Arizona v. California Essay Example

PETITIONER:Arizona
RESPONDENT:California et al.
LOCATION:U.S. District Court for the District of Columbia

DOCKET NO.: 8 ORIG
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 546 (1963)
ARGUED: Jan 08, 1962 / Jan 09, 1962 / Jan 10, 1962 / Jan 11, 1962
REARGUED: Nov 13, 1962 / Nov 14, 1962
DECIDED: Jun 03, 1963

ADVOCATES:
Archibald Cox – Solicitor General, Department of Justice, argued and reargued as the intervener, United States
Dennis McCarthy – argued for impleded defendant, State of Utah
Earl E. Hartley – argued for impleded defendant, State of New Mexico
Mark Wilmer – argued and reargued for the complainant, State of Arizona
Northcutt Ely – argued and reargued for defendant, State of California
R. P. Parry – argued and reargued for intervener, State of Nevada
Stanley Mosk – for defendant, State of California

Facts of the case

Question

  • Oral Reargument – November 13, 1962 (Part 1)
  • Oral Reargument – November 14, 1962 (Part 1)
  • Oral Argument – January 11, 1962 (Part 1)
  • Oral Reargument – November 14, 1962 (Part 2)
  • Oral Argument – January 11, 1962 (Part 2)
  • Oral Argument – January 09, 1962 (Part 2)
  • Oral Argument – January 08, 1962 (Part 2)
  • Oral Argument – January 10, 1962 (Part 1)
  • Oral Argument – January 08, 1962 (Part 1)
  • Oral Reargument – November 13, 1962 (Part 2)
  • Oral Argument – January 10, 1962 (Part 2)
  • Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
    Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
    Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
    Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
    Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
    Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
    Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
    Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
    Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
    Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
    Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

    Audio Transcription for Oral Argument – January 09, 1962 (Part 1) in Arizona v. California

    Northcutt Ely:

    I find on a review of yesterday’s proceedings that the points that I had intended to return to this morning have been enlarged part — anticipated by corrections from the bench.

    And I shall — consequently this morning simply identify for you the places in our reply brief where the material is found which I referred yesterday, invite your attention to it and reserve the balance of my time for rebuttal unless there are questions this morning.

    The reply brief was follow — was filed October 2, 1961.

    The limitation issue is found beginning at Page 19.

    It is captioned, “The legislative history of the Project Act does not support severance of the Colorado River Compact from the California Limitation Agreement”.

    The priority issue is covered beginning at Page 34 and it is captioned, “The priorities of California’s established projects up to 4,400,000 acre-feet annually should be protected from impairment by new projects in Arizona and Nevada”.

    The water supply or justiciability issue is covered beginning at Page 98.

    And if this caption — if the conclusion is reached by the Special Master as urged by the other parties are correct, this controversy is not justiciable.

    It goes on to say, however, that upon our premises, this controversy is justiciable.

    And may I invite your attention also to the preliminary material which begins at Page 1 which is captioned, “The basic controversy”.

    And here, we attempt to sum up the impact of these three issues.

    The limitation or severance issue, as we sometimes call it, the priority issue and the jurisdictional water supply issue as compared with California’s claims and the impact, the effect of the Colorado River Compact.

    And now may it please —

    William J. Brennan, Jr.:

    I agree.

    Northcutt Ely:

    In our reply brief of October 2, 1961.

    That brief in turn gives cross references to the more detailed treatment of these materials in our earlier briefs and also a cross references to what our opponents would have to say about them up to that time.

    And so now if may it please the Court, I — unless there are questions, I shall reserve the balance of my time.

    Hugo L. Black:

    Mr. Wilmer.

    Mark Wilmer:

    May it please the Court.

    Arizona’s case brief itself naturally into two parts.

    The first being the controversy between the states over the Colorado River, the interstate controversy mainly Arizona versus California in that we are supported largely in the Master’s — in upholding the Master’s Report by United States and by Nevada.

    The second portion of the controversy which is really almost a separate controversy involves the dispute between Arizona mainly and the United States with respect to the claims of the United States for federal establishments mainly the reservations on the Colorado River, the Indian Reservations.

    Because of that of the fact that in one sense we are appellee here insofar as California is concerned and that we mainly support the Master’s Report, we have yielded to California our plaintiff’s position to open.

    However, with respect to the United States in effect, we are the appellant.

    And therefore, with the Court’s permission, we propose to divide our argument as I’ve indicated.

    I will discuss the Arizona position and the reasons why we believe the Master’s Report fundamentally is sound.

    And Mr. Reed, in turn, will discuss with you Arizona’s views with respect to the apportionment made to the federal establishments and particularly, the Indian Reservations.

    I expect to use approximately four hours of our allotted time and Mr. Reed approximately an hour and a half.

    Please the Court, some 36 years ago, Justice Holmes in an opinion written for this Court in Sanitary District of Chicago versus the United States could very well have been using language which we think appropriate to this case.

    He first discussed the great issues involved, the claims of the Sanitary District of Chicago as to the vast amounts of money which had been expended.

    Mark Wilmer:

    He then turned to their claims of the great importance for many billions of people residing in the Chicago area.

    He then said after having summarized the issues as presented by the pleadings, this brief summary of the pleadings shows the importance and gravity of this case.

    But importance and gravity alone do not tend to impede the ability to decide the case.

    The exact language were, do not stand in the way of a quick decision.

    He then said the mere fact that great sums were involved and that the millions — the welfare of millions of people is involved does not do more than ten to cause disputes which would less mighty interests involved, no one would venture to question.

    He round up with this significant phrase dealing there with navigable water as we are dealing with navigable water here, “The law is clear and when it is known, the material facts are few”.

    And we say here dealing again with a navigable stream that the law is clear and when it is known, the material facts are indeed few.

    This great record undoubtedly will serve as a repository of many interesting studies, of many interesting excursions into the field of hydrology, into the field of many things but from the stand point of relevancy to this case, it is our belief that ninety percent of the record is in the same category as was characterized by Justice Holmes in the Sanitary District in Chicago case.

    Either this case is one — if it please the Court, in which to take it by a mighty phrase which Senator King used in the project debates, the United States has put its mighty hands down upon the river and has you surfed its flow has laid aside all other lesser interests except in supplier as to that they indicated a contrary purpose, either that or else despite the fact that under the navigations of under the par which the Congress has under the Commerce Clause when they can call of a navigable river.

    It has expended these great sums to store the entire flow of the Colorado River.

    It has expended these great sums in building that works that are involved.

    And this Court has said it has done so constitutionally under the Commerce Clause.

    Either that, as we have said or else as California would request this Court that river still flows as it was want to flow, the river is still a course as its old course down the Colorado.

    We say, if it please the Court that the law is clear and that the material facts are few.

    Significantly, if it please the Court, despite the fact that the Special Master relied strongly upon the Chandler Dunbar case decided in 1913, upon the appellates in Electric case decided later, upon the Twin City Power case but despite those cases which the Master relied upon and which Arizona and the United States relied upon as ruling this case, California has not even cited those cases.

    We suspect that perhaps the reason is that it’s impossible to cite them, to read them and not to find the answer to this lawsuit.

    I do not need — if it please the Court to — I might add to that the early case of United States versus Rio Grande Irrigation and Dam Company in 174 United States.

    The Court will recall that that was a case in which this Court examined the power of Congress unto the navigation of the Commerce Clause and in the light of the Rivers and Harbors Act of 1890 and 1899, in that case, 1890 because the 1999 Act had not been passed.

    And in that case, this Court held that with respect to a navigable river, anything which impaired its navigable capacity violated the Rivers and Harbors Act of 1890 and in that case, sent it back to the District Court in New Mexico, the Federal District Court, to ascertain if in fact the proposed construction of this dam would impair the navigable capacity of the Rio Grande.

    The Court in that case said that Congress under the Commerce Clause had the right not only to demand no obstructions to the flow of a navigable stream itself but had the right to reach up into a tributaries if interference on the tributaries impair the navigable capacity of the stream below.

    I make that point because I think it will become quite important later in our discussion with respect to the so-called truncation of the Colorado River.

    It is our position briefly, if it please the Court that the position of the Upper Basin in this case is of no more consequence than the rights of Massachusetts or New York.

    This case is solely a case of statutory construction of the Project Act.

    This case no more involves the rights of the Upper Basin than it involves the rights of Mexico.

    Congress in enacting the Project Act, in our review, if it may please the Court, spoke under its dominant servitude which this Court has called “a power over navigable water”, a dominant power not in terms of property but in terms of power.

    In the Project Act, the Congress of the United States, exercising the power which resides in it by a virtue of the Constitution has put the river water in its pocket.

    It has bonded up in Lake Mead and it is then said how this water is to be distributed.

    I don’t care, if it please the Court whether Congress talked about 3 (a) or 3 (b) or 3 (c), the decisive question before this Court is, ”What water did Congress have in mind?”

    Whatever terms it may have employed become wholly immaterial if it is clear what water it was talking about.

    I say again, if it please the Court that if it is clear from the legislative history, from the surroundings which existed at that time that Congress was talking about mainstream water which it was going to store at Lake Mead and which it was going to direct the apportionment of then the terminology used to tell us what it intended becomes relatively important.

    Mark Wilmer:

    The Master has said that the Congressional reference to 3 (a) of the Project Act related to a fourth hand method of describing the first 7,500,000 acres available for consumptive use.

    Arizona has disagreed to one extent.

    We fully agree with the Master that what the Congress was talking about was at first 7,500,000 available for consumptive use in the Lower Basin each year.

    The Master has said that 3 (a) constitutes an appropriative ceiling against the Upper Basin and necessarily if it’s a appropriative ceiling against the Upper Basin, it has to be with respect to the mainstream because you don’t get an appropriative right against the source of water that you don’t have access to.

    So our tributaries have no access to the Upper Basin, therefore, it’s a short junk in the Master’s position to our position.

    But I do not propose, if it please the Court, to pursue at length any attempt of interpretation of the Compact.

    The Master, at the outset turned to the Delphic instrument and he said, “Each time you shake the kaleidoscope, you get a different picture”.

    I think that is true.

    But because it is irrelevant, because the Master has held it irrelevant and because we agree, we do not propose to pursue an interpretation of it because it would serve no purpose.

    It’s nice to debate how many angels can dance in a point of a pin but unless it becomes of some consequence in the lawsuit, best be laid aside at least in the Court of this dignity.

    Felix Frankfurter:

    What you’re doing is demand side the — the literal terms of the language, you say, in this case they’re not qualified, as you say?

    Mark Wilmer:

    Right.

    Yes Mr. Justice Frankfurter, I say that whatever Congress said and Congress stored this water, whatever terms Congress used if it is clear what water it was talking about —

    Felix Frankfurter:

    You say whatever Congress said but if Congress used the term, you have to define it.

    You’d have to the pause a meaning into the word, don’t you?

    Mark Wilmer:

    Certainly, Your Honor, yes.

    Felix Frankfurter:

    And you disregard the word in pouring in the meaning into the word, is that it?

    Mark Wilmer:

    No.

    Please the Court, Mr. — Mr. Judge Murnaghan, I believe at one time made a very wise observation at a (Inaudible) jurisprudence is not — does not look to the dictionary as a fortress.

    It looks to the words and it looks to the — the purpose that the Congress is attempting to achieve and then interpret the statute in the light of that purpose which the Congress was going to achieve.

    Felix Frankfurter:

    (Inaudible) from saying just — (Inaudible) in all the words.

    Mark Wilmer:

    No Your Honor, I certainly would —

    Felix Frankfurter:

    In other words, you — you’ve quoted Justice Holmes but no one is more frequent than he said intention of Congress is derived from the word it used.

    What the words mean is a different story, but it seems to me a bit of cavalier just to start on an argument by saying we disregard the word altogether.

    Mark Wilmer:

    Your Honor I — if I could capture my argument and quickly cover the legislative history, I would be, I think justified in the — taking the position I have taken.

    I think that no one and I say this advisedly no one can read the legislative history in the light of the environment then existing and come to the conclusion other than that the Congress was speaking of mainstream water at Lee Ferry.

    Felix Frankfurter:

    But your — but it’s a different thing from saying you disregard that, what you’re saying is it’s because of the (Inaudible) statute if in Congressional English, this is what those words mean.

    Mark Wilmer:

    I will accept that, Your Honor.

    Felix Frankfurter:

    Pay no attention to the word and go on because you’re talking Congress.

    Mark Wilmer:

    I am most happy to accept that, Your Honor.

    Mark Wilmer:

    I think that’s exactly what I was trying to say.

    I put it that way.

    William J. Brennan, Jr.:

    You say that —

    Mark Wilmer:

    Yes sir.

    William J. Brennan, Jr.:

    — the content that the Master (Inaudible) namely the reference to 3 (a) is just a short hand that way of saying the first 7,500,000 feet, do you agree that’s —

    Mark Wilmer:

    We agree.

    Yes Your Honor.

    We have minor what I would call — I supposes it’s matter of attempting to justify a position taken, the end result is the same whether you call our position of 3 (a) right or the Master’s position, the end result is the same.

    William J. Brennan, Jr.:

    But how is yours different from him in that respect?

    Mark Wilmer:

    We believe, if it please the Court, that 3 (a), if the matter was before the Court for the Compact not the Project Act, but Compact was before the Court for consideration today, we would be urging that 3 (a) and 3 (b) are correlative.

    That in fact, what 3 (b) means is a leveling out of the 3 (a) demand from the Upper Basin.

    Your Honors, yesterday we saw how erratic this river is.

    You saw how the flows are up and down.

    It’s our belief that the Upper Basin demand this safety valve against the year when they would have a short supply and in favor of a year when they would have a long supply.

    In other words, if you look at the record of the flow, you’ll see some years where there’s very little water.

    I mean, by that down to either —

    William J. Brennan, Jr.:

    Specifically in the context of the Project Act, you do agree with the Master —

    Mark Wilmer:

    We do.

    William J. Brennan, Jr.:

    — the reference to 3 (a) is just shorthand for the first 7,500,000?

    Mark Wilmer:

    We accept the result, Your Honor.

    We accept that as a sound conclusion.

    Now —

    William J. Brennan, Jr.:

    To the meaning of the reference in the Project Act?

    Mark Wilmer:

    If it please the Court, we do not believe.

    I say this again, we do not believe the Compact is here for construction by the Court.

    We believe the Project Act is here for construction by the Court and that whatever the Congress said in the Project Act is what governs.

    What the — what these seven men thought in 1922 or what their secret beliefs or thoughts or discussions were or even their stated words becomes completely immaterial, as we see it.

    When we see what Congress said when it enacted the Project Act —

    William J. Brennan, Jr.:

    Well, I’m sorry Mr. Wilmer.

    Mark Wilmer:

    Yes, Your Honor?

    William J. Brennan, Jr.:

    I don’t seem to — clear about just what your position is as to the reference in 4 (a) in the Project Act to 3 (a) in the Compact.

    Mark Wilmer:

    We believe that the reference in the Project Act to 3 (a) in the Compact means what the Master said it does.

    William J. Brennan, Jr.:

    That’s what I want —

    Mark Wilmer:

    That it means the first 7,500,000 acre-feet of water released or available rather in the Lower Basin, the rest is academic.

    If the Upper Basin were here, perhaps we might debate the matter but they’re not here and they’re not necessarily here because in the Hinderlider Case, this Court construed the Compact which involved four states with only two present because only two states’ rights were involved.

    And here, the impact of this decision cannot reach to the Upper Basin because we’re not construing the Compact.

    We’re construing a statute passed in 1929 which has reference only to a supply coming down from the Upper Basin in which does not pretend to reach into the Upper Basin and ask or demand any water.

    In fact, if it please the Court, counsel yesterday talked of Section 18 of the Project Act which you will recall, in substance provides that, ”No local waters, no local rights shall be invaded, shall be impaired or otherwise affected by the Project Act”.

    The exact language, “Nothing herein shall be construed as interfering with such rights the states now have either their water within their borders or to adopt such policies in the next such laws that they may deem necessary with respect to the appropriation control and use of waters within their borders except — except as modified by the Colorado River Compact or other Interstate Agreement”.

    The contention which California makes is perhaps plausible but when this Project Act is read in the light of its legislative history and of the conditions then persisting — then existing, when we read in this Project Act the great care, the actual overemphasis upon protection that the Upper Basin demand, we understand what this means.

    The Court will recall the Master said that the peers of the Upper Basin were against the quick development of the Lower Basin.

    Wyoming versus Colorado had been decided in 1922 and from that point forward, the peers of the Upper Basin increased because of the recognition of the doctrine of prior appropriation in an equitable — equitable apportion.

    This language in substance says what?

    It says that the rights of the Upper Basin are preserved and are not affected by this Act with one exception as modified by Colorado River Compact — as modified by the Colorado River Compact.

    We say, if it please the Court, that Section 18 is a barrier which the Upper State erected as between the Upper and the Lower Basin States to be sure nothing pass through that barrier by virtue of the Project Act except the burden they assume under the Compact.

    So I say again, if it please the Court, that the rights of the Upper Basin are not involved and cannot be involved because they’re not affected by the Project Act.

    And the Project Act stands, if it please the Court, as the sole instrument before this Court for interpretation as the rights of the states because Congress did bottle up on that water, Congress did put the hand — mighty hands of the United States down upon that stream and it did take it into its custody and did apportion it.

    If I might, digressing for a moment, please the Court, I think it might be helpful because we have not have the advantage of it at this point to just briefly review the geography of the area and some of the background which existed.

    Again, if I might use the words of a great jurist Learned Hand, he said that where’d you like chameleons which take their color from their environment.

    And I think we need to know the environment that existed when the Project Act was passed to understand the full impact of the words which are contained in the Project Act.

    Briefly and I’m sure the Court has perhaps read this many times, the Colorado River is — as the Master said the stream of continental proportions.

    It is the third largest in the United States surpassed only by the Rio Grande and the Mississippi that extends approximately 1300 miles generally as you saw in the map yesterday in the northerly and the southerly direction rising in the high peaks of Colorado some 14,000 feet high.

    It extends to Colorado 245 miles, to Utah 285 miles to Arizona alone 295 miles.

    It is the common border of Arizona and Nevada 445 miles.

    It is a common border of Arizona and California for 235 miles and it is a common border of Arizona and the Republic of Mexico from 16 to 20 miles.

    So immediately, it becomes apparent the great State of Arizona has in this river because as far as access, as far as it being a part of Arizona, Arizona’s contact with it outweighs down of all other states.

    Master further found in the tables are in the report and I will briefly cover them to the save taking it up.

    Arizona has a total square mileage of 113,900 miles, California, 158,693 miles.

    And Arizona’s total of 113,900 miles, 107,242 fly within the drainage basin of the Colorado River System.

    California has 3,599 miles within the drainage basin of the Colorado River System.

    Mark Wilmer:

    The percentage of the total state in the drainage basin, Arizona is 94 and one tenths percent, California 2 and three tenths percent.

    The percent of the entire basin in the State of the entire basin 44, a basin system, 44 and three tenths percent is in Arizona, 1 and five tenths percent in California.

    The square miles of the State in the Lower Basin of Arizona 100,306 California, 3599.

    The percent of the State in the Lower Basin that is of the entire State is 88 and five tenths percent against California, two and three and tenths percent.

    Now, it is true, if it please the Court, that in the past, Arizona has been charged with being rather unreasonable with respect to this river.

    And yet I think this figure should bring home to its very quick to the fact that Arizona has to be a little unreasonable because this is a sole treasure Arizona has.

    This is the sole practically access Arizona has to life getting water because if you can see, practically the entire State, future is wrapped up in the Colorado River and therefore, when your very life perhaps as a State, we just be justified perhaps being just a little unreasonable.

    If I might pursue that matter just a little further, the Upper Basin is noted for the fact that it is at very high altitude.

    It has a short growing season of three to four months.

    Most of its irrigable areas are narrow valleys.

    The access to irrigation water is difficult, costly.

    On the contrary in the Lower Basin, it has a growing season almost the year around.

    It has broad large expanses of level land rather usually available for irrigation.

    So far as community of interest is concerned, the two Basins are separated by a thousand mile canyon.

    Actually, the picture which shown — the map which you show on the easel yesterday correctly depicts the square miles of the two Basins but actually they should be viewed in a shape of a — of an hourglass, perhaps, not in the exact — it’s a little bit of a crooked hourglass but you have in the Upper Basin a basin which is in itself a (Inaudible).

    You have a thousand miles of arid, canyon, difficult country where the river flows in the canyons.

    You have the Lower Basin or you have the level land and the long growing seasons.

    I say this — I bring this to your attention for mainly this reason, there is absolutely no community of interest between the two basins other than their common interest in the river.

    And I might say perhaps the fact that there was a religious interest in the Mormon Church, the good people of Utah and the good Mormons of our State of course had a strong religious community of interest.

    But communication is practically non-existent in the century nor today.

    New York and Chicago was more accessible to Arizona than Denver at those days.

    So that these things are important when we come to consider what Congress was talking about when it enacted the Project Act because actually, the low Upper Basin had no more interest in the Lower Basin than it had in Mexico.

    There was simply nothing there other than the one common treasure that they both sought.

    They both desired access to and wanted to get as much of as they could and that was the Colorado River as it extended from the Upper Basin and to Lower Basin.

    When further fact, may I brought your attention of the Lower Basin tributaries, the only one of consequence, of real consequence is the Gila, which empties into the Colorado River above the City of Yuma and some 20 miles or so above the border.

    In the early days, the Mexican, the imperial liberation was to (Inaudible) which came out of Arizona about four miles above Mexico when down into Mexico followed a course to Mexico to above Calexico is now and there reentered California.

    So that from the standpoint of the Upper Basin, it had no interest whatever in the Lower Basin tributaries, it couldn’t get to them, they weren’t accessible to it.

    They simply used a hydrological fact that water doesn’t run uphill.

    So that the only fund of water which was available for consideration and division among both basins was the mainstream as it flowed down from the Upper Basin.

    It would be assuming that the Upper Basin desired to impose upon the Lower Basin an economic ceiling to say it was concerned with how much water was used in the Lower Basin for consumptive use.

    Mark Wilmer:

    The Upper Basin was concerned with one thing, that thing was how much water have we got to give them down below under threat of court action.

    The Lower Basin was concerned with just one thing, how much can we shake out of it?

    How much can we force them to give us to supply our needs under threat of problems?

    It seems crystal clear to me, if it please the Court, that in approaching the understanding of the Compact Act, we have to understand that the Upper Basin had no interest whatever in the Lower Basin.

    It had no interest whatever in the tributaries of the Lower Basin.

    It had no interest whatever in their supply of water except for one thing to put on the bargaining table to say you’ve got so much water.

    Therefore, you shouldn’t ask so much mass but to say that the Upper Basin without any competitive position at all with respect to Lower Basin was visibly engaged in trying to apportion the water of the Lower Basin, to me applies in the face of reason.

    There’s no economic motivation for it, no religious motivation for it, no long standing history of rivalry, nothing — nothing to say that the Upper Basin should give one concern — one bit of concern with respect to the supply of the Lower Basin, it was concerned with one thing and one thing only and that is how much of this common treasure must we surrender.

    I think reason should supplant the actual language —

    Felix Frankfurter:

    Well, that’s the (Inaudible) all around —

    Mark Wilmer:

    Thank you.

    Felix Frankfurter:

    — that would call it contention.

    Mark Wilmer:

    Yes Your Honor, I agree.

    Felix Frankfurter:

    (Inaudible) out of this full of water.

    Mark Wilmer:

    The point I was trying to make —

    Felix Frankfurter:

    — did we know what (Inaudible), isn’t that true?

    Mark Wilmer:

    Your Honor, I was trying to make this position — this point that if we have some ice cream to divide up and we both have access to it, we’re going to find out how much ice cream we bought and how much I scoop out and how much you scoop out but if it happens to be a pot sitting there that you don’t have any interest in and no access to and the right to, I would say that there are statute which referred to that division would have to be given an unreasonable construction to assume that you had some rights to dig in this bundle of water over here which you’ve never used, which you can’t use, which you can’t get to and which you have no access to.

    Felix Frankfurter:

    But after you make the division of the ice cream, divide it between two — between two parties then of course those within one half of the division or whatever you’re talking about have no interest in the other half.

    But in the original division — the original (Inaudible) derived from the interest in this what you call a common treasure and that to say in controversy within the Lower Basin, isn’t it?

    Mark Wilmer:

    The same consideration, Mr. Justice Frankfurter, withheld Arizona’s ratification of the Compact has caused the Upper Basin to refuse to pass the Project Act.

    I think that’s a fair statement.

    Now, as I’ve indicated, it is Arizona’s position and it is Master’s position in which we will highly concur that this is the statutory construction case.

    This is a case which involves the construction of the project — Boulder Canyon Project Act.

    It is true, after the Master found the Compact had no relevance, after he had said that it is to be laid aside and has no consequence in this case because it is what Congress meant when it passed the Project Act.

    He then said however, in view of the fact that the Court may not agree with me.

    On the chance that the Court might decide to construe the Compact, I will express my views as to what it means.

    And he then went on to several pages using language which is in effect as California has told you except that he did limit his holding as to 3 (a) that it was an inappropriative ceiling as against the Upper Basin which is a far cry from –- an appropriative ceiling in the entire basins.

    The Court will look in his — the Master’s Report in page 114, I believe it is , you’ll see that he twice holds that it is a ceiling in the Lower Basin only as against the appropriators in the Upper Basin.

    In other words, he construed the Compact fairly and squarely as an interbasin instrument and he said this 3 (a) is a ceiling against rights in the Lower Basin against the Upper Basin.

    And since the only water in the Lower Basin in which rights could be obtained against the Upper Basin would be mainstream water necessarily we have reference from mainstream.

    Mark Wilmer:

    Now I take it there’s no point in going into a discussion of appropriative rights.

    We all know that to get an appropriative right, you must get it again to someone else, an appropriative in the vacuum does not exist.

    It is of importance only because it gives you precedence over someone else.

    And that precedence of necessity must be against someone else who has access to that water, otherwise, it would have no meaning it’d be a little medal you pin on your chest and say I’ve got an appropriative right but so what?

    So that as I said earlier, it’s a short junk from Arizona’s contention actually in practical effect to the Master’s conclusion because he did say that the 3 (a) is a limitation as against the Upper Basin only in gaining appropriative rights.

    He then went on and discussed it at some length and used general language but he’s holding is as I have told the Court.

    This Court — if it please the Court in the Chandler-Dunbar case if you recall was considering the question of excess capacity over navigation in the Saint Mary’s River.

    The Chandler-Dunbar Company there was seeking compensation for loss of power rights on the basis that there was excess capacity in the river above the requirements of navigation and therefore, they should have compensation that having been taken by the Congress.

    This Court said in that case, in substance, there is no room for judicial review of the determination of Congress as to whether this water should be taken, there is no room for review as to whether or not the excess water, there is excess water and if so, should there be compensation?

    It’s squarely held that it was a legislative determination by the Congress and that it was not the function of this Court to review the discretion of Congress in the exercise of its powers under the Commerce Clause.

    Now, that holding has been cited many, many times.

    This Court in the appellates in case used the language, “In truth, the authority of the United States and the regulation of Commerce on its waters’ navigability in a sense just stated, is but a part of the whole.

    Flood protection, watershed development, recovery of the cost of improvements to utilization of power are likewise parts of Commerce control”.

    I would like if I might, to repeat again that last statement, recovery of the cost of improvements to utilization of power are likewise parts of Commerce control because I think that will bear quite heavily upon our friends in California’s criticism of the Master’s truncation of the river.

    It will bear quite heavily upon the notion of whether or not Arizona or California for that matter, could go above the river and stick a pipe down in its supply in the mainstream which has been dedicated by Congress to the provision of water pump in the Project Act and thereby take out a substantial flow of water from that river because — I would come to this in a moment, the Project Act requires the Secretary before entering into the project, before beginning construction, that he shall make a determination if the revenues from the project shall be sufficient to repay its cost of construction.

    So that anyone who for and moment would stand here and tell this Court that despite the fact that the Congress plainly in the debates looked to the supply at Lee Ferry as a supply of water plainly told the Secretary, “Before you construct this project, you shall see you have revenues sufficient to repay it”.

    But nonetheless and despite that, Arizona, California or anyone else could interfere with the water supply of that project as it comes in Lee Ferry and dam.

    Despite or in addition of course, you have Rivers and Harbors Act, you have the requirements that you obtain a permit from Congress and of course, you have to have the Congressional approval.

    I merely say that the language of the case I just cited, the Appelachian Electric case plainly indicates, plainly indicates that as a part of the Commerce Clause Power, that the powers of Congress go far beyond just the matter of regulating the flow of the river but extends through all these peripheral — peripheral things which go to aid the exercise of this power by Congress.

    Felix Frankfurter:

    If I — if I understood, it remained constitutional argument, I must have missed them.

    Mark Wilmer:

    I don’t think he made it constitutional arguments, Your Honor.

    The argument made and if you recall on the map there was shown a proposed route from — I believe it was Bridge Canyon and the argument was made and is made in the brief that this construction, the Master would permit Arizona and California to go deep in the river above the lake.

    And I say, if it please the Court, that can’t be done except Congress authorizing it.

    And if Congress sees fit to authorize it, I then say it becomes more concern of Arizona, California or this Court.

    Felix Frankfurter:

    All I’m saying I — if we recall that the he invoked the Commerce Clause that compelling or prohibiting this or that?

    Mark Wilmer:

    Mr. Justice Frankfurter, I know there’s one thing, a very outstanding about Mr. Ely’s argument.

    He religiously stayed away from the Commerce Clause.

    Now in the Twin City Power Company, this Court again said, “The interest of the United States in the flow of a navigable stream originates in the Commerce Clause”.

    Maybe I’m a little out of order reading to this Court which Your Honors yourselves have said, but if I might, I would like to just cover it.

    That clause speaks in terms of power, not of property.

    Mark Wilmer:

    But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one.

    The power is a privilege which we have called a dominant servitude.

    The legislative history in the construction of particular enactments may lead to the conclusion that Congress exercise less than its Constitutional power, fell short of appropriating the flow of the river to the public domain and provided that private rights existing under state law should be compensable or otherwise, recognized.

    Such with United States v. Gerlach Live Stock Company, Federal Power Commission v. Niagara Power Company suit.

    I might say in passing, California did cite the Gerlach case only to misconstrue it and to state that held something which it goes — it does come — have no place for it.

    They said it recognized and established appropriative rights, it did no such thing.

    It recognized that Congress could, in enacting a statute, provide for compensation that it could exercise less than the whole of its power if it desire.

    And if it did so and this Court construing that case held that it did, not intend to exercise the full extent of its power but it did not.

    But this Court for one second indicated that the Congress did not have the right to usurp the entire flow of the river without compensation in the navigable stream.

    We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river for the declared public purpose.

    Now we say, if it please the Court, that we have here a situation where the United States has usurped the entire flow of the river and has displaced all lesser interests.

    Hugo L. Black:

    May I ask you?

    Mark Wilmer:

    Yes.

    Hugo L. Black:

    Now you say — that sound seems to me that the word you’re using certainly has meaning that are not consistent with the thought of the argument you’re making.

    You said that several times that the United States has usurped —

    Mark Wilmer:

    Yes, Your Honor.

    Perhaps I spoke — a little too enthusiastically, Your Honor but what I meant was this– but I meant was this, that the United States in building Boulder Dam did usurp the entire flow of the river.

    It did stop the entire flow, it did bottle it up, it did take it over, it did take it into its control and possession.

    And thereafter — and thereafter, by a virtue of the Project Act provisions, it released some of that but we do say Your Honor and I’ll say it without equivocation.

    The United States did usurp the entire flow of the river and then did —

    Hugo L. Black:

    You merely mean by that when they took it over and had the power to do it or they took it over wrongly?

    Mark Wilmer:

    Oh no, I don’t mean wrongfully in the slightest sense, Your Honor.

    Not in the slightest sense.

    If I used it — if it were to have that connotation, I — I made a mistake in using that —

    Hugo L. Black:

    Well, it has a more limited meaning also?

    Mark Wilmer:

    Well, I used it in the sense, if it please the Court, that the United States did take control of this entire flow, did set it to assign and store it and then the Project Act said, “Now here’s how we’re going to use this stored water.

    Here is how it shall be used”.

    Hugo L. Black:

    May I ask you just —

    Mark Wilmer:

    Certainly.

    Hugo L. Black:

    As I understand if you’re saying that United States did build it, they took it all over —

    Mark Wilmer:

    Yes Your Honor.

    Hugo L. Black:

    If you reach the constitutional question which is not if — maybe not yet to be reached at all, had the power to do it, what it is done is to give Arizona a certain amount and California a certain amount?

    Mark Wilmer:

    And Nevada a certain amount.

    Hugo L. Black:

    And Nevada.

    Mark Wilmer:

    Yes.

    Hugo L. Black:

    And that — to that extent it has apportion the stream and you accept that apportionment?

    Mark Wilmer:

    Yes, Your Honor.

    That in fact rather is we believe the only conclusion that a reasonable mind can come to in reading the debates and in reading the Act itself.

    That is the only conclusion that we’ve been — can be reached is that when Congress did under the Commerce Clause and this Court so held in the first Arizona, California case, constitutionally could build the Dam under the paragraph in the Commerce Clause.

    Justice Frankfurter or Justice Brandeis in that case as I recall laid aside the consideration of the General Welfare Clause and simply said we do not need to reach that but he did say squarely under the navigation under the power over navigation — or power under the Commerce Clause over navigation, that Congress could constitutionally take over the entire flow of this river.

    Felix Frankfurter:

    If that were the essence of the litigation in the —

    Mark Wilmer:

    Correct.

    Felix Frankfurter:

    — first Arizona case.

    Mark Wilmer:

    Constitutional question.

    Felix Frankfurter:

    You’re raising else, it was subordinate?

    Mark Wilmer:

    And all the rest of it is —

    Felix Frankfurter:

    Not only subordinate but almost disregard it.

    Mark Wilmer:

    Well, Judge has (Inaudible) of the litigation Your Honor was that one question.

    Felix Frankfurter:

    Yes.

    Mark Wilmer:

    And the — and the Court cut Arizona’s (Inaudible) as far as that’s concern on that particular point.

    If I may use that as a question.

    Felix Frankfurter:

    I — I think that they even started from there.

    Mark Wilmer:

    Well I think if it please the Court we feel to get a little bit of the environment to get the color of these words that the Congress used before we start to construe them just in the color light of black and white on a piece of paper.

    Now if I might just briefly —

    Felix Frankfurter:

    And that’s — that —

    Mark Wilmer:

    Yes Your Honor.

    Felix Frankfurter:

    — if I may say so, is more convenient to my ear.

    You don’t construe it black and white on a piece of paper rather than saying that the Compact is irrelevant.

    That doesn’t mean much to me considering the fact that the Act which is to be construed refers to the Compact.

    I don’t know how many times —

    Mark Wilmer:

    Yes it does Your Honor.

    Felix Frankfurter:

    — has to say irrelevant means that you — that — that a special meaning has to be given to the reference in the Project Act not with the Compact which preceded it as irrelevant because it’s in there, in this —

    Mark Wilmer:

    I think I stand corrected, Your Honor.

    I — I certainly —

    Felix Frankfurter:

    Well, even the Master says that I don’t know what that means to say it’s irrelevant on part of the statute which you construed makes a reference to that.

    I don’t understand, i know those evidently and constantly told this is semantics, but that’s what all law is about.

    Law is about words or rather conveyed by word, therefore, we should say things that just verbal.

    That’s the — that’s what all business is.

    Mark Wilmer:

    Your Honor, I think the Master meant that it’s unnecessary to construe the Compact to reach the decision in this case.

    Felix Frankfurter:

    Or rather that the reference in the Project Act requires a construction about the — or what the scope of the Compact is with a reference to the Act and not with reference to itself.

    Mark Wilmer:

    With respect to the Project Act, yes, You Honor.

    Now, I’m certainly not going to trouble the Court with a review of the entire Project Act.

    There are about four or five provisions, which we think are decisive.

    We would like first to just briefly touch it by laws to indicate the fact that the Congress of the United States did exercise its full power under the Commerce Clause.

    We would like then to pursue if we might the legislative history of two or three of those sections because they are most in like then we would like, then we will go —

    Felix Frankfurter:

    That — that’s crucial to your case.

    Mark Wilmer:

    Yes Your Honor, it certainly is.

    Felix Frankfurter:

    As it is to Mr. Ely’s case, namely —

    Mark Wilmer:

    Yes.

    Felix Frankfurter:

    — the legislative history insofar as authority is preceding discussions in the Congress are relevant no more than constructions.

    That’s crucial to this case, isn’t it?

    Mark Wilmer:

    There is no question about that Your Honor.

    There is no question about it.

    That the legislative history of the Act as it develops and the words of the managers of the bill and the managers of the amendments to the bill are crucial.

    We’re glad they are because we think that they wholly support our position.

    I should say if it please the Court that beginning in 1922, the first of what were known as the Swing-Johnson bills was introduced in Congress.

    Introduced by the Honorable Phil Swing from California Representative and the Honorable Hyr — Senator Hyrum Johnson of California.

    I’m sure that many of you have personal acquaintance with at least Senator Johnson.

    The original Swing-Johnson bill as introduced for a little resemblance to the bill as finally enacted in 1928.

    The first Swing-Johnson bill failed, the second Swing-Johnson bill failed.

    Mark Wilmer:

    Chiefly because of the opposition of the Upper Basin as has been indicated to you yesterday, Arizona refused to ratify the Compact.

    She refused to ratify it because there is no allocation of Lower Basin Waters between herself and California.

    And she held that until it was such at the basin, she could not safely ratify the Compact.

    Because of that, I would not stand here for one moment and suggest that too little Arizona in those days of a few hundred thousand population stood in the way of mighty California but stood in the way of mighty California in those days with the Upper Basin because the Upper Basin did not propose to permit the construction of this storage.

    Permit California to take the full Lower Basin apportionment and leave Arizona at liberty and at large to take a further share of the water since she had not ratified the Compact.

    So that the California attempts to secure that into the Project Act failed.

    Now I’d call Your Honors’ attention to this, that Arizona was not unsympathetic to the Project Act.

    Colorado River as has been indicated was an erratic and a violent strip because its flow came mostly from the melt of snow water in the high mountains of the North to the — in the Upper Basin.

    Its flow in the spring was sometimes of tremendous proportions.

    A violent destructive plot but it was destructive in Arizona as well as California.

    Yuma in the lower southwest corner of Arizona border (Inaudible) of this sled as did the California interests.

    So Arizona was not unsympathetic to the notion of either the Compact or Project Act.

    She merely wanted to know that this one source of life to her from the standpoint and development should be at least equitably apportioned.

    The third Swing-Johnson actually it was two thirds in Johnson but only one of which is recognized and that is the one that’s introduced in February.

    Beginning with the third Swing-Johnson, we began applying some evolvement, begin to find some development attempting to adjust the claims and demands of the Upper Basin and in favor of the — in their favor and attempting to give them some measure of protection at the same time attempting to induce Arizona to ratify the Compact.

    If I might first turn to the Project Act as enacted but I will cover only a few sections.

    Section 1, the first portion of it, after the enacting clause, provides that for the purpose of controlling floods and this is found in either in the Master’s Report Appendix 2, I believe Your Honors or the Arizona’s opening brief, Appendix B page 9A, “That for the purpose of controlling floods, improving navigation and regulating the flow of the Colorado River, providing for storage and for the delivery of the stored water thereof for reclamation of public lands and other beneficial uses exclusively within the United States, for the generation of electrical energy as means of making the project herein authorize a self-supporting and financially solvent undertaking, the Secretary of the Interior, subject to the terms of the Colorado River Compact hereafter mentioned is hereby authorized to construct, operate and maintain a dam and related works in the mainstream of the Colorado River at Black Canyon or Boulder Canyon, adequate to create a storage reservoir of the capacity of not less than 20,000,000 acre-feet of water”.

    Now may I say this at this point (Inaudible), the United — the California has severely criticized the Master for saying that the Secretary of the Interior had no power beyond the reservoir and the dam.

    That’s all the Congress gave him.

    They said the Secretary might construct a dam and create a reservoir above it but capacity of not less than 20,000,000 acre-feet.

    So that’s where the Project Act ends so far as the Secretary is concerned as of the top end of that reservoir because there is where Congress ended his authority.

    That’s what Congress told him he could do and then they told him what he was to do after that.

    If I might then turn before going to Sections 4 and 5 to Section 6.

    That the dam and reservoir provided for — the dam and reservoir provided for in Section 1 hereof shall be used, first, for river regulation, improvement of navigation and flood control.

    Second, for irrigation and domestic uses and satisfaction of present perfected rights in pursuance of Article VIII of the Colorado River Compact.

    Now I would invite the Court’s attention to the peculiar language of that phrase, not in satisfaction of present perfected rights but in satisfaction of present perfected rights in pursuance of Article VIII of the Colorado River Compact, plainly the Congress had some reason in so phrasing their language.

    Hugo L. Black:

    What do you think it was?

    Mark Wilmer:

    I think it was this Your Honor.

    Now I have to — Article VIII of the Compact, if it please the Court, provides this, it first says, “present perfected rights are unimpaired by this Compact”.

    It then says, ”When storage on the mainstream of the Colorado River in or for the benefit of the Upper in or for the benefit of the Lower Basin shall have been provided in the mainstream of the Colorado River, then rights of users or appropriators, if any, on the mainstream as against users and appropriators in the Upper Basin shall attach to and be satisfied from water storage — not in conflict with Article III of the Colorado River Compact”.

    Mark Wilmer:

    It is our view and in this we depart from the Master’s conclusion Your Honor, but again it is not a large matter.

    We believe that the Project Act did not intend to perfect, to — to protect present perfected rights per se.

    We believe that this language was intended solely — solely to discharge the obligation contained in the Article VIII of the Colorado River Compact solely to provide that we have now discharged the burden laid by the Upper Basin Compact.

    Hugo L. Black:

    I don’t quite understand it, that the present perfected rights —

    Mark Wilmer:

    Well, if it please in Court, we would have them —

    Hugo L. Black:

    I don’t believe that the —

    Mark Wilmer:

    Excuse me.

    Hugo L. Black:

    — that Section 6 or any of the others were intended to preserve right which had already been recognized in particular persons.

    Mark Wilmer:

    Well, Your Honor, may I express it this way.

    First of all, the question of the extent of rights in the Lower Basin is indeed a (Inaudible).

    We have first of all, the fact that in the Rivers and Harbors Act of 1890 and 1899, the Congress forbade, forbade under criminal sanctions, anyone impairing the navigable capacity of a stream and as Summers once said, “I don’t know how you get more impair the navigable capacity of a stream than taking all the water out”.

    So we would say, first of, whether you can gain any appropriative rights in a navigable stream by exhausting its flow without the consent of Congress, indeed presents the authority question.

    Hugo L. Black:

    What I would — I — I didn’t make my —

    Mark Wilmer:

    I’m sorry.

    Hugo L. Black:

    — make it clearly at Section VI which you refer to say irrigation and domestic users and satisfaction present perfected rights in pursuance of Article VIII.

    Now what do you understand was meant by present perfected right?

    Mark Wilmer:

    I understand, if it please the Court, that by present perfected rights coupled with and tied to in pursuance of Article VIII of the Colorado River Compact, it limited the present perfected rights protected to those which the Colorado River Compact intended to protect and those which should be protected under the Colorado River Compact.

    But that, if it please the Court, only preserve that protected those against Upper Basin appropriators.

    It did not protect or preserve them against Lower Basin appropriators intra Basin.

    The only function, if it please the Court, of this language we have quoted is to discharge the Upper Basin obligation against claims of the Lower Basin mainstream users at such time as they were provided storage.

    In our view but isn’t it again it isn’t a matter of supreme ones, our view is that this language was intended solely to say that Upper — the Lower Basin appropriators, once this storage is completed had no further claim against the Upper Basin.

    It was not intended to preserve intra- Basin, State versus State in the Lower Basin, any rights.

    We say that for several reasons.

    One, the administration of the river with a prime purpose of preserving navigation, controlling the floods and or rather protecting against floods and controlling the flow is incompatible with the recognition.

    Hugo L. Black:

    Concretely, what does that mean that you believe in reference to as such water has already been appropriated for use and being used in equipment of California either in one of this statute.

    Mark Wilmer:

    If it please the Court, the Honorable Philip Swing several instances we have quoted used this expression that you can’t read the English language other than that Article VIII of the Compact discharged appropriative rights in the Lower Basin.

    He said not once but several times that the impact of Article VIII was simply that you took stored water in lieu of natural flow.

    In other words, if it please the Court, the Lower Basin said, “We are content, give us adequate storage, we’re content to accept, we are content to accept stored water.

    We are content to then waive any further rights we have against the Upper Basin and take our water out of storage because we get what?

    We get an adequate year round supply, we get clear distilled water, we’re released from the floods and all in many other benefits inherent in that storage”.

    Mark Wilmer:

    There is nothing, if it please the Court, that I know of which justifies the conclusion that present perfected rights are to be preserved absent a provision for piloting the natural flow to the reservoir.

    You don’t store the entire stream irrespective of its natural flow; you don’t give a person downstream gobs of water as he asks for it without respect to his appropriative rights and say yet, appropriative rights are preserved.

    Hugo L. Black:

    I still don’t quite understand.

    Let’s assume that there were quite a number of projects some in Arizona, some in California and some in Nevada already in use, being used for irrigation, domestic purposes —

    Mark Wilmer:

    Yes, Your Honor.

    Hugo L. Black:

    — at the time the Act was passed.

    Do you think that the Act displaced those so that they could be ignored in the carrying on the work by the manager of the project?

    Mark Wilmer:

    I think if it please the Court, that the Act substituted stored water for those appropriative rights.

    Hugo L. Black:

    But — but was still water and you think you’re right were preserved, is that it?

    Mark Wilmer:

    I think the Congress contemplated Your Honor that there should be allocated ample water so that those rights would be protected.

    I do not think the Congress expected that those rights were to be protected in the sense of a preservation of their historic, time, quantity and amount of flow at a given point.

    Hugo L. Black:

    I don’t understand how they could be protected if you ignored the fact that they have been using a certain quantity and they want to continue to use it.

    Mark Wilmer:

    Your Honor —

    Hugo L. Black:

    How would you protect it if you took the right?

    How — the right away those people to enjoy the full protection of the same amount withheld?

    Mark Wilmer:

    Your Honor, in particularly, in Imperial Valley prior to construction of the Project Act, the low flow in the summertime was inadequate — was inadequate to service that just been claims on that water was all gone, there’s been when the crops were started.

    Congress gave in place of those rights in the natural flow, which is inherent in an appropriative right a great body of stored water.

    Congress said, “We’re going to give you a block of water which in our judgment is ample to give you year-round water not just when it would naturally come to you by virtue of the normal flow of the river in a state of nature”.

    Now I say this, it if it please the Court, that if Congress set aside, if Congress stored the entire flow and said, “This is to be used to satisfy these appropriative rights.”

    The States then had the privilege perhaps of saying, “No we want natural flow.

    We refuse to give up our appropriative rights.”

    Pile up our natural flow to the river and give it to us as it was want to flow and perhaps it would’ve had some basis for complaint but they didn’t do that.

    They accepted the proper of Congress to take in lieu of the natural flow and their rights in the natural flow a stored water, a body of stored water the same as if they went to the store to buy some bread.

    It was there in ample quantities for them but not in relationship to their historic method and time and place of taking.

    Now the only distinct that I’m going to draw is this Your Honor.

    I think the notion of present perfected rights being preserved cuts across the theory and philosophy of the Project Act.

    I think Congress realized that it was storing an ample supply of water because it was storing it all and then it was going to allocate that out not according to the natural flow but as people wanted it to the extent of the apportionment it made.

    And if you’ll recall, many of the debates in Congress, particularly in the Senate, in the second session of the 70th Congress which was all in the enactment of this Act, Senator Johnson was asked time and again, “What are your present rights in imperial?

    What are the present rights in California?”

    And at one point, he gave a figure which I have and can give you the Congressional reference to.

    Mark Wilmer:

    In which as I recall he stated the California present users were something in excess of million, I believe 159,000 in that general order of magnitude.

    Those were the present uses in California.

    Those were how much California was then using.

    Hugo L. Black:

    Did he also refer to certain projects that already inclusive construction such as the Metropolitan?

    Mark Wilmer:

    No — yes he did, Your Honor.

    There was quite an exchange which is quoted in our legislative history between he and Senator Walsh of Montana.

    In which say the Walsh of Montana asked him about this so called appropriative right of Los Angeles and he said, yes, they had one in 1924, they have followed notice of appropriation for a million and I believe 95,000 acre-feet.

    And Senator Walsh then pursued him, “But, what have you done about this?”

    Well, we’ve spent some money on surveys and finally forced from Senator Johnson that concession that without the project, they couldn’t give any water.

    Finally a portion in the agreement that absent storage, the natural flow was all appropriated and that there’s no place in which they could get the water other than storage.

    That discussion did occur Your Honor and a round up would be, I would say concession on the part of Senator Johnson that California’s paper filing which without value unless there was storage.

    That was recognized and add that for the 2,100,000 and some thousand you’ve got 3,000,000 and some thousand.

    Now I might say and I’m the aggressor a little bit here but I want to make this point of — this point because we’ve had considerable talk about it.

    In the course of this discussion, in the — in the second session the 70th Congress, Senator Johnson (Inaudible) it up what he said was the total requirements that California would need ultimately.

    He thinks that the million, I believe nine thousand — six — I’m sorry, a million and nine thousand and he totaled all out there.

    And then he discussed the governor’s conference which I want to come in a minute which has taken place in 1927 and he used the significant word which I’m going to quote to you in (Inaudible) a little later.

    We agreed to take 4,600,000 recognized it and we aren’t getting enough water.

    We agreed to take 6,000,000 — 4,600,000 in effect to get this project underway, recognized that this wasn’t sufficient to take care of all our needs and that we were taking a calculated risk.

    To get the Project Act passed, California did take the calculated risk.

    And now having got the Project Act, she wishes she hadn’t taken that competitive risk (Inaudible).

    Now, in any event Your Honor, I’m going to come back to this in respect to the Master’s treatment of present perfected rights and if I might and if the Court will permit me, I will defer at this moment further —

    Hugo L. Black:

    I thought it’s a —

    Mark Wilmer:

    — discussing this point.

    Hugo L. Black:

    — just simply wanted to know that parties at —

    Mark Wilmer:

    Well, I — I said that isn’t the right thing Senator Johnson said there, the likelihood of wherever being any question shortage is remote, it really isn’t something that we need to get too excited about, although I would have at this point in passing correct Mr. Ely when he said that the Master’s shortage apportionment cut across established rights.

    The report expressly provides that in the event of shortages, present perfected rights are fully paid, are fully taken care of and then the shortage is apportioned.

    I’m sure Mr. Ely spoke as it at least as we read the Master’s report his holding squarely was an untimely shortage present perfected rights take precedence and thereafter the — the water — (Inaudible) water is shared (Inaudible).

    Now I want to just — again refrain to Section 6.

    The Secretary of the Interior — I’m skipping to the second paragraph, shall prescribe and enforce rules and regulations with the — conforming with the requirements of the Federal Power Act as far as after who, respecting the maintenance of work, conditions of repair adequate to their efficient operation, maintenance of system, accounting control rates and so on relating only to power.

    He then — then further provides he shall also conform with other provision, the Federal Water Power Act and the rules and regulations of the Federal Power Commission which have been devised or which may have to be devised for the protection of the investor and consumer.

    Mark Wilmer:

    The point I am making and reading this is only this Your Honor that when we come to a considerate — Your Honors, when we come to a consideration of Arizona’s position that 4 (a) and 5 of the Project Act constituted a mandatory formula.

    It becomes most significant to find in the Project Act detailed treatment — detailed treatment of how power shall be handled, detailed treatment of who shall get it, what policy shall govern and if there’d be conflicted applicants, they shall have a hearing and yet in the disposition of this most precious commodity water, we find only the language that the Secretary shall conform with the provisions of Article 4 (a).

    I want then to go if I may, to Section 4 (a) and Section 5.

    They’re long, I am not going to read them.

    I’m simply going to note two things.

    The first paragraph of Section 4 (a), as it was finally passed, provided for either a six or a seven-state ratification within six months or a six-state ratification within or within six — I’m sorry, provided for a seven-state ratification or if that did not occur within six months, then for a six-state ratification; provided further, that as we read it and as the Master found in any event, the Project Act shall not take effect until California shall have, for the benefit of the United States and for the benefit of the other Basin States, enacted the Limitation Act.

    It further provided in paragraph 2 for what is termed the permissive compact, it simply provides that in paragraph 2, unnumbered of 4 (a), that the three states were authorized to enter into a compact dividing the 7,500,000 in accordance with the way it was divided in 4 (a).

    At least with respect to the fact that in 4 (a), it said California can’t take more than 4,400,000 that therefore there was a 2,800,000 and 300,000 left for Arizona and Nevada, provided for certain other things which I am not going to discuss here.

    Then provided in (b) that before any money is appropriated for the construction of said dam or power plant or any construction work done or contracted for, the Secretary of the Interior must make provision for revenues sufficient to ensure repayment of the Act.

    Then in Section 5 as present as an Act, it provide that he was authorized, the Secretary, under such general regulations as he might prescribe to contract for the storage of water and its delivery.

    Then, if it please the Court, this language will become significant and will be heard again and again.

    Contracts respecting water for irrigation and domestic uses shall be for permanent service and shall conform to paragraph (a) of Section 4 of this Act.

    No person shall have or be entitled to have the use for any purpose of the water stored as aforesaid, except by contract made as herein stated.

    The Master has held and Arizona agrees that Congress intended by this provision to prohibit the use of any water stored pursuant to these works, other than by contract; but that was the intent of it.

    Now if I might, I would like to, in reviewing the legislative history of this matter, first turn to the Governor’s Conference of 1927 that is found in the last page of the Arizona legislative history.

    It is printed in various other places but if you will turn to the last two pages 158 and 159, the recommending — the recommendations of the Governor’s Conference are set forth.

    I would call Your Honors’ attention to the fact that up to this point in 1927, the Swing-Johnson Acts have been appointed and rejected in the Congress and at Denver in 1927, in September and first part of October, the seven Governors of the seven Basin States met at Denver in a conference.

    It is apparent it was quite a conference because we will see later Senator Pittman was there.

    We know that Delph Carpenter was there from his testimony.

    We know that Senators Phipps was there from his testimony.

    Therefore, we can assume, I think, without stretching the record that it was quite a conference.

    It was attended by all of the prominent water people of the seven Basin States involved.

    Its purpose, to try to work out this conflict between Arizona and California, to try to work out some kind of a meeting of the minds so to speak, whereby Arizona would ratify the Compact and the Project Act could be enacted.

    It is significant, if it please the Court, that one of the Governors attending this conference was Governor Emerson, Frank Emerson, who had been one of the Compact negotiators for the State of Wyoming.

    It is significant that from his testimony, Delph Carpenter, another of the negotiators of the Commissions of the Compact was in attendance of this conference because from his testimony in the Congressional hearings, we know he was there.

    Now, I say in passing that we have here the people concerned who are most vitally affected, the Upper Basin States.

    Finally, the four Governors of the Upper Division States New Mexico, Utah, Wyoming and Colorado sat as arbitrators — sat as arbitrators to determine what should be the division made to the Lower Basin.

    I have mentioned the names of the arbitrators because it seems to me that they, particularly Carpenter and Emerson must have been keenly aware of the exact obligation of the Upper Basin under the Compact.

    The Governors there recommended of the average annual delivery of water to be provided by the States of the Upper Division at Lee’s Ferry under the terms of the Colorado River Compact, 300,000 to Nevada, 3,000,000 to Arizona, 4,000,000 to California.

    Secondly, that Arizona should have the unequivocal use of a million acre-feet, the Colorado River Tributaries employing in the State with reference to Mexico.

    Mark Wilmer:

    Significantly, in paragraph 3, these Governors of the Upper State — of the Upper Basin recommended that as to the all Lower Basin Tributaries, they should go to the states in which they were flowing except that it was a two base — two-state river that it should be subject to division between the states.

    But it is significant that these four Governors who would be most interested in the Lower Basin tributaries if they were in fact involved, recommended that they be given to the states of the Lower Basin free and clear and without limitation.

    Because with respect to the mainstream in paragraph 5, they provided Arizona and California may each divert and use one-half of the other portion of water of the main Colorado River flowing at below Lee’s Ferry.

    Why?

    Subject to further equitable apportionment between the states after the year 1963 quickly turning back to Colorado River Compact in Article III (f) provided that after 1963 that there might be a further equitable apportionment of the unapportioned water, the water unapportioned by A, B and C upon application of the Governor of any state.

    The significant thing?

    Lower Basin States were not tributaries were not reserve for further equitable apportion.

    Mainstream, excess flow was reserve for future equitable apportion.

    Now, if it please the Court, this recommendation of the Governors we believe is equitably reflected in the legislative history became then the vehicle — the vehicle for working out a settlement and compromise as between California and Arizona in the United States Senate because Arizona and California still could not agree.

    Arizona demanded 4,600,000, the Governor recommended 4,200,000, Arizona stood under 3,000,000.

    So that —

    (Inaudible) in Section 1?

    Mark Wilmer:

    4,600,000 or Your Honor I can best answer that but the Governors were referring to the 7,500,000 let down at least third.

    So the exact language of the average annual delivery of water to be provided by the States of the Upper Division at Lee’s Ferry.

    Now Your Honor engineering wise, hydrologically, any other wise we want to choose that had to be Upper Basin water because Lee Ferry I analogized the minute ago with respect to the two Basins as an hourglass.

    The Upper Basin is defined as that portion of these states which naturally drain into the river above Lee’s Ferry which was named as a point a mile below the mouth of the Perry River so that the Lee’s Ferry was the point of division.

    It was in effect where the Canyon section which isolate the Lower Basin from the Upper Basin begun to ameliorate something although the Grand Canyon still lies below it.

    So that when they said of the annual delivery at Lee’s Ferry, there could be no conflict.

    There could be no claim that that did not mean Upper Basin water.

    It just — isn’t any getting away from it.

    You can talk until you’re blue in the face and then were at everyone’s faces, that lawyers who are very intense sometimes do have.

    I would have comprehended however the portion of the mainstream that is referred to between Lee’s Ferry and then —

    Mark Wilmer:

    Yes and I think it does.

    I think if it please the Court that the Master’s holding is misunderstood.

    He has said that the Secretary, the Secretary has control over only the dam and the reservoir.

    I would not for one minute contend in the light of the legislative history that Congress did not dedicate the water at Lee’s Ferry to the uses of the Project Act.

    There’s no question about it.

    They did because that’s what they talked about.

    All through the — the legislative history, as we will demonstrate there’s a water let down at Lee Ferry, the water provided at Lee Ferry.

    Well, do you disagree with the Master’s (Inaudible) you construed into that water in California litigation?

    Mark Wilmer:

    I wouldn’t know that I would read his decision Your Honor as in quite that light.

    As I understand the Master’s decision, he held that the water which the Secretary had control over and which he might contract with respect to was water stored in the dam, in other words, it was water which the Congress had authorized him to store and to manage in the interest of navigation and to then apportion.

    But I would have to make this distinction if it please the Court and if we disagree with the Master we disagree with it.

    I do not think you can read the legislative history of the Project Act particularly in the third – in the second session of the 70th Congress and conclude other than that Congress had reference to the supply of water coming from the Upper Basin that it was to be stored.

    I do not think it can come to the conclusion other than that in effect was dedicated to the purposes of the Project Act including the generation of power and including the related phases of management which necessarily inherent in that type of thing.

    But all Congress gave the Secretary power to do was to build the dam and free the reservoir and then manage that reservoir but that doesn’t rule out the fact that Congress was looking into the water at Lee Ferry as a supply for that project.

    And that doesn’t rule out the fact that therefore the Congress has preempted the flow at Lee Ferry for the purposes of the Project Act.

    But it doesn’t necessarily say that the Secretary of the Interior is giving control over that water until it gets within his grasp because he is the only the agent of the Congress.

    The Congress delegated to him management of a certain supply which it looked to for this reservoir.

    The — the significance as we see it, if it please the Court is that —

    William J. Brennan, Jr.:

    May I ask then, well, what —

    Mark Wilmer:

    Yes, Your Honor?

    William J. Brennan, Jr.:

    — what’s under the diversion — the status of diversion between the lake and Lee Ferry.

    Mark Wilmer:

    The suggestion that might be done?

    There’s two answers to that Your Honor.

    Your Honor, the Master gave one, which was that no one can do it without the consent of Congress and if Congress consents, that’s Congress’ business.

    William J. Brennan, Jr.:

    And what’s your view of it?

    Mark Wilmer:

    My view of this exactly that one you can’t — you can’t build a dam and take water out off a navigable stream except either with the permit of the Secretary of Water or the consent of Congress, that is, the Rivers and Harbors Act of 1890 as amended in 1899, he simply can’t do it.

    Secondly, and I think of equal cogency is a statement that Congress has set aside the flow of the river as it comes to the Lower Basin at Lee Ferry for the purposes of the Project Act.

    Congress, by their very terms of the debate, the very terms of the language of the Senators who finally hammered out the Project Act in effect said the supply at Lee Ferry shall be used for this purpose among which —

    William J. Brennan, Jr.:

    That’s — does that add up to this — that all the Secretary can do is contract in respect to the water which actually gets to the lake only has to —

    Mark Wilmer:

    (Inaudible) has Your Honor.

    William J. Brennan, Jr.:

    — that if anything else needs to be done or rather if anything maybe done through the water between Lee Ferry and the lake this requires — as I say suggest the approval of the Secretary of Water plus further Congressional approval, Is that it?

    Mark Wilmer:

    Your Honor, I — I can — I can come to no other conclusion.

    William J. Brennan, Jr.:

    Well, is that what the — the Master said?

    Mark Wilmer:

    The Master did say that this was not a matter of consequence because it couldn’t be done without the consent of Congress.

    He did definitely take that position.

    We did not urge to him at that time.

    I think if he had pursued it, he would have come to the same conclusion and that is, that in addition under the Project Act, none of the Congress here has plainly — plainly in the debates and in the committee hearings and everything else, has shown that it was looking to the supply of water from the Upper Basin at Lee Ferry to make this Project feasible.

    Now to me its maxim of a — of a what’s this — plain nonsense to suggest that once the Congress having dedicated this supply of water at Lee’s Ferry and I defy it if it please the Court, anyone who come to a contrary conclusion if you read the legislative history objectively.

    Mark Wilmer:

    Congress having dedicated that supply at Lee Ferry to suggest with the straight face that Arizona might go up and construct the dam above that and take that water and run into Central Arizona, I just don’t think that to adds up I don’t think it makes sense.

    William J. Brennan, Jr.:

    Above what?

    Above Lee Ferry?

    Mark Wilmer:

    Above Lee Ferry and below Lee — I mean above the lake —

    William J. Brennan, Jr.:

    Above the lake —

    Mark Wilmer:

    — and below Lee Ferry?

    William J. Brennan, Jr.:

    — and below Lee Ferry?

    Mark Wilmer:

    Just physical facts would deny it, but it’s in the deep Canyon, it’s impossible to get to but that isn’t the answer — the legal answer is that one, the water is been set aside from the Project Act by Congress.

    Two, under the Rivers and Harbors Act of 1890 and 1899, you can’t build the dam in a navigable stream without the consent of the Secretary of Water or of Congress.

    William J. Brennan, Jr.:

    Well now, is that — is that your — I didn’t I understand your pleadings correctly, but I believe not just today, he was talking of Project of which Canyon and (Inaudible).

    Mark Wilmer:

    Yes.

    William J. Brennan, Jr.:

    And your answer is, that you couldn’t do those —

    Mark Wilmer:

    My answer is — is two things, Your Honor.

    One, the two projects have both been abandoned, but if that were not true — that were not true, it could not be done without the Congressional approval and I don’t know of any better power to give us authority than the Congress.

    Congress has stored this water and the Congress wants to say to Arizona, we authorize you to take some additional water, they are not going to say we’re going to charge you for the Lake Mead but this is a body of water.

    It’s as if the situation of Lee Ferry was a fountain, a spring as far as this lawsuit is concerned.

    So far as this lawsuit is concerned is the same as if there was a spring at Lee Ferry which gushed out so much water every year because under the Compact, that is the delivery point in the Upper Basin that is the measuring point of the Upper Basin.

    And it’s just the same as if the Congress have said, “That supply of water used to be dam by the construction of the Boulder Canyon project, it is to be stored.”

    And for anyone to commit and say well the State of Arizona or the State of California may (Inaudible) under those circumstances in deep in that body of water and defeat the Project Act, defeat its purpose, defeat the contracts which the Secretary was required to make to provide revenue by depriving the project of water.

    All of those things simply the reason cries out against them and there’s no basis for concluding that the Congress having said to the Secretary, “You, in effect measure this water.

    You determine how much of a head you’re going to have for generating electricity.

    You determine how much of a supply of electricity you’re going to have to sell and then based on that, you determine the piece if only the project and go ahead and build it.

    And then to commit and say despite that Arizona can go and take half that water and defeat the project, defeat the computation of the Secretary”.

    I can find no basis for that at all.

    They assigned the Rivers and Harbors Act and this point was not urged on his Master — the Master.

    This point is not made until the argument in New York that this in effect amounted to a permission to Arizona and California to went above the lake and take the water and accordingly, frankly, we haven’t thought of this argument and honestly I think.

    But on reflection upon further thought and upon further reading of the Congressional history, it just doesn’t make sense to suggest to having set aside this water for the purpose of this project having considered and measured at Lee Ferry having consider the supply at Lee Ferry.

    Having told the Secretary he is to figure out how much water this will supply in the way of water to sell, water to generate power.

    And based on that, he is to build the project and then to say that despite that, Arizona or California can commit and take half that water without his consent or the consent of the United States.

    That is why, if it please the Court, I quoted with care from the appellates of the case to the effect that it involved not only the Commerce Clause involve not only the matter of navigation but the peripheral and other factors which went to make that exercise of that part feasible or economic.

    Mark Wilmer:

    Now if it please the Court, I would like if I might to travel for just a moment to legislative history by way of the evolution of Sections 4 (a) and 5.

    For the convenience of the Court and only for that purpose, we had printed a little piece of paper here which is supposed to have been supplied to you in evolution of Sections 4 (a) and 5, first paragraph of the Boulder Canyon Project Act for our use in oral argument, this amounts to no more if it please the Court than —

    Byron R. White:

    Excuse me Mr. Wilmer, this just came in, did it?

    Mark Wilmer:

    It was.

    Byron R. White:

    The agreement?

    Mark Wilmer:

    Yes, Your Honor.

    Byron R. White:

    — the evolution is that —

    Mark Wilmer:

    Yes, that is correct.

    Byron R. White:

    Nothing different?

    Mark Wilmer:

    That is correct.

    It is.

    Byron R. White:

    Why are you keep adding in these things —

    Mark Wilmer:

    I realize the Court is getting a few papers it might even be felt distractive.

    The only purpose of this if it please the Court is conclusion.

    There’s no editorial commentaries, there’s no argument, it is simply excerpts from amendments as proposed.

    First — in the first section, though I shouldn’t say that, it goes back to the third Swing-Johnson bill.

    The first printed Section is Section 5 of S 33, 31 which was in the 69th Congress, the first session.

    Hugo L. Black:

    What year was that?

    Mark Wilmer:

    1926, Your Honor I believe.

    I — I think that’s right but I — the only purpose of this first quote, if it please the Court, is to show how the evolution of Section 5 began.

    You will note that it has a provision contracts respecting water for domestic use — for domestic use maybe for a permanent service but subject to rights of prior appropriators.

    I would therefore call Your Honors’ attention that at this stage of the evolution of Section 5 which is the provision of Project Act which we say interlocking with Section 4 (a) constitutes an allegation.

    This provision specifically say the rights of prior appropriators and that if it please Mr. Justice Black is one of the reasons for our belief that present perfected rights in pursuance of Article VIII means less than it might mean at first blush because here we have an express provision in the Act as introduced which protected and preserved rights of prior appropriators.

    Now in the 69th Congress, the Senate Committee on Irrigation and Reclamation reported out Section 5 of the Senate Bill.

    The eliminations are bracketed, the additions are italicized for the convenience of the Court in quickly recognizing the difference.

    The significant portion of course is at the top of Page 2, “No person shall have or be entitled to have the use for any purpose of water stored as aforesaid except by contract as herein stated”.

    The Committee of which I believe at that time Senator Hyrum Johnson was the Chairman deleted the provision, ”may be for permanent service”, and changed it to, “shall be for permanent service”.

    And deleted, “but subject to the rights of prior appropriators.”

    And added, “no person shall have or be entitled to have the use, for any purpose, of the water stored as aforesaid except by contract made as herein stated”.

    We believe that is persuasive, if it please the Court, that at least the Senate Committee which acted upon this ruled out subjugating this water of the rights of prior appropriators and rule in the proposition that no person should have this water for any purpose except by contract with the Secretary.

    Mark Wilmer:

    Now, the next little excerpt is just by way of a (Inaudible) to our esteemed to Senator Ashurst but in fact the first mention of a limitation on California working out this problem between Arizona and California, appeared in a bill which he — which I believe he had printed but did not offer in which he suggested a limitation on California.

    Up to this time the Swing-Johnson Acts had not propose any limitation on anybody in the Lower Basin.

    And up to this point, they have gotten exactly no one.

    Now in the 70th Congress which was 1928, Section 5 as introduced is most illuminating.

    Not as introduced, I’m sorry.

    It was introduced as it ended up in the third Swing-Johnson, was introduced in the form which you have seen on the bottom of the preceding papers, as amended.

    I saved a little printing by simply saying that Section 5 of Senate 728, which was the Senate Bill in the fourth Swing-Johnson introduced in the 70th Congress in the form shown above as reported out of the Committee on irrigation and reclamation provided the following.

    Again, I’ll bring your attention that this Committee, I believe it was Chairman by Senator Hyrum Johnson.

    The addition is of two things, one, minor related to generation of electrical energy.

    Hugo L. Black:

    Why do you say that was minor in that kind of —

    Mark Wilmer:

    Well, I’m wrong Your Honor, it wasn’t.

    I was thinking of it was minor in the later I mean this is major the later point in the fight.

    I agree with you Your Honor.

    You have corrected it.

    But — excuse me — the italicized language is most significant.

    It has been California’s assertion time and time again that this Project Act did not deal with mainstream water.

    Well here is the Committee amendment in the first session of the 70th Congress adding this, “provided however that said contracts”, these are the Secretary’s contracts, no one can have any water without them, “shall not provide for an aggregate annual consumptive use in California of more than 4,600,000 acre-feet of water allocated to the Lower Basin by the Colorado River Compact mentioned in Section 12 and one-half of the unallocated excess, and or surplus water, provided further, that no such contract shall be made until California, by act of its legislature, shall have ratified and approved the foregoing provision for use of water in said State and then no person shall have or be entitled to have the use for any purpose of the water stored as apportioned except by contract made as herein stated”.

    In other words, the first limitation on California, the first movement toward the final passage of this Act came in Section 5 and by a virtue of a restriction on the right of the Secretary to contract with respect to water.

    Now if we are right that this water that was being stored was mainstream water and it’s pretty difficult to come to any other conclusion.

    We then find that the first mention of a restriction on California, the first attempt to divide this water is how?By limiting the right of the Secretary to contract with respect to how much that water they could give in California.

    I would like also if you would please note above five lines in the bottom of that, the words appeared that no such contract shall be made until California to the end with the italicized portion.

    Before going to the next amendment which was printed, I’d like to suggest this to the Court that this was a period of foremen.

    This was a period when subsequent to the Governor’s conference unquestionably backroom conferences and front room conferences in California conference and all kinds of conferences were going on.

    We find gradually evolving the notion of how to protect the Upper Basin if Arizona didn’t ratify how to reduce Arizona to ratify and that is the purpose of our printing of the next several amendments.

    But I want to call one other thing to Your Honors’ attention.

    Senator Johnson, Chairman of the Committee — Chairman of the Committee which reported out this measure made this observation on the floor of the Senate and it appears in 69th Congressional record at 7250.

    Section 5 provides, “That the contract must be generally for storage and delivery of water and the Secretary shall fix charges to meet the revenue requirements and that contracts for irrigation and domestic uses must be for permanent service”.

    An amendment has been inserted here to request to the Upper Basin States offered I think in the Committee by the Senator from Wyoming which provides that and then he quotes the italicized provision you have just read.

    Then he said, “That is another rigorous provision.

    A rigorous provision to which those who represent California are willing to consent in order that legislation might be accorded but binding California perpetually and forever to use not to exceed 4,600,000 acre-feet of water”, binding California how?

    Mark Wilmer:

    A reasonable limitation upon the power of the Secretary to contract with respect to stored mainstream water and yet to have told time and again, California didn’t understand what she was getting into.

    California built these great projects upon the assumption that she was safe and doing so at least for the system allocation.

    Now, I ask Your Honors to note the portion of the italicized Section 5 as it came out the Committee.

    Senator Waterman, one of the Senators from the Upper Basin, I have forgotten, Colorado I believe —

    Colorado.

    Mark Wilmer:

    — printed an Amendment with respect to Section 5 which struck out the words I have asked you to note that no such contract shall be made until California and so on and propose to insert therein the language which is set forth.

    The only significant thing I’m going to call Your Honors’ attention to is the fact that he specifically stated, “shall have first ratified and approved all of the provisions of this Section and set in this Act in anyway relating to the use of waters of the mainstream of the Colorado River within or by the State of California or by any virtue of cooperation for said State”.

    And then on the next page, “That any and all water demanded and required are lawfully appropriated and applied for beneficial use for the State of Arizona or any of its inhabitants including corporations, municipal or otherwise, or any of them out of the mainstream of the Colorado River shall at anytime exceed and so on”.

    In other words, Senator Waterman clarified and definitely identified what they were talking about was mainstream water.

    It was water which was in the mainstream of the Colorado River which that I have said before you Your Honors, was the only concern of these people, these Upper Basin States were not concern in the slightest with the uses of our tributaries.

    They were concerned with the notion of the tentacles of the Lower Basin reaching up into the Upper Basin by means of an equitable apportionment suit and demanding more water.

    That’s what they were afraid of and that was what they were protecting themselves against and the one thing they were concerned with was mainstream water because Lower Basin tributaries weren’t accessible to them, rights are and couldn’t be asserted against them because they were not of the supply.

    Just doesn’t add up to assert that the Upper Basin was concerned for one second with uses in the Lower Basin or concerned that it should be a system matter insofar as a Project Act was concerned.

    Hugo L. Black:

    They were concern whether or not being compel to give up water left in their amount they agreed to have in the Upper Basin?

    Mark Wilmer:

    Your Honor, there’s just isn’t any other answer to it.

    Otherwise, we have to consider that the States of the Upper Basin, the Senators of the Upper Basin were concerned with limiting the economic development of the Lower Basin which have no relationship to it.

    What did they care of?

    Hugo L. Black:

    Suppose your arguments should be fully accepted?

    Mark Wilmer:

    Yes, Your Honor.

    Hugo L. Black:

    That suppose you should win every point that you have.

    Would that jeopardize in anyway either temporarily or permanently, the right of the Upper Basin to have 7,500,000 acre-feet?

    Mark Wilmer:

    Unequivocally, no.

    That is the purport of Section 18, that is the reason for Section 18 which I quoted earlier which said, “That nothing herein contained in the Project Act shall be construed”, I’m not trying to repeat this from memory, I’m simply giving the substance of it, “shall be construed as interfering with the right of any state to control the waters within its borders except insofar as modified by the Colorado River Compact”.

    William J. Brennan, Jr.:

    Well, Mr. Wilmer, what — what does that mean in the event there’s enough water to have 7,500,000 feet in the Upper Basin and at the same time deliver at least 30 of the amount that they’re obligated under the Compact delivery?

    Mark Wilmer:

    Your Honor, under the Compact, the Upper Basin assumed that they obligation in 3 (c) — in 3 (d), assume the obligation knowingly, willingly, purposely that they would deliver on an average 7,500,000 every year at Lee Ferry.

    William J. Brennan, Jr.:

    So if — if in discharging that obligation that leads them with less than that in the Upper Basin, they accept the deficiency?

    Mark Wilmer:

    That is a calculated risk they took to get the consent —

    William J. Brennan, Jr.:

    Well, I didn’t quite understand your answer to Mr. Justice Black.

    Mark Wilmer:

    I’m sorry Your Honor, I meant to say this that nothing that Your Honors do today or I shouldn’t say today I mean in the decision of this case.

    Nothing Your Honors can do in the decision of — should do in the decision of this case assuming that it is a statutory construction case with respect to the meeting of what with respect to what Congress meant in enacting the Project Act can effect the Upper Basin.

    Mark Wilmer:

    Nothing — nothing can affect the Upper Basin.

    Hugo L. Black:

    What — what effect would it not if it’s with use the amount of usable water in debate below 7,500,000 acre-feet?

    Mark Wilmer:

    Your Honor is now speaking of a system Lower Basin —

    Hugo L. Black:

    I’m talking about what practically the Upper Basin will be free to use if you win all your points.

    What will they be free to use, no, they can use or that having a demand, by reason of demand you brought about by a decree remedying this controversy?

    Mark Wilmer:

    The best way I can answer that is this Your Honor.

    This Court should not enlarge the obligation of the Upper Basin under the Colorado River Compact.

    This Court does not need to enlarge the obligation of the Upper Basin under the Colorado River Compact.

    Hugo L. Black:

    Neither — neither to enlarge, I presume not to diminish or to diminish unless they were here perhaps.

    Mark Wilmer:

    Unless they were here and I see no occasion for having them here or offer than being here.

    As I said before Your Honor —

    Hugo L. Black:

    (Inaudible) might have some bearing on the fact as I understood either statement was made that if you should win, your argument plainly had a decree you seek that the Upper Basin would be tied to that so that might not be able to keep for its own use as much as the 7,500,000 acre-feet.

    Mark Wilmer:

    Your Honor, I am sure that perhaps Mr. Ely did not mean to make the statement he did when he said that the 75, excuse me, that he said that the 75,000,000 of 3 (d) water included Mexico.

    I’m sure he did not mean to make that statement because —

    Hugo L. Black:

    Of course Mexico is a different situation.

    Mark Wilmer:

    That —

    Hugo L. Black:

    No controversy, it’s never been in the controversy in the Compact anywhere else as to the Upper Basin and the Lower Basin derived being subordinated to carrying out and to (Inaudible) Mexico.

    Mark Wilmer:

    I think there could be no question of what the treaty must be carried out.

    Hugo L. Black:

    But I’m — I’m saying now that if it should be diminished by what you add and the decree should be written in such way that the Upper Basin is denied its 7,500,000 eliminating all of that Mexico with anything your argument you’ll make required a decree to be written which wouldn’t do that in —

    Mark Wilmer:

    No.

    Hugo L. Black:

    — the Upper Basin.

    Mark Wilmer:

    No, we’d have no right to ask that Your Honor.

    Hugo L. Black:

    It’s your idea that if you would win on your basis the decree which was molded according to your argument would still lead the Upper Basin at all time so that it did not either temporarily or permanently, unless by reasonable negligence, have its the usable water for use below 7,500,000 acre-feet.

    Mark Wilmer:

    Obviously, there’s no question Your Honor unless they can hear one qualification.

    Unless under the Compact as agreed to, that result followed and I mean by that merely their obligation under 3 (d).

    In other words, this Court, I do not think would attempt to either interpret or modify the Compact and the Compact fairly requires that the Upper Basin must and they were on an average 75,000,000 over a 10-year period.

    So that I would qualify my answer only in the summary, that nothing which we have urged on the Court, nothing which we would suggest in the decree this Court enter could in any fashion enlarge or lessen the obligation of the Upper Basin.

    My answer to Your Honor is quick but fair.

    Hugo L. Black:

    I understand.

    Mark Wilmer:

    The provision I might simply note in passing of 3 (c) which is a Mexican treaty application is that if such surplus which is a surplus above (a) and (b) shall prove insufficient for this purpose, then the burden of such deficiency shall be equally borne by the Upper and Lower Basin and whenever necessary, the States of the Upper Division shall deliver at Lee Ferry water to supply a one-half of the deficiency so recognized in addition — in addition to that provided in Paragraph (d).

    Mark Wilmer:

    Now Paragraph (d) is a paragraph which provide for 75,000,000 on a 10-year average.

    And therefore, the Mexican water is not included within the 75,000,000 because it shall be in addition to that required by Paragraph (d).

    Now, the following is an amendment printed, get myself cleared.

    The other Waterman amendment following that is Section 4 (a).

    In other words, we have now progressed with the Section 5 amendment through the first Section of the 70th Congress which has resulted in an amendment restricting California by a limitation upon the Secretary’s power to contract that ends our treatment of 4 (d) and 4 (a) Section 5 at this moment.

    We have started now in the first session of the 70th Congress with the Section 5 out of Committee with a limitation upon the Secretary’s right to contract limited to 4,600,000.

    With that 4,600,000, you mean all water below Lee Ferry?

    Mark Wilmer:

    That is our belief, Your Honor, yes.

    Not below Lake Mead?

    Mark Wilmer:

    No.

    No it’s — it’s the water in Lake Mead and because the only place he could contract under the Project Act Your Honor.

    Insofar as the limitation is concerned, the point you’ve arrived, there’s no distinction between — there’s no diminution of the California limitation or the California rights to back the fact that the water between Lake Mead (Inaudible).

    Mark Wilmer:

    (Inaudible) it confines California’s rights to water below Lee Ferry and in Lake Mead.

    I would say the Secretary’s rights to contract are with respect to water which he is to store under the Project Act because that’s safe.

    (Inaudible) the limitation with respect of Lake Mead and all water in the mainstream below —

    Mark Wilmer:

    Lee Ferry and in Lake Mead, yes.

    Well that’s the question.

    Mark Wilmer:

    Well, the water in — below Lee Ferry Your Honor has got to go to Lake Mead, that we think it’s committed to Lake Mead, we think it is tied to Lake Mead, that it’s dedicated to Lake Mead and we think that it is, in effect, in Lake Mead because hydrologically it must go there.

    (Inaudible)