Arizona v. California – Oral Argument – December 08, 1955 (Part 2)

Media for Arizona v. California

Audio Transcription for Oral Argument – December 08, 1955 (Part 1) in Arizona v. California

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W. T. Mathews:

— in recess, that the formula had already been prepared with respect to the allocation and apportionment of the water under the Colorado River Compact.

So that it is not necessary now in our estimation for this Court to endeavour to rely on a formula with respect to the apportionment and allocation of the water rights that has already been accomplished by the Compact and negotiation of seven states, the ratification held by six states almost immediately after the adoption of the Compact where the result and ratification of the Compact some 15 years later by the State of Arizona.

Now, the intervention of the United States in this case, to my mind, has opened the door wisely for the joinder of all of the Upper Basin States.

The reason for that is this.

Under Article VII of the Colorado River Compact, the negotiators at that time already considered the beneficial consumptive use of the waters of the river so far as the United States is concerned, as that pertaining to the Indian tribes.

However, from the Upper Basin States adopted after a negotiation, the Upper Colorado River Compact, they wrote into that Compact in Article 19, paragraph (c), a very broad comprehensive provision.

In that, that provision provides that nothing in the Upper Colorado River Compact should, in any way, detract from the rights of the Unites States for the use of waters within the Upper Basin.

And so, when we find the United States alleging in its petition and intervention, not only for beneficial consumptive use of the waters of the river, stream system for the Indian tribes alone, we find that it is bond its claims in the Lower Basin to include fish and wildlife, to include national parks, forest service and many other departments of the United States Government.

Now, when the United States did that in his petition, it raises a serious question in view of the fact that in the Lower Basin in the States of Arizona and California, United States lays claim to someone 1,800,000 acre feet of water for beneficial consumptive use in those two States for Indian tribes alone.

And then, it alleges in his petition these other projects which will require water and they do not say how much nor when.

So, when we come to apply the provisions of the Colorado River Compact of 1922, whereby, the Upper Basin States were apportioned for beneficial consumptive use 7,500,000 acre feet of water, 7,500,000 acre feet of the — of the water that’s free system was apportioned to the Lower Basin States.

The Lower Basin States was split to a certain standpoint by reason of the inclusion therein, apportions of Utah and New Mexico for the smaller portion of Arizona allocated to the Upper Division.

Now, that amount of water was apportioned by negotiators and perpetuity.

Then, in Article III (b), the same negotiators extend that right to the Lower Basin States to the extent of 1,000,000 acre feet per annum in addition for beneficial consumptive use.

Those are matters stands before this Court today.There is, in our opinion, a direct final basic apportionment of water to the lower basin for beneficial consumptive use of 8,500,000 acre feet of water.

Very well, where does the quick both of this water comes from?

It arises, I’m sure, and this Court could take judicial knowledge of that fact.

That could create apportionment of that water arises in Wyoming with a greater portion in Colorado, the smaller portion in Utah borders, likewise in New Mexico.

So that those Upper Basin States are faced with this problem, that when 8,500,000 acre feet of water are put to a beneficial consumptive use in the Lower Basin and I assure this Court that the need is presently, not 1963, but now.

So that when you couple with that, 750,000 acre feet of water per annum from the Upper Basin which must go to Mexico, that is not a beneficial consumptive use in this country, that is true, but it is a beneficial use in this respect insofar that the use of that water beneficially in this State, except perhaps for the generation of power for a short time is lost to the States of the United States along the Colorado River.

Then, you add to that what United States claim, there is no definite allocation here of water to the United States from the Colorado River Compact, neither is there a definite allocation of water to United States in the Boulder Canyon Project Act.

And on that question, I desire to state most and privately to this Court that United States is definitely bound by the Colorado River Compact by reason of the fact that the Congress of the United States has so bounded in the Project Act in Section 8 and Section 13 (b) of that Act, and to make sure that that matter would continue in that status when they adopted the Boulder Canyon Project Adjustment Act.

Several years later, Congress took particular pains to reenact the provision of Section 14 of the Project Act and amended Section 18 of the Adjustment Act, making that a definite holding so far as Congress is concerned, so that we have the situation, if the Court please, that notwithstanding the petition of the United States for America in this case.

In one of the allegations of their petition, they denied or rather, United States denies that it is bound by the terms of that Compact, notwithstanding expressed language expressed by Congress.

How does that affect this particular case at the State of Wyoming and Colorado, widely intricate in this matter, or are they as they claim, having settled the rights among themselves in their probation?

They are not concerned with what goes on in the Lower Basin.

I’d say in my opinion that that statement and that holding on the part of those two featured states as far have fetched.

They have agreed that so much the waters will go down in the Colorado River.

They have agreed that the Lower Basin should be entitled to so many acre feet of water per annum.

They have agreed that they will not withhold water in the Upper Basin, and the Lower Basin has agreed it will not require the deliberative water which cannot be placed to reasonable beneficial consumptive use.

W. T. Mathews:

But nevertheless, how can they say that they are not interested in what goes on to the Lower Basin with respect to the waters?

Because if they take that attitude and — and oddly by for a period of time and the Lower Basin goes ahead and uses that water as it comes down to the stream, then at some later date, perhaps, five years from now, 10 years from now, the Upper Basin States will be before this Court saying, “The Lower Basin has exceeded its powers.”

They’re taking the water that belongs to us over a period of years and we wish to have it stopped.

That brings up a question, if this Court please, that we now have a situation that confronted this Court back in 241 U.S., the Pacific Livestock Company case construing the water law of the State of Oregon.

This Court followed the holding of the Supreme Court of this — of that State.

Upon this point, there had been an adjudication of the water rights under the Oregon law, and the Court held that that was the proper thing to do in advance of the determination of those rights.

First, they were adjudicated.

We have that situation here.

They’re adjudicated under the Colorado River Compact.

So, in all that remains in this case at the present time, if this Court please, is only an interpretation of the Boulder Canyon Project Act as it relates to water problems of both the Upper and Lower Basin States.

When that judicial interpretation of the Compact, drawing, flying to the conclusion as to what that language means, then, I assure this Court that the case can be very quickly dispose off.

John P. Frank:

May it please the Court.

In the matter which is before you, the division of time which has been arranged among those of us who represent the upholders of the Master’s report is that I shall address myself principally to the case law aspects of the matter.

Mr. Chilson, representing the Upper Basin, will speak principally as to the application of the legal principles to the facts and Governor McFarland closing for — both of us will discuss the policy aspects of the matter which may relate to such discretion as the Court feels that it has in connection with the problem of joinder.

However, while I wish to discuss with you primarily the principles, both of joinder parties and of justiciability, I would like to add a word or two first as to the facts of the matter pointing out those elements which seem to us important in supplement to what Mr. Ely has said.

In the first place, it is quite so that what we are interpreting here is the Colorado River Compact of 1922.

Now, the Colorado River Compact of 1922 was adopted largely at the instance of the State of California for the reason suggested by Mr. Ely, namely, that this area was in danger of flood and also needed water control, and therefore, it was necessary to put in what is now the Hoover Dam up here for the purpose of controlling these waters below.

On the other hand, there was a great risk for all the other States that their rapidly growing neighbor, California might, under the doctrine of prior appropriation, get all of the water if this were down, and hence, it was necessary to make some effort to divide it up before California could be allowed to have the Hoover Dam.

In this connection, the first effort that was made was the effort to divide the water by states to allocate so much to each of the States of the Basin.

I stress this because it proved impossible.

Months and months went by of unsuccessful negotiation and attempt to arrive at a division by States.

And finally, after adjournments and failures, the great compromise of the Colorado River Compact was devised, and I stress that Compact not compromised because it dominated the thinking of the Master and is indeed in the history of this matter a compromise is important as the great constitutional compromises of 1787.

And that was the compromise not to attempt to divide the water by States, but instead, to divide it by basins.

And so, a line was drawn through here and a provision was made that there should be two basins as shown on the map in the fashion which I think is clear and that the Upper Basin should have the obligation of letting some 75,000,000 acre feet of water come down pass Lee’s Ferry each ten-year period and the dividing point was carefully put here at a point far removed from population in either direction, a distance for practical purposes between the diversions is as great as the distance from New York to Charleston.

And on that basis, it proved possible to work out the Compact having made the great compromise and division into basins.

And then, the matter proceeded in the course of ratification and as — as has been said, the ratification proved slow in large part for resistance from my own State.

And finally, the plan was worked out of letting the Boulder Dam go through in the course of the Project Act and I would give a somewhat different emphasis to that Project Act, and thus, Mr. Ely.

As we read those of its provisions which relate to the Limitation Act, we understand it this way.

That California was given a choice.

It was given a choice either of getting the Boulder Dam after all states had ratified or of getting the Boulder Dam after six states had ratified, plus passing its own Limitation Act in a period of as little as six months.

John P. Frank:

In short, as we construe the statute, the Limitation Act was the price that California had to pay to get the go ahead sign on the Boulder Dam in the six-month period.

Now, that Limitation Act, which contained provisions which California now contends, are no longer binding on it.

The Act said this statute shall be, “irrevocable and unconditional,” giving benefits to all the States involved.

California now contends that it is both revocable and conditional, and that is one of the issues which doubtless would sooner or later have to be decided on the merits by this Court.

There is another provision in the Compact Act which I would like to stress which has not been mentioned so far.

And that is a provision of Article IV (a) which is most remarkable.

It contained a proposed compact for the Lower Basin States, known as the Tri-state compact.

And this Compact was approved in advance by the Congress, and that proposed Compact in IV (a) provided that Arizona should have 2,800,000 acre feet of mainstream water, plus the use of the waters of the Hula, which, in effect, comes to the 3,000,000 acre which we are now talking about in this suit.

In short, what we are seeking here is exactly what is in the Compact to prove in advance in IV (a) of the Project Act in the first place.

That Compact, after a period of jacking between the States was eventually ratified by the State of Arizona after the congressional approval but has never been approved by California.

Another event worth a little more mention is the 1944 contract.

In 1944, the State of Arizona entered into its contract with the United States.

That contract allowed to Arizona exactly what had been set up originally in the so-called tri-state compact that I just described, namely, and allows 2,800,000 acre feet.

On one point, I am over simplified.

The allowance of 2,800,000 acre feet of mainstream water to Arizona includes the allowance for the lower basin sectors of New Mexico and Utah.

That is this little area here and this little area here must ride with us, and that is why the Master found that they had to be in the case because whatever we get, we must share with them in this limited area of both of those states which is in the Lower Basin.

I use the shorthand phrase of our claim but it is also theirs.

It is worth adding this as to the 1944 contract, and that is that since we were not then parties to the Compact, it was provided that as a condition of getting the contract, we have to ratify the Compact.

And California, among others, was very enthusiastic that we should.

We know this because the contract itself was drafted in negotiations by a committee which represented all of the States, known as the committee of 14 or 16, since we were not then parties to the Compact.

And it was approved by all of the States, except California and then, upon full scale hearing by the Secretary of the Interior.

It is our rights under that contract, which are the same as what was allowed to us under IV (a) of the Compact which is what we are seeking here.

Now, one other element of fact that need stressing perhaps is the fact that in 1948 and 1949, the Upper Basin States preceeded to prepare and adopt a compact of their own.

And that Upper Basin Compact, which has been approved by Congress and is, now in effect, settles for those States all of the matters which are in issue here.

They have adopted for themselves the definitions which will have to be worked out for the Lower Basin in this litigation.

I shall come back to that in just a moment.

Let me go back to the moment of our contract.

In 1944, Arizona have the contract and then set about to which he used its contract for water?

And so, it developed a program known as the Central Arizona Project.

Now, that project is a program which will lift our water out of the river here with great lifts which are similar to those which California uses to take water to Los Angeles, and brings that water across the State down into the central area which is where the great drought is.

John P. Frank:

And that permits exchanges down to this area and up into New Mexico, so that the Central Arizona Project in short is a gigantic reclamation program which has as its purpose the using of the water which we have contracted for.

That legislation, the Central Arizona Project legislation twice passed the Senate of the United States in both the 80th and the 81st Congress.

It was opposed there by California which contended that before it could be adopted the — that there were clouds on the title to our water that there were a so-called three issues which had to be decided.

And those three issues were spoken out constantly in the course of the consideration of that legislation and they were, first of all, the problem of the relation of Article III (a) and III (b) of the Compact as it relates to the Lower Basin States, a problem of the definition of the terms, “apportionment and surplus,” second, a problem of the definition of the term, “beneficial consumptive use,” and third, a problem of the evaporation losses and their distribution.

Now, as expression of political matter, Arizona can get legislation through the Senate but California has greater influence in the House.

And as a result, our legislation founded in the House and a House Committee there decided that it would not adopt this — this legislation without first getting a determination of those three issues.

That was a matter which was thoroughly considered in many committees.

And doubts and fears were expressed by the Upper Basin States that they might become involved, but they were constantly assured by the representatives of California that this would never happen.

I quote that “There were no issues respecting the Upper Basin States and that hence the three issues could be solved without them.”

And so, after the action of the House Committee, it became necessary for us to institute this litigation.

Meanwhile, the Upper Basin, to ensure that they will not be involved, proceeded as I have said speedily to adopt their own compact which settled every one of these points.

So, before themselves, they’ve decided what evaporation means or what beneficial consumptive use means.

And then, we instituted this action.

In this action, we ask that they’ll be quieted in us out of the Lower Basin water, that water which had been set up for us in the proposed tri-state compact, that water which we had contracted for.

We ask that there be determined the three issues and nothing else.

We were scrupulously careful to keep within the terms of that which the Congress seemed to require of us.

Thereafter, there was intervention by Nevada and by the United States.

The matter was referred by a Utah Master and finally some 22 months after this action was instituted, California made its motion and I may add a year after the — after it had answered, California made its motion for joinder.

He then referred the joinder questions to the Master and the Master heard argument on the subject for some four days and inspected the area which was involved and considered it extremely thoroughly and filed voluminous report which you have.

Now, the position of the Master, I would like briefly to summarize.

It moved from two fundamental conceptions, and those conceptions were so basic to everything that he did that you will, perhaps, want to examine them.

The first was his conception, that the division of the Colorado area into two basins had been a great policy decision which ought to be preserved.

And related to that, he followed what he considered to be the teaching of this Court in many cases, namely, that problems were impossible to be solved by Compact rather than by litigation, and that since this problem had been so large in extent sold by Compact, he was determined to carry out the principles of the Compact.

Second, he adhered with fervor to the principle that justiciability was required in interstate litigation as in any other litigation, and that the principles of justiciability applied to the joinder parties as well as to all of the other matters which were involved.

California had contended not to come back to this in a moment, but the principal of case in controversy has no bearing on joinder, and that once there is a main suit, any parties can be joined without reference to justiciability.

In this field, the Master did not accept.

Now, on the particular issues, he decided that on the question of beneficial consumptive use on the III (b) problem, the meaning of apportionment and surplus and on the evaporation problem in essence is this.

First, that the Upper Basin had decided these questions for themselves.

Second, that they could be decided in the Lower Basin without any regard to the decisions of the Upper Basin except to study and observe and just consider whether they should be transferred below.

He said, “To disregard this action and the other actions that may follow under the Upper Basin Compact, unless wholly necessary under sound, legal and equitable principles, would be enacted plainly under oath denounced policies of this Court should not be taken.

John P. Frank:

Now, the next branch of the matter was the matter which related to Arizona as contact with both the Compact and the Limitation Act.

As to the question of whether Arizona’s ratification of the Compact is valid, I should mention that in the many years which this matter has been under consideration, that issue has, I think, never been raised until exceedingly recently.

The Master took this view that whether our ratification of the Compact was effective or ineffective, would make no difference in terms of the relief that we had asked, but since all that we had asked for was not an equitable apportionment of the whole stream but merely our share of the Lower Basin water, that whether we were in the Compact or out would make no difference because we could get only this much anyway and the Upper Basin States would not be effective.

Secondly, the Master might have considered the point which we have briefed to you in the briefs which are now before you, namely, that this is for reasons which we have set forth there, virtually, a frivolous question in any case.

Now, on the Limitation Act point, he took essentially the same point of view that the matter need not be involved here that the claims were only as to Lower Basin water that that was all that needed to be considered.

He dealt more briefly with the position of the United States, and that, let me explain was because the 12 acre-figure of United States claims was, I think, not pressed upon him there as I recall it.

And so perhaps he didn’t consider the number as vividly as he might.

Let me explain the figure which has been used of the so-called 12 acre-foot claim of the United States.

That — the claims of the United States were set forth in its petition for intervention.

The 12 acre-foot figure, which has been added up by counsel for California, include something like 8,500,000 acre feet which is the obligation of the United States under all of its contacts.

In order words, it is a complete duplicate of the amounts which the various states claim.

It is simply a different interest representing the same quantity of water.

This is not a matter of a claim of 7,000,000 or 8,000,000 feet by us, plus the claim by the United States.

These are identical.

It is the same.

They are saying that the United States has an obligation to deliver us what we claim we have a privilege to — to receive, and this obviously can’t be aggregated as if they were two separate amounts.

The actual claims of the United States as set forth here are 747,000 acre feet of diversion for Indian uses.

Now, please let me know if I used the term diversion which is technical.

That means that the water diverted for that purpose, much of it will return to the streams, but fraction, I don’t know, but let’s assume a third, a half of it.

So that the amount actually to be used by the United States under its present claims is a few hundred thousand acre feet, and the amount for fish and wildlife is another 35,000 — 80,000, something like that.

It is said forth here.

And in addition to that, there is such claim as there maybe under the Mexican matter.

I should take that up in just a second.

But the consequence is, that the actual aggregate claim of the United States or what might be called new water, is somewhere in the nature of, let me use, around a number of acre feet depending on whether you take its additional claims or its present claims, plus whatever is involved on the Mexican treaty.

Now, as to both of those points, the Master reached this conclusion.

First, as to the Indians, the Master concluded, that the Compact had allocated the Indian responsibilities to the Upper Division and the lower division separately.

See, Your Honors, you cannot consider this as though the Indians were somehow just a vast mass of — of people known as the Indians.

These are particular tribes with particular claims and particular history.

And the Master shrank, as indeed he might, from the problem of working out the histories and rights of any more tribes than actually had to be faced.

He took the view that these had been allocated by the Compact to the division separately, and that the only question to be decided was whether the obligation should rest on Arizona which has almost all of them or whether it should be spread over the other States of the Lower Basin, and as to that, he found no interest in the Upper Basin States.

John P. Frank:

As to the Mexican burden, the essence of the Master’s view was this.

He adhered throughout, as I have said, to the principle of case in controversy to the requirement of the existence of a present need.

Now, the situation is, that this area, the Upper Basin is, in fact, now using something like 2,500,000 acre feet or what is allowed to it.

And if the broadest legislation now offered in Congress should be adopted, it would be some 30 years before their use would increase to over 4,000,000 acre feet.

And the view of the Master was, that in those circumstances, the possible remote interest in such matters as the Mexican treaty, was, I think, not worthy of immediate consideration.

At least this is the argument — I beg your pardon, sir?

Felix Frankfurter:

Well, you finish what you’re saying.

John P. Frank:

I was trying to say only, I think that this is the argument that the Master accepted.

He did not discuss it particularly.

It is what we urged on.

Felix Frankfurter:

May I go back to the Indian tribe?

John P. Frank:

Please.

Felix Frankfurter:

Assuming it was informed by even most of unions of Arizona and that the border issued to Indians divided by the upper and lower basin, is that right?

John P. Frank:

Your Honor, I — I think I misspoke.

What I’m saying is that most of the Lower Basin Indians are in Arizona.

The Upper Basin with their —

Felix Frankfurter:

How currently would be the — if you got the constitution of the Indians and the responsibility of the claim of United States in regard (Inaudible) affect the permanent reward that would — which would fulfill that grant.

John P. Frank:

Your Honor, we submit not for the reason that the aggregate of the claim is not large enough to raise this to the level of the justiciable controversy.

If we take —

Felix Frankfurter:

Do you mean the claim is made by the Government?

John P. Frank:

The claim that’s made by the Government is set forth on page 58 of its petition, assumes as I said a moment ago a diversion at present of some 700,000 acre feet, which means an actual use far or less.

And the outside claim if the remotest Indian reservation should put into irrigation its farthest acre, comes to only something like double blast, so that we are dealing with a problem which need not quantitatively concern the Upper Basin in any case.

Felix Frankfurter:

As to both for in such (Inaudible) the Government claimed it really be the minimum.

John P. Frank:

Oh, not at all.

And indeed, we shall — when we come back here on the merits, we’ll doubtless be fighting and dying right here over the question of Indian claims, they are large.

Felix Frankfurter:

Should I mean — the purposes of this joinder.

John P. Frank:

What we are saying is that they are claims which are aimed only at Lower Basin water and that the whole of the government claim is so aimed.

Felix Frankfurter:

Aimed because of the term of the Compact and because of the factual operation?

John P. Frank:

Both, Your Honor.

We think that as a practical matter —

Felix Frankfurter:

What is specific on this Court?

John P. Frank:

The Compact is not specific.

The Master in his discussion, you’ll — you’ll find it headed there under Indians included that it was the fair consequence of the various sections so they divided and that is our view.

The result of all these was that —

Felix Frankfurter:

(Inaudible)

John P. Frank:

I’m sorry —

Felix Frankfurter:

(Inaudible)

John P. Frank:

In effect, the Master —

Felix Frankfurter:

With which this Court might disagree when it comes to it.

John P. Frank:

It is conceivable that this Court might disagree, but it seems a reasonably clear construction, and in any case, we repeat that quantitatively, we are dealing with an amount which in terms of the actual uses of water in all the foreseeable future within the lies of any person in this courtroom, are not likely to make this as the Master felt pressing conference.

He concluded, and he was a highly practical man and he reached the highly practical conclusion, that to join the Upper Basin States would be a backward and retarding step with respect to the solution of the problems relating to the Colorado River System.

Felix Frankfurter:

I’m not following that up.

John P. Frank:

Yes, I think that the —

Felix Frankfurter:

(Inaudible)

John P. Frank:

What the Master felt was this.

It was what we urged on him and what we are urging on you here today.

And that is that we are dealing with a stupendous region of the United States, a region which is extremely diverse and in which the development problems are very different.

Up here is an area of high mountains and rich meadows.

Down here is the most aired portion of the United States.

The problems of how this land should be developed are very different.

The nature of their projects is different.

The nature their uses are different, and the nature put it bluntly of the — of their political forces are different.

And the Master thought that these two stupendous regions, almost countries within America, should be allowed to follow the coarse of development which have been set up in 1922 and which had been reaffirmed by the adoption of the Upper Basin Compact and let them settle as best they could their own use of their own water.

Felix Frankfurter:

If you’re right, then if the Upper Basin States were in destroying by unlikelihood by the people of the United States, they could just fold their arms and say, you just (Inaudible)

John P. Frank:

Scarcely —

Felix Frankfurter:

(Inaudible) are not involved, is that right?

John P. Frank:

Except, Your Honor, for an important circumstance that you could not bring them in without at the same time deciding that those questions which the Master found distant and remote were in fact pressing an immediate.

Let’s take for example the Mexican burden.

It is conceivable that someday, Mr. Ely’s words were, this is in perpetuity and sometime, that sometime a question of the distribution of the Mexican burden may become an issue.

Now, clearly, that is going to be a long time because the Mexican amount is 1,500,000 acre feet.

John P. Frank:

And by definition even if the Upper Basin gets its Upper Basin Compact, it will not be able to use more than 4,000,000 acre feet leaving a slack of some 3,000,000.

So that in terms of all predictable likely use, it is probable that it will be 50 to a 100 years before this question really pinches, if it ever does.

Now, it is possible that an atomic energy may put into the problem.

It is possible that we will learn to get water from the Gulf of California for example.

It is possible that great many things will happen including a diplomatic solution.What we are saying is this.

That you cannot decide to join the States without at the same time deciding that we have to worry now about Upper Basin problems which may not become real until after the year 2000.

Felix Frankfurter:

Are you saying that if a joinder in California, this isn’t often the solution to remote the contention, vague controversy and to join the States and afford to fold their arms that they will have to go in to this remote speculated — effectuated problem and therefore the litigation could be drawn out, is that the — is that —

John P. Frank:

Exactly, Your Honor.

We are saying that you cannot join the Upper Basin States without forcing upon us remote contingent and speculative controversies.

We have no present controversies.

We ask nothing whatsoever of the Upper Basin States.

We live happily together.

We are saying in essence that we should not be set at each others throats to quarrel aimlessly.

Now, I would like to go on if I could to the case materials which are applicable, both on the question of joinder and on the question of justiciability.

First of all —

Harold Burton:

Before you do that, Mr. Frank —

John P. Frank:

Yes.

Harold Burton:

The State of Arizona in its claim, sought to step in present about 3,800,000 acre —

John P. Frank:

Including our neighbor’s allocation, yes.

Harold Burton:

So if the Upper States were not bought in the savings between you and California which they’re entitled to that, would be a definite determination that you’re entitled to (Inaudible)

John P. Frank:

Your Honor, it would be a determination only that we are entitled to this much of the Lower Basin water, and our claim is carefully within the amount of the Lower Basin water.

Is that responsive, Mr. Justice?

All we have — we have not asked for an equitable apportionment of the whole stream or anything of the sort.

We have simply said that as Congress set in 1931 had adopted Section 4 (a) as our contract says that out of that allotment, which is the Lower Basin, we are entitled to 2,800,000 acre feet of mainstream water and a 1,000,000 gathered from other sources that would come largely from the field.

Harold Burton:

But your —

Hugo L. Black:

But do we — do we know what the Lower Basin water is in fixed gallons?

John P. Frank:

Your Honor, we know — in the first place, we have very full records of the amount of actual flow.

Now, the — the question of how many years you take for study purposes will affect of course the amount.

We know that the Upper Basin is obligated to send down 75,000,000 acre feet — acre feet every 10 years, and our claim is carefully within that amount.

That 8,500,000 each year or subject to 7,500,000 the way you put it.

John P. Frank:

Well, it’s seven.

The difference is this, Your Honor, that the seven and a half in effect comes down and the other millions, we must pick up where we can find it.

In order words, it originates in the Lower Basin.

The million will have to — since — you see, California contributes no water to the Colorado system.

So that it follows that whatever water we get beyond the seven and a half have to originate for all practical purposes in our own streams.

Well, this is also referring to that that California gets 4,500,000?

John P. Frank:

The 4,400,000.

In short, the allocation here, we are saying that California should get the 4,400,000 which the Limitation Act allows it.

That Nevada should get the 300 which is contracted for and which is allowed to us — to it under the proposed 4 (a) compact of the Limitation Act and that we should get the difference which is the 2,000,000 acres.

Hugo L. Black:

And what beneficial is used for?

John P. Frank:

This will determine what beneficial consumptive use is for our Lower Basin purposes, but the Upper Basin has already decided that question.

They happen to have adopted the definition which is the one that we aspired to, but that’s immaterial.

The fact is that nothing you can decide here will affect their definition because they have, as it were, changed the common law already and by their own agreement settled upon a definition.

Hugo L. Black:

I don’t think that the definition — what the definition of beneficial use would be adopted here.

It wouldn’t also aspire to the Upper Basin statement so far as what they have to send you.

John P. Frank:

The problem is that what they have to send us is not by the Compact defined in terms of consumptive use at all.

It is, as Mr. Ely’s said, wet water.

There are two separate provisions we use in terms of consumptive use, but we get the delivery as in terms of the most readily measurable commodity in the water world, namely, wet water, and out of that, 75,000,000 has to come down every 10 years.

And therefore, the definition will make no difference in that respect.

In short, the definition does not apply to what is delivered.

It can apply only to the distribution among ourselves, and there, it will be of great importance.

And the Upper Basin has already, for itself, adopted a definition satisfactory to it.

Felix Frankfurter:

Mr. Frank, could you please step up to answer these questions.

One, is it common ground that the proportion of water which California and Arizona respectively get should be the same no matter what the size of the fund was, and two, why should California be found by the intra Upper Basin State agreement with what it has.

John P. Frank:

Oh, well, Your Honor, it shouldn’t be at all and if I said anything of the sort, let me pick up your second question.

Felix Frankfurter:

But you said that it agreed to divide it to get 300,000.

John P. Frank:

No, no.

Let me correct that.

The basis of the Nevada — our position as to Nevada is this.

That Section 4 (a) of the Limitation Act in the so-called tri-state compact set up an allowance for Nevada of 300,000.

John P. Frank:

There was a long history behind it.

Senator Keith Pittman got the 300.

It was twice what they were actually using and it’s I think twice what they’re using now.

Senator Pittman was very effective.

In addition to that, they have a contract with the United States, and their contract is worth 300,000 acre feet.

Now, since all of their water necessarily comes under the contract, we contend that any possible claim of theirs or anything beyond that would present no controversy at all.

Felix Frankfurter:

I’m not worrying about them.

My question is why should California be bound by any agreement made among the forward case?

John P. Frank:

It should not.

That is exactly what we’re contending, Your Honor, and indeed, the fact that you can put the question may mean that I misled you in some way.

We are saying that we should be able to adopt our definitions and our terms without reference to what they did, and similarly, they should be able to live and adopt theirs without reference of —

Felix Frankfurter:

I don’t understand if those definitions may affect the practical results of the water that comes down for the water that’s available.

John P. Frank:

Your Honor, they will not.

That is the vital point, because the only measure of the water that comes down is not a legal definition.

It is an actual physical measure.

Felix Frankfurter:

But what about the second point, the apportionment within those two — are the ratios constitutes no matter what the problem is?

John P. Frank:

Your Honor, the — the problem is this.

That under the situation as it exists under the Limitation Act, under which we sue, we are asking for the amount over the 4,400,000 which California has.

Now, there is a tricky question here.

I could go into it if you wish, which it depends and which affects the question of what is surplus, because California gets half the surplus.

Then, we claim that a certain million acre feet is not surplus, and therefore, they’re not entitled to half of it and they claimed that they are.

But that is the point of which the controversy turns.

Now, that controversy —

Felix Frankfurter:

But that — that was (Inaudible) depending on — on Upper Basin water?

John P. Frank:

Not at all, Your Honor, because that amount of the surplus is the amount which has to originate in the Lower Basin and which is used in the Lower Basin anyhow.

Now, if I may go on to the case material which may concern you, we are dealing — it is suggested with Rules 19 and 20 of the Rules of Civil Procedure.

I would like a little later to come back to the question of whether those rules really apply to original actions in this Court.

But for the moment, assuming for the sake of discussion that they do, we have to consider first the question of indispensable parties that the Upper Basin States are indispensable, of course, they would be to be joined but nobody including California contends that they are.

Second, the question of necessary parties.

Third, the question of proper parties.

John P. Frank:

Now, the leading case on this entire subject is the case of Nebraska against Wyoming and it is our principle reliance here.

In that State, the basic situation was this, that the North Platte River rose in Colorado, flow into Wyoming and on into Nebraska.

The action was brought by the State of Nebraska against Wyoming for the purpose of settling certain questions as between themselves and Wyoming moved to dismiss on the grounds that Colorado was an indispensable party.

On the other hand, Nebraska took the view that they were at most proper party.

This Court, after fully considering the matter, found that Colorado was not rendered an indispensable party, and that the action need not be dismissed and in fact they went further and Mr. Justice Robert said that Colorado was not an indispensable party or unnecessary party because, said the Court, “Nebraska asserts no wrongful act of Colorado and prays no relief against her.”

Now that, Your Honors, is the identical situation here.

No one asserts any wrongful act against any of the Upper Basin States and no one prays for any relief against them.

After that happened, Wyoming filed an answer.

And in his answer, it specifically asked for an equitable apportionment of the whole stream, and in addition to that, it specifically alleged that there were present threats against the stream by Colorado then in existence, which made it impossible to allocate the water of the lower riparian States without at the same time considering the upper.

And on the basis of that, this Court then joined.

Now, let me put with that before I attempt to analyze the rule, the case of United States against West Virginia, because that case was decided here between the first Nebraska-Wyoming and the second Nebraska-Wyoming case.

These — these were separated only by a few months.

In United States against West Virginia, United States brought an action against the State of West Virginia, alleging that West Virginia was interfering with its use of the water on the new river.

And how was West Virginia doing it?

It was licensing private companies to build establishments and works on the new river.

And this claim created a controversy between United States and West Virginia.

And this Court, in dismissing the action, said that since the bill in a suit, I quote Mr. Justice Stone, “Neither asks the protection nor alleges the invasion of any property rights, and that there was no adequate allegation of any interference by West Virginia.”

And then, it went on to say something which fits this case to a perfection.

It said, “A difference of opinion between the officials of two Governments is all that was involved and this Court does not exist to settle such differences of opinion.”

Now, in that case, West Virginia had actually licensed to conflicting uses.

I think putting the cases together, decided all of them within a few months of each other that we get basically what might be called this rule that where an upper riparian owner or State is interested only because it’s there, because the water comes from there, then this Court has held that that’s not reason enough to join it.

Felix Frankfurter:

These are those cases.

These are your cases where a case of a Compact nor a litigation involving the construction as indicated and articulated legal document by the (Inaudible)

John P. Frank:

That is exactly right, Your Honor, and that reaches what is to us the most compelling matter of all.

Indeed, Mr. Justice Douglas, you may recall that in the final, there was a third opinion on this subject at the late stage.

And in that stage, Colorado again raised the question of whether it might be eliminated from the suit and the opinion said, “No stressing that there was no compact.”

Now, we are contending that the principles of that case would be binding if there were no Compact here that we would be bound by the first Nebraska-Wyoming decision.

But our a fortiori, we are particularly bound in a case like this where the States have done their dead level best to settle these questions for themselves by Compact and not merely by one compact but by two, and where the Upper Basin States are very carefully by Compact, settled the questions which are here.

We think that our situation is even stronger than the cases which are there.

Let me turn to the problem of justiciability which is here, because that was the fundamental matter on which the Master’s decision rested.

John P. Frank:

The basic principles which this Court has laid down as to interstate litigation, themselves are at the root of the justiciability problem and I would like first to enumerate those.

You’ve held in the first place that you will not take jurisdiction between States and I quote, “In the absence of absolute necessity.”

You have held second that you will not take jurisdiction and I again quote, “unless the threatened injury is clearly shown to be of serious magnitude and eminent.”

And finally, you have held that you prefer solutions by a Compact to solutions by litigation.

Now, those principles weighed very heavily with the Master, because he felt that in deciding whether he should force the other States into the litigation, he must consider whether there was really any absolute necessity or any pressing an eminent danger which would warrant it and he decided very clearly that there was not.

The absolute necessity test itself, if it does apply fully to join their parties, I think means this.

That absolute necessity is a term which can only apply to indispensable parties.

Indispensable parties who are — are those who are absolutely necessary.

If this Court really means to adhere to the full meaning of what was said in the Alabama against Arizona case, if you mean to apply a rule of absolute necessity, then I take it you are deciding that you will not join states against their will unless they are indispensable.

And so said, it’s conceded by everyone here that these Upper Basin States are not indispensable.

We therefore follow that the whole matter is done.

However, on the problem of justiciability, you have held that interstate litigation requires a case in controversy just as any other litigation would do.

And as to that, we have two California contentions.

They are these.

First, California contends that the case to our controversy rule does not apply to the joinder of parties.

Their position and I quote from their brief is that “Once there is a controversy between a plaintiff and a defendant, “there is no further justiciability problem to consider on the joinder motion.”

Now, I submit, Your Honors, that this cannot be true that the doctrine of case in controversy applies to all of the parties in the case.

I could pick no more familiar example, and for example, the case of United Public Workers against Mitchell, a case in which there were 12 plaintiffs and this Court with great care went over all of them.

And finally, for variant reasons, struck 11 because there was no case or controversy and then proceeded to decide the case as to the 12.

Now, those principles, I think, are fully applicable here, and indeed, I pass the matter without further consideration because I cannot suppose that there is any very serious doubt, but that the case in controversy, principle does apply to the joinder of parties and to the additional party just as much as it applies to the bringing the suit in the first instance.

We then reach the contention which is the alternative California contention, and that is that there is a case or controversy here.

And as to that, California takes this position.

They say and let me quote from their brief, “Despite the absence of a present breach of obligation, and despite the absence of a present physical invasion of a claimed right, California concludes that a quiet title suit by Arizona” and I’m still quoting “against the absent states alleging the identical title here asserted, would state a justiciable controversy within the constitutional power of this Court to decide.”

In short, California says, first, that they don’t need to have a case or controversy, second, that if one is needed that if a quiet title, please notice they have, that if we had brought, acquired a title action against the Upper Basin States, it would lie despite the absence of any present breach of obligation and there is none and despite the absence of a present physical invasion complaining the rights.”

Now, Your Honors, we contend that that proposition is categorically wrong, and we of Arizona, we got to say are singularly well informed on this subject because we’ve been through it before.

In the first of our Arizona against California cases, way back in 1930, we did bring an action in which all of the States were joined and in which the United States was, as I recall it, also involved, alleging that the activities which were then going on in respect to the Colorado interfered with our rights in the river and this Court held, this Court held in an opinion by Mr. Justice Brandeis and I quote, “that this contention cannot prevail because it is based not on any actual or threatened impairment of Arizona’s rights, but upon an assumed potential invasion.”

Now, there, Your Honors, we think we come to the core up and this is what persuaded the Master, but an action of this sort will not lie.

There is no case or controversy on the basis of a merely assumed potential invasion.

In this case, there is no controversy which we have with the Upper Basin States which is likely to come into an actually existing present controversy within the lifetime even of the youngest page behind that bench.

Under those circumstances, there is no actual threat, and in all of the cases, this Court has acquired that there be some kind of actual present threat before even acquired title action will lie.

John P. Frank:

And finally, the whole argument is suppositious because it began as I said with an “if”.

If we had brought such an action, it would lie.

The answer is that we didn’t bring such an action.

We didn’t bring such an action for a variety of reasons.

That is true that in the past cases, we had sued all the Upper Basin States.

But those were cases before we were under the Compact and now we’re under the Compact which puts us into a division.

And now, we must live with it, and do our litigating with the only persons with whom we have any controversy and those are our immediate neighbors.

Let me add a word in conclusion.

As to the act —

William O. Douglas:

According to your conclusion, what — what do you say of the fifth paragraph of record claims where you’re asking the (Inaudible) into recognizing and establishing the beneficial consumption, water apportions of the Colorado River Compact be measured in terms of streams at which —

John P. Frank:

There, Your Honor, what we mean is this.

That the basic controversy which we have with California is a controversy of how the water which is allocated to the Lower Basin should be measured.

The problem is essentially this, that California takes the water from a —

William O. Douglas:

Well, does it — does it apply in that?

Was the question applied to the Upper Basin?

John P. Frank:

No, Your Honor, not — not in the slightest degree.

I would like to amplify on it if I could.

The California takes all of its water out of the basin altogether.

It goes either to this area which is then drains under the salt and seas so that none of it comes back, or else, it goes over to Los Angeles where obviously none of it comes back.

Our situation is different.

In this area, in the center of the State, which is at the moment so badly depleted that our well, 100, 200, and 300 feet below — are below the ground.

In this area and throughout our system, we take water out and we put it back again.

It drains back in.

The same water is used many times, whereas over here, the water is used once and thrown away over here and we may use it three and four times we.

And we are contending and that — what that plea applies to it.

It’s our contention that these multiple uses by us as a result of our many dams should not be counted against this in the aggregate, but rather, only but actually comes out with that question.

William O. Douglas:

What comes back in there?

John P. Frank:

And that’s all — that’s what we’re talking about.

William O. Douglas:

You’re, Correct, the difference between what you took out and what you put back.

John P. Frank:

That’s right and we said that it should not be counted against us before we — because we have the multiple uses and that is all that clause relates to.

John P. Frank:

It has no bearing at all on the water which actually passes Lee’s Ferry.

I have said that I wanted to — sorry.

William O. Douglas:

There was the case of other things that come in that depended — depends upon like in New Mexico and like the other (Inaudible) as to how you’re going to measure — measure this water.

John P. Frank:

Your Honor, the one — I think serious problem here is the one you put your finger on, the Mexican problem.

It is conceivable that someday —

William O. Douglas:

I didn’t say that’s too far in the future.

John P. Frank:

But we do contend that that is — that’s not — that is not this century’s problem.

Hugo L. Black:

May I ask you a problem especially on that thing?

Suppose it would proceed to the case, Arizona’s contention should be different.

It should be decreased that they had the 2,800,000 of acre which California (Inaudible)

25 years of our — our brief has suggested or other (Inaudible) it turned out that the Upper Basin would not get it and said it could not keep that 75 — seven and a half million.

What then could the Court should agree here, the actual binding or with the Upper Division as to the (Inaudible) applied to the seven and a half million.

John P. Frank:

The answer to that, Your Honor, is two-fold.

That in the first place, the upper gate — Upper Division has an absolute obligation to let 75,000,000 acre feet come down.

Felix Frankfurter:

No matter what it has?

John P. Frank:

No matter what it has in the course of its 10 years.

That is the one irrevocable commitment.

Felix Frankfurter:

Suppose it doesn’t have it?

John P. Frank:

If the day comes when it doesn’t have it, it will feel a pinch.

Felix Frankfurter:

Today, suddenly it might be a temporary issue.I just want to —

John P. Frank:

Oh, Your Honor, please understand that this is over a 10-year period.

It averages out that the States took good care of themselves.

But Your Honor, this is an equitable action and you presumably will always have the right to do whatever it has to be done if in some distant future, some radically different situation exists than like any other equitable decree, it can presumably be reopened and if need be reconsidered.

All we’re contending is that’s sufficient to the —

Hugo L. Black:

Well, at that — at that time, let’s suppose the present, that Arizona had found the use for all the water, they get for individual use, would that be upset if the situation should develop whether it was not 15,000,000 a year?

John P. Frank:

Your Honor, that question is going to be, perhaps someday, a difficult one.

All we’re saying is that it cannot possibly be anticipated.

It will depend — let me give just one illustration.

The population of my state has almost doubled in the last 10 years.

Who can tell what the distribution is going to be in the course of a 30 or 40 years which you are now supposing?

John P. Frank:

All of those things which are questions, we should not only — should not be considered now but could not be wisely considered now.

Hugo L. Black:

Did they not to some extent be considered in connection with the distribution this might lay down?

The — it’s impossible to continue for both states, as the right had developed and matured and which would have to be upset by reason of the (Inaudible)

John P. Frank:

And Your Honor, we would answer that question in the negative for the same reason that it was answered in the negative in the first Nebraska-Wyoming case, namely, that what you are asking there is — is the fact that the water comes from another place sufficient by itself to create an interest which requires the joinder of all parties.

And we say merely that this Court has decided that question.

It might have decided it either way.

It has decided it in a negative and we think decided it right that the rule of an actual present threat is a sound rule and that is should be adhered to.

Hugo L. Black:

Well, I had this to my mind.

If the decree which is rendered as decree in this party from the Lower Basin on account of the present, undoubtedly, a present existing controversy in the course of this substance, can we — can that be settled here now as between then in such a way that it was not later have to be upset —

John P. Frank:

And there Your Honor —

Hugo L. Black:

— unless it’s done on a percentage basis rather than on a basis — basis of 2,800,000 and 4,300,000 enclosed.

John P. Frank:

And there, Your Honor, we contend merely that it cannot wisely be done now, that it would require such supposing and such wondering about event so long in the future that all you could do would be to take a step at something that you would be almost certain to get wrong.

Hugo L. Black:

Well, what would be the difference?

Would it take practical speaking instead of this course considering on the basis that was going to allow 2,800,000, 4,300,000 and actually wanted to — it took the percentage instead of the gallon of the acre.

John P. Frank:

Your Honor, it may someday be necessary in some future action perhaps to reduce to a percentage basis, but we cannot believe that you would be tempted at the moment under all existing conditions to rewrite the Limitation Act as it exists and the entire system, all of which is based on an actual measure.

Hugo L. Black:

All I was asking was, if we are going to deny that, what would be the practical difference from the States, Arizona, California, and Nevada?

John P. Frank:

The practical difference is this.

That if you were to decide, if you were eventually on the merits to decide that our water should be distributed on a percentage basis, you could do that even then on the basis simply of the lower basin.

That is you could say that instead of our getting 2,800,000 acre feet out of 7.5 that we get whatever that percentage is out of the water available to us.

That is —

Hugo L. Black:

What would be the disadvantage or advantages today of the seven and a half —

John P. Frank:

Well, let me address my comment only to the question of joinder if — if I may.

So, all I’m saying there is that if you were to adopt such a position, and in these cases, frequently, percentages have to be adopted, you would still be making such a determination only as to the Lower Basin and it would not be necessary to involve the Upper Basin at the same time.

Hugo L. Black:

Doesn’t it if the growing of percentage basis that could never follow the Upper Basin.

John P. Frank:

If it were on a percentage basis amongst ourselves.

Hugo L. Black:

That’s right (Voice Overlap) —

John P. Frank:

I think that is true if I understand you.

Let me say this, this last word on the practical consequences.

Felix Frankfurter:

Well, that might just — that is to my concern as to which I’m not here yet, namely, whether there’s an agreement to the common ground as that the ratio there between the States should remain the same.

And if that isn’t so, then, percentage as to the (Inaudible) would make a difference with regard to the ratio it (Inaudible)

John P. Frank:

Your Honor, I’m not sure that I fully perceive the purport of your — your question but as I understand it at least I would say —

Felix Frankfurter:

We have before us and — just to develop a question of like terms, numerical demands.

I’m saying that the numerical demand depends on the subject of our common changes, not the base changes on the ratio to say that it follow or not.

John P. Frank:

And what we are saying, I hope an answer to that, Your Honor, is that since that all that is now before us is the joinder problem, that the question of whether we should operate on a percentage or on some other basis, is not a good enough reason for example for making the State of Wyoming get into the litigation.

Felix Frankfurter:

All you’re saying there’s no likelihood (Inaudible)

John P. Frank:

And because it could only come to pass by virtue of circumstances which we cannot now foresee which would then affect your judgment.

Hugo L. Black:

If — if your contention was a basis for adopting that, it would assume that that would be the (inaudible), would it not undercut all of the objections as made by California?

John P. Frank:

You mean — now, let me get clear, Mr. Justice.

Are you speaking of a percentage division amongst ourselves?

Hugo L. Black:

Among — among the statement of the Lower Basin.

What they — what California says is that you are asking for a certain number of acre feet.

They say that can’t be done, can’t traditional render as to it.

Because of a chance, there will not be 15,000,000 acre feet or 16,000,000 acre feet.

And that’s where they say, “You are asking for a decree which may affect these percentages,” and they are right on their assumption.

But if your — if the case was treated on the basis of a percentage division between the States that are now having controversy among themselves, I assume their diction does not lie.

John P. Frank:

Your Honor, I am sorry that I did not see the force of that earlier.

Simply, by one of a comprehension, yes, that is exactly what is done in all of these water cases.

That is to say, normally, there are claims of too much.

There is a distribution and then in the weak years, there must necessarily be a percentage allocation or cutback, and that may someday be necessary here.

The multiple dams make it less likely here than in perhaps some other areas, but —

Felix Frankfurter:

Even the percentage basis may be affected by the (Inaudible) and by changes, rapid changes and population, you’ve indicated —

John P. Frank:

Exactly.

Felix Frankfurter:

— Arizona 10 years from now might be tripling (Inaudible)

John P. Frank:

Your Honor, it is to that point that I would like to address my concluding remarks.

And that is the question of what the relation of all this is to the future of my statement.

We deal with this situation that ours is the one State which is entirely in the basin of the Colorado.

This is the only water source that we have.

The problems of all of the other States can be solved by limitless ingenuity or by the vast expenditure of money, as for example, by taking salt out of seawater or by taking one of the great streams of Northern California and deflecting it to the South.

We have no such possibilities.

Our State, Mr. Justice, is one of the fastest growing States in the union.

John P. Frank:

Great numbers of people have come to us to enjoy our time, and all the other benefits of life in Arizona.

Now, we are not asking you to underwrite the migration which has come to us.

We do say that our present situation as such that we are simply desperate for water.

We are taking land out of production because we haven’t the water port because we’ve used up our total ground supply.

We are saying to you that it is unfair and unwise and unjust in against every principle which ought to guide the considerations of discretion to allow delaying factors to creep into this litigation to let more people come to us and may one day have to be sent away again.

The addition of the Upper Basin States can only have two practical consequences so far as we are concerned.

One of them is to delay this litigation for another year or so on maneuvers and motions from pleadings fill the air.

And the other is to involve us in almost aimless disputes with our Upper Basin neighbors of whom we get on half of it.We say that if you have discretion, it should be exercised to avoid those consequences.

Thank you.

Hatfield Chilson:

If the Court please, due to the limitations of time, I’ve been requested to speak on behalf of the four Upper Basin States of Colorado, Wyoming, Utah, and New Mexico.

I wish to state first that I’ve been authorized on behalf of Utah and New Mexico, who, by the Master’s report, had been recommended to be made parties to this action in their Lower Basin capacities.

I’ve been authorized to say that Utah and New Mexico do not accept to the Master’s report.

Therefore, I may present this case in this light that in the Upper Basin capacities, Colorado, Wyoming, Utah, and New Mexico have identical interest.

So, during this argument, when I refer to the Upper States or the Upper Basin States or the States of the Upper Division, I will be referring to those four States in their Upper Basin capacities.

Stanley Reed:

This is for all four?

Hatfield Chilson:

I’m speaking for all four of them.

Mr. Callister, Attorney General of Utah, Mr. Wilson, Special Assistant Attorney General of New Mexico, and Mr. George Guy, Attorney General of Wyoming, have asked me to do that.

First, let me say that the Upper Basin States are most jealous of their water rights.

Colorado in particular has evidenced that by much litigation in this Court.

If we felt that we had a real estate in this lawsuit, we would not have to be requested to be here.

We would be clamoring to get in.

I would like, if I can, briefly, to tell you why we think we have no state in this particular lawsuit.

As it’s been stated here, the Colorado River Compact did only one thing about division of water.

It divided water between the Upper Basin and the Lower Basin.

It did not divide the water use within either basin.

So, when I speak of the Upper Basin share of the waters, I speak of the water use to which the Upper Basin is entitled under the Colorado River Compact, and when I speak of the Lower Basin share, I will be referring to the Lower Basin share of the waters under the Compact.

Now, as I said, the Compact made no division of water use within either basin.

The framers of the Compact left that as a future matter to be determined as an internal affair between each basin.

In 1948, the Upper States, following the spirit of the Compact, got together by agreement and made a division of the Upper Basin share among the Upper Basin States.

Now, at that time, the upper States faced essentially the same problems which the Lower Basin is now facing, because the Lower Basin has been unable to agree on a division of the Lower Basin share.

Hatfield Chilson:

So, they have come into this Court and asked the Court to do by judicial decree, what the upper States did by agreement in the form of the Upper Colorado River Basin Compact.

Therefore, the essential and only purpose of this action, if the Court please, is a division of the Lower Basin water use.

It’s not to determine how much water the Lower Basin is entitled to because that has already been determined by the Colorado River Compact.

We have divided the pie by the Compact.

The Lower Basin has its share.

The Lower Basin States are now involved in trying to cut up their share among the Lower Basin States.

Now, the claims of the parties show that, I want to emphasize that, Arizona by its complaint is not claiming one drop of water out of the Colorado River System, except such as the Lower Basin is entitled under the Colorado River Compact.

And then, her claim, she states that the waters to which she is entitled are subject to the availability of that water to the Lower Basin.

Now, there — they are attempting to divide it in specific amounts of acre feet.

The Upper Basin realized that the flow of any stream varies.

The negotiators of the Compact thought they were dealing with 20,000,000 acre feet per annum.

It now appears at least over a long period of time that the supply of the river is materially less, somewhere around 15,000,000, 16,000,000 acre feet perhaps.

Felix Frankfurter:

The statement of (Inaudible) on what factor they went wrong that even within, we say, the long period of time, not so long, (Inaudible).

What factor did they go wrong that we have assurance, Arizona has been going wrong (Inaudible)

Hatfield Chilson:

Mr. Justice, in the — in the aired west, no one can make any insurance as to what the future stream flow is going to be.

Felix Frankfurter:

Even for 10 years?

Hatfield Chilson:

Even for 10 years, and that’s the reason that the Upper Basin States tried to be realistic about this thing, and — and they divided the Upper Basin share in percentages.

If there’s no water, you get nothing.

If there’s a 100 acre feet, you get your share.

If there’s a 20,000,000 acre feet, you still get your percentage share.

Felix Frankfurter:

That’s among the forum.

Hatfield Chilson:

That’s among the forums.

Now —

Hugo L. Black:

You get it back the percentages or by figures?

Hatfield Chilson:

By percentages, the Upper Basin Compact, except for one instance.Arizona has a little area in the Upper Basin.

We allocated Arizona 50,000 acre feet.

The rest of it is divided in percentages.

Colorado gets 51% and 75% of the upper basin share.

Utah gets a percentage and Wyoming a percentage.

Now, California, of course, contends that in this action to divide Lower Basin water use that we are necessary parties.

Hatfield Chilson:

And I would like to briefly review the four principle contentions.

That is there the four principle contentions of California as I understand it.

Now, the first is that this is an action on a contract that the contract is the Colorado River Compact, and that since we are parties to the Compact, therefore, we’re necessary parties.

The second principle contention is not to avoid litigation in the future.

This Court should anticipate the possible areas of conflict between the two basins and decide them on this action.

The third principle contention is that the determination of the issues which have to be determined to divide the Lower Basin share of the water are such that the Upper States’ interest are affected and no effective decree can be entered without their presence.

And the fourth is that the claims of the United States require the presence of the Upper States.

Now, let me refer first to this contention that this is an action on the Colorado River Compact.

We most seriously contend that this is not an action on the Colorado River Compact.

As I mentioned before, the Compact does one thing.

It divides the water use of the river between the Upper Basin and the Lower Basin.

It makes no division into our basin and that was by intent.

The negotiators of the Compact by intent limited this division between the two basins.

Therefore, this action to divide the Lower Basin water use is an action to determine a matter of side scope of the Compact, and therefore, it is not an action on the Compact.

And in such a division, whether it be on the Upper basin or the Lower Basin, the division of interbasin water use is an internal affair, which does not require the acquiescence or the presence of the States of the Upper Basins.

Now, that principle has been recognized on several occasions, Your Honors.

The first was — it was recognized by the negotiators of the Compact, the Commission which — which negotiated the Compact.

And I refer to the Hoover Dam documents which gave the history of the negotiation and we’ll quote just briefly.

Participants has stated that the negotiations would have broken up but for Mr. Hoover’s proposal, that the Commission limit its efforts to a division of water between the Upper Basin and the Lower Basin leaving to each basin the future internal allocation of its share.

It was also the same principle that the States of one basin are not necessary parties to the division of water use within the other basin.

It was also recognized by the Congress and the Boulder Canyon Project Act.

By Section 4 (a) of that Act, they authorized Arizona, California and Nevada to enter into an agreement for the division of the Lower Basin share of the waters.

The Congress did not require the participation of the Upper States in that agreement or that the Upper States acquiesce therein.

The Congress treated it as an internal affair between those parties.

And it was recognized again in the negotiation and ratification of the Upper Colorado River Basin Compact.

When the Congress consented to that Compact, they did not require that California and Arizona had to acquiesce therein or had to participate in the negotiations or had to ratify.

It was treated by everyone that it is an internal affair which they can take care between themselves.

Now, less there be any misunderstanding, if the Court please.

I’d like to say right here that if the time should come that the Lower Basin States come into this Court and say the Lower Basin of the river is being deprived of water because the terms of the Upper Basin Compact are such and the operation under the Upper Basin Compact is such.

That it is depriving us of water under the Colorado River Compact, the Upper States are going to have to face that issue and they’re going to have to litigate it.

Hatfield Chilson:

Now, I’ll give the Court an example here shortly of what I mean.

It seems — it seems fair to us therefore that this is not an action on the Compact, but it’s an internal affair for each basin and that we’re not necessary parties.

Now, I would like to turn to the second principal contention and that is that this Court should anticipate possible areas of conflict between the Upper Basin and the Lower Basin and to avoid suits in the future decide them in this particular litigation.

Now, the Master found that there was no justiciable controversy between the Upper States and the parties to this cost, and that whatever the possibility of a future controversy may be, there exists no sound equitable reason for now joining the Upper States in this litigation.

And we believe that the findings of the Master are justified because there is no allegation anywhere that the Upper States are exceeding their rights or evading their obligations under the Compact.

Now, the rights and obligations of the Upper States under the Compact are relatively simple and that the — the principle right they have is to — is the apportionment by Article III (a) in perpetuity to beneficially consume 7,500,000 acre feet of water per annum.

Their principal obligations are two.

Under Article III (d), the Upper States are not to deplete the flow of the river below at Lee’s Ferry, below 75,000,000 acre feet in each 10-year period.

Hugo L. Black:

Suppose the time would come in those two obligations unfixed upon them.

Hatfield Chilson:

If the Court please, at that time, there will be undoubtedly an innervation conflict.

The Lower Basin will — will take one stand and of course we will take the stand which is most favorable to us.

And if that time comes, unless it can be adjusted by negotiation between the interested parties, I assume that this Court will have to decide what will happen.

Hugo L. Black:

Then Upper Basin here that is — I have reasons here that if this case should go along between these parties and a 7,500,000 acre feet is pushing among these numbers of the Lower Basin.

That if he and that case might at sometime in the future that this possible conflict arise affect the Upper Basin tribe.

Hatfield Chilson:

No —

Hugo L. Black:

They have no idea of such as decree —

Hatfield Chilson:

We have no fear —

Hugo L. Black:

— with the division between these parties.

Hatfield Chilson:

We have no fear of — of such a decree, Your Honor, because they’re just dividing their share if the — if the flow of the river over a period of years should — let’s take a very extreme case.

Should — I can’t think of the word, produce only 5,000,000 acre feet, then surely, neither basins can get 7,500,000 out of a 5,000,000 acre-foot supply.

What the division will be under those circumstances is a matter either for a negotiation or litigation when that happens.

But until that time happens, I see no reason for attempting to foresee that situation and try and decide it in this action —

Hugo L. Black:

Suppose there is no petition that has considered what you say it did, suppose it should have for the division now in perpetuity on the basis that — that the Southern Basin — that the Southern Basin must get seventy five hundred or seven million five hundred acre feet for all times irrespective how much the Northern Basin have, would you then feel that (Inaudible) to the party.

Hatfield Chilson:

We wouldn’t be here in this capacity.

We would be here, Your Honor, asking to get into this lawsuit.

And we all as well —

Hugo L. Black:

What you see here is a petition which doesn’t move at all —

Hatfield Chilson:

That’s right.

Hugo L. Black:

Which — which simply ask for a decree divided up among themselves —

Hatfield Chilson:

That’s right.

Hugo L. Black:

— and which would not be binding on you in anyway —

Hatfield Chilson:

That’s correct.

Hugo L. Black:

— if he used it —

Hatfield Chilson:

That’s correct.

Hugo L. Black:

— even he would yield —

Hatfield Chilson:

That’s correct.

Hugo L. Black:

— that they just not ask him.

You’re obligated to get the seven five hundred over a 10-year period.

Hatfield Chilson:

That’s correct.

What is your mark — the distinction?

Hatfield Chilson:

Well, let me put it —

What is your — what is your — the use (Inaudible)

Hatfield Chilson:

Oh, I — I was going to say I can get out of it that way, are used at the present time including what is called commitment that is projects that are so far along that the waters committed this 2,500,000 acre feet per annum.

Hugo L. Black:

That’s the impression.

Hatfield Chilson:

Yes.

Hugo L. Black:

2,500,000.

Hatfield Chilson:

2,500,000.

Now, Mr. Frank spoke of this reclamation project that we’re asking Congress for it.

If we are successful in getting that depending on the details of the plant, we’ll have a 1,000,000 to a 1,700,000 acre feet of consumptive use which might possibly bring our total use up to 4,200,000 of the 7,500,000.

And that will take according to the Bureau’s estimates, approximately 33 years to construct that reclamation project.

What — what basis do you give to the demonstration?

Hatfield Chilson:

I can go in to that now, Your Honor, if you wish.

You can come to that later.

Hatfield Chilson:

I was going to come to it later.

Felix Frankfurter:

Before — before you move on, why is that the cases put by Justice Black that the Lower Basin (Inaudible) just that amount no matter what in perpetuity?

Why if you were not brought in or sought to be brought in by either parties that you should be rushing in, hence, you wouldn’t be bound by the (Inaudible)

Hatfield Chilson:

Well, but that’s too dangerous to our rights.

We — we —

Felix Frankfurter:

No.

Just the mere — mere protection that you have if you’re not bound by a judgment, then you’re not protected.

Hatfield Chilson:

I’m afraid that we would feel that any action taken would be so persuasive in future litigation that we could not afford this to stay out because these — these water rights, the Colorado River is the last major source supply of water, Your Honor, for the development of most of that upper region.

I mean from now on forever.

Felix Frankfurter:

In short — in short determination to which — by which it would not be bound on the legal doctrine of res judicata and they have consequences beyond res judicata.

Hatfield Chilson:

If this claim were against the river system rather than against the Lower Basin share under the Compact, we would feel that way I am sure.

Felix Frankfurter:

Would you agree with my bill of proposition that there may be consequences to you that res judicata would be observed.

Hatfield Chilson:

Well, yes, I think we thought very carefully about this thing, Your Honor and —

Felix Frankfurter:

Why is that?

Hatfield Chilson:

And — and I — I think we are convinced.

Let me — let me turn now to this second class of question again that we should foresee the future just as an example of one of the things that California wants to determine.

They say that at some time in the future, the Upper Basin may so increase its uses or so utilize its water that it will affect the quality of the water delivered at Lee’s Ferry and therefore, California will be deprived of some right which it claims under the Compact.

Now, the Compact does — doesn’t mention quality of water, but for the purpose here, it doesn’t make any difference.

Let’s assume that it does.

California does not say that we are affecting the quality of the water at Lee’s Ferry.

They say that we may at some time in the future do so.

And I use that as an illustration to try and — and tell the Court why it misses the matter of so great importance to us.

We feel it would be very prejudicial to the Upper States to have to litigate its interbasin rights and obligations upon assumptions and conjecture of a fact situation that may — may or may not exist many years in the future.

Colorado has had very bitter experience where this matter of attempting to foresee the future in interstate stream matters and it — it hasn’t been good on the whole, and we — we think that really that it is very prejudicial.

The courts have many times pointed out the value of the fact situation which exist in determining rights and obligations such as these and we say we are entitled to a fact situation where California or the Lower Basin can say to us, “You are now doing something which is depriving us of some right which we claim under the Compact.”

I won’t labor that —

What makes you suppose that if you did come into litigation that your rights as to your future rights would be litigated, would be involved?

Hatfield Chilson:

That was the purpose California recites in the joinder motion is the determination of all of these easy questions of interpretation of interbasin rights and obligations under the Compact.

Now, I don’t misunderstand it.

That isn’t the only basis for their motion but it’s one of the contentions to their motion.

Felix Frankfurter:

The interbasin isn’t intrabasin —

Hatfield Chilson:

No, interbasin.

That’s between —

Felix Frankfurter:

I said interbasin is not intrabasin.

Hatfield Chilson:

That’s right.

Felix Frankfurter:

You say you don’t — you don’t want them to speak their motion to find these of altruism into your intrabasin affair.

Hatfield Chilson:

That’s correct.

Felix Frankfurter:

Justice Harlan, the thrust of his question is that this litigation couldn’t — there have been intrabasin concerned, as far as it’s involved in the interplay of any between the basin therefore intrabasin.

Hatfield Chilson:

Well, now, we — we don’t believe in this case.

There are any interbasin questions.

Felix Frankfurter:

That — that — it was stressed down there.

Hatfield Chilson:

That’s right.

Felix Frankfurter:

They have intra North, Upper four-state arrangement that are going to be affected.

Hatfield Chilson:

That’s right.

Harold Burton:

How is it — excuse me.

Hatfield Chilson:

Yes.

Harold Burton:

How is it therefore that California feel that this is going to affect you in some way and they’re worried about you and then you weren’t worried at all about yourself?

Hatfield Chilson:

Well, of course, we’ve been intrigued by California’s concern for our prayers.

[Laughter] I would — I would now like to turn to the next point which may answer it in some respect without being fastidious about it, and that is the third contention that there are in this case to divide the water use within the Lower Basin, there are certain issues.

The determination of which are going to affect our rights, and time doesn’t permit a detailed discussion.

We’ve done it in our briefs, but let me — let me just take the one question that has been mentioned here, the method of measurement of beneficial consumptive use.

That’s what they’re talking about.

How are you going to measure the beneficial consumptive use?

Now, you’ve got — you’ve got two things to make.

In this case, the thing that they’re going to measure is the consumptive use for the division of the Lower Basin water use among the States of the Lower Basin.

The Upper Basin States, when they approach the — the conference table to try and negotiate a settlement, they have exactly the same problem as the Lower Basin has now.

We have to decide how to — how to measure beneficial consumptive use.

We have to determine what we were going to do with the reservoir losses in the Upper Basin.

We have to decide what we were going to do with the United States claims and — and there as here, the claims of all the States far exceeded the — the Upper Basin’s share of the waters under the Colorado River Compact.

We have the same problems, so we — we adopted a method of measurement of beneficial consumptive use by the Upper Basin Compact for the division of the Upper Basin water among the Upper Basin States.

Now, we don’t contend that that is binding on the Lower Basin.

They can use any method of measurement they wish to divide their Lower Basin water use.

Now, again, may I say, the time may come where it can’t be soon because under any theory of method of measurement or consumptive use, they can’t say that 2,500,000 out of 7,500,000 use, no matter how you measure it, but at some time in the future when the Upper Basin approaches its full utilization of its 7,500,000 acre-foot, the Lower Basin may come into this Court and say, “The method of measurement which the Upper Basin using is inaccurate.

And therefore, by using that method of measurement, they are depriving us of certain waters which we are entitled to under the Compact.”

And when they make that allegation, we are going to have to stand trial if — if we think that we’re right.

If we are using an inaccurate method of measurement, of course, we won’t have to back down and say, “We will still use it to divide the water use among the Upper States, but so far as interbasin obligations —

(Inaudible)

Hatfield Chilson:

— interbasin obligations are concerned between one basin and another, we will have to use the method which this Court shall determine is an accurate method and that’s the only thing that is in question here.

They can use whatever method they want and we can use ours.

And from practical experience, if the Court please, while we’re on that, let me say that when the time comes, they’re — they’re getting down to measuring the last few drops of water, but I doubt if there’s any one method of measurement that can be use in that basin.

In the Upper Basin, we have over 8000, gentlemen, over 8000 separate diversions under all kinds of conditions, little vegetables that will arrogate a few acres, big vegetables arrogate a lot of acres in basin uses out of basin uses, 8000 and I defy anyone to find a method by which you can measure diversions less returns to the river.

So, we have had to be practical about it.

And so, we have adopted what we call the mainstream depletion.

We measure the inflow into a tributary and we measure the outflow from that tributary and the engineers by computations figure out the consumptive use.

Now, the definition of consumptive use is easy.

Beneficial consumptive use is nothing more than the water that is burned up by the activities of man, but when you come to measuring it, it may be quite a job and may depend entirely on the area or the use it’s made.

It’s easy when you have a transbasin diversion as California.

It’s easy to measure it because you just measure the water they take because none of it returns to the river.

All right, let me now — now mention the claims of the United States.

As it’s been pointed out, the petition of the United States is confined to the claims of the use of water in the Lower Basin of the river.

The Master found that the United States did not attempt to enlarge the scope of this action beyond its original purpose of dividing the Lower Basin water use.

The petition for intervention nowhere asserts any claims for relief against the Upper Basin or the Upper Basin States.

Neither did the United States move for a joinder of the Upper States as being necessary for determination of the United States claims, and — and I’ll be frank.

If the United States have joined, have moved to join the Upper States, we would have opposed that motion the same as we’re opposing the motion for — of California, and for a very good reason, the Untied States cannot play that the Upper States are depriving the United States of one drop of water use to which they’re entitled in the Lower Basin, and we would oppose it for another good reason.

We, at all times, have acted in entire good faith for the United States of America.

In the Upper Basin Compact, we included a provision which said that all uses of the United States, its instrumentalities and its words which included the ambiance that all those uses in the Upper Basin are to be charged against the share of the State in which the use is made.

The United States can use the entire 7,500,000 acre-foot of apportionment that the Upper Basin has and it will not affect the Lower Basin one I order, because it will be charged against the share of the State in which the use is made.

And so, the Upper — the Lower Basin is now faced with the — with the same problem of what to do with this United States claims.

But why should we be embroiled in this litigation when we have taken care of the United States in the Upper Basin?

And I would like to conclude, Your Honors, just for this.

The — the Upper Basin, as I said, after the negotiation of the Compact, knew that they faced this problem of dividing among the States of the Upper Basin their share of the waters.

They did it by a negotiation around the compensate which — and by an interstate compact, which I understand is considered preferable than to fight it out in Court.What I want to point out, it was not an easy task.

As I mentioned before, the claims, the total claims of the States in the Upper Basin far exceeded the 7,500,000 acre feet that we have to divide.

We also knew that if in a long period of drought, the water supply of the river went down, we might not have 7,500,000 acre feet left after meeting the III (b) commitment to deliver 75,000,000 in each 10 years of Lee’s Ferry.

So, they divided it in percentages, but it was — it was a tough job because when it came to the percentages, every State realized now that this was the last water hold that they had to go on from now and forever to take care of their future development in that area and that the only source was the Colorado River and so there was a fight by each of these States for as high percentages possible.

But they — they did give and take Colorado for example that furnishes over 70% of the supply of the Colorado River accepted as its share 51.75% of the Upper Basin’s portion.

Now, that was — Colorado thought that it was making a great concession.

Hatfield Chilson:

And the point I wish to make is that one of the principle factors which caused these States to reduce their claims in order to arrive at this agreement was the desire to avoid litigation.

They had all had experience, Colorado particularly, and as I said before it hasn’t all been good.

And — and they wanted to avoid litigation.

And so, that was one of the prime factors, but now, we are told by the proponents that having gone to that trouble, the Upper Basin Compact has failed as — of its purpose, because we are still to be involved in the litigation in dividing the Lower Basin water use.

Not only that, but we are told that if in the division of the Lower Basin water use, the Lower Basin uses certain principles or methods that these are then to be imposed upon the Upper Basin in the absence of any allegation that the Upper Basin Compact is depriving the Lower Basin of any water, that doesn’t make any difference whether we are not.

That these principles and methods that are going to be used in the Lower Basin are going to be imposed on the Upper Basin and if they are contradictory to any provision in the Upper Basin Compact, the Compact is to be thrown out the window.

So, why did we negotiate a compact?

I respectfully submit to the Court please that this violates our sense of justice somehow, and we respectfully submit that the Master’s report should be accepted and this motion should be denied.

Hugo L. Black:

May I ask you?

Do you speak for all of the States in the Northern Basin?

Hatfield Chilson:

I — I speak for Colorado, Wyoming, Utah, and New Mexico, but only for Utah and New Mexico in their Upper Basin capacity.

Hugo L. Black:

Yes.

Hatfield Chilson:

In the Lower Basin capacities where there have been made parties, they do not wish to accept to the Master’s report in that regard.

Hugo L. Black:

I suppose then this case as its progresses, (Inaudible)

Hatfield Chilson:

That’s correct.

Hugo L. Black:

And the Court essentially gave the definition, your viewpoints that you would still be free to use any — use — you take space in the Upper Basin, any definition you desire out of that —

Hatfield Chilson:

That’s right

Hugo L. Black:

(Inaudible)

Hatfield Chilson:

That’s right.

Until, Your Honor I will — I —

Hugo L. Black:

Until it became a system proposition (Voice Overlap) —

Hatfield Chilson:

That’s right.

Until the Lower Basin said that by the use of our system, we are then depriving them of water to which they’re entitled in the Lower Basin.

Hugo L. Black:

In short, your position is that if that you have decided among yourselves that was in your right, there would be no consideration between them, that’s not an important decision.

Hatfield Chilson:

That’s correct.

Hugo L. Black:

You can divide it if you can take.

Hatfield Chilson:

That’s correct.

Hugo L. Black:

And that if they given up the reports, they can decide with their faith.

Hatfield Chilson:

That — that is right.

Hugo L. Black:

But if later on, they should become a system controversy —

Hatfield Chilson:

That’s right.

Hugo L. Black:

— then it would be up to the Court to settle the meaning of the term.

Hatfield Chilson:

Unless it could be done by negotiation.

Hugo L. Black:

That’s what I meant.

Hatfield Chilson:

Yes, that’s correct.

Hugo L. Black:

And you are satisfied, all that you have satisfied that there’s nothing in and no — and in no way the suggestion by California that has been called on you to attend of to affect your rights and interest.

Hatfield Chilson:

That’s correct, Your Honor, and in our brief, we took each — each eight — each issue in the Lower Basin dispute and showed wherein we have lack of interest.

I might just one mention — mention one other thing while we’re about it.

This matter of — of surplus, nobody has pointed out that the Compact says that there’s — that there shall not be a further division of the surplus till 1963, and if California stables that they have in their exceptions are correct, I don’t know what interest we have in surplus because by their own figures, we — the most that we can use in the Upper Basin of our 7,500,000 is only 6,200,000 acre feet.

So, what interest we have in surplus at this stage of the game when our use is only 2,500,000 acre feet, I failed to understand.

Hugo L. Black:

Do you think if you were made a party and the Court did define the consumptive benefit, the beneficiary consumptive use of whatever is turned in, that it would thereby upset you if you were a party, it would upset your plan among yourselves and in your division.

Hatfield Chilson:

No, Your Honor, but I have considered this and I have so reported to my employer which is the Colorado Water Conservation Board, which is the official state agency in the interstate water matters in Colorado.

And this matter came up I pointed out to you, that if this Court does adopt a method of measurement of beneficial’s consumptive use for division of Lower Basin waters that if and when the time came that we got into interbasin litigation as to what method should be used to measure interbasin rights and obligations, we might be faced, not with res judicata, but with a persuasive effect of a prior decision of this Court and we face that realistically we — we know it.

Felix Frankfurter:

I’m referring from what you said that the concept beneficial consumptive use may have on content in Upper Basin and other content in Lower Basin?

Hatfield Chilson:

No, it may — it may take different methods of measurement.

Felix Frankfurter:

Well, but the different methods of measurement may bring about interest results to the detriment of the interrelationship of the two.

Hatfield Chilson:

If the Court please, I look at this way.

That as long as those methods if they are accurate in other words you can measure water by acre feet or second feet or minors inches and so on —

Felix Frankfurter:

You will always get same result?

Hatfield Chilson:

— and you always get the same result.

Felix Frankfurter:

That’s an empty controversy then.

Hatfield Chilson:

But there can be an argument as to whether or not mainstream depletion as a method of measurement is accurate or whatever it is.

There can also be an argument as to whether diversions less returns is —

Felix Frankfurter:

It may make — may that make a sizable, a sizable effect upon results, namely, how much water what is so-called volume of water that this company gets.

Hatfield Chilson:

Yes, only it’s more difficult.

When you’re measuring consumptive use, it’s — it’s a lot more difficult than to measure out 2,800,000 acre feet of water under a contract to Arizona or that is — assuming it was in terms of diversions rather than in terms of beneficial consumptive use.

Felix Frankfurter:

The result of the first of those findings (Inaudible) that the problem of any suggestion that the concept or the way the Lower Basin to date worked out what is beneficial consumptive use ought not to be imposed under the Upper Basin States.

The thought appears to me that the Upper Basin States can’t divide their own mode of measurement which made serious effect of all basin.

Hatfield Chilson:

You bet they cannot, no sir.

Felix Frankfurter:

Very well then, then they cannot trade this Compact if divided into half.

Hatfield Chilson:

No, the only thing I —

Felix Frankfurter:

(Inaudible) based to that Compact.

Hatfield Chilson:

Well —

Felix Frankfurter:

It makes administrative division for certain purposes but it’s with one concept that seven States then became six States and it’s now seven States.

Hatfield Chilson:

That’s right, but in — in case I get your — your idea correctly, Justice, I — the — the Compact I think is a firm division as between the Upper Basin and Lower Basin.

Felix Frankfurter:

For certain purposes.

Hatfield Chilson:

Yes —

Felix Frankfurter:

It was dealing with one system with one water system.

Hatfield Chilson:

That’s right.

It was.

Felix Frankfurter:

The Lower Basin is dependent with certain circumstances upon the other.

Therefore, if you have to say it’s only — (Inaudible) to have opinion and I meant to say there are two separate systems here just as an accurate thing on only one, there’s one system which has the vision for certain purposes that the two are interrelated which is given to this.

Hatfield Chilson:

They — they can come in collision, there’s no question.

My point is that until the Upper Basin approaches its full utilization.

Felix Frankfurter:

Don’t borrow from (Inaudible)

Hatfield Chilson:

That’s right.

Thank you.

Mr. Attorney General:

May it please the Court.

I will try to be brief as the hour’s late.

In this brief concluding statement, I want first of all to say a personal word about the late George I. Haight, the Special Master to whom this Court confided the task of considering the motion made by California to enclave the Upper Basin States.

He was a member of the Illinois Bar and of the Bar of this Court.

His report on the motion is the crowning achievement of illustrious career.

I hope this Court will sustain it in every particular.

Now, may it please the Court.

We’ve heard the arguments in this case by counsel on both sides.

The law is pretty well set forth, but I would like to sum up those arguments and then to try it because I think that law is pretty well settle.

It is settled.

I would like to try to apply, if you please, the facts to that argument.

Now, the — the Master pointed out the object of the Colorado River Compact, and I don’t think that we should forget the object of the Colorado River Compact.

What does Article I provides?

Mr. Attorney General:

The major purposes of this Compact are to provide for the equitable division and apportionment of the use of the waters of the Colorado River System to establish that relative importance of different beneficial uses of water, to move — promote interstate committee, to remove causes of present and future controversies, and to secure the expeditious agricultural and industrial development of the Colorado River Basin.

The storage of its waters and the protection of life and property from frauds to these ends, the Colorado River Basin is divided into two basins, and one apportionment for the use of part of the water of the Colorado River is made to each of them with a provision that further equitable of apportions may be made.

It’s true as it has been just stated that the Compact is one compact, but if the Court please, the division is definite.

And this action is brought for the division of the waters, which, under this compact, belong to the Lower Basin.

Now, the proponents of this motion contend that the Upper Basin States should be brought in.

I submit that it has been thoroughly demonstrated that the Upper Basin States are not in defensible — indispensable parties.

I think it’s pretty well proven.

I think it’s well proven that they are not necessary parties.

And the courts have held from time to time in these cases that what is necessary, what is necessary to make a controversy, there must be a justiciable issue.

And what does that sum up to?

To have a justiciable issue, you must have an existing injury of serious magnitude or an immediate pertinent injury of the same time.What are the facts?

It’s just been stated by the counsel for the Upper Basin States when the present commitments are completed, their use will only amount to 2,500,000 acre feet.

And then, if they are successful in getting their project adopted by the Congress, their — their total beneficial use will be a maximum of 4,200,000 acre feet.

There’s no threat there.

There’s no enough danger of serious magnitude in these pleadings in any place or in this record as presented before the Master, and those are the facts.

Now, what do the proponents seek to do?

Well they would like to throw in here while we’re going to have the interpretations that might affect the Upper Basin States wanted to the interpretation.

How do we know what the Upper Basin States will contend for 30 years from now while it’s even been estimated that it might be as long as 75 or a hundred years from now before they would put the beneficial uses of 7,500,000 acre feet of water?

What do we know about what the facts will be at that time?

Will there be a serious threat then?Can we look into a crystal ball and say what the issues will be 25 or 30 years from now?I don’t believe we can.

I don’t believe that this Court — this Court has never attempted to do so in the past.

And — and as has been held time after time, you can’t speculate.

If we were going to speculate, we might as well speculate that California, that the cause of this silting or this salting water, ocean water would be so reduced that California would much prefer to use ocean water rather than take it hundred — out of the Colorado River waters — river, out of its watershed hundreds of miles over to the coast or that they might develop the further river project.

But we were not permitted to make such step — such speculations, and I don’t think it is appropriate to do so.

And as justice speculate here to say that the Upper Basin States will someday infringe upon the rights of the Lower Basin States.

Now, they talk about what the Federal Government has pleaded in this case in regard to the Indians.

They ask only for the use of the Lower Basin States water.

They don’t refer to the Upper Basin States water.

The Upper Basin States have by their Compact taken care of their Indians.

And yet, the counsel here would ask this Court to speculate and say, “Well, no they — they’ve got it in their Compact.

Mr. Attorney General:

They’re going to take care of it.

But they might not do it, so you better — they better be dragged in.

They’d better be fixed — put to the expensive litigate, even though they’ve said in a solemn compact among themselves that they’re going to do it.”

So, there’s no issue and that’s a reason why the Master in his will found against them in that regard, and we could go on here and take one by one and we find that all of their contentions are mere speculation that something might happen.

No justiciable issues, no immediate threat of a serious injury.

Now, if the Court please, in determining what might be the facts in the future, in determining — in applying the facts to the law as we’ve heard it propounded here today, and as it is set forth in these briefs, let us look upon the other side of this case and figure just what might happen or what would happen rather, not what might but what would happen if these parties were brought in to this litigation.

I would like to call to the Court’s attention that to the — to what Professor Moore said in three more on federal practice in the second edition at pages 2905, permit — Professor Moore emphasizes that a belated motion to join will normally be overruled if the hearing of the case will be unduly delayed.

And then, we have other cases in regard to delays.

One of them is in — is in the federal court in 12 federal rules foresee — rules, decision, 251, the Court said that third parties had joint tortfeasors would be proper or necessary parties defendant to such counterclaim.

In that case, however, their presence in the action can be ordered only at the discretion of the Court under Rule 20 and 21.Our discretion should be exercised in our position to the motion in view of the unreason delay likely to people precipitated by such joinder.

The courts have held that bringing in States and litigation are serious matters.

We had our plans in — in the first Arizona case, but the Court said plans were not sufficient.

There was no immediate threat of diversion of water modern might never be appropriate.

And then, in the Alabama versus — versus Arizona case, the Court, which has been mentioned here which of course the Court has permitted.

The Court there said that you couldn’t have declaratory judgement.

You must have — you must have a justiciable issue.

And the Court further said that the jurisdiction of this Court must not be exercised except on their absolute necessity.

Now, what is — what are the facts applicable to this line of cases?

Take the history of this briefly as has been outlined here.

The record shows that Arizona, back in 1922, was a small state struggling to try to obtain some of the waters of the Colorado River.

Yes, we tried three times.

We knocked at this — the doors of this Court three times and we made mistakes.

The Supreme Court told us so.

Yes, we did, we did include the whole basin at the — all of the Basin States at that time because we have not enjoined the Compact.

We were not parties to the Compact, and we were in a different factual situation.

And then, after we’ve tried every method that we could as the record here will show and as alleged in our pleadings, we turned to the Secretary of the Interior and asked if the Secretary of the Interior wouldn’t give us a contract for some water, and he gave us a contract for 2,000,000, some 2,800,000 acre feet unless a few uses which have been spoken of here upon the condition that we adopt the Compact, and that was done.

And so, then, we went to the Congress of the United States and — and introduced what was known as a Central Arizona Project bill, and we had long hearings on that bill.

And if the Court please, upon the last day of the first hearings in the Senate, by the first time the record will show, there was a resolution introduced in the Senate to provide for adjudication of these controversies directing and authorizing the Attorney General to bring such an act.

And that was used against us.

That was used against us and — and a similar resolution, those resolutions were broad and we’ve had theory of what the consequences might be on that.

Mr. Attorney General:

And resolutions were entered and were — were used in the Congresses in the Congress after that.

Until to — so effectively, that as was pointed out by my colleague in this case, the House Judiciary Committee, the House (Inaudible) by a resolution told us that they would not further considerate — consider this proper — this project until their rights were adjudicated, and that left nothing for us to do.

But here was our situation as the record will show, that the Federal Government owned the land all along the Colorado River.We had no way of getting water out of the Colorado River without causing that night.

And so, we couldn’t — we couldn’t present, we couldn’t make a justiciable issue because we hadn’t — didn’t have the means of taking water out of the Colorado River.

So, we went to the Secretary of the Interior and he granted us a right way.

And then, based upon what we expect to do in the State of Arizona, this action was brought and we have a price for it.

And we’re going forward this Court for many years, because we have to have this water, because as the record show, we’re already depleting our underground water supply to a dangerous point.

And so, we come here and what is the situation?

We find, again, even after all of the statements that were made in Congress that California is trying to bring in additional parties, which will again delay us.

And if the Court please, will delay the Upper Basin States.

Now, I know that Mr. Ely or any of the counselor not bound by statements made in before a committee but they just show how the terms, what a term of controversy of this kind will make, how it will multiply, how it take years and years?

You talk about it being narrow on the start and then you join new parties and you keep it going and going.

He said, “We believe that the questions require to be presented to the Supreme Court in this matter all questions of law, interpretation of statutes, compacts, and documents of which the Court would take judicial notice.”

I’m not going to read all of their statements.

Stanley Reed:

Where are you reading from?

Mr. Attorney General:

I’m — I’m reading from Mr. Ely’s testimony before the Committee in the — in the Congress of United States found in — on House Joint Resolution 225, 226, 236 at page 4097 on May of 1948.

And then, he said, “We feel that the decision can be obtained within a reasonable time, within one or two years at the most.”

And then, with another time because I don’t consider this material to the facts of this case, I only read it because it showed how the delays that occur in these controversies and how the — the issues, how they — they shift from year to year.

Then, in another time, he testified there is no — no need to go further on disputes of problems requiring present disposition are believe to exist between the Upper Basin and the Lower Basin.

There’s no need to determine the division of the water among the Upper Basin States.

They have, for nearly two years, been engaged in the negotiation of a Compact for that purpose and it is believed that this effort will be effectuated.

They didn’t think it was necessary then, that whether he went ahead and testified to that effect, other witnesses testified to the same thing.

And then, if the Court please, a year later, something like a year after they filed our answer in this case, they come in forth and for the first time, asked that the Upper Basin States be made parties.

Now, what would be the result?

As Mr. Ely said and as they testified then, there were three — three things presented before the Congress of the United States and that they are in the same periods before this Court.

The question of who should stand the losses of evaporation but their Lower Basin evaporations understand, not Upper Basin evaporations.

The question has nothing to do with the Upper Basin States, and then, the question as to what is III (b) water.

And I must differ with my good friend, Mr. Ely, in regard to the effect of the — of this case, the second case by Arizona, the Court there held we contend that the substance of that holding was — that that was apportioned water.

The Court said, “But the Act does not purport to a portion among the States of the Lower Basin, the waters to which the Lower Basin is entitled under the contract.”

That it merely places limits on California’s use of waters under Article III (a) and of surplus waters and it is such uses which are subject to the terms of said Compact.

Mr. Attorney General:

There can be no claim that Article III (b) is relevant in defining surplus water under paragraph 4 (a) of the Act for both Arizona and California apparently considered the waters under Article III (b) as apportioned.

And then, they go on and disposed that the — and say now the Court says on the next page, “But the fact that they are solely — solely useful to Arizona are the facts that they have been apportioned by — by her does not contradict the — the intent clearly expressed in paragraph (b) nor that the rational character thereon to apportion the 1,000,000 acre feet to the States of the Lower Basins and not specifically to Arizona alone.

Now, if it please the Court, the Court was speaking then thus what they said about 3 (b) (1).

We contend this has already been litigating.

We contend that most of these questions that are raised have already been litigated, but we couldn’t convince the Congress of the United States if they hadn’t there.

So, we have to come in Court.

Now, three years have elapsed since — since we first filed our petition for leave to amend to — to file a petition in this Court.

Three years, the pleadings are already voluminous.

They amount to four big volumes when you put them together.

This Court grants this motion there will no doubt be other pleadings filed and if the same length of time is consumed, there’ll be three more long years elapsed.

Before we even get to the issue, the history of these cases shows that it takes some seven — the 10 years or 12 years alot where there are only three parties.

What will that be if you have seven parties and the — and the Government of United States?

It’s not unthinkable to think for 15 years and then what will happen?

Will a justiciable issue arise?

No.

The justiciable issues will probably go out the window, because Arizona’s economy will be ruined by that time.

We have our plans now.

We want to go forward.

What — what’s the result of — of the situation on the Upper Basin States?

They have their projects.

The record shows in the pleadings shown.

The brief show that they did go before the Congress and use this motion to oppose the — to oppose — to oppose this — the granting of their Upper Basin project by the Congress.

And everyone knows that — that — the members of Congress are human beings.

They’re not very up to grant projects where suits are pinched.

And so, if it pleases the Court, we contend — pardon me if I have gone overtime —

Hugo L. Black:

Is that contented?

Mr. Attorney General:

We — we contend, yes.

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

We contend that justice requires that this motion be denied that the equity of the case is on our side and the law is on our side.

Thank you very much.

W. T. Mathews:

May it please the Court.

I will devote my time in history.

They may use my time on this basis.

Northcutt Ely:

Thank you, Mr. Mathews for your kindness.

May it please the Court.

First, with respect to the points that Governor MacFarland has made, I believe they’re all covered in our reply to Arizona’s brief in this matter and I shall refer to them only briefly in passing.

Felix Frankfurter:

Mr. Ely, what (Inaudible) the architecture of your argument if I ask you to state at the outset why the claim you’ve made it approved nor speculated to continue wholly apart from any question of this issue of (Inaudible) case of controversy, (Inaudible) and not in the rest.

Northcutt Ely:

I shall be delighted to come in grips with that.

Here, Arizona sues to acquire a title to 2,800,000 acre feet of the waters of the mainstream under Article III (a).

She alleges that California is entitled 4,400,000, about a 300,000.

It is not a claim to a percentage of the common fund, whatever the common fund may be, but to acquire a title in fixed quantities in perpetuity so that as Governor McFarland has said, she may proceed to build a project that the cost of many hundreds of millions to use that fixed quantity.

We have built our projects, there are three of them.

Arizona alleges that we’re using 4,500,000 acre feet, and that’s approximately correct.They’ve built it to cost of hundreds and millions of dollars.

Now, Arizona’s claim is based upon the assumption that these three States having the aggregate fixed rights to the waters of the Colorado River System apportioned to the Lower Basin by Article III (a), aggregating 7,500,000 acre feet from the mainstream.

We say that that is not correct that the Lower Basin has apportioned to it, 7,500,000 acre feet including the uses on the tributaries, particularly the Gila.

Now, if the Court should hear a decree to Arizona, the fixed quantity and perpetuity of 2,800,000 acre feet based on the assumption that the common fund in the mainstream of 7,500,000 acre feet and the — and the Upper Basin States are not bound by that, then that decree is based upon an illusion and a fallacy, a present mark because the Upper Basin has been recognized in the Colorado River Compact, know of treaty as having rights which are in conflict without assumption, namely, a right to use 7,500,000 acre feet, an obligation to deliver 75,000,000 every 10 years at Lee’s Ferry, but that 75,000,000 is not the 7,500,000 common fund apportioned by Article III (a), that 75,000,000 includes water in discharge of the obligations to Mexico.

Consequently, as Justice Burton asked earlier, why are we concerned about where we considered about the position of the Upper Basin if they’re not.

We don’t want to get caught between a decree in this case based upon the assumption that the common fund, the call of that, apportioned to the Lower Basin and available out of their main stream is 7,500,000 acre feet but in later litigation with the Upper Basin, it may be proved as we think it would be that the common fund which should have been divided in this decree is 5,500,000 or 6,500,000, the difference representing uses on the Gila River which are charged well plainly under the Compact to the apportionment made by Article III (a).

In other words, we are thrust into collision with Arizona by the existence of the Colorado River Compact.

The rights of the Upper Basin and the obligation of the States of the Upper Division to the Lower Basin are the submerged foundation, the submerged portion of the iceberg.

Arizona discloses here only heard contest with California and to some agree with Nevada, but that is not the cloud on her title.

The cloud upon the 2,800,000 acre feet of mainstream water that she wants is the fact that the Compact — the Compact of the Upper States does not give to the Lower Basin the common fund which she seeks here to divide up.

It gives a lesser quantity.

Consequently, the conflict is — is imminent.

It is here because the decree here cannot divide 7,500,000 acre feet of III (a) water from the mainstream for the Lower Basin.

It isn’t there under the Compact.

The Upper Basin doesn’t owe it.

If they’re not bound by the decree, the decree attempting to divide the larger quantity is wholly an illusion.

They are necessary to a decree that effectively disposes of this present controversy in the Lower Basin, not because we wish to enlarge the issues to bring new issues to bear against them.

We feel we’re under no compulsion to state a cause of action against them.

Northcutt Ely:

If one is stated against thus by Arizona, it’s only because the Colorado River Compact exist, because it withdraws some circulation, takes for the Upper Basin, the consumptive use of 7,500,000 acre feet and limits their obligation to 75,000,000 acre feet at Lee’s Ferry which includes Mexico not just as Lower Basin States.

Mr. Chilson property — pardon me.

Mr. Chilson properly pointed out that the Upper Basin Compact is on a percentage basis.

That is not what Arizona asked here.

As Justice Reed asked — pardon me?

Stanley Reed:

Would it make a difference to you if it was?

Northcutt Ely:

Pardon me, I didn’t hear the —

Stanley Reed:

Would it make a difference to California if it was or that the case (Inaudible)

Northcutt Ely:

Well, yes.

Let me clarify the answer.

The Colorado River Compact in Article VIII provides that present perfected rights are unimpaired by this Compact.

We alleged that we have present perfected rights as the day — as of the date the Compact became effective in 1929 to 4,950,000 acre feet per year, all the appropriation, some dating to 1877, some to 1891, projects built and using water at that time, that is 1929.

Arizona admits that our present perfected rights, the hardcore, the hard rock that the Compact cannot touch or at least 3,000,000 acre feet or thereabouts based upon her depletion theory.

Consequently, a percentage division of the common fund in the Lower Basin and from the mainstream, if such were finally arrived at and it might be on the merits, Your Honor, after the trial here.

It may be that there will be some sort of percentage division, but it must take into account the present perfected rights in both States.

Arizona alleges that she only — or only claims present perfected rights for some 75,000 acres under the Compact, perhaps 400,000 or 500,000 acre feet.

Powers must be protected that the Compact has to begin in effect.

You cannot assume that what we are contending for here is a pro rata division that Arizona is here to get 2875ths of the common fund in the mainstream, that’s not it.She is here to get 2,800,000 acre feet quite different perpetuity, but if she were here to get — pardon.

Hugo L. Black:

(Inaudible) and suppose the — suppose the Court (Inaudible) a controversy between the exemption of that (Inaudible).

Suppose that we were to render it either upon percentage basis or on the figures, figure basis that (Inaudible) composed other than the difference subject to change, conditions in the future, with reference to the (Inaudible) of preservation.

Why would it be necessary then to have this — this project?

Northcutt Ely:

Well, let me come to grips with that, Your Honor.

As this Court said in Wyoming versus Colorado, “You cannot bill projects and you cannot irrigate upon averages, upon the recollection of the flow of past years nor the long term average that you hope for.”

Projects are built costing hundreds of millions in California now, the Metropolitan Water District’s Aqueduct, the All-American Canal, Palo Verde Works and others, hundreds of millions of dollars based upon the capacity to take fixed quantities of water to our people.

Arizona seeks here to do precisely the same to get fixed quantities upon which you will build a civilization, an increased civilization by the Central Arizona project.

Those great works, if built upon the assumption that there is available a common fund of III (a) water in the mainstream of 7,500,000 acre feet later to be confronted by a claim of parties not bound that there is not if we then faced a — a reduction in the quantities of water available and if for the present titles were only in a percentage of an unknown, that’s all it would be.

Those projects could not be built or finance upon that basis.

Hugo L. Black:

Is it possible to get it on anything except (Inaudible)

Northcutt Ely:

Well, with respect to — yes, with respect to priorities, of course, we cannot tell what the rainfall would be, of course, but the whole schedule, the whole scheme of the appropriation doctrine in these western states is first in time, first in right.

In Colorado Versus Wyoming and Nebraska versus Wyoming, the junior appropriations were protected because to destroy them would destroy an economy built upon them or as the senior appropriations in California.

Northcutt Ely:

Now, first in time, first in right.

If later there is the inadequate water to meet all of appropriations, the junior appropriations fail as a general rule.

Interstate, we recognize them or a modification that may be required in equity.

Hugo L. Black:

How much had been appropriated in the Northern Basin already?

How much according to the allocations by this Compact had left upon (Inaudible)

Northcutt Ely:

The apportionment is 7,500,000 acre feet in perpetuity.

I’ve heard their statements, although, there are no pleadings here from them, of course that they’re using about 2,500,000.

Now, that leaves unused roughly two-thirds of the quantity apportioned to them if they got it all.

However, we have quoted in our briefs statements from Upper Basin spokesman, particularly, Governor Johnson of Colorado showing with upon one interpretation of the Compact which apparently he favors.

They’ll never going to get that much for 3,500,000 to 6,000,000 in consequence of this III (d) obligation.

Hugo L. Black:

Was that Governor Johnson’s statement of what he thought Colorado is entitled to?

[Laughs]

Northcutt Ely:

(Inaudible) what they might be entitled to, Your Honor, and the — that — on that assumption, there would be unused now some two-thirds of their — of their apportionment.

Let me compare that with another figure.

Arizona says that out of the 3,800,000 that she wants her title acquire to do, there is now unused 1,700,000.

That’s on the mainstream because she is now using all of the waters on the Gila.

That is about 60% of the 2,800,000 acre that she wants out of the mainstream now unused.

She alleges she has a justiciable controversy with us, the Master so found.

She is not appropriate.

She’s not used 60%of the water.

She’s claiming from the mainstream.

Harold Burton:

Could the water on the Gila and its contribution to the Lower Basin become important unless there was a shortage in the Upper Basin?

Northcutt Ely:

Yes, the — the use is on the Gila if they are chargeable to Article III (a) reduced by that amount the quantity that is available for division of the Lower Basin.

Harold Burton:

That water becomes a problem unless there was a serious shortage in the Upper Basin, wouldn’t it?

Northcutt Ely:

It would come up at a time when the title here being inquired, it has to be asserted, namely, a title and perpetuity to the 7,500,000 acre feet.What are the points I’m trying to make, Your Honor, is that if the Colorado River Compact is given its intended effect of insulating now instantaneously at the Upper Basin from the law of priority of appropriation to the extent of 7,500,000 acre feet, then that apportionment has precisely the effect of a full appropriation of that quantity instantly put to use.

It is useless for purposes of perpetual rights which is under dispute here to take into account the fact that the Upper Basin is not yet using 5,000,000 acre feet if that’s the figure of their apportionment.

The whole purpose of the Compact was to apportion that in perpetuity and it says so.

Consequently, the coalition is here now where apportionment — pardon.

Hugo L. Black:

It hasn’t been done.

I mean, hostility has been done.

Hugo L. Black:

It has not been fulfilled, divided in perpetuity, it’s on the border.

Northcutt Ely:

Well, as —

Hugo L. Black:

That the basin —

Northcutt Ely:

Well, as Mr. Chilson said earlier, if we were — if he thought that the Lower Basin was here to acquire a title in perpetuity to a 75,000,000 acre feet at Lee’s Ferry, he would be and not only protesting but intervening.

And that is precisely what Arizona’s case is dependent upon.

If there isn’t a title acquired in the three mainstream states in the Lower Basin, Arizona, California, and Nevada to that 75,000,000 acre feet for decade as though apportioned to the Lower Basin by Article III (a), there isn’t a total which he alleges to be divided here of 4,400,000 to California, 300,000 to Nevada, 2,800,000 to Arizona.

Hugo L. Black:

I don’t know quite the sentence in perpetuity in division in the Northern Basin, whatever it maybe (Inaudible)

Northcutt Ely:

The —

Hugo L. Black:

What would be I suppose 75,000,000?

Northcutt Ely:

Well the Compact says it’s an apportionment in perpetuity to the Upper Basin into the Lower —

Hugo L. Black:

It — it would be defeated by a shortage —

Northcutt Ely:

Well —

Hugo L. Black:

— of the — of the basic fund.

Northcutt Ely:

I think that’s — that’s correct, but that is not the problem we have here.

The problem is whether Arizona’s title shall be acquired of the 2,800,000 on the assumption as the common fund of 7,500,000 when as a matter of law there is not.

It’s true that even if a matter of law there were, we might both be disappointed by the rainfall.

But the question here is now whether Arizona is correct or wrong in her assertion of the law.

That as a matter of law, there is 7,500,000 common fund under III (a) in the mainstream and there’s not.

Felix Frankfurter:

She isn’t worried because of the practical matter because she didn’t see it fit this is not going to affect the available water supplies in the Upper Basin.

You’re concerned not to have (Inaudible)

Northcutt Ely:

Yes, sir.

Felix Frankfurter:

Is that what you’re saying here?

Northcutt Ely:

That — that’s it.

We don’t want a legal decree against us based upon the assumption of the common fund being divided by the decree as one to 2,000,000 acre feet is bigger than it is.

And it was —

Hugo L. Black:

How can it — if there is a controversy between the dams as now as (Inaudible)

How can it be done under (Inaudible)

Northcutt Ely:

Well, it must decide it.

It must decide it, but my point is that you can’t decide it until they know how large the fund is you’re dividing.

You can’t know that unless the Upper Basin is bound by that.

Hugo L. Black:

You divide it among your parties on the basis of this.

Now, you did on this —

Northcutt Ely:

No, but —

Hugo L. Black:

— you could not (Inaudible) and I don’t suppose (Inaudible) divide it all if it was (Inaudible) under the basis if we know what excess we get.

Northcutt Ely:

Well, the point is that Arizona is asking for a definition of the very term that makes the division between basins’ beneficial consumptive use.

This is an area division for administrative purposes.

It is a formula division, a mathematical division for purposes dividing the water.

Arizona’s whole prayer as Mr. Justice Reed pointed out earlier for paragraph number 5 is for a definition of the term “beneficial consumptive use,” which is the very engine that affects the division between basins of their water rights.

You cannot have a determination of the quantity of water available for the Lower Basin unless you answer Arizona’s prayer number 5 for a determination of the meaning of consumptive use as between basins.

That’s a compact term, and that’s what she wants to construe.

Hugo L. Black:

But I suppose that that’s spread over that — usually, they always use the same statement as to (Inaudible)

Northcutt Ely:

But the case — the case hinges upon whether there is 7,500,000 acre feet of III (a) water in the mainstream.

If there is a compact, it must be rewritten to exclude the Gila from Article III (a).

It hinges upon whether basin versus basin.

The rights are measured by beneficial consumptive use under one formula or the other.

It is as though you had a common fund between the Upper Basin and the Lower in which one group of partners contended that the rights were fixed in dollars, the other in pesos.

Now, you might be able to translate or interpolate between dollars and pesos, but you can’t have each group of partners saying for himself, “My rights are $7,500,000.

Your rights are 7,500,000 pesos,” or vise versa.

There have to be a common value in both basins or you have no division between basins, the Compact dispels its purpose.

Stanley Reed:

Under Arizona pleadings, is it a subject to the availability of the water for distribution to the Lower Basin?

Northcutt Ely:

That is correct.

Stanley Reed:

Well, I thought that you have said it’s absolute.

Northcutt Ely:

Well, she asked to have a title acquired in the perpetuity certainly as against us of the 2,000,000 acre.

Now, there is not the common fund available to the three of us since she alleges there is.

Stanley Reed:

As I read what you’ve said, availability in such water of the Colorado River Compact.

Northcutt Ely:

That is correct.

Stanley Reed:

So, if the water less available then Colorado River Compact gives seven and a half to the Upper Basin, seven and a half to the Lower.

Northcutt Ely:

Then —

Stanley Reed:

Arizona’s right to (Inaudible) that you were suggesting.

Northcutt Ely:

Well, we would certainly say not but we would have a decree against this query title against us in that quantity based upon the assumption of the common fund that’s bigger than it is.

Stanley Reed:

Based upon this size of the common fund (Inaudible)

Northcutt Ely:

No, I’m not speaking of a — of a risk of the rainfall.

I’m talking of the legal question of whether the Colorado River Compact apportioned to the Lower Basin 7,500,000 acre feet under Article III (a) in perpetuity out of the mainstream or that quantity of the mainstream and the tributaries.

Stanley Reed:

Suppose that is it.

Assume if Arizona confidently asked for the confirmation that you did of 3,800,000 which makes it subject to the Colorado River Compact, being that was (Inaudible)

Northcutt Ely:

Well, perhaps physically, as so much physical waters available but there’s certainly no condition or contingency attached to refer for a relief as against us.

She wants a decree to go against us for 2,800,000 on the mainstream, and we say, “You can’t have 2,800,000 on the mainstream under III (a).”

Let me emphasize this.

We do not contest Arizona’s rights of 2,800,000 acre feet under Article III (a) from the waters of the Colorado River System including the Gila.

We plead that.

We concede that the far Limitation Act is in effect.

Arizona and Nevada, Utah, New Mexico may divide up 3,100,000 among them as they see fit.

We do say she has no right to 2,800,000 of III (a) water out of the mainstream, so that when this final decree is written after the trial, and it may become necessary to write some degree of percentages to take care of shortages.

The question is whether Arizona has 2,800,000 of III (a) water out of the mainstream or doesn’t.

We say she doesn’t because the three of us don’t have 7,500,000.

Felix Frankfurter:

Mr. Ely, did you comment on the delay of the other rights of California in presenting the — their claim?

Northcutt Ely:

Well, surely.

The — we filed our — our motion to join the four upper States within four months after the United States had filed this petition of intervention.

Now, as to delay, it is now conceded by everyone that Utah and New Mexico were necessary parties from the beginning that a decree which had gone with a — if this case had gone to a decree without Nevada present, Arizona didn’t join Nevada, she intervened.

Without New Mexico and Utah present, it would have been a futile decree.

They are now adjoined, we hope.

We — we filed our motion within four months after the Government filed its petition.

Now, with respect to the character of these claims, it wasn’t until the United States filed its petition that we knew what the full scope of the claims upon the river were, and we’re startled by that.

As to Mr. — Senator McFarland’s suggestion that I for one told the congressional committee the issues were few.

They are so far as California’s claims are concerned upon this river.

The issues which now bring us here are the contention by Arizona that the States of the Upper Division owed us 7,500,000 in mainstream water.

We say they don’t.

That is the fundamental issue.

Hugo L. Black:

How would California be heard of these people of Arizona (Inaudible) or is Arizona’s claim to get any of the water already in use.

Northcutt Ely:

Yes, sir.

Northcutt Ely:

Our pride —

Hugo L. Black:

And is that the basis of the controversy now?

Northcutt Ely:

Yes, sir.

Hugo L. Black:

What is it about?

Northcutt Ely:

The route between Arizona and California is simply this.

We have three projects, three projects.

Hugo L. Black:

All ready?

Northcutt Ely:

In existence.

They’re the only three we have, the only three we claim.

Hugo L. Black:

You are using water?

Northcutt Ely:

We are using water.

Hugo L. Black:

How much water in all of it?

Northcutt Ely:

They are used last year 4,500,000 acre feet.

They’re built to take a capacity of 5,400,000 roughly.

Hugo L. Black:

Well, did you — you used how much lately?

Northcutt Ely:

4,500,000.

Hugo L. Black:

And how do they say you’re entitled to have?

Northcutt Ely:

3,800,000.

We —

Hugo L. Black:

3,800,000.

Northcutt Ely:

We would be cutback from 5,400,000 to 3,800,000 if Arizona prevails.

Our senior appropriations would be cutback to permit new appropriations we made in Arizona.

The new appropriations in Arizona are based upon this assumption of the legal rights of Arizona, California, and Nevada in the mainstream which we say is fallacious.

Hugo L. Black:

And advice them all the legal arguments, would you find (Inaudible) how you can be very effective on that by stating to have legal thing.

Northcutt Ely:

Well, yes sir.

The — the problem is simply this.

If we try this case to go forward to a decree, it must be upon the one assumption or the other as to the magnitude of the common fund in the mainstream to be divided by the decree.

Hugo L. Black:

Why do they keep this?

Northcutt Ely:

Because Arizona is asking here to have a title acquired in specific quantities of water.

Hugo L. Black:

I understand that to be action if they ever acquired this (Inaudible) but why?

Hugo L. Black:

Does it have to be granted as in fact, of that factor?

Northcutt Ely:

Well, whether —

Hugo L. Black:

How would California be heard by not having this people in a practical decree.

Northcutt Ely:

Because the decree in the language of the cases I’ve quoted at the beginning will leave the present parties and the State in complete uncertainty as to their rights until the obligation of the Upper Division is finally determined in some later decree.

Hugo L. Black:

What other decree?

Northcutt Ely:

Whether the 75,000,000 acre feet guaranteed at Lee’s Ferry every decade is water apportioned to the Lower Basin to be divided among these States or whether it includes water from Mexico which is not available for division by this decree.

Hugo L. Black:

Then the practical reason where you would be heard is that you don’t know how much for the Mexico is here.

Northcutt Ely:

No, it’s a question of how much we have left.

Hugo L. Black:

What you have left —

Northcutt Ely:

That’s correct.

Hugo L. Black:

— because you do not know what Mexico can get.

Northcutt Ely:

No, what the claim is in part, what the claims of the United States for Mexico —

Hugo L. Black:

United States as a party.

Northcutt Ely:

That’s right.

Pardon me?

Hugo L. Black:

.United States as a party.

Northcutt Ely:

That’s right.

Thank you, Your Honors for your — thank you.

Well — well, thank you, sir.

I kept you so very late.

If you have — if you have further questions, I’d rather try to answer those and to detain your Court.

Felix Frankfurter:

I suppose the United States is really unaffected by — unaffected plainly by the States on this question.I am — surely, United States isn’t here.

I suppose they’re not interested in the outcome.

Northcutt Ely:

That’s between Arizona and California and Nevada.

Felix Frankfurter:

Even on the merits and that’s how you enjoin the (Inaudible)

Northcutt Ely:

Well, I — the United States has — has been very coiled in this matter.

And the motion they filed here asking for a determination of legal issues indicates that they’re very much concerned, because they say in the motion which you’ve overruled that if for example the Indian claims are held to be claims against the entire river, it will greatly affect the relations of United States to these various states.

Felix Frankfurter:

I know that we have — I knew they were interested on the merits but whether the Upper Basin States come in to confess (Inaudible) or not.

No matter how that issue comes out, that — they make no difference.

Oh, yes, their last motion indicated this, was indicated on (Inaudible)

Felix Frankfurter:

[Laughter]

Northcutt Ely:

We would be glad to see the United States’ position spelled out a little more clearly.

I think we all — thank you very much for your approach, Your Honor.