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Western Legal History WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY SPECIAL ISSUE: SOUTHERN CALIFORNIA WATER- ESSAYS IN HONOR OF NoRRis L. HUNDLEY, JR. Guest Editor: Peter L. Reich VOLUME 27, NUMBER 2 2014 Western Legal History is published semiannually, in spring and fall, by the Ninth judicial Circuit Historical Society, 125 S. Grand Avenue, Pasadena, California 91105, (626) 795-0266/fax (626) 229-7476. The journal explores, analyzes, and presents the history of law, the legal profession, and the courts- particularly the federal courts-in Alaska, Arizona, California, Hawai'i, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. Western Legal History is sent to members of the NJCHS as well as members of affiliated legal historical societies in the Ninth Circuit. Membership is open to all. Membership dues (individuals and institutions): Patron, $1,000 or more; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499; Sustaining, $100-$249; Advocate, $50-$99; Subscribing (nonmembers of the bench and bar, lawyers in practice fewer than five years, libraries, and academic institutions), $25-$49. Membership dues (law firms and corporations): Founder, $3,000 or more; Patron, $1,000-$2,999; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499. For information regarding membership, back issues of Western Legal History, and other society publications and programs, please write or telephone the editor. POSTMASTER: Please send change of address to: Editor Western Legal History 125 S. Grand Avenue Pasadena, California 91105 Western Legal History disclaims responsibility for statements made by authors and for accuracy of endnotes. Copyright @02014, Ninth Judicial Circuit Historical Society ISSN 0896-2189 The Editorial Board welcomes unsolicited manuscripts, books for review, and recommendations for the journal. Manuscripts (three copies, and one disk in Microsoft Word for Windows, if possible) should be sent to the Editor, Western Legal History, 125 S. Grand Avenue, Pasadena, California 91105. Texts, including quotations and endnotes, must be double spaced. Notes must be numbered consecutively and appear in a separate section at the end of the text. Authors are requested to follow the style for citations used in this journal. Manuscripts that are no more than thirty pages in length, not counting notes, charts and tables, and photographs, are preferred. Also preferred are manuscripts not concurrently under consideration by another journal. Whether because of prejudice or custom, writers in earlier times often used language considered strange or offensive today. Because Western Legal History publishes articles that present the historical record as accurately as possible, it occasionally publishes quotations containing such language. The publication of such is not to be construed as representing the attitudes of either the authors or Western Legal History. Communication with the editor is encouraged before submission of any manuscript. At that time, other guidelines for the preparation and publication of an article may be discussed. Consultation about punctuation, grammar, style, and the like is made with the author, although the editor and the Editorial Board are the final arbiters of the article's acceptance and appearance. Articles published in this journal are abstracted and indexed in America: History and Life; HistoricalAbstracts; the Index to Legal Periodicals;and the Legal Resources Index. NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY BOARD OF DIRECTORS GARETH T. EvaNS, EsQ. ADVISORY COUNCIL Chair J. BRUC ALVERSON, ESQ. PAUL T. FRIEDMAN, ESO. Vice Chair LEROY J. BARKER, ESQ. RITA M. HAEUSLER, ESQ. LADD A. BAUMANN, EsQ. Treasurer BETH MARY BOLLINGER, ESQ. WILLIAM 1. EDLUND, EsQ. HON. CHRISTINE W. BYRD Secretary JEFFRrY M. FISHER, ESQ. A. MARISA CHUN, ESQ. Immediate Past Chair DANIEL P. COLLINS, ESQ. SETH ARONSON, EsQ, HoN. MouIsoN C. ENGLAND, JR. JEROME . BRAUN, Eso. TIMOTHY R. FISHER, ESQ. JOHN CARSON, ESQ. PARKER C. FOLSE 111, ESQ. HON. DAviD 0. CARTER FREDERICK P. FORTH, ESQ. HON. RICHARD R. CLIFTON HELKEI S. HEMMINGER, ESQ. ROBERT H. F mAANK, ESQ. ERNEST A. HOIDAL, ESQ. DONALD L. GAFFNEY, ESQ. HON. PROCTER HUG, JR. GERSHAM GOLDSTEIN, EsQ. HON. SUSAN Y. ILLSTON PETER F. HABEIN, ESQ. HON. ROBERT J. JOHNSTON DEBORAH K. KRISTENSEN, ESQ. PROF. COLIN JONES ROBERT D. LowRY, EsQ. B. ANN KEITH, ESQ. THOMAS J. MCDERMOTT, JR., ESQ. KENNETH N. KLEE, ESQ. HON. M. MARGARET McKEOWN TIMOTHY M. LYNCH, ESQ. HON. WILLIAM ORRICK III RON MAROKO, ESQ. JEFFREY R. PORTNOY, ESQ. SONIA R. MARTIN, ESQ. HON. MANUEL L. REAL HOWARD G. MCPHERSON, EsQ. HON. PAUL G. ROSENBLATT DIANE M. MYERS, ESQ. HON. MARY M. SCHROEDER HON. RANDALL NEWsOME MARC M. SELTZER, Eso. HON. DIARMUID F. O'SCANNLAIN HON. MILAN D. SMITH, JR. WILIAM D. PICKETT, ESQ. HON. CHRISTINA ANN SNYDER PER A. RAMFjoRD, ESQ. HON. SIDNEY R. THOMAS ARTHUR F. ROECA, ESQ. DEAN A. ZIEHL, EsQ. GAIL MIGOAL TITLE, ESQ. ROBERT S. WARREN, ESQ. DOUGLAS R. YOUNG, ESQ. MERYL L. YOUNG, ESQ. WESTERN LEGAL HiSTORY BRADLEY B. WILLIAMS, EDITOR JUDITH FORMAN, COPY/PRODUCTION EDITOR S. DEBORAH KANG, BOOK REVIEW EDITOR EDITORIAL BOARD JUDITH AUSTIN DAVID J. LANGUM Boise Samford University GORDON MORRIS BAKKEN Cumberland School of Law California State University, R. JAMES MOONEY Fullerton University of Oregon MICHAL BELKNAP Law School California Western PAULA PETRIK, PH.D. School of Law George Mason University ELIZABETH J. CABRASER, ESQ. PETER L. REICH San Francisco Whittier Law School LAWRENCE M. FRIEDMAN JOHN PHILLIP REID Stanford Law School New York University CHRISTIAN G. FRITZ School of Law University of New Mexico HARRY N. SCHEIBER, PH.D. School of Law University of California DALE GOBLE Boalt Hall School of Law University of Idaho MOLLY SELVIN, PH.D. School of Law Santa Monica PAUL BRYAN GRAY, ESQ. ROBERT S. WOLFE, ESQ, Claremont Santa Ana MICHAEL GRIFFITH, PH.D. Oakland ARTHUR D. HELLMAN University of Pittsburgh School of Law WESTERN LEGAL HISTORY VOLUME 27, NUMBER 2 SUMMER/FALL 2014 S1 V 1Al ISSUE SOUTHERN CALIFORNIA WATR- ESSASiIN HONOR OF NORRis L. HUNLEY, JR. CONTENTS New Studies in Western Water Law: From Regional to Local Focus Peter L. Reich, Guest Editor 1 1 Remembering Norris Hundley Donald J. Pisani 1 1 Colorado River Water in Southern California: Evolution of the Allocation Framework, 1922-2014 Jason A. Robison 137 The All-American Canal and the Civil- Common Law Divide Peter L. Reich 1O) Indian Water Rights in Southern California in the Progressive Era: A Case Study Tanis C. Thorne 177 Cover photo: Hoover Dam played a pivotal role in the geographic and economic development of the West. (Courtesy of the U.S. Bureau of Reclamation, Lower Colorado Region, PERM-No-5135, 1940) Vi WESTERN LEGAL HISTORY VOL. 27, No. 2 Book Reviews S. DeborahKang, Book Review Editor 229 Articles of Related Interest 237 Memberships, Contributions, & Grants 241 NEw STUDIES IN WESTERN WATER LAW: FROM REGIONAL TO LOCAL Focus PETER L. REICH, GUEST EDITOR IF rWestern Legal History's 1996 special issue on western water law, I contributed an introductory essay, "Studies in Western Water Law: Historiographical Trends."' There I cited books by the late Norris C. Hundley, Jr. (1935- 2013), who served on my doctoral committee at UCLA and to whom this current Western Legal History issue is dedicated, and by Donald J. Pisani, who offers his remembrance of Professor Hundley here.2 In contrast to previous scholarship, Hundley's and Pisani's work marked a maturity in western water studies, arguing that no single factor-the environment, private initiative, or governmental control-was dominant in shaping legal doctrine. Following this comprehensive approach, the four articles in the 1996 issue treated various Peter L. Reich, "Studies in Western Water Law: Historiographical Trends," Western Legal History 9:1 (Winter/Spring 1996): 1-7. Ibid. 4, citing Norris C. Hundley, Jr., The Great Thirst: Californiansand Water, 1770s-1990s (Berkeley, CA, 1992), and Donald J. Pisani, To Reclaim a Divided West: Water, Law, and Public Policy, 1848-1902 (Albuquerque, 1992), ibid. Peter L. Reich, J.D., Ph.D., is professor of law at Whittier Law School, where he directs the Environmental Law Concentration and the Mexico City Program. 122 WESTERN LEGAL HiSTORY VOL. 27. No. 2 aspects of the legal history of water in New Mexico, Colorado, Texas, and California, respectively.4 In the two decades since, scholarship on this topic has pro- liferated, particularly on geographical areas crossing state lines and international boundaries.' In fact, two of the 1996 articles on interstate compacts have now been expanded into impor- tant books.6 These works and two others will be summarized here to demonstrate the widening range of the field in terms of regional coverage, archival research, and interpretive depth. Space constrains my focus to multistate and international studies, which implicate broader issues, but I will also briefly mention some state-specific scholarship that makes significant contributions. These and the three articles in this issue build upon Norris Hundley's lifetime evaluation of the dialectic be- tween private rights and government water control over a range of geographic contexts from the local to the transnational. Douglas R. Littlefield's Conflict on the Rio Grande: Water and the Law, 1879-1939 covers the earliest period.7 The 1904 National Irrigation Congress' allocation of the Rio Grande, confirmed by federal statute in 1905, was the first stream agreement affecting two or more states or territories-Colo- rado, New Mexico, and Texas-and two nations as well, in its influence on the 1906 Mexico-U.S. water treaty. The settle- ment made possible the Bureau of Reclamation's Elephant Butte Dam and the 1938 Rio Grande Compact that resolved the U.S. Supreme Court litigation between New Mexico and Texas. Littlefield draws on a comprehensive reading of public and private records, including those of the Bureau of Reclamation, 'David A. Reichard, "The Politics of Village Water Disputes in Northern New Mexico, 1882-1905," Western Legal History 9:1 (Winter/Spring 1996): 9-33; Daniel Tyler, "Delph E.
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