422
Opinion of Rehnquist, C. J.
G. The Court shall retain jurisdiction herein to order such further proceedings and enter such supplemental decree as may be deemed appropriate.
Chief Justice Rehnquist, with whom Justice O'Connor and Justice Thomas join, concurring in part and dissenting in part.
I believe that the United States' and the Quechan Tribe's claim for additional water rights is barred by the principles of res judicata, and therefore I dissent. The Special Master concluded that an exception to the general preclusion rule applied and that, therefore, the United States' claim was not barred. The Court rejects the Special Master's reasoning but concludes that the State parties' res judicata defense is not properly before the Court. While I agree that the Special Master erred in finding the 1978 order of the Secretary of the Interior a "new fact" justifying an exception to the application of preclusion, I disagree with the Court's refusal to reach the merits of the State parties' defense.
The Court first concludes that the State parties lost the defense because they failed to assert it in a timely manner. While the State parties concede that they did not raise their claim of res judicata until 1989, it does not automatically follow that the defense is lost. Federal Rule of Civil Procedure 8(c) provides that res judicata shall be pleaded as an affirmative defense. But the only "pleadings" in this case were filed in the 1950's, at which time no claim of res judicata could have been made. The motions filed by the State parties in 1977 and 1979 were not in any sense comprehensive pleadings, purporting to set forth all of the claims and defenses of the parties. More importantly, neither Special Master Tuttle nor this Court focused on the merits of the boundary dispute during the proceedings in Arizona v. California, 460 U. S. 605 (1983) (Arizona II). Rather, the Master only decided whether the Secretary's order was a final boundary determination, and, similarly, this Court simply de-
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