEV4 SEV4

Thygerson............ SEV4 32 18S 21W 1.00

SWV4 SEV4

John W. Bonine. SWV4......................... 34 18S 21W 1.00

Marion K. SWV4 SWV4 SEV4

Mortenson.......... 33 18S 21W 1.00

Total. 380.81

or on lands or for other uses in the Virden Valley to which such use may be transferred or substituted on retirement from irrigation of any of said specifically described lands, up to a maximum total consumptive use of such water of 838.2 acre-feet per annum, unless and until such uses are adjudged by a court of competent jurisdiction to be an infringement or impairment of rights confirmed by the Gila Decree; and

(2) This decree shall not prohibit domestic use of water from the Gila River and its underground water sources on lands with rights confirmed by the Gila Decree, or on farmsteads located adjacent to said lands, or in the Virden Townsite, up to a total consumptive use of 265 acre-feet per annum in addition to the uses confirmed by the Gila Decree, unless and until such use is adjudged by a court of competent jurisdiction to be an infringement or impairment of rights confirmed by the Gila Decree;

(E) Provided, however, that nothing in this Article IV shall be construed to affect rights as between individual water users in the State of New Mexico; nor shall anything in this Article be construed to affect possible superior rights of the United States asserted on behalf of National Forests, Parks, Memorials, Monuments, and lands administered by the Bureau of Land Management; and provided further that in addition to the diversions authorized herein the United States has the right to divert water from the mainstream of the Gila and San Francisco Rivers in quantities reasonably necessary to fulfill the purposes of the Gila National Forest with priority dates as of the date of withdrawal for forest purposes of each area of the forest within which the water is used;

(F) Provided, further, that no diversion from a stream authorized in Article IV(A) through (D) may be transferred to any of the other streams, nor may any use for irrigation purposes within any area on one of the streams be transferred for use for irrigation purposes to any other area on that stream.

V. The United States shall prepare and maintain, or provide for the preparation and maintenance of, and shall make available, annually and at such shorter intervals as the Secretary of the Interior shall deem necessary or advisable, for inspection by interested persons at all reasonable times and at a reasonable place or places, complete, detailed, and accurate records of:

(A) Releases of water through regulatory structures controlled by the United States;

(B) Diversions of water from the mainstream, return flow of such water to the stream as is available for consumptive use in the United States or in satisfaction of the Mexican Treaty obligation, and consumptive use of such water. These quantities shall be stated separately as to each diverter from the mainstream, each point of diversion, and each of the States of Arizona, California, and Nevada;

(C) Releases of mainstream water pursuant to orders therefor but not diverted by the party ordering the same, and the quantity of such water delivered to Mexico in satisfaction of the Mexican Treaty or diverted by others in satisfaction of rights decreed herein. These quantities shall be stated separately as to each diverter from the mainstream, each point of diversion, and each of the States of Arizona, California, and Nevada;

(D) Deliveries to Mexico of water in satisfaction of the obligations of Part III of the Treaty of February 3, 1944, and, separately stated, water passing to Mexico in excess of treaty requirements;

(E) Diversions of water from the mainstream of the Gila and San Francisco Rivers and the consumptive use of such water, for the benefit of the Gila National Forest.

VI. By March 9, 1967, the States of Arizona, California, and Nevada shall furnish to this Court and to the Secretary of the Interior a list of the present perfected rights, with their claimed priority dates, in waters of the mainstream within each State, respectively, in terms of consumptive use, except those relating to federal establishments. Any named party to this proceeding may present its claim of present perfected rights or its opposition to the claims of others. The Secretary of the Interior shall supply similar information, by March 9, 1967, with respect to the claims of the United States to present perfected rights within each State. If the parties and the Secretary of the Interior are unable at that time to agree on the present perfected rights to the use of mainstream water in each State, and their priority dates, any party may apply to the Court for the determination of such rights by the Court. A list of present perfected rights, with priority dates, in waters of the mainstream in the States of Arizona, California, and Nevada is set forth in Parts I-A, II-A, and III of the Appendix to this decree and is incorporated herein by reference.

VII. The State of New Mexico shall, by March 9, 1968, prepare and maintain, or provide for the preparation and maintenance of, and shall annually thereafter make available for inspection at all reasonable times and at a reasonable place or places, complete, detailed, and accurate records of:

(A) The acreages of all lands in New Mexico irrigated each year from the Gila River, the San Francisco River, San Simon Creek, and their tributaries and all of their underground water sources, stated by legal description and component acreages and separately as to each of the areas designated in Article IV of this decree and as to each of the three streams;

(B) Annual diversions and consumptive uses of water in New Mexico, from the Gila River, the San Francisco River, San Simon Creek, and their tributaries and all their underground water sources, stated separately as to each of the three streams.

VIII. This decree shall not affect:

(A) The relative rights inter sese of water users within any one of the States, except as otherwise specifically provided herein;

(B) The rights or priorities to water in any of the Lower Basin tributaries of the Colorado River in the States of Arizona, California, Nevada, New Mexico, and Utah except the Gila River System;

(C) The rights or priorities, except as specific provision is made herein, of any Indian Reservation, National Forest, Park, Recreation Area, Monument or Memorial, or other lands of the United States;

(D) Any issue of interpretation of the Colorado River Compact.

IX. Any of the parties may apply at the foot of this decree for its amendment or for further relief. The Court retains jurisdiction of this suit for the purpose of any order, direction, or modification of the decree, or any supplementary decree, that may at any time be deemed proper in relation to the subject matter in controversy.

APPENDIX

The present perfected rights to the use of mainstream water in the States of Arizona, California, and Nevada, and their priority dates are determined to be as set forth below, subject to the following:

(1) The following listed present perfected rights relate to the quantity of water which may be used by each claimant and the list is not intended to limit or redefine the type of use otherwise set forth in this decree.

(2) This determination shall in no way affect future adjustments resulting from determinations relating to settlement of Indian reservation boundaries referred to in Article 11(D)(5) of this decree.

(3) Article IX of this decree is not affected by this list of present perfected rights.

(4) Any water right listed herein may be exercised only for beneficial uses.

(5) In the event of a determination of insufficient mainstream water to satisfy present perfected rights pursuant to Article 11(B)(3) of this decree, the Secretary of the Interior shall, before providing for the satisfaction of any of the other present perfected rights except for those listed herein as “MISCELLANEOUS PRESENT PERFECTED RIGHTS” (rights numbered 7-21 and 29-80 below) in the order of their priority dates without regard to state lines, first provide for the satisfaction in full of all rights of the Chemehuevi Indian Reservation, Cocopah Indian Reservation, Fort Yuma Indian Reservation, Colorado River Indian Reservation, and the Fort Mojave Indian Reservation as set forth in Article II(D)(l)-(5) of this decree, provided that the quantities fixed in paragraphs (1) through (5) of Article 11(D) of this decree shall continue to be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined except for the western boundaries of the Fort Mojave and Colorado River Indian Reservations in California and except for the boundaries of the Fort Yuma Indian Reservation in Arizona and California. Additional present perfected rights so adjudicated by such adjustment shall be in annual quantities not to exceed the quantities of mainstream water necessary to supply the consumptive use required for irrigation of the practicably irrigable acres which are included within any area determined to be within a reservation by such final determination of a boundary and for the satisfaction of related uses. The quantities of diversions are to be computed by determining net practicably irrigable acres within each additional area using the methods set forth by the Special Master in this case in his report to this Court dated December 5, 1960, and by applying the unit diversion quantities thereto, as listed below:

Indian Reservation Unit Diversion Quantity Acre-Feet Per Irrigable Acre

Cocopah 6.37

Colorado River 6.67

Chemehuevi 5.97

Ft. Mojave 6.46

Ft. Yuma 6.67

The foregoing reference to a quantity of water necessary to supply consumptive use required for irrigation, and as that provision is included within paragraphs (1) through (5) of Article 11(D) of this decree, shall constitute the means of determining quantity of adjudicated water rights but shall not constitute a restriction of the usage of them to irrigation or other agricultural application. If all or part of the adjudicated water rights of any of the five Indian reservations is used other than for irrigation or other agricultural application, the total consumptive use, as that term is defined in Article 1(A) of this decree, for said reservation shall not exceed the consumptive use that would have resulted if the diversions listed in subparagraph (i) of paragraphs (1) through (5) of Article 11(D) of this decree had been used for irrigation of the number of acres specified for that reservation in said paragraphs and for the satisfaction of related uses. Effect shall be given to this paragraph notwithstanding the priority dates of the present perfected rights as listed below. However, nothing in this paragraph (5) shall affect the order in which such rights listed below as “MISCELLANEOUS PRESENT PERFECTED RIGHTS” (numbered 7-21 and 29-80 below) shall be satisfied. Furthermore, nothing in this paragraph shall be construed to determine the order of satisfying any other Indian water rights claims not herein specified.

I

ARIZONA

A. Federal Establishments’ Present Perfected Rights

The federal establishments named in Article II, subdivision (D), paragraphs (2), (3), (4), and (5) of this decree, such rights having been decreed in Article II:

Defined Area of Land Annual Diversions (Acre-Feet) Net Acres Priority Date

1) Coeopah Indian Reservation 7,681 1,206 Sept. 27, 1917

2) Colorado River Indian Reservation 358,400 53,768 Mar. 3,1865

252,016 37,808 Nov. 22,1873

51,986 7,799 Nov. 16, 1874

3) Fort Mojave Indian Reservation 27,969 4,327 Sept. 18,1890

75,566 11,691 Feb. 2,1911

3a) Fort Yuma Indian Reservation 6,350 952 Jan. 9,1884

In addition to the mainstream diversion rights in favor of the Indian reservations specified in Paragraph 1(A) of this Appendix, a mainstream diversion right of 2,026 acre-feet for the Cocopah Reservation shall be charged against the State of Arizona with a priority date of June 24, 1974.

B. Water Projects’ Present Perfected Rights

(4) The Valley Division, Yuma Project in annual quantities not to exceed (i) 254,200 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 43,562 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901.

(5) The Yuma Auxiliary Project, Unit B in annual quantities not to exceed (i) 6,800 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 1,225 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905.

(6) The North Gila Valley Unit, Yuma Mesa Division, Gila Project in annual quantities not to exceed (i) 24,500 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 4,030 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905.

C. Miscellaneous Present Perfected Rights

1. The following miscellaneous present perfected rights in Arizona in annual quantities of water not to exceed the listed acre-feet of diversion from the mainstream to supply the consumptive use required for irrigation and the satisfaction of related uses within the boundaries of the land described and with the priority dates listed:

Annual Diversions Defined Area of Land . (acre-feet) Priority Date

7) 160 Acres in Lots 21, 24, and 25, Sec. 29 and 960. Lots 15, 16, 17 and 18, and the SWV4 of the SEV4, Sec. 30, T.16S., R.22E., San Bernardino Base and Meridian, Yuma County, Arizona. (Powers) 1915

8) Lots 11,12,13,19,20,22 and SVS of SWV4, Sec. 1,140 30, T.16S., R.22E., San Bernardino Base and Meridian, Yuma County, Arizona. (United States) 1915

9) 60 acres within Lot 2, Sec. 15 and Lots 1 and 2, 360 Sec. 22, T.10N., R.19W., G&SRBM. (Graham)2 1910

10) 180 acres within the NV& of the SVfe and the 1,080 SVS of the NVS of Sec. 13 and the SWV4 of the NEV4 of Sec. 14, T.18N., • R.22W., G&SRBM. (Hulet)2 1902

11) 45 acres within the NEV4 of the SWV4, the SWV4 of the SWV4 and the SEl/4 of the SWV4 of See. 11, T.18N., R.22W., G&SRBM. 80 acres within the NVfi of the SWJ/4 of Sec. n 11, T.18N., R.22W., G&SRBM. i,U5U 10 acres within the NWV4 of the NEV4 of the NEl/4 of Sec. 15, T.18N., R.22W., G&SRBM. 40 acres within the SEV4 of the SEV4 of Sec. 15, T.18N., R.22W., G&SRBM. (Hurschler)2 1902

12) 40 acres within Sec. 13, T.17N., R.22W., 240 G&SRBM. (Miller)2 1902

Defined Area of Land Annual Diversions Priority (acre-feet) Date

13) 120 acres within Sec. 27, T.18N., R.22W., G&SRBM. 15 acres within the NWVl of the NWVi, Sec. 23, T.18N., R.22W., G&SRBM. (McKellips and Granite Reef Farms) 810 1902

14) 180 acres within the NWV4 of the NEx/4, the SWV4 of the NEV4, the NE*/4 of the SWV4, the NWV4 of the SEV4, the NEV4 of the SEV4, and the SWV4 of the SEV4, and the SEx/4 of the SEV4, Sec. 31, T.18N., R.21W., G&SRBM. (Sherrill & Lafolette)4 1,080 1902

15) 53.89 acres as follows: Beginning at a point 995.1 feet easterly of the NW corner of the NEV4 of Sec. 10, T.8S., R.22W., Gila and Salt River Base and Meridian; on the northerly boundary of the said NEV4, which is the true point of beginning, then in a southerly direction to a point on the southerly boundary of the said NEV4 which is 991.2 feet E. of the SW corner of said NEx/4 thence easterly along the S. line of the NEV4, a distance of 807.3 feet to a point, thence N. 0°7' W., 768.8 feet to a point, thence E. 124.0 feet to a point, thence northerly 0°14' W., 1,067.6 feet to a point, thence E. ISO feet to a point, thence northerly 0°20' W., 405.2 feet to a point, thence northerly 63°10' W., 506.0 feet to a point, thence northerly 90°15' W., 562.9 feet to a point on the northerly boundary of the said NEV4, thence easterly along the said northerly boundary of the said NEV4, 116.6 feet to the true point of the beginning containing 53.89 acres. All as more particularly described and set forth in that survey executed by. Thomas A. Yowell, Land Surveyor on June 24, 1969. (Molina)4 318 1928

Defined Area of Land Annual Diversions (acre-feet) Priority Date

16) 60 acres within the NW1/! of the NWV4 and the north half of the SWV4 of the NWV4 of Sec. 14, T.8S., R.22W., G&SRBM. 70 acres within the SVS of the SWVit of the SWV4, and the WVS of the SWV4, Sec. 14, T.8S., R.22W., G&SRBM. (Stages)4 780 1925

17) 120 acres within the NV& NEV4, NEVí NWV4, Section 23, T.18N., R.22W., G&SRBM. (Zozaya)4 720 1912

18) 40 acres in the WtS of the NEV4 of Section 30, and 60 acres in the WtS of the SEV4 of Section 30, and 60 acres in the E1/^ of the NWV4 of Section 31, comprising a total of 160 acres all in Township 18 North, Range 21 West of the G&SRBM. (Swan)4 . 960 1902

19) 7 acres in the East 300 feet of the WVS of Lot 1 (Lot 1 being the SEV4 SEV4, 40 acres more or less), Section 28, Township 16 South, Range 22 East, San Bernardino Meridian, lying North of U. S. Bureau of Reclamation levee right of way. EXCEPT that portion conveyed to the United States of America by instrument recorded in Docket 417, page 150 EXCEPTING any portion of the East 300 feet of W*/S of Lot 1 within the natural bed of the Colorado River below the line of ordinary high water and also EXCEPTING any artificial accretions water-ward of said line of ordinary high water, all of which comprises approximately seven (7) acres. (Milton and Jean Phillips)4 42 1900

2. The following miscellaneous present perfected rights in Arizona in annual quantities of water not to exceed the listed number of acre-feet of (i) diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use, whichever of (i) or (ii) is less, for domestic, municipal, and industrial purposes within the boundaries of the land described and with the priority dates listed:

Defined Area of Land Annual Annual Diversions Consumptive Use Priority (acre-feet) (acre-feet) Date

20) City of Parker2 630 400 1905

21) City of Yuma2 2,333 1,478 1893

II

CALIFORNIA

A. Federal Establishments’ Present Perfected Rights The federal establishments named in Article II, subdivision (D), paragraphs (1), (3), (4), and (5) of this decree, such rights having been decreed by Article II:

Defined Area of Land Annual Diversions (acre-feet) Net Acres5 PriorityJDate

22) Chemehuevi Indian Reservation 11,340 1,900 Feb. 2, 1907

23) Fort Yuma Indian Reservation 71,616 10,742 Jan. 9,1884

24) Colorado River Indian Reservation 10,745 1,612 Nov. 22,1873

40,241 6,037 Nov. 16,1874

5,860 879 May 15, 1876

25) Fort Mojave Indian Reservation 16,720 2,587 Sept. 18,1890

B. Water Districts’ and Projects’ Present Perfected Rights

26)

The Palo Verde Irrigation District in annual quantities not to exceed (i) 219,780 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 33,604 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1877.

27)

The Imperial Irrigation District in annual quantities not to exceed (i) 2,600,000 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 424,145 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901.

28)

The Reservation Division, Yuma Project, California (non-Indian portion) in annual quantities not to exceed (i) 38,270 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 6,294 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8,1905.

C. Miscellaneous Present Perfected Rights

1. The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of diversions from the mainstream to supply the consumptive use required for irrigation and the satisfaction of related uses within the boundaries of the land described and with the priority dates listed:

Annual Diversions Defined Area of Land (acre-feet) Priority Date

29) 130 acres within Lots 1,2, and 3, SEJ/4 of NEl/4 780 of Section 27, T.16S., R.22E., S.B.B. & M. (Wavers) 1856

Defined Area of Land Annual Diversions (acre-feet) Priority Date

30) 40 acres within WVS, Wi/S of EVS of Section 1, T.9N., R.22E., S.B.B. & M. (Stephenson)6 240 1923

31) 20 acres within Lots 1 and 2, See. 19, T.13S., R.23E., and Lots 2, 3, and 4 of Sec. 24, T.13S., R. 22E., S.B.B. & M. (Mendivil)6 120 1893

32) 30 acres within NWV4 of SEV4, SV& of SEV4, Sec. 24, and NWV4 of NEV4, Sec. 25, all in T.9S., R.21E., S.B.B. & M. (Grannis)6 180 1928

33) 25 acres within Lot 6, Sec. 5; and Lots 1 and 2, SWV4 of NEV4, and NE!4 of SEV4 of Sec. 8, and Lots 1 & 2 of Sec. 9, all in T.13S., R.22E., S. B.B. & M. (Morgan)6 150 1913

34) 18 acres within El'S of NWV4 and WJ/2 of NEl/4 of Sec. 14, T.10S., R.21E., S.B.B. & M. (Milpitas)6 108 1918

35) 10 acres within N1/^ of NEV4, SEV4 of NEV4, and NEV4 of SEVü, See. 30, T.9N., R.23E., S.B.B. & M. (Simons)6 60 1889

36) 16 acres within EVt of NWi/4 and NV& of SWV4, Sec. 12, T.9N., R.22E., S.B.B. & M. (Colo. R. Sportsmen’s League)6 96 1921

37) 11.5 acres within EV& of NWl/4, Sec. 1, T.10S., R.21E., S.B.B. & M. (Milpitas)6 69 1914

38) 11 acres within SV2 of SWV4, Sec. 12, T.9N., R. 22E., S.B.B. & M. (Andrade)6 66 1921

39) 6 acres within Lots 2, 3, and 7 and NEV4 of SWV4, Sec. 19, T.9N., R.23E., S.B.B. & M. (Reynolds)6 36 1904

40) 10 acres within NV2 of NEV4, SEV4 of NEV4 and NEV4 of SEV4, Sec. 24, T.9N., R.22E., S. B.B. & M. (Cooper)6 60 1905

Defined Area of Land Annual Diversions Priority (acre-feet) Date

41) 20 acres within SWV4 of SWV4 (Lot 8), Sec. 19, T.9N., R.23E., S.B.B. & M. (Chagnon) 120 1925

42) 20 acres within NEV4 of SWV4, NVii of SEV4, SEV4 of SEV4, Sec. 14, T.9S., R.21E., S.B.B. & M. (Lawrence)7 120 1915

2. The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of (i) diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use, whichever of (i) or (ii) is less, for domestic, municipal, and industrial purposes within the boundaries of the land described and with the priority dates listed:

Defined Area of Land Annual Diversions (acre-feet) Annual Consumptive Use (acre-feet) Priority Date

43) City of Needles6 1,500 950 1885

44) Portions of: Secs. 5, 6, 7 & 8, T.7N., R.24E.; See. 1, T.7N., R.23E.; Sees. 4,5, 9,10,15,22, 23, 25, 26, 35, & 36, T.8N., R.23E.; Secs. 19, 29, 30, 32 & 33, T.9N., R.23E., S.B.B. & M. (Atchison, Topeka and Santa Fe Railway Co.)6 1,260 273 1896

45) Lots 1, 2, 3, 4, 5, & SWV4 NWV4 of See. 5, T.13S., R.22E., S.B.B. & M. (Conger)7 1.0 0.6 1921

Annual Diversions Defined Area of Land (acre-feet) Annual Consumptive Use (acre-feet) Priority Date

46) Lots 1, 2, 3, 4 of Sec. 32, 1.0 T.11S., R.22E., S.B.B. & M. (G. Draper)7 0.6 1923

47) Lots 1,2,3,4, and SEV4 SWV4 1.0 of Sec. 20, T.11S., R.22E., S.B.B. & M. (McDonough)7 0.6 1919

48) SWV4 of Sec. 25, T.8S., R.22E., 1.0 S.B.B. & M. (Faubion)7 0.6 1925

49) WVfe NWV4 of Sec. 12, T.9N, 1.0 R. 22E., S.B.B. & M. (Dudley)7 0.6 1922

50) NV6 SEV4 and Lots 1 and 2 of 1.0 Sec. 13, T.8S., R.22E., S.B.B. & M. (Douglas)7 0.6 1916

5D NV& SWV4, NWV4 SEV4, Lots 1.0 6 and 7, Sec. 5, T.9S., R.22E., S. B.B. & M. (Beauchamp)7 0.6 1924

52) NEV4 SEV4, SEV4 NEV4, and 1.0 Lot 1, Sec. 26, T.8S., R.22E., S.B.B. & M. (Clark)7 0.6 1916

53) NV& SWV4, NWV4 SEV4, 1.0 SWV4 NEV4, Sec. 13, T.9S., R. 21E., S.B.B. & M. (Lawrence)7 0.6 1915

54) NV6 NEV4, Ej/S NWV4, See. 1.0 13, T.9S., R.21E., S.B.B. & M. (J. Graham)7 0.6 1914

55) SEV4, See. 1, T.9S., R.21E., 1.0 S. B.B. & M. (Geiger)7 0.6 1910

56) Fractional W1^ of SWV4 (Lot 1.0 0.6 1917

6) Sec. 6, T.9S., R.22E., S.B.B. & M. (Schneider)7

Annual Diversions Defined Area of Land (acre-feet) Annual Consumptive Use (acre-feet) Priority Date

57) Lot 1, Sec. 15; Lots 1 & 2, Sec. 1.0 14; Lots 1 & 2, See. 23; all in T.13S., R.22E., S.B.B. & M. (Martinez)7 0.6 1895

58) NEV4, Sec. 22, T.9S., R.21E., 1.0 S.B.B. & M. (Earle)7 0.6 1925

59) NEV4 SEV4, Sec. 22, T.9S., 1.0 R.21E., S.B.B. & M. (Diehl)7 0.6 1928

60) N!4¡ NWV4, NV2 NEV4, Sec. 1.0 23, T.9S., R.21E., S.B.B. & M. (Reid)7 0.6 1912

61) Wl/S SWl/4, Sec. 23, T.9S., 1.0 R.21E., S.B.B. & M. (Graham)7 0.6 1916

62) SV6 NWV4, NEV4 SWV4, 1.0 SWV4 NEV4, Sec. 23, T.9S., R. 21E., S.B.B. & M. (Cate)7 0.6 1919

63) SEV4 NEV4, NV2 SEV4, SEV4 1.0 SEV4, Sec. 23, T.9S., R.21E., S. B.B. & M. (McGee)7 0.6 1924

64) SWV4 SEV4, SEV4 SWV4, Sec. 1.0 23, NEV4 NWV4, NWV4 NEV4, See. 26; all in T.9S., R. 21E., S.B.B. & M. (Stallard)7 0.6 1924

65) WV2 SEV4, SEV4 SEV4, Sec. 1.0 26, T.9S., R.21E., S.B.B. & M. (Randolph)7 0.6 1926

66) EV& NEV4, SWV4 NEV4, SEV4 1.0 NWV4, Sec. 26, T.9S., R21E., S. B.B. & M. (Stallard)7 0.6 1928

Defined Area of Land Annual Annual Diversions Consumptive Use (acre-feet) (acre-feet) Priority Date

67) SVk SWV4 Sec. 13, Nx/2 NWx/4, Sec. 24; all in T.9S., R.21E., S.B.B. & M. (Keefe)7 1.0 0.6 1926

68) SEx/4 NWx/4, NWx/4, SEV4, Lots 2, 3, & 4, Sec. 25, T.13S., R. 23E., S.B.B. & M. (C. Ferguson)7 1.0 0.6 1903

69) Lots 4 & 7, Sec. 6; Lots 1 & 2, Sec. 7; all in T.14S., R.24E., S. B.B. & M. (W. Ferguson)7 1.0 0.6 1903

70) SWV4 SEV4, Lots 2, 3, and 4, Sec. 24, T.12&, R.21E., Lot 2, Sec. 19, T.12S., R.22E., S. B.B. & M. (Vaulin)7 1.0 0.6 1920

71) Lots 1, 2, 3, and 4, Sec. 25, T. 12S., R21E., S.B.B. & M. (Salisbury) 1.0 ' ’ 0.6 1920

72) Lots 2, 3, SEV4 SEx/4, Sec. 15, NEV4 NEV4, Sec. 22; all in T.13S., R.22E., S.B.B. & M. (Hadlock)7 1.0 0.6 1924

73) SWx/4 NEV4, SEx/4 NWx/4, and Lots 7 & 8, See. 6, T.9S., R. 22E., S.B.B. & M. (Streeter)7 1.0 0.6 1903

74) Lot 4, Sec. 5; Lots 1 & 2, Sec. 7; Lots 1 & 2, Sec. 8; Lot 1, Sec. 18; all in T.12S., R.22E., S. B.B. & M. (J. Draper)7 1.0 0.6 1903

75) SWx/4 NWx/4, Sec. 5; SEx/4 NEx/4 and Lot 9, Sec. 6; all in T. 9S., R.22E., S.B.B. & M. (Fitz)7 1.0 0.6 1912

Annual Diversions Defined Area of Land (acre-feet) Annual Consumptive Use (acre-feet) Priority Date

76) NW>/4 NEVa, Sec. 26; Lots 1.0 2 & 3, WVt SEV4, Sec. 23; all in T.8S., R.22E., S.B.B. & M. (Williams)7 0.6 1909

77) Lots 1, 2, 3, 4, & 5, Sec. 25, 1.0 T.8S., R.22E., S.B.B. & M. (Estrada)7 0.6 1928

78) StS NWVi, Lot 1, frac. NEV4 1.0 SWV4, Sec. 25, T.9S., R.21E., S.B.B. & M. (Whittle)7 0.6 1925

79) NtS NWV4, Sec. 25; SV2 SWV4, 1.0 Sec. 24; all in T.9S., R.21E., S.B.B. & M. (Corington)7 0.6 1928

80) StS NWV4, Nt2 SWJ/4, Sec. 1.0 24, T.9S., R.21E., S.B.B. & M. (Tolliver)7 0.6 1928

III

NEVADA

Federal Establishments’ Present Perfected Rights

The federal establishments named in Article II, subdivision (D), paragraphs (5) and (6) of this decree, such rights having been decreed by Article II:

Defined Area of Land Annual Diversions (acre-feet) Net Acres Priority Date

81) Fort Mojave Indian Reservation 12,534 1,939 s Sept. 18,1890

Annual Diversions Net Defined Area of Land (acre-feet) Acres Priority Date

82) Lake Mead National Recreation Area 500' 300 May 3, 1929 (The Overton Area of Lake Mead N.R.A. provided in Executive Order 5105)

       The quantity of water in each instance is measured by (i) diversions or (ii) consumptive use required for irrigation of the respective acreage and for satisfaction of related uses, whichever of (i) or (ii) is less.

       The names in parentheses following the description of the “Defined Area of Land” are used for identification of present perfected rights only; the name used is the first name appearing as the Claimants identified with a parcel in Arizona’s 1967 list submitted to this Court.

       Included as a part of the Powers’ claim in Arizona’s 1967 list submitted to this Court. Subsequently, the United States and Powers agreed to a Stipulation of Settlement on land ownership whereby title to this property was quieted in favor of the United States.

       The names in parentheses following the description of the “Defined Area of Land” are the names of claimants, added since the 1967 list, upon whose water use these present perfected rights.are predicated.

       The quantity of water in each instance is measured by (i) diversions or (ii) consumptive use required for irrigation of the respective acreage and for satisfaction of related uses, whichever of (i) or (ii) is less.

       The names in parentheses following the description of the “Defined Area of Land” are used for identification of present perfected rights only; the name used is the first name appearing as the claimant identified with a parcel in California’s 1967 list submitted to this Court.

       The names in parentheses following the description of the “Defined Area of Land” are the names of the homesteaders upon whose water use these present perfected rights, added since the 1967 list submitted to this Court, are predicated.

       The quantity of water in each instance is measured by (i) diversions or (ii) consumptive use required for irrigation of the respective acreage and for satisfaction of related uses, whichever of (i) or (ii) is less.

       Refers to acre-feet of annual consumptive use, not to net acres.


author: Per Curiam.

text:
    GONZALES, ATTORNEY GENERAL v. THOMAS et al.
    No. 05-552.
    Decided April 17, 2006
   Per Curiam.

The Immigration and Nationality Act authorizes the Attorney General to grant an alien asylum if the alien cannot return to another country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” § 101(a)(42)(A), as added, §201, 94 Stat. 102, 8 U. S. C. § 1101(a)(42)(A) (emphasis added). The respondents, Michelle Thomas and her immediate family, applied for asylum. They checked boxes on the application form that indicated their claim rested upon fear of persecution in their native South Africa because of (1) their “political opinion[s],” and (2) their “membership in a particular social group.” In proceedings before the Immigration Judge, they emphasized their fear of persecution because of their race (they are white) and their kinship with Michelle’s father-in-law, “Boss Ronnie,” a white South African who allegedly held racist views and mistreated black workers at the company at which he was a foreman. The Immigration Judge, focusing upon questions of race and political views, rejected their claim. And the Board of Immigration Appeals (BIA), responding to the Thomases’ primarily race-related arguments, summarily affirmed that decision.

On review, a Ninth Circuit panel held by a 2-to-l vote that the BIA had not adequately considered the Thomases’ claim of persecution because of “membership in a particular social group, as relatives of Boss Ronnie.” Thomas v. Ashcroft, 359 F. 3d 1169, 1177 (2004). The Ninth Circuit took the matter en banc. The en banc court, overruling what it considered aberrant contrary Circuit precedent, unanimously held that in principle “a family may constitute a social group for the purposes of the refugee statutes.” 409 F. 3d 1177, 1187 (2005) (emphasis added) (overruling, inter alia, Estrada-Posadas v. INS, 924 F. 2d 916 (CA9 1991)). In so doing, the court relied on earlier BIA opinions holding that certain “kinship ties” fall within the statutory term. See 409 F. 3d, at 1180, 1184-1186.

The court then went on to hold, over the dissent of four judges, that the particular family at issue, namely “ ‘persons related to Boss Ronnie/ ” fell within the scope of the statutory term “particular social group” and that the “Thomases were attacked and threatened because they belong to the particular social group of ‘persons related to Boss Ronnie’ . . . Id., at 1189. The dissenting judges argued that the question “whether the Thomases are a ‘particular social group’ ” should first be considered by the relevant administrative agency. Id., at 1193 (opinion of Rymer, J.) (emphasis in original). And they said that the majority’s contrary decision was inconsistent with this Court’s holding in INS v. Orlando Ventura, 537 U. S. 12, 18 (2002) (per curiam).

The Solicitor General now asks us to grant certiorari to consider whether the Ninth Circuit “erred in holding, in the first instance and without prior resolution of the questions by the” relevant administrative agency, “that members of a family can and do constitute a ‘particular social group,’ within the meaning of” the Act.. Pet. for Cert. I. He argues that a court’s role in an immigration case is typically one of “‘review, not of first view.’” Id., at 29 (quoting Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005)). He adds that the decision clearly violates what this Court described in Ventura as the “‘ordinary “remand” rule.’” Pet. for Cert. 15 (quoting Ventura, supra, at 18). And he concludes that “the Ninth Circuit’s error is so obvious in light of Ventura that summary reversal would be appropriate.” Pet. for Cert. 29.

We agree with the Solicitor General. The Ninth Circuit’s failure to remand is legally erroneous, and that error is “obvious in light of Ventura,” itself a summary reversal.

The alien in Ventura sought asylum on grounds of a reasonable fear of “persecution” in Guatemala “‘on account of... [a] political opinion.’ ” 537 U. S., at 13. The BIA held that the alien did not qualify for asylum because whatever persecution he faced when he left Guatemala in 1993 was not on account of a “ ‘political opinion.’ ” Ibid. The Ninth Circuit reversed, holding that the record showed that in 1993 the alien did indeed face politically based persecution in Guatemala. The Circuit then went on to consider the Government’s alternative argument — that, in any event, conditions within Guatemala had improved to the point that political persecution was no longer likely. Ibid. And the Circuit rejected this “‘changed circumstances’” claim without first giving the agency an opportunity to consider the matter. Id., at 14.

We reversed the Ninth Circuit summarily. We pointed out that “[wjithin broad limits the law entrusts the agency to make the basic asylum eligibility decision.” Id., at 16. “In such circumstances,” we added, a “‘judicial judgment cannot be made to do service for an administrative judgment.’” Ibid. (quoting SEC v. Chenery Corp., 318 U. S. 80, 88 (1943)). “A court of appeals ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.’” Ventura, supra, at 16 (quoting Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744 (1985)). “Rather, ‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.’” Ventura, supra, at 16 (quoting Florida Power & Light Co., supra, at 744; citing SEC v. Chenery Corp., 332 U. S. 194, 196 (1947)). Applying these “basic legal principles,” we concluded that “every consideration that classically supports the law’s ordinary remand requirement does so here.” Ventura, 537 U. S., at 16, 17.

We must reach the same conclusion in the present case. The agency has not yet considered whether Boss Ronnie’s family presents the kind of “kinship ties” that constitute a “particular social group.” The matter requires determining the facts and deciding whether the facts as found fall within a statutory term. And as we said in Ventura:

“The agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.” Id., at 17.

We can find no special circumstance here that might have justified the Ninth Circuit’s determination of the matter in the first instance. Thus, as in Ventura, the Court of Appeals should have applied the “ordinary ‘remand’ rule.” Id., at 18.

We grant the petition for certiorari. We vacate the judgment of the Court of Appeals. And we remand the case for further proceedings consistent with this opinion.

It is so ordered.


text:
    SALINAS v. UNITED STATES
    No. 05-8400.
    Decided April 24, 2006
   Per Curiam.

The petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit and the motion of petitioner for leave to proceed in forma pauperis are granted. The judgment is vacated, and the case is remanded to the Fifth Circuit for further consideration.

The Fifth Circuit concluded that petitioner’s prior conviction for simple possession of a controlled substance constituted a “controlled substance offense” for purposes of United States Sentencing Commission, Guidelines Manual §4Bl.l(a) (Nov. 2003). 142 Fed. Appx. 830 (2005). The term “controlled substance offense” is defined in pertinent part, however, as “an offense under federal or state law . . . that prohibits . . . the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense” §4B 1.2(b) (emphasis added). Accordingly, the Fifth Circuit erred in treating petitioner’s conviction for simple possession as a “controlled substance offense.” The Solicitor General acknowledges that the Fifth Circuit incorrectly ruled for the United States on this ground. Brief in Opposition 8-9.


author: Justice Thomas

text:
    NORTHERN INSURANCE COMPANY OF NEW YORK v. CHATHAM COUNTY, GEORGIA
    No. 04-1618.
    Argued March 1, 2006
    Decided April 25, 2006

      Miguel A. Estrada argued the cause for petitioner. With him on the briefs were Theodore J. Boutrous, Jr., and Matthew D. McGill.

      Dan Himmelfarb argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Garre, James A. Feldman, Mark B. Stern, J. Michael Wiggins, John E. Crowley, Robert Bruce, Amy Wright Larson, and Phillip Christopher Hughey.

      R. Jonathan Hart argued the cause for respondent. With him on the brief were Emily Elizabeth Garrard and David J. Bederman

        Thomas S. Biemer filed a brief for the Southeastern Pennsylvania Transportation Authority as amicus curiae urging affirmance.

   Justice Thomas

delivered the opinion of the Court.

Petitioner Northern Insurance Company of New York (Northern) filed suit against respondent Chatham County, Georgia (County), in the United States District Court for the Southern District of Georgia, seeking damages resulting from an alleged tort committed by employees of the County. The District Court granted the County’s motion for summary judgment on the ground that the suit was barred by sovereign immunity. Relying on Circuit precedent, the Court of Appeals for the Eleventh Circuit affirmed. We granted certiorari to consider “[wjhether an entity that does not qualify as an ‘arm of the State’ for Eleventh Amendment purposes can nonetheless assert sovereign immunity as a defense to an admiralty suit.” 546 U. S. 959 (2005).

I

The County owns, operates, and maintains the Causton Bluff Bridge, a drawbridge over the Wilmington River. On October 6, 2002, James Ludwig requested that the bridge be raised to allow his boat to pass. The bridge malfunctioned, a portion falling and colliding with Mr. Ludwig’s boat. As a result of the collision, Mr. Ludwig and his wife incurred damages in excess of $130,000.

The Ludwigs submitted a claim for those damages to their insurer, Northern, which paid in accordance with the terms of their insurance policy. Northern then sought to recover its costs by filing suit in admiralty against the County in the District Court. The County sought summary judgment, arguing that Northern’s claims were barred by sovereign immunity. The County conceded that Eleventh Amendment immunity did not extend to counties, but nonetheless contended that it was immune under “the universal rule of state immunity from suit without the state’s consent.” Defendant’s Brief in Support of Motion for Summary Judgment, Case No. CV403-099, App. 33a. The District Court agreed, relying on Broward County v. Wickman, 195 F. 2d 614 (CA5 1952), to conclude that sovereign immunity extends to counties and municipalities that, as here, “exercis[e] power delegated from the State.” Zurich Ins. Co. v. Chatham County, No. CV403-99, App. 77a.

The Eleventh Circuit, which was bound to follow Wickman as Circuit precedent, affirmed. The Court of Appeals acknowledged that the County did not assert an Eleventh Amendment immunity defense, which would fail because, under Circuit precedent, the County did not qualify as an arm of the State. Zurich Ins. Co. v. Chatham County, No. 04-13308 (Jan. 28, 2005), App. 83a, n. 1, judgt. order reported at 129 Fed. Appx. 602. The Court of Appeals nonetheless concluded that “common law has carved out a ‘residual immunity/ which would protect a political subdivision such as Chatham County from suit.” App. 83a. We granted certiorari to review the judgment of the Court of Appeals.

II

This Court’s cases have recognized that the immunity of States from suit “is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments.” Alden v. Maine, 527 U. S. 706, 713 (1999); see Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55-56 (1996); Principality of Monaco v. Mississippi, 292 U. S. 313, 322-323 (1934). Consistent with this recognition, which no party asks us to reexamine today, we have observed that the phrase “ ‘Eleventh Amendment immunity’ ... is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Alden, 527 U. S., at 713.

A consequence of this Court’s recognition of preratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law. See id., at 740; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 280 (1977). Accordingly, this Court has repeatedly refused to extend sovereign immunity to counties. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 401 (1979); id., at 401, n. 19 (gathering cases); Workman v. New York City, 179 U. S. 552, 565 (1900); Lincoln County v. Luning, 133 U. S. 529, 530 (1890). See also Jinks v. Richland County, 538 U. S. 456, 466 (2003) (“[Municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit”). This is true even when, as respondent alleges here, “such entities exercise a ‘slice of state power.’ ” Lake Country Estates, supra, at 401.

The County argues that this Court’s cases recognize a distinct “residual” immunity that permits adoption of a broader test than we apply in the Eleventh Amendment context to determine whether an entity is acting as an arm of the State and is accordingly entitled to immunity. Brief for Respondent 28. But this Court’s use of that term does not suggest the County’s conclusion; instead, this Court has referenced only the States’ “residuary and inviolable sovereignty” that survived the Constitution. See The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison); Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 751 (2002).

Because the County may claim immunity neither based upon its identity as a county nor under an expansive arm-of-the-State test, the County is subject to suit unless it was acting as an arm of the State, as delineated by this Court’s precedents, in operating the drawbridge. Alden, supra, at 756; Lake Country Estates, supra, at 400-401. The County conceded below that it was not entitled to Eleventh Amendment immunity, and both the County and the Court of Appeals appear to have understood this concession to be based on the County’s failure to qualify as an arm of the State under our precedent. See App. 83a, n. 1 (recognizing that the County rightly disclaimed an Eleventh Amendment immunity defense because such a defense would be inconsistent with the court’s holding in Vierling v. Celebrity Cruises, Inc., 339 F. 3d 1309 (CA11 2003), that the Broward County Port Authority was not an arm of the State); Brief of Appellee Chatham County in No. 04-13308DD (CA11), p. 13 (distinguishing Vierling in part because it dealt with the question of Eleventh Amendment immunity); see also Brief for Respondent 8 (implicitly conceding that respondent is not an arm of the State under our Eleventh Amendment jurisprudence). Moreover, the question on which we granted certiorari is premised on the conclusion that the County is not “an ‘arm of the State’ for Eleventh Amendment purposes,” 546 U. S. 959 (2005), and we presume that to be the case. Accordingly, the County’s concession and the presumption underlying the question on which we granted review are dispositive.

As an alternative ground for affirmance, the County asks the Court to recognize a distinct sovereign immunity against in personam admiralty suits that bars cases arising from a county’s exercise of core state functions with regard to navigable waters. Recognition of a distinct immunity in admiralty cases cannot be reconciled with our precedents. Immunity in admiralty, like other sovereign immunity, is simply an application of “the fundamental rule” that “the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given.” Ex parte New York, 256 U. S. 490, 497-500 (1921). Accordingly, this Court has resolved sovereign immunity questions in admiralty by relying upon principles set out in this Court’s sovereign immunity cases, rather than by examining the history or jurisprudence specific to suits in admiralty. See Federal Maritime Comm’n v. South Carolina Ports Authority, supra, at 754-769 (an admiralty suit relying heavily on Alden, supra (plaintiff raised a Fair Labor Standards Act of 1938 claim), and Seminole Tribe of Fla. v. Florida, supra (plaintiff alleged violation of the Indian Gaming Regulatory Act)). Indeed, the Court applied the general principle that sovereign immunity does not bar a suit against a city to an admiralty suit as early as Workman v. New York City, 179 U. S. 552, which held that such immunity “afforded no reason for denying redress in a court of admiralty for the wrong which . . . [had] been committed” by the city of New York, id., at 570.

The County nonetheless contends — and the Eleventh Circuit, in reliance upon the Fifth Circuit’s analysis in Wickman, held — that the reach of Workman is limited, and that this Court’s decision in Ex parte New York, supra, demonstrates that Workman does not govern the instant case. See Wickman, 195 F. 2d, at 615. We disagree. Ex parte New York extended sovereign immunity beyond cases “in law or equity” to cases in admiralty. As the County points out, Ex parte New York concluded that Workman involved only the substantive law of admiralty, and not the power of the Court to exercise jurisdiction over a particular defendant. Ex parte New York, supra, at 498. But Workman dealt only with the substantive law of admiralty precisely because the Workman Court held that admiralty courts have jurisdiction over municipal corporations. See 179 U. S., at 565 (“[A]s a general rule, municipal corporations, like individuals, may be sued; in other words . . . they are amenable to judicial process for the purpose of compelling performance of their obligations”). The Workman Court accordingly distinguished between the question before it — whether courts of admiralty may, notwithstanding state law, “redress a wrong committed by one over whom such courts have adequate jurisdiction,” id., at 566, such as a municipal corporation — and the question not before it, but before the Court in Ex parte New York — whether courts of admiralty may “give redress in a case where jurisdiction over the person or property cannot be exerted,” 179 U. S., at 566. In the former circumstance, the court should apply general admiralty principles, while in the latter the court lacks the power to do so. See id., at 570; Ex parte New York, supra, at 499-500, 502-503. Because here, as in Workman and in contrast to Ex parte New York, the defendant was an entity generally within the jurisdiction of the District Court, Ex parte New York is inapposite, and Workman compels the conclusion that the County is unprotected by sovereign immunity.

* *

Because the County has failed to demonstrate that it was acting as an arm of the State when it operated the Causton Bluff Bridge, the County is not entitled to immunity from Northern’s suit. Accordingly, the judgment of the Court of Appeals is reversed.

It is so ordered.

       See Bonner v. Prichard, 661 F. 2d 1206, 1209 (CA11 1981) (en bane) (adopting all decisions of the former Fifth Circuit announced prior to October 1,1981, as binding precedent in the Eleventh Circuit).

       It is unclear whether respondent believes that residual immunity is a common-law immunity that has been unaltered by federal substantive law, see Brief for Respondent 18 (“Chatham County’s sovereign immunity derives from the common law which pre-dates Eleventh Amendment immunity”), or, as the Solicitor General appears to believe, a constitutionally based immunity that is distinguishable from the one drawn from the constitutional structure, see Tr. of Oral Arg. 16 (“What respondent calls residual sovereign immunity ... is the doctrine of constitutional sovereign immunity”). In either case, it appears that the residual immunity would serve to extend sovereign immunity beyond its preratification scope.