# Petition for Writ of Certiorari — Mohave Valley Irrigation & Drainage District v. Norton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1041

## Text

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Noo1. 1 498 SEP 2 12001

IN THE

Supreme Court of the United States

MOHAVE VALLEY IRRIGATION AND DRAINAGE
DISTRICT, a political subdivision of the State of Arizona,

Petitioner,
Vv.
GALE A. NORTON, Secretary of Interior,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UniteD STATES CouRT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SHIRLEY S. SIMPSON TERRENCE S. LEEK
8914 South 14ist Avenue Counsel of Record
Goodyear, Arizona 85338 TERRENCE S. LEEK, P.C.
(623) 932-5683 126 North Marina

Prescott, Arizona 86301
(928) 778-7700

Attorneys for Petitioner

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COUNSEL PRESS
(800) 274-3321 + (800) 359-6859 >

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QUESTION PRESENTED

This case really began in the early 1920’s when
representatives of seven western states met to allocate
Colorado River water among themselves. The Colorado
River Compact resulted. Congress also wrestled with
concerns over development of the arid Southwest. The
Boulder Canyon Project Act resulted. Congress delegated
broad discretion to respondent to contract with users of water
stored by the Project, but limited that discretion significantly
with respect to contracts for delivery of water that was
delivered to holders of present perfected rights. Arizona then
called upon this Court to interpret the Act and to allocate
Colorado River water among the states and their
appropriators. Petitioner has no present perfected rights in
Colorado River water. In 1968, under the broad authority
granted respondent, respondent’s predecessor entered into a
water delivery contract with petitioner. This Court has
provided an explicit roadmap in Arizona v. California and
Bryant v. Yellen for deciding cases interpreting the Project
Act. Nonetheless, the Ninth Circuit relied upon general
reclamation law, not the Boulder Canyon Project Act or this
Court’s decisions interpreting the Act, to opine that
petitioner’s 1968 water delivery contract expressly included
water that respondent was required to deliver to holders of
present perfected rights.

The question presented is whether present perfected
rights were included in petitioner’s 1968 contract for
permanent water service from the mainstream of the
Colorado River because land that these rights benefit is
located within the physical boundaries of petitioner’s district.

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of the Colorado River by underground pumping’
pursuant to Article I(c) of the Decree of the
Supreme Court referred to in Article 5 hereof.
Pumped water drawn from lands within the
external boundary of the District that are not part
of the District, as defined in Paragraph (g) above,
shall not be charged against the 51,000 acre feet
allocated to the District under this Contract."*

Babbit contends that these two articles establish that
Mohave Valley’s entitlement includes water allocated to
present perfected rights. The court agrees. By its own terms,
the contract obligated the United States to provide water for
use “by and within the District . . . including all other waters
diverted directly from the surface flow of the Colorado River
or withdrawn from the mainstream of the Colorado River by
underground pumping from such wells and for such uses as
are described in Article 9(h).”'* The contract specifies that
all pumped water is considered to be water withdrawn from
the mainstream of the Colorado River by underground
pumping.’ Article 9(h) contemplates “such uses” as the
delivery to excess lands that amount of water pumped “by
the District or by any other person, firm, or Corporation,
from wells located within or outside the District for use
within the District or from wells located within the District
for use outside the District.’'®

13. Contract, Article 9(h) at 5-6 (emphasis added).
14. Contract, Article 10(a)(i) at 6.

15. Contract, Article 9(h) at 5.

16. Id.

l4a

Appendix B

The contract includes an exception. Article 9(h) provides
that pumped water “drawn from lands within the external
boundary of the District that are not part of the District, as
defined in Paragraph (g) above, shall not be charged against
the 51,000 acre feet [subsequently amended to 41,000 acre
feet in 1979] allocated to the District under this Contract.”"’
Babbitt notes, as an example of such lands, the Fort Mohave
Indian Tribe reservation.'* This exception essentially
recognizes that the contract provides that water allocated to
lands within the District — as “District” is defined in Article
9(g) — is included within the total amount of water allocated
to Mohave Valley. If this were not the case, then the
exception would not be necessary. Mohave Valley does not
argue that this exception is applicable, and the court is aware
of no evidence that would suggest that the exception applies
in this case. In short the 1968 contract may not be a model
of clarity, but its terms expressly provide that the total
quantity of water the United States is obligated to allocate
to Mohave Valley includes all other water allocated to the
District which by operation of law would include water
allocated to present perfected rights.

Instead of addressing the contract’s terms and provisions,
Mohave Valley launches a barrage of arguments which, in
this court’s opinion, miss the mark. Mohave Valley contends
that allocating water for present perfected rights violates
administrative law, that Babbitt is attempting to unilaterally
amend the contract, that the contract is ambiguous, that the

17. Contract, Article 9(h) at 6.

18. Response to Plaintiff's Motion for Summary Judgment, |
docket 34 at 4 n.4.

15a

Appendix B

contract must be strictly construed against the United States,
that the decision to include water allocated for present
perfected rights within the total amount of water allocated
to Mohave Valley represents an unconscionable decision,
that the contract should be reformed to accommodate the
parties’ purported original intent, and a number of other
arguments too numerous to recite. The court has considered
Mohave Valley’s arguments and finds them unpersuasive
principally for those reasons stated in Babbitt’s response at
docket 34.

V. CONCLUSION

For the foregoing reasons, the United States’ motion for
summary judgment at docket 22 is GRANTED, and Mohave
Valley’s motions at docket 26 is DENIED. As an
administrative matter, the Clerk of Court will also reflect
that Mohave Valley’s “motion” at docket 32 has also been
DENIED in order that this “motion” may be cleared from
the court’s docket.'®

DATED at Anchorage, Alaska this 25" day of June,
1999.

s/ John W. Sedwick

JOHN W. SEDWICK
UNITED STATES DISTRICT
JUDGE

19. See note 1, supra.

l6a

Appendix B

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

CIV-95-2640-PCT-EHC (JWS)

MOHAVE VALLEY IRRIGATION

AND DRAINAGE DISTRICT,
Plaintiff,
v.
HONORABLE BRUCE E. BABBITT
Defendant.
JUDGMENT
* * &

XXXX Decision by Court. This action came for
consideration before the Court. The issues have
been considered and a decision has been rendered.

IT IS ORDERED ADJUDGED that this Court having
granting Defendant’s motion for summary judgment; Plaintiff
take nothing. This complaint and action are hereby dismissed.

DATED at Phoenix, Arizona, this 29th day of June, 1999.

RICHARD H. WEARE
DCE/Clerk of Court

By: [illegible]
Deputy Clerk

17a

APPENDIX C — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
DENYING PETITION FOR REHEARING
DATED AND FILED JUNE 29, 2001

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 99-16927
D.C. No. CV-95-02640-JWS

MOHAVE VALLEY IRRIGATION &
DRAINAGE DISTRICT,

Plaintiff-Appellant,

v.
GALE A. NORTON, SECRETARY OF INTERIOR,
Defendant-Appellee.
ORDER

Before:

SCHROEDER, Chief Judge, WALLACE, and TALLMAN,
Circuit Judges.

The panel as constituted above has voted to deny the
petition for rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for
rehearing en banc and no active judge has requested a vote
on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing
en banc are denied.

18a

APPENDIX D — BOULDER CANYON PROJECT
ACT, 43 U.S.C. §§ 617, 617d, 617e AND 617 g(a)

Sec. 617. Colorado River Basin; protection and
development; dam, reservoir, and incidental works;
water, water power, and electrical energy; eminent
domain

For the purpose of controlling the floods, improving
navigation, and regulating the flow of the Colorado River,
’ providing for storage and for the delivery of the stored waters
thereof for reclamation of public lands and other beneficial
uses exclusively within the United States, and for the
generation of electrical energy as a means of making the
project herein authorized a self-supporting and financially
solvent undertaking, the Secretary of the Interior subject to
the terms of the Colorado River compact hereinafter
mentioned in this chapter, is authorized to construct, operate,
and maintain a dam and incidental works in the main stream
of the Colorado River at Black Canyon or Boulder Canyon
adequate to create a storage reservoir of a capacity of not
less than twenty million acre-feet of water and a main canal
and appurtenant structures located entirely within the United
States connecting the Laguna Dam, or other suitable
diversion dam, which the Secretary of the Interior is
authorized to construct if deemed necessary or advisable by
him upon engineering or economic considerations, with the
Imperial and Coachella Valleys in California, the expenditures
for said main canal and appurtenant structures to be
reimbursable, as provided in the reclamation law, and shall
not be paid out of revenues derived from the sale or disposal
of water power or electric energy at the dam authorized to
be constructed at said Black Canyon or Boulder Canyon, or
for water for potable purposes outside of the Imperial and

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Appendix D

Coachella Valleys: Provided, however, That no charge shall
be made for water for the use, storage, or delivery of water
for irrigation or water for potable purposes in the Imperial
or Coachella Valleys; also to construct and equip, operate,
and maintain at or near said dam, or cause to be constructed,
a complete plant and incidental structures suitable for the
fullest economic development of electrical energy from the
water discharged from said reservoir; and to acquire by
proceedings in eminent domain, or otherwise, all lands,
rights-of-way, and other property necessary for said
purposes.

Sec. 617d. Contracts for storage and use of waters for
irrigation and domestic purposes; generation and sale of
electrical energy

The Secretary of the Interior is authorized, under such general
regulations as he may prescribe, to contract for the storage
of water in said reservoir and for the delivery thereof at such
points on the river and on said canal as may be agreed upon,
for irrigation and domestic uses, and generation of electrical
energy and delivery at the switchboard to States, municipal
corporations, political subdivisions, and private corporations
of electrical energy generated at said dam, upon charges that
will provide revenue which, in addition to other revenue
accruing under the reclamation law and under this subchapter,
will in his judgment cover all expenses of operation and
maintenance incurred by the United States on account of
works constructed under this subchapter and the payments
to the United States under subsection (b) of section 617c of

20a

Appendix D

this title. Contracts respecting water for irrigation and
domestic uses shall be for permanent service and shall
conform to subsection (a) of section 617c of this title. No
person shall have or be entitled to have the use for any
purpose of the water stored as aforesaid except by contract
made as herein stated.

Sec. 617e. Uses to be made of dam and reservoir; title in
whom; leases, regulations; limitation on authority

The dam and reservoir provided for by section 617 of this
title shall be used: First, for river regulation, improvement
of navigation, and flood control; second, for irrigation and
domestic uses and satisfaction of present perfected rights in
pursuance of Article VIII of said Colorado River compact;
and third, for power. The title to said dam, reservoir, plant,
and incidental works shall forever remain in the United
States, and the United States shall, until otherwise provided
by Congress, control, manage, and operate the same, except
as herein otherwise provided: Provided, however, That the
Secretary of the Interior may, in his discretion, enter into
contracts of lease of a unit or units of any Government-built
plant, with right to generate electrical energy, or alternatively,
to enter into contracts of lease for the use of water for the
generation of electrical energy as herein provided, in either
of which events the provisions of section 617d of this title
relating to revenue, term, renewals, determination of
conflicting applications, and joint use of transmission lines
under the contracts for sale of electrical energy, shall apply.

*_ * **

2la

Appendix D

Sec. 617g. Colorado River compact as controlling
authority in construction and maintenance of dam,
reservoir, canals, and other works

(a) The United States, its permittees, licensees, and
contractees, and all users and appropriators of water stored,
diverted, carried, and/or distributed by the reservoir, canals,
and other works herein, authorized shall observe a: i be
subject to and controlled by said Colorado River compact in
the construction, management, and operation of said
reservoir, canals, and other works and the storage, diversion,
delivery, and use of water for the generation of power,
irrigation, and other purposes, anything in this subchapter
to the contrary notwithstanding, and all permits, licenses,
and contracts shall so provide.

* * * *

22a

APPENDIX E — CONTRACT FOR DELIVERY OF

WATER BETWEEN UNITED STATES DEPARTMENT

OF THE INTERIOR AND THE STATE OF ARIZONA
(ARIZ. REV. STAT. § 45-1301)

45-1301. Ratification of Lake Mead contract

There is hereby unconditionally ratified, approved and
confirmed, that certain contract for the storage and delivery
of water from Lake Mead executed on behalf of the United
States by the honorable Harold L. Ickes, secretary of the
interior, and on behalf of the state of Arizona by its Colorado
river commission, bearing date the 9th day of February, 1944,
as follows:

UNITED STATES DEPARTMENT
OF THE INTERIOR

Bureau of Reclamation
BOULDER CANYON PROJECT
Arizona-California-Nevada
CONTRACT FOR DELIVERY OF WATER

THIS CONTRACT made this 9th day of February, 1944,
pursuant to the Act of Congress approved June 17, 1902 (32
Stat. 388), and acts amendatory thereof or supplemental
thereto, all of which acts are commonly known and referred
to as the Reclamation Law, and particularly pursuant to the
Act of Congress approved December 21, 1928 (45 Stat.
1057), designated the Boulder Canyon project act, and acts
amendatory thereof or supplementary thereto, between THE

23a

Appendix E

UNITED STATES OF AMERICA, hereinafter referred to
as “United States,” acting for this purpose by Harold L. Ickes,
secretary of the interior, hereinafter referred to as the “secretary,”
and the STATE OF ARIZONA, hereinafter referred to as
“Arizona,” acting for this purpose by the Colorado river
commission of Arizona, pursuant to chapter 46 of the 1939
session laws of Arizona,

WITNESSETH THAT:
EXPLANATORY RECITALS

2. WHEREAS, for the purpose of controlling floods,
improving navigation, regulating the flow of the Colorado
River, providing for storage and for the delivery of stored
waters for the reclamation of public lands and other beneficial
uses exclusively within the United States, the Secretary
acting under and in pursuance of the provisions of the
Colorado River Compact and Boulder Canyon Project Act,
and acts amendatory thereof or supplementary thereto, has
constructed and is now operating and maintaining in the main
stream of the Colorado River at Black Canyon that certain
structure known as and designated Boulder Dam and
incidental works, creating thereby a reservoir designated
Lake Mead of a capacity of about thirty-two million
(32,000,000) acre-feet, and

3. WHEREAS, said Boulder Canyon Project Act provides
that the Secretary under such general rules and regulations,
as he may prescribe, may contract for the storage of water in
the reservoir created by Boulder Dam, and for the delivery
of such water at such points on the river as may be agreed

24a

Appendix E

upon, for irrigation and domestic uses, and provides further
that no person shall have or be entitled to have the use for
any purpose of the water stored, as aforesaid, except by
contract made as stated in said Act, and

4. WHEREAS, it is the desire of the parties to this contract
to contract for the storage of water and the delivery thereof
for irrigation of lands and domestic uses within Arizona, and

5. WHEREAS, nothing in this contract shall be construed
as affecting the obligations of the United States to Indian
tribes,

6. NOW, THEREFORE, in consideration of the mutual
covenants herein contained, the parties hereto agree as
follows, to wit:

DELIVERY OF WATER

7. (a) Subject to the availability thereof for use in Arizona
under the provisions of the Colorado River Compact and
the Boulder Canyon Project Act, the United States shall
deliver and Arizona, or agencies or water users therein, will
accept under this contract each calendar year from storage
in Lake Mead, at a point or points of diversion on the
Colorado River approved by the Secretary, so much water
as may be necessary for the beneficial consumptive use for
irrigation and domestic uses in Arizona of a maximum of
2,800,000 acre-feet.

(b) The United States also shall deliver from storage in Lake
Mead for use in Arizona, at a point or points of diversion on

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25a

Appendix E

the Colorado River approved by the Secretary, for the uses
set forth in subdivision (a) of this Article, one-half of any
excess or surplus waters unapportioned by the Colorado
River Compact to the extent such water is available for use
in Arizona under said compact and said act, less such excess
or surplus water unapportioned by said compact as may be
used in Nevada, New Mexico, and Utah in accordance with
the rights of said states as stated in subdivisions (f) and (g)
of this Article.

(c) This contract is subject to the condition that Boulder Dam
and Lake Mead shall be used: First, for river regulation,
improvement of navigation, and flood control; second, for
irrigation and domestic uses and satisfaction of perfected
rights in pursuance of Article VIII of the Colorado River
Compact; and third, for power. This contract is made upon
the express condition and with the express covenant that the
United States and Arizona, and agencies and water users
therein, shall observe and be subject to and controlled by
said Colorado River Compact and the Boulder Canyon
Project Act in the construction, management, and operation
of Boulder Dam, Lake Mead, canals and other works, and
the storage, diversion, delivery and use of water for the
generation of power, irrigation and other uses.

(d) The obligation to deliver water at or below Boulder Dam
shall be diminished to the extent that consumptive uses now
or hereafter existing in Arizona above Lake Mead diminish
the flow into Lake Mead, and such obligation shall be subject
to such reduction on account of evaporation, reservoir and
river losses, as may be required to render this contract in
conformity with said compact and said act.

26a
Appendix E

(e) This contract is for permanent service, subject to the
conditions stated in subdivision (c) of this Article, but as to
the one-half of the waters of the Colorado River system
unapportioned by paragraphs (a), (b) and (c) of Article III of
the Colorado River Compact, such water is subject to further
equitable apportionment at any time after October 1, 1963,
as provided in Article III(f) and Article III(g) of the Colorado
River Compact.

(f) Arizona recognizes the right of the United States and
the State of Nevada to contract for the delivery from storage
in Lake Mead for annual beneficial consumptive use within
Nevada for agricultural and domestic uses of 300,000
acre-feet of the water apportioned to the Lower Basin by the
Colorado River Compact, and in addition thereto to make
contract for like use of 1/25 (one twenty-fifth) of any excess
or surplus waters available in the Lower Basin and
unapportioned Ly the Colorado River Compact, which waters
are subject to further equitable apportionment after October
1, 1963 as provided in Article III(f) and Article III(g) of the
Colorado River Compact.

(g) Arizona recognizes the nghts of New Mexico and Utah
to equitable shares of the water apportioned by the Colorado
River Compact to the Lower Basin and also water unapportioned
by such compact, and nothing contained in this contract shall
prejudice such rights.

(h) Arizona recognizes the right of the United States and
agencies of the State of California to contract for storage
and delivery of water from Lake Mead for beneficial
consumptive use in California, provided that the aggregate

27a

Appendix E

of all such deliveries and uses in California from the Colorado
River shall not exceed the limitation of such uses in that
State required by the provisions of the Boulder Canyon
Project Act and agreed to by the State of California by an
act of its Legislature (Chapter 16, Statutes of California of
1929) upon which limitation the State of Arizona expressly
relies.

(i) Nothing in this contract shall preclude the parties hereto
from contracting for storage and delivery above Lake Mead
of water herein contracted for, when and if authorized by
law.

(j) As far as reasonable diligence will permit, the water
provided for in this contract shall be delivered as ordered
and as reasonably required for domestic and irrigation uses
within Arizona. The United States reserves the right to
discontinue or temporarily reduce the amount of water to be
delivered, for the purpose of investigation and inspection,
maintenance, repairs, replacements or installation of
equipment or machinery at Boulder Dam, or other dams
heretofore or hereafter to be constructed, but so far as feasible
will give reasonable notice in advance of such temporary
discontinuance or reduction.

(k) The United States, its officers, agents and employees
shall not be liable for damages when for any reason
whatsoever suspensions or reductions in the delivery of water
occur.

(1) Deliveries of water hereunder shall be made for use within
Arizona to such individuals, irrigation districts, corporations

28a

Appendix E

or political subdivisions therein of Arizona as may contract
therefor with the Secretary, and as may qualify under the
Reclamation Law or other federal statutes or to lands of the
United States within Arizona. All consumptive uses of water
by users in Arizona, of water diverted from Lake Mead or
from the main stream of the Colorado River below Boulder
Dam, whether made under this contract or not, shall be
deemed, when made, a discharge pro tanto of the obligation
of this contract. Present perfected rights to the beneficial
use of waters of the Colorado River system are unimpaired
by this contract.

(m) Rights-of-way across public lands necessary or
convenient for canals to facilitate the full utilization in
Arizona of the water herein agreed to be delivered will be
granted by the Secretary subject to applicable federal statutes.

POINTS OF DIVERSION: MEASUREMENTS OF WATER

8. The water to be delivered under this contract shall be
measured at the points of diversion, or elsewhere as the
Secretary may designate (with suitable adjustment for losses
between said points of diversion and measurement), by
measuring and controlling devices or automatic gauges
approved by the Secretary, which devices, however, shall
be furnished, installed, and maintained by Arizona, or the
users of water therein in a manner satisfactory to the
Secretary; said measuring and controlling devices or
automatic gauges shall be subject to the inspection of the
United States, whose authorized representatives may at all
times have access to them, and any deficiencies found shall
be promptly corrected by the users thereof. The United States

29a

Appendix E

shall be under obligation to deliver water only at diversion
points where measuring and controlling devices or automatic
gauges are maintained, in accordance with this contract, but
in the event diversions are made at points where such devices
are not maintained, the Secretary shall estimate the quantity
of such diversions and his determination thereof shall be
final.

CHARGES FOR STORAGE AND DELIVERY OF WATER

9. No charge shall be made for the storage or delivery of
water at diversion points as herein provided necessary to
supply present perfected rights in Arizona. A charge of 50¢
per acre-foot shall be made for all water actually diverted
directly from Lake Mead during the Boulder Dam cost
repayment period, which said charge shall be paid by the
users of such water, subject to reduction by the Secretary in
the amount of the charge if it is concluded by him at any
time during said cost-repayment period that such charge is
too high. After expiration of the cost-repayment period,
charges shall be on such basis as may hereafter be prescribed
by Congress. Charges for the storage or delivery of water
diverted at a point or points below Boulder Dam, for users,
other than those specified above, shall be as agreed upon
between the Secretary and such users at the time of execution
of contracts therefor, and shall be paid by such users;
provided such charges shall, in no event, exceed 25¢ per
acre-foot.

RESERVATIONS

10.. Neither Article 7, nor any other provision of this contract,
shall impair the right of Arizona and other states and the

30a

Appendix E

users of water therein to maintain, prosecute or defend any
action respecting, and is without prejudice to, any of the
respective contentions of said states and water users as to
(1) the intent, effect, meaning, and interpretation of said
compact and said act; (2) what part, if any, of the water used
or contracted for by any of them falls within Article III(a) of
the Colorado River Compact; (3) what part, if any, is within
Article III(b) thereof; (4) what part, if any, is excess or
surplus waters unapportioned by said Compact; and (5) what
limitations on use, rights of use and relative priorities exist
as to the waters of the Colorado River system; provided,
however, that by these reservations there is no intent to
disturb the apportionment made by Article III(a) of the
Colorado River Compact between the Upper Basin and the
Lower Basin.

DISPUTES AND DISAGREEMENTS

11. Whenever a controversy arises out of this contract, and
if the parties hereto then agree to submit the matter to
arbitration, Arizona shall name one arbitrator and the
Secretary shall name one arbitrator and the two arbitrators
thus chosen shall meet within ten days after their selection
and shall elect one other arbitrator within fifteen days after
their first meeting, but in the event of their failure to name
the third arbitrator within thirty days after their first meeting,
such arbitrator not so selected shall be named by the Senior
Judge of the United States Circuit Court of Appeals for the
Tenth Circuit. The decision of any two of the three arbitrators
thus chosen shall be a valid and binding award.

3la

Appendix E
RULES AND REGULATIONS

12. The Secretary may prescribe and enforce rules and
regulations governing the delivery and diversion of waters
hereunder, but such rules and regulations shall be
promulgated, modified, revised or extended from time to time
only after notice to the State of Arizona and opportunity is given
to it to be heard. Arizona agrees for itself, its agencies and water
users that in the operation and maintenance of the works for
diversion and use of the water to be delivered hereunder, all
such rules and regulations will be fully adhered to.

AGREEMENT SUBJECT TO COLORADO RIVER
COMPACT

13. This contract is made upon the express condition and
with the express covenant that all rights of Arizona, its
agencies and water users, to waters of the Colorado River
and its tributaries, and the use of the same, shall be subject
to and controlled by the Colorado River Compact signed at
Santa Fe, New Mexico, November 24, 1922, pursuant to the
Act of Congress approved August 19, 1921 (42 Stat. 171),
as approved by the Boulder Canyon Project Act.

EFFECTIVE DATE OF CONTRACT

14. This contract shall be of no effect unless it is
unconditionally ratified by an Act of the Legislature of
Arizona, within three years from the date hereof, and further,
unless within three years from the date hereof the Colorado
River Compact is unconditionally ratified by Arizona. When
both ratifications are effective, this contract shall be effective.

32a

Appendix E
INTEREST IN CONTRACT NOT TRANSFERABLE

15. No interest in or under this contract, except as provided
by Article 7(1), shall be transferable by either party without
the written consent of the other.

APPROPRIATION CLAUSE

16. The performance of this contract by the United States is
contingent upon Congress making the necessary
appropriations for expenditures for the completion and the
operation and maintenance of any dams, power plants or
other works necessary to the carrying out of this contract, or
upon the necessary allotments being made therefor by any
authorized federal agency. No liability shall accrue against
the United States, its officers, agents or employees by reason
of the failure of Congress to make any such appropriations
or of any federal agency to make such allotments.

MEMBER OF CONGRESS CLAUSE

17. No Member of or Delegate to Congress or Resident
Commissioner shall be admitted to any share or part of this
contract or to any benefit that may arise herefrom, but this
restriction shall not be construed to extend to this contract if
made with a corporation or company for its general benefit.

DEFINITIONS

18. Wherever terms used herein are defined in Article II of
the Colorado River Compact or in Section 12 of the Boulder
Canyon Project Act, such definitions shall apply in
construing this contract.

33a

Appendix E
19. IN WITNESS WHEREOPF, the parties hereto have

caused this contract to be executed the day and year first
above written.

THE UNITED STATES OF AMERICA

By (s) Harold L. Ickes Secretary of the Interior

STATE OF ARIZONA, acting by and through its
COLORADO RIVER COMMISSION

By (s) Henry S. Wright, Chairman
By (s) Nellie T. Bush, Secretary

Approved this 11th day of Feb., 1944

(s) Sidney P. Osborn Governor of the State of Arizona

34a

APPENDIX F — FINAL DECISION OF THE UNITED
STATES DEPARTMENT OF THE INTERIOR
DATED APRIL 3, 1996

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
WASHINGTON, D.C. 20240

APR 03 1996
CERTIFIED — RETURN RECEIPT REQUESTED

Mr. R. D. Johnson

General Manager

Mohave Valley Irrigation and
Drainage District

P.O. Box 5813

Mohave Valley, Arizona 86440

Dear Mr. Johnson:

By letter dated August 18, 1994, your attorney, Mr. Terrence
S. Leek, appealed the Lower Colorado Region’s
determination dated June 1, 1994, signed by Mr. Robert W.
Johnson, Regional Director. The determination stated that
MVIDD’s contract entitlement of up to 41,000 acre-feet of
Colorado River pursuant to Contract No. 14-06-W-204 is
subject to the Present Perfected Rights (PPR) entitlements
located within MVIDD’s contract service area.

In response to your appeal, this office requested the
Department of the Interior’s Office of the Solicitor to analyze
MVIDD’s contract and the relevant Law of the River. By
memorandum dated February 21, 1996 (copy enclosed), the

35a

Appendix F

Assistant Solicitor, Branch of Water & Power Division of
Land and Water provided this office the requested analysis.

This office has reviewed the analysis and concurs with the
Regional Director’s determination that the PPRs within
MVIDD’s contract service area were subsumed into the
MVIDD contract. This letter constitutes the final decision
of the Department of the Interior on this matter.

Accordingly, the diversion of Colorado River water by well
or from the river for use by PPR holders or MVIDD for use
within MVIDD’s contract service area will be charged
against and limited to MVIDD’s contract water ertitlement.
The PPR holders whose lands are located within MVIDD’s
contract service area who have a contract with the United
States have a superior right over MVIDD’s contractual
entitlement to Colorado River water. In any year that such
PPR holders do not schedule and fully use their PPR water
entitlements, MVIDD, by virtue of its contract, may schedule
and use the unused portion of the PPR contract entitlements,
providing the Colorado River water use within MVIDD’s
contract service area does not exceed MVIDD’s contract
entitlement.

Pursuant to the Law of the River, the Secretary of the Interior
is required to provide qualified PPR applicants water delivery
contracts. For PPR contracts for lands within the MVIDD
contract service area, the PPR contracting process would
include consultation with MVIDD and a copy of each
executed PPR contract would be provided to MVIDD.
Reclamation has received several requests for contracts from
PPR holders within MVIDD and executed one contract for

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Appendix F

the PPR which has the identification name “Hurschler” on
March 20, 1984.

If you have any questions concerning this matter, please
contact Mr. Bill Martin of the Lower Colorado Regional
Office at (702) 293-8652.

Sincerely,

s/ Eluid L. Martinez
Eluid L. Martinez
For Commissioner

Enclosure

cc:

Honorable Jon L. Kyl
United States Senate
Washington, D.C. 20510

_ Honorable Bob Stump

House of Representatives
Washington, D.C. 20515

Mr. Terrence S. Leek
Attorney, Leek & Sutherland
126 North Marina

Prescott, Arizona 86301

Mr. William H. Allen

ASL Hydrologic & Environmental Services
1130 East Missouri Avenue, Suite 110
Phoenix, Arizona 85014

(w/cy of encls to ea)

37a

Appendix F

Honorable John McCain
United States Senate
Washington, D.C. 20510

Ms. Rita Pearson, Director

Arizona Department of Water Resources
500 North 3rd Street

Phoenix, Arizona 85004-3903

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2510%3A1. Public record. Not legal advice.