Justices to hear dispute between California, Arizona and Indian tribe

Bart Jansen

Monday, April 24, 2000 | 4:39 a.m.

WASHINGTON - California and Arizona will face off Tuesday against an Indian tribe and the federal government at the Supreme Court over rights to Colorado River water already allotted to thirsty populations and agriculture in both states.

The Quechan tribe wants more water to irrigate its Fort Yuma Indian Reservation, which straddles the Colorado as it flows between the two states. The tribe claims the water under an 1893 treaty that promised irrigation benefits which never materialized.

But both states contend the Quechan (pronounced Kwuh-tsan) relinquished their claim in a $15 million settlement over disputed land and water in 1983.

The issue before the Supreme Court is also significant because it is the last unresolved dispute in a 48-year-old lawsuit between the states over allocation of the Colorado's water.

The volume in dispute is relatively small, about 1 percent of the river water divided among Nevada, Arizona and California. But California already draws more water than it is allocated, and communities rely on the water for development and farming.

"It doesn't amount to a great deal, but that will not stop us in the West from fighting over it to death," said David Harding Getches, a law professor at the University of Colorado who specializes in water and Indian issues. "In the Colorado River basin, every acre foot is fought over as if it's the last."

The Supreme Court won't decide directly who gets the water, but whether or not the tribe's claim will be sent to a so-called special master, who could potentially grant the water rights. The court's decision is expected by late June.

The tribe got its reservation and enough water to raise crops under a presidential order in 1884. The tribe negotiated an agreement in 1893 with the federal government to give up 25,000 acres of land in exchange for construction of irrigation canals needed to settle the remaining land.

Because the canals were never built, Interior Secretary Cecil Andrus ruled in 1978 that the tribe got cheated. The federal government had already sold some of the land and the All-American Canal got a right-of-way across the reservation earlier in the century.

In 1983, the federal government paid the tribe $15 million "for damages for the taking of parts of the reservation after 1893 and the loss of use of other parts of the reservation from 1893 to 1978."

The tribe argues that it still deserves water to accompany the land, but the states disagree.

Arizona had sued California over river water in 1952. Because the case is a dispute between states, it leapt directly into the high court's lap. In such cases, the court assigns a special master to sort out facts and then the justices settle lingering disputes.

Special Master Elbert Tuttle ruled in 1982 that the tribe deserved 78,519 acre feet of water per year for the disputed land out of the millions of acre feet flowing in the river.

But the states objected and the Supreme Court rejected that allocation, in part because the reservation's boundaries remained disputed.

The Quechan tribe and the federal government, acting as its trustee, are now asking for a special master to take another look and finally settle the boundary and water rights.

Mason Morisset, the tribe's Seattle lawyer, said the states that had been pushing for a resolution of the boundary dispute are now trying to "foreclose that possibility to gain advantage in water allocation."

The tribe leases farmland on its reservation for three or four growing seasons a year and plans to use the water for more agriculture, he said. At $200 per acre foot, the water is worth more than $15 million a year, he said.

"In water issues, everybody argues over every drop," he said. "It is significant."

But the case's current special master, Frank McGarr of Chicago, ruled last July that the 1983 settlement ended the tribe's claim to the extra water. The states agreed.

Lawyers for both states, the giant Metropolitan Water District of Southern California and the Coachella Valley Water District argued that giving more to the tribe would "exacerbate potential water shortage problems" for the states. Communities from Phoenix to Los Angeles depend on the water that the tribe could win.

"Taking a chunk of water out of a prior perfected right would have a detrimental effect on the rest of the state," said Mike Pearce, chief counsel for the Arizona Department of Water Resources. "That water is going to come right out of the Metropolitan supply."

Under a 1922 agreement, California is assured 4.4 million acre-feet of water a year from the Colorado River, but the state typically uses 5.2 million acre-feet a year.

An acre-foot is about 326,000 gallons, or enough water for a family of four for a year.

The case is Arizona vs. California, 8 Original.