Arizona v. California – Oral Argument – January 08, 1962 (Part 2)

Media for Arizona v. California

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

del

Mr. Attorney General:

May it please the Court.

Priority matter, I am reminded, however, that two or three points perhaps I better dispose off before I go on.

The first, I have used throughout this discussion two terms that I have should have define at the beginning.

I’m not sure a definition is needed the course of acre-foot as the name implies as a cognitive order covering one acre or one foot deep.

The other expression that I used and we’re all used is beneficial consumptive use.

That’s a term found on the Colorado River Compact.

It is repeated as consumptive use in the Boulder Canyon Project Act.

The Master defines it correctly, we feel as the quantity diverted, less of quantity that returns to the stream.

(Inaudible)

Mr. Attorney General:

Pardon me.

(Inaudible)

Mr. Attorney General:

That is now agreed among all parties.

Initially, it was an issue of great importance and how beneficial consumptive use should be measured.

May I have my (Inaudible) please.

Mr. Attorney General:

It was — of importance because at that time, Arizona was ascertain alleged interpleading that the question of what Arizona was charged with under the Compact and under the 3,100,000 acre-feet that the other States could claim against this under the limitation was effective by the magnitude of the uses on the Gila River.

We agree with that, so she is, but Arizona at that time contented that are uses on the Gila should not be measured by the quantity diverted unless a quantity return to the stream but should instead be measured by the much lesser amount by which those uses depleted the flow of the Colorado River to Mexican boundary.

Now, a difference — not to dwell on it, the difference is that in that state of nature, part of the water that Arizona diverts in Phoenix area but never reach Mexico because it would have been burned out by evaporation.

The Master decides that under the Compact and under the Project Act both consumptive use means the quantity use measured at the site of use which we contend diversions less returns to the river.

Now, the figure of 2,000,00 acre-feet that I’ve used repeatedly with respect to the quantities of the uses on the tributaries, I do not represent to you, it was given the finding by the Master’s is not.

It is a figure which is the quantity developed by from two sources.

One, the Arizona pleadings, the other is the California proof.

Arizona alleged that measured by depletion, the uses on the Gila were about 1,000,000 acre-feet measured by diversions less return.

There were approximately 1,0000,000 more than that or about 2,000,000 or a proof developed that the safe annual deal, the dependable supply of a Gila River fully use now in Arizona is of Nevada — New Mexico is of the order of 1,750,000 acre-feet, and the uses on the other tributary are about 200,000.

Those are our figures.

They’re not the Master’s but they are supported by the Arizona pleadings.

Now, I have repeatedly refer to —

(Inaudible)

Mr. Attorney General:

Yes, Your Honor if — if the Project Act the limitation uses the expression Article 3 — paragraph (a) of Article 3 compact as truly meaning what the compact means as a Master founds, the mainstream plus tributaries.

Then the uses on the tributary is our accountable against this 7,500,000 3 (a) water which the Lower Basin may claim and we can claim only 5,500,000 out of the — out of the Red River, the mainstream.

If they figure was not 2,000,000, but 1,000,000 or 1,500,000, it would by just that quantity effect the residue of 3a water that we could claim out of the main river.

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 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

del

Mr. Attorney General:

Also another point that I should have made clear I — I try to but it is the distinction between consumptive use.

The figure I just that — phrase I just used, and the flow of the stream.

Now, the Master did that in the quotation that I read to you supply, Article III (d) cannot be correlative with III (a).

The flow of the stream at a given point that has — is not — has nothing to do with the quantity of beneficial consumptive use.

It’s a little bit the different stream gross income and net income.

7,500,000 acre-feet flowing at Lee Ferry that flow the resource will not sustain 7,500,000 acre-feet of consumptive use diversions less returns at any point down stream because our losses between Lee Ferry and point of diversion.

And moreover, the quantity that returns to the stream after it’s diverted is credit against that diversion, and arriving that the net consumptive use.

As a matter of fact the water that inevitably reaches Mexico and the form of return flow from the American projects, nothing you could do about it.

That’s a great part of the source from Mexico is deducted from a total diverted in the United States to arrive at the beneficial consumptive use.

Another point that has been mentioned here about Upper Basin depletions, Upper Basin expansion, I should be — to make it very clear.

The Master declined to let us entered this evidence on that point.

When the — we first discovered from his report that he regarded the rate of Upper Basin depletions as a material, as relevant that there was no possibility of shortage under his formula because there is nothing to show how rapidly the Upper Basin were developed.

We ask Lee to present evidence upon that.

The only evidence we had offered or referred during the trial he’d excluded and he declined to permit the trial of reopen to take testimony upon that.

(Inaudible)

Mr. Attorney General:

Well, the relevance we saw in it was simply to answer his assertion of impossibility of shortage that his formula should not be measured by its effect because the effect we saw was based upon the enforcement of the compact and there’s no likelihood the compact ever be enforced, nothing to show the Upper Basin every use so much water.

In other words, if the point he made against this is relevant that there’s no possibility of shortage because the compact never be enforced, we thought it relevant, have an opportunity to rebut that by in the form of the chart that I showed you a few minutes ago that the Upper Basin can expand at all —

(Inaudible)

Mr. Attorney General:

— without an — pardon.

(Inaudible)

Mr. Attorney General:

No.

No, he do that from a senate committee report that —

(Inaudible)

Mr. Attorney General:

Pardon me?

(Inaudible)

Mr. Attorney General:

Yes, yes, Your Honor, but one written with respect to legislation long since (Inaudible), a projection of Upper Basin expansion which is obsolete.

And he refused to receive evidence upon the current expectations, the current estimates that are on the same categories to report you’re relied upon.

(Inaudible)

Mr. Attorney General:

He didn’t —

(Inaudible)

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 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

del

Mr. Attorney General:

I think the way I read it for, he excluded it because he had — he was in fact making a finding on that.

He didn’t call of that but there’s nothing to show that for the foreseeable — the unforeseeable future, their uses never rise about 4,800,00 acre-feet.

Well, even if that resolved.

The figures I showed you on the chart, (Inaudible) the chart please.

The figures I showed on the chart little while ago to make it clear that if they got up to 4,800,000 acre-feet, they have to invoke this compact sidings upon us.

They have available — they have available total, one of the most optimistic estimate of water supply 5,200,000 and 3,100,000 more estimates.

At the beginning, Mr. Justice Douglas asked Attorney General Mosk the question on the proportion of in-base and an out-base and use in the California, the total quantity of water that we divert in California to points of views where it cannot return to the stream amounts to something like 90% of a total that California would divert for all of our projects.

The reason for that is that the — may have the may (Inaudible).

The reason for that is that the Great California projects are the Metropolitan Water Districts Colorado River Aqueduct and the All-American Canal, a Metropolitan Aqueduct takes water to the coastal plain of Southern California and Metropolitan cannot return to the Colorado River.

The Imperial Valley and the Coachella Valley are the large part below sea level.

They are — by some definitions within the Colorado River Basin because the Colorado has flowed into them, we do so again if not to kept out, but they — it has been kept out successfully for half century or more and if the your — the water taking into those valleys of course cannot return to river.

So that — the literal answer to your question Mr. Justice Douglas is about 90%.

(Inaudible)

William O. Douglas:

Last year, by sending it — make that relevant at all that you —

Mr. Attorney General:

No.

William O. Douglas:

— I didn’t find it though.

Mr. Attorney General:

No, I don’t think so, and I don’t think it should have.

As I started to — to say earlier, this — with respect to the priority a problem, if it were not through the Compact or the Project Act or the Limitation Act, it’s only unquestionable that the — the controlling rule here would be the equitable apportionment rule of which priority of appropriation is primary element, protection of existing uses a second.

There are other factors but those two, of course, we think controlling.

Now, what the Master has done with respect to River Basin as a Lower Basin as a whole is this.

He has applied the rule of equitable apportionment on the Gila River system.

The Gila as raises as you will note in Western New Mexico, flows clear across to Arizona and into the main river near Yuma.

He says, “There is no compact between New Mexico and Arizona.”

The Boulder Canyon Project Act is not effect raised between two States.

He applies the rule of equitable apportionment.

Priorities are enforced except existing uses in New Mexico and existing economies, although based on junior uses is not to be destroyed.

He makes an excellent exposition, a quotation of the rule of equitable apportionment at page 316 and again at page 326 to 328.

I won’t stop to agree with them.

Now, he applies also the rule of priority of a proportion, equitable apportionment between the users on the — from the main river, mainstreams as he calls, the red area and users who may divert above the Lake Mead.

That is to say the California projects that are required a pro-rate denied the priorities as against a competing Arizona project right across the river from them may nevertheless enforce those same priorities even though derive, the water right maybe derive entirely from a contract of United States against a new diverter above Lake Mead, and note what that means.

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 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

del

Mr. Attorney General:

If Arizona, he elects to build a Central Arizona project by diversions from Bridge Canyon or Marble Canyon shown in — by the blue doted lines on the map behind me.

Then California may — by the express language in the report, bring a new action, I suppose in this Court to enjoin that diversion because it is junior to our projects and because it is specifically outside the scope of this decree.

Our priorities are intact against that diversion above Lake Mead.

But if Arizona elects to build the Central Arizona project by the diversion shown in the red, which would take off from Parker Dam near the Bill Williams River, then that diversion is to then the Arizona apportionment made by the decree and it then the shortage will prorate against it.

He applies the — he — he retains the doctrine of priority of appropriation with respect to what he calls present perfected rights even interstate.

By that he means, he says, “The quantity of water which a project had in fact put to use on the effective date of the Project Act and the Compact, June 25, 1929.”

The quantity of water which have been put to use up to that date is a “present perfected right,“ and it’s priority intestate is protected.

If there is not enough water to satisfy the present perfected rights, the appropriative rights based on state law in Arizona, California and Nevada, priority of appropriation control strictly.

The junior is yield, the seniors are protected.

Hugo L. Black:

May ask you a question —

Mr. Attorney General:

Yes sir.

Hugo L. Black:

— that referred several times to this.

The California existing (Inaudible) its capacity —

Mr. Attorney General:

Yes sir.

Hugo L. Black:

Are you referring that to the capacity of equipment that (Inaudible) of appropriation in (Inaudible) 1929?

Mr. Attorney General:

By capacity of approximate 5,400,000 acre-feet, I mean the present existing capacity.

The capacity of our work —

Hugo L. Black:

At this time?

Mr. Attorney General:

At this time, yes sir.

Yes, You Honor.

There are — are —

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

Pardon me.

Hugo L. Black:

How much is that if you recall (Inaudible) existence 1929?

Mr. Attorney General:

Yes, sir.

The capacity in existence in 1929 by our propose findings conclusion, not the Master’s figure but ours, it was about 3,700,000 acre-feet.

And we had in fact put to use applied through those works about 3,300,000 acre-feet prior to 1929.

As of the same date, Arizona had put to use about 250,000 acre-feet in 1929 and Nevada nothing.

Consequently, we’re dealing here with an allocation which — which text projects in two categories.

One, the uses which had in fact been made prior to the construction of Hoover Dam without the assistance of storage, that figure is to be determine says the Master in supplementary proceedings after this decree.

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 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

del

Mr. Attorney General:

If we cannot agree upon it, then we bring — come back to court and have to determine.

The definition he gives, however, is quantity in fact use prior to 1929, not the capacity of the works in but the quantity in fact used.

Now, the quantity in fact used in 1929, the Arizona pleadings concede California was used in approximately 3,000,000 acre-feet, 2,900,000, we say somewhat more 3,300,000.

Arizona does not claim of use prior the storage, construction of storage more than 250,000.

Now, this produces, if I may just a moment, some very resting comparisons upon what’s done — what’s done with the allocation of the benefits of Hoover Dams storage?S

ubtract these quantities I have given you.3,000,000 for California, from — even 4,400,000 for California and you discover that about a third of the water we can get is made available by the construction of the Hoover Dam.

If we’re limited by the compact to the 6,500,000 from the main river and we get 4470 feet of it or 3,800,000 acre-feet, then the net advantage we have got out of the construction of Hoover Dam is something less than 300 — then 800,000 acre-feet perhaps, a 500,000.

By contrast, Arizona which was use in, perhaps, 250,000 before Hoover Dam was built would get out of the same 6,500,000 acre-feet about 2,400,000 or about 2,000,000 acre-feet of the benefits storage.

The benefits of storage are allocated between the States in such fashion that virtually all of the incremental new water made available by the construction of Hoover Dam goes to Arizona and Nevada and in minimum of it to California.

But the effect of the Master’s formula, is that if — in event of shortage, if there isn’t 7,500,000 acre-feet for these three States, California bears 44/75ths or 59% of that shortage.

Out of 6,500,000 acre-feet that the river may make available to the Lower Basin, we’re in fact to allocate it about 20% of the new storage water, 20%, and Arizona, Nevada about 80%.But if there is shortage, we bear 59% of that shortage.

Now that is the effect of enforcement of proration, a proration under a formula which treats our present perfected rights but exactly the same way as a paper appropriation on the new state within the quantities and uses as nominator and denominator of this fraction.

While he respects present perfected rights as a floor beyond law which we cannot go when it comes to wait in them, to wait in them in the proration, he picks in exactly so their paper appropriations.

It’s a little bit —

Hugo L. Black:

You mean —

Mr. Attorney General:

Pardon.

Hugo L. Black:

— after 1929

Mr. Attorney General:

No.

Hugo L. Black:

He goes the line, does it?

Mr. Attorney General:

No.

What I’m trying to say is this Mr. Justice Black that if there is less than 7,500,000 acre-feet, we take the figure 6,500,000.

We’re going to get 44/75ths of that or 3,800,000.

It makes no difference to him that of that 3,800,000, 3,000,000 or more was present perfected rights that we have before a storage was constructed, and it makes no difference to him that out of the 2,400,000 Arizona would get practically all of it is new storage water because she had perfected uses of only 250,000.

Potter Stewart:

Is this 250,000 mainstream water?

Mr. Attorney General:

Yes, yes sir.

Potter Stewart:

This doesn’t count the Gila?

Mr. Attorney General:

Oh you’re right for uses on the tributaries.

The Gila was fully appropriated in 1929 and virtue of the use, we find there are now existed down.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

No.

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 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

del

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

No, no You Honor.

Throughout my discussion at this moment, I have used his — his time in 1929, no sir.

We do not — what I’m talking about here is phraseology, yes sir.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes, no.

You note that the effect of what he says, the protection he purports to give present perfected right simply means this, “No state is going to be deprived to the water for present perfected rights that as it uses as of 1929 but add them up.”

We claim or we’re using the — perhaps 3,300,000, the Arizona 250,000 and Nevada nothing.

He gives the Indians a present perfected right as of the date of creation of the reservation whether they ever used a drop to this day or not.

If you add those in, that’s 600,000 for Arizona but you still have a figure that’s less than 4,000,000 acre-feet for all the present perfected rights in all three States from the main river.

Now, if that so, the protection for present perfected rights is an illusion because under nobody’s estimate is the water supply a projected to a figure down to 4,000,000 acre-feet.

What we complain about is having given us the point.

The present perfected rights were not to be destroyed.

He then puts him into an equation on proration with precisely the same effect as it paper appropriation or project, nobody heard any yet.

A little bit as all we — yes, you’re deciding what to do whether in solving the state and they had stocks and bonds to deal with and you announced it this State is going to be disposed off in such a way that the bonds are going to get paid.

That’s the present perfected rights and it’s a very good announcement.

But in the second paragraph, you say that the total assets that have gone of the State are going to be distributed in proportion of the total amount of securities held by each creditor.

And it turns out therefore that you’re giving exactly the same weight to a common stock or debenture that you do to a first mortgage bond.

That’s what he does to present perfected rights here.

The fact that out of California’s 4,400,000 over 3,000,000 is present perfected rights and only a marginal part of its total, it doesn’t effect even the slightest.

In event of shortage, in event of shortage, we assure that shortage 44/75ths although the storage made possible on the portion of that 4,400,000.

But to go on, what he does with the doctrine of priority of appropriation, priority of appropriation often continuous to apply intrastate, intrastate between competing projects within Arizona, between competing projects on the California side of the line.

It stops its state line accept for present perfected rights, except for claims against the diverters above Hoover Dam.

And furthermore and this is significant, furthermore, these priorities are protected intrastate and against users above Hoover Dam even though they are generated by federal water delivery contracts and have nothing to do with any appropriation ever made under state law.

Consequently, the issue of whether — the issue of whether priority survived interstate does not depend upon whether the water right asserted is derived from an appropriation made under the laws of the state or whether it is generated by a contract made with the United States because contract generated rights are protected as to their priorities against other rights within the same state.

Contract generator priorities are protected against users above Hoover Dam.

It is only when they’re in conflict, this conflict between two users on opposite side of the river glaring to each other, each with the contract, reach without a contract that you get into the question of proration.

This creates some very curious hybrid results.

He says specifically that the limitation did not cut off California’s rights against the substantial tributary employee calls above Lake Mead.

Nothing on our contracts does that and nothing in the Limitation Act raised those priorities.

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 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

del

Mr. Attorney General:

We’ll visualize if you will then a suit by California against a new diversion above Lake Mead.

Central Arizona project decides to build there.

The issue is tried on a basis of priorities.

We prevail that Headgate had shutdown.

The water must come down into Lake Mead.

What happens to it?

It commingles, he says with the waters in the lake may be released only under the Secretary’s contracts and that — that having happen, it comes up pro rata.

So having one in our case against the junior diversion above Lake Mead, we get to keep 44/75ths of the water we want and Arizona takes 2875ths of it even though for the benefit of a project in Arizona below Hoover Dam junior to the one we’ve just deputed in this hypothetical suit.

Take the Bill Williams River, little stream that comes in at — just above the point where this lower Central Arizona project diversion will take off.

It’s not a big stream but it contributes more water than Utah and New Mexico, have claimed or have used out of the whole Colorado River System.

If their claims are de minimis and so as it has some vice versa.

William O. Douglas:

Where does it rise, in Arizona?

Mr. Attorney General:

It rises in Arizona, yes sir.

Now, that stream, he treats as so it came into the river above Lake Mead.

He says its de minimis of Congress apparently overlook it and intended to treat that as stored water, it’s control by this water contracts even though the contracts call for water released from Lake Mead and even though Bill Williams River comes in below.

Well, you imagine the water uses on the Bill Williams River.

If they use the water before it gets into the mainstream, its tributaries not chargeable of Arizona’s 2,800,000.

If they don’t, it reaches the main river then it is chargeable or by diversions from the Central Arizona project below the Bill Williams.

Now, the Master’s report in other words, it projects a hybrid system of water rights, never before seen in the jurisprudence of this country.

Let me come to the basic — the basic difference between the priority and the proration rule.

May I have the map proceedings?

William O. Douglas:

What was the date of the Colorado River Aqueduct, when was that finished?

Mr. Attorney General:

It ran into service in 1941.

It commenced in 1932.

Potter Stewart:

All-American Canal though?

Mr. Attorney General:

In the same year of 1941.

It commenced in 1932 and 1933.

Potter Stewart:

And the — is the All-American — the All-American Canal, the canal that runs east and west, is it also include the law extended —

Mr. Attorney General:

Yes, that matters yes.

Potter Stewart:

— Northwest to Southeast (Voice Overlap) —

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 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

del

Mr. Attorney General:

I should have explained.

Now, Let me have (Voice Overlap) —

Potter Stewart:

(Voice Overlap)

Mr. Attorney General:

The all-American canal takes off that Imperial Dam that parallels the river to a point just above the Mexican boundary turns west and that carries water into the Imperial and Coachella Valleys, the point.

There’s a — the division point, the junction that you referred to is that of the Coachella branch which takes water around the Salton Sea depression and into the Coachella Valley, the Coachella Valley being to the North and West of Imperial Valley.

The — this whole area is below sea level.

The water is taken by gravity.

The valley extends into Mexico.

It’s called the Mexicali Valley and before the construction of Hoover Dam, the river when it could broke through into this area instead of the sea.

Potter Stewart:

We call the — it’s caused the Salton Sea, isn’t it?

Mr. Attorney General:

That is correct sir.

They break at the river in 1905.

William J. Brennan, Jr.:

Well, on this might be —

(Inaudible)

Mr. Attorney General:

That is — that is correct sir.

The Coachella branches a long branch of 120 miles.

William O. Douglas:

Is there any finding — this may not have been relevant.

I noticed in some account recently about a complaint of the Mexican Government on the saltation of the river.

Is there any reference in this report to the problem of saltation?

Mr. Attorney General:

Very little.

It was litigated.

A lot of evidence went in on it.

The problem in a nutshell is simply this that the river carries a lot of salt, about a ton of salt for acre-foot of water.

A farmer who applies for a ton of the four acre-feet of water to 168-acre farm is adding 640 tons of salt per year to his farm.

He has to get rid of it.

That’s a lot of salt.

William O. Douglas:

Well, they have drainage (Voice Overlap) —

Mr. Attorney General:

They have drainage facilities that lich the water through the soil and take out the salt.

With the result that into the Salton Sea, there must go about a fifth of the water that’s diverted from the Colorado River to carry out this salt or agriculture sewage if you want to call it that, otherwise, the soil salts up and becomes outline and no good.

Now, what the — consequently, the water requirements of the Imperial Valley cannot be reckoned simply as the quantity of water that maybe burned up by the plant.

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 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

del

Mr. Attorney General:

You have to add through it the water you must necessarily waste out just human waste and sewage from the city to the sea.

That’s one reason why a consumptive use is reckoned as diversion is less returns.

If you don’t have returns, you have a project of the short line.

The — all of the California projects, I should’ve added response to the earlier question were originated long before 1929.

The Palo Verde project in 1877, the Metropolitan Water District of Colorado River Aqueduct by appropriations under state law in 1923 and 1924 and 1926, and actually some $2,000,000 have been spent on those — that project before the Project Act was passed.

Hugo L. Black:

Which project is that?

Mr. Attorney General:

The Colorado River Aqueduct of the Metropolitan Water District.

The Imperial Irrigation District, the Imperial Valley had been irrigated since 1901 under the state law appropriations made in the 1900s.

The Coachella Valley was included in those appropriations but the water did not reach it until the All-American Canal was built.

These were all very old — very old rights.

The Yuma project is — I should’ve mentioned, the Yuma project is a federal reclamation project that straddles the Colorado River.

The bigger portion is in Arizona.

There is small area in California that has been served by diversions in Colorado since about 1905.

Now, the question of salt that Mr. Justice Douglas raised which has recently been agitated by Mexico is simply this.

The drainage works have been constructed on Arizona side from the Wellton-Mohawk project whose name is not given here but it is in the cluster of dots shown on the map where on Yuma.

That carries very heavy salt — salty water back into the river at a point where it close in New Mexico and the Mexicans as result are getting water that have very bad quality.

And the Mexican Water Treaty of 1944 during ratification proceeding, this issue of quality of water was agitated.

And at that time, it was apparent that from the reports of the negotiators to the two countries that there is a wide difference on what they’re reporting.

The American negotiators say that Mexico had to take water of any quality.

The Mexican negotiator is reporting that wasn’t so.

They were entitled to the water of good quality.

The water they’re getting now they say is a very bad quality and they want something done about it.

And all you can do — all you can do when you’ve been encountered that kind of a problem that are force to improve the quality of the water is give more water of the less salt contents, whatever it result.

So the Mexican burden — the Mexican burden is one of the liabilities that is not fully probed in this litigation.

We know that the water reaching Mexico must exceed the treaty quantity of 500,000 acre-feet for the mechanical reason that you can’t — you can’t exactly control it.

You control it at Davis Dams on 150 to 200 miles upstream and you can’t meter — meter it out at Davis precisely to meet the demand 150 to 200 miles below.

And beside that, if Mexico prevails in improving and getting better water, we have to add too that often.

(Inaudible)

Mr. Attorney General:

The — yes.

The water is diverted into this Yuma — Wellton-Mohawk area at Imperial Dam and it’s — the drainage comes back in at a lower point for above Mexico.

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 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

del

Mr. Attorney General:

But I think the Imperial Valley which diverts over 3,000,00 acre-feet a year, that’s over 3,000,000 tons of salt and figure how many train loads will it take to haul it away, weren’t disposed of hydraulically in the Salton Sea and gets the idea of our necessity of having great return flow.

William J. Brennan, Jr.:

What is the difference?

Mr. Attorney General:

Well —

William J. Brennan, Jr.:

(Inaudible)

Mr. Attorney General:

Yes, sir.

It’s in the — all the waters of the Colorado River.

The river of this sort carries some natural salt but has its supply the irrigation in the Upper Basin and then successive projects below, it becomes saltier and saltier.

It takes salt out of the soils.

With the result by the time it reaches the lowest one abbreviation, it’s — it’s a very bad quality.

William J. Brennan, Jr.:

(Inaudible)

Mr. Attorney General:

That is correct sir.

Now, if I may have a (Inaudible) again, please.

Potter Stewart:

So this is a — for salt generic term chemically, is this mean this — is the salt, the same kind of salt that is in the sea that —

Mr. Attorney General:

Well, thank you Mr. Gindler.

I just mentioned the same point to me, no sir.

It means the — the sailing content, their magnesium salts, sodium salts, they are primarily chlorides but there are many other radicals involved and the type of salt that’s concerned also is vast important somewhere, not volatile as others are.

Potter Stewart:

So you’re not talking — this isn’t like sea water?

Mr. Attorney General:

No, it is not.

NaCl is not sodium chloride.

There are sodium chlorides in it but their magnesium chlorides and calcium chlorides.

William J. Brennan, Jr.:

(Inaudible)

Mr. Attorney General:

Salt in sea is the residue of Colorado River water that came in there and bygone centuries evaporated, left great salt that’s now has received new Colorado River water.

So its content reflects the accumulated salts of bygone archeological time as well as the present.

The Colorado River Compact and Boulder Canyon Project Act, the California Limitation Act, all came into existence against the background of the existence in the west as a way of life of the law priority of appropriation.

And this doctrine, you’re familiar with but the elements of it are that he who’s first in time is first in right.

William O. Douglas:

We had quite a problem with that in Nebraska, in North Platte River case.

Mr. Attorney General:

Yes sir.

That is correct.

That is correct as the doctrine of —

William O. Douglas:

And we didn’t follow — we didn’t follow it very strictly, did we?

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 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

del

Mr. Attorney General:

Well, you used the doctrine of equitable apportionment which we invites you to use here that it is modified to protect junior of uses whereof an existing economy is based upon, and the Master applies that as I’ve indicated on the — on the Gila River.

Now, the doctrine has several elements.

The first is he who was first in time is first in the right of priority of appropriation, and another element is a doctrine in relation back.

If you have initiated a right and pursued it with due diligence, then your right is measured, not by the quantity.

You in fact have put to use as of the given date, June 25, 1929 for example but by the quantity you ultimately have put to use with due diligence and that right relates back to the date of inception, the date of initiation.

That’s important because any municipality that doesn’t plan ahead 25 years for the protection of its people is that being badly planned.

Every aqueduct is built, not to their crimes of today only if it doesn’t, it obsolete tomorrow.

It is built for the requirements of the future.

And when that capacity is finally build up before use, the water right relates back in its entirety to the date of inception.

This doctrine as a — this Court has said in the Beaver Portland Cement case and the Gerlach case came into existence by a necessity.

In California, when the gold is discovered at about the same time, the miners discovered the necessity of the use of water, sometimes at a distance from the stream.

It had to be taken in flumes and the doctrine of priority of preemption with respect to mining of properties and with respect to the water necessary for their use developed simultaneously and put it very simply.

In the West, you don’t jump a mining claim and you don’t jump on appropriative right.

Having established by self-help, by appropriation, it is yours provided you continue to use that resource of diligence.

(Inaudible)

William O. Douglas:

Yes, sir.

(Inaudible)

William O. Douglas:

It’s still as — it’s still as a classic, Your Honor.

(Inaudible)

William O. Douglas:

Well — yes sir.

It will — will still the most comprehensive.

Look, I’m very sorry if we haven’t decided apportionship.

The map behind me, and you have a graphical, shows the relative humidity of the various states of the United States.

It is a map that the lines drawn through points of equal, annual precipitation.

And the — it is shown in three shadings.

The area in white is the area in which the doctrine of priority of appropriation has completely replaced the riparian law.

The dark — the area shown in light gray, the eastern part of United States is that in which the riparian law is still prevails.

And the two interiors of States shown in darker shading are those in which a mixture of riparian on appropriative rights prevails.

Now, the great distinction between the riparian doctrine of the English common law and the appropriative doctrine of the Western States and particularly the seven States now before is this.

Under the riparian rule, proration is a rule.

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 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

del

William O. Douglas:

It’s derived from the law of torts.

The law of river should flow as it’s accustomed of flow.

And well, you may consume it for domestic or stock watering purposes to a reasonable amount, we respect as your neighbors needs downstream, you can’t use irrigation that way.

You can have a pro rata share percentage.

Now, as the Western States were developed, as our civilization moved into dryer and dryer countries, as this Court has pointed out, that rule is found totally, totally unacceptable as the basis for the stability, the security of projects and investments.

Anyone investing great sums in a project had to know that it was not to be deluded water down by a later comer who might ask you to move over and prorate your supply.

The Master placed in his report, equates the term in the Project Act of permanent service with a necessity for stable, a firm water supply.

Now, in these seven — the heartland of the appropriation doctrine, the doctrine of priority of appropriation in relation back as distinct from proration happens to be the States now before you.

The Colorado River Basin has drawn here in this white area.

It is quite true that California does have restitutes of the riparian law and much to our, should grant and regret.

It has been a continuing headache with which the courts, the Legislature and finally the Constitution of California wrestle.

It does not involve the problem here.

There are no —

Potter Stewart:

Riparian involves the Colorado case?

Mr. Attorney General:

That is right.

Potter Stewart:

What — was there any ever — ever in law in saying that the upstream sovereign gets it?

I thought that was part of the riparian?

Mr. Attorney General:

That was the rule that Colorado contended for in Colorado versus Kansas, Wyoming versus Colorado that the upstream sovereign had a right to retain.

It’s not really riparian or appropriative in sort of a sovereign concept.

Potter Stewart:

It’s something else?

Mr. Attorney General:

Yes sir.

And that has been thoroughly upset throughout these Western States.

Every one of them has abrogated the rule of priority — rule of riparianism.

Every one of them within its domestic law has adapted the rule of priority of appropriation.

If this for one state involved here on both sides of the Colorado River, there’s only one rule that we apply priority of appropriation, unquestionably.

This Court applied priority across state lines on Wyoming versus Colorado.

Now, the beginning before of this century, development had come about on the Colorado River.

The developments of the Imperial Valley, I have spoken off, was a development of an area that could be readily water, expansion made possible by gravity irrigation but it’s also below sea level and threatened by floods.

So that early in this century, they developed the gradual consciousness of a need for flood control, a storage dam on the Colorado River.

By 1920, that had become an overpowering — overpowering dried.

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 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

del

Mr. Attorney General:

There was national consciousness of a need for flood control.

The Upper Basin States, Wyoming and Colorado, New Mexico and Utah were vastly disturbed about the possibility of the building of a great storage dam on the lower river.

The natural flow had long since it’s been appropriated.

If a dam was built which had its stored waters, that stored water too would be appropriated by this — in this lower country and if their projects came along later, junior projects, they would find themselves denied in water by the operation of the lower priority of appropriation.

The Colorado River Compact and consequently be visualized as a — as a price demanded by the four upper States for their political acquiescence in the construction of Hoover Dam or any dam in the Lower Basin.

And we may turn briefly to the provisions of the Compact the page — it starts at page 371.

You’ll find here the document that finally came out of these negotiations in November 1922.

This compact makes a division of the great Colorado River Basin into two parts, an Upper Basin and the Lower Basin divided by a point on the main river at Lee Ferry, which is in Northern Arizona.

The area draining into the stream above that or which can be used water from that area is called the Upper Basin.

I’ll pause there in a minute.

This means that Denver, which is outside the natural drainage basin, is within the Upper Basin as defined by the Compact.

It means in Los Angeles, which is outside the drainage basin of the Lower Basin is within the — the Lower Basin as so defined.

This reflects that philosophy of another element of the law of appropriation.

The riparian right could be used only by the user located on whose land was about in the stream.

That’s not adaptable to the needs of people for water in the west.

They’re located not along the streams but at a distance.

The law of appropriation permits the water to be taken from water — one water shed into another.

That is another great distinction between them.

The fact that the metropolitan area is outside the drainage basin, there’s wholly consistent with the law of priority of appropriation.

Denver is taking the water from outside the basin.

The Central Utah area will take water from outside the basin.

That is a necessity of life in the west.

The Compact reflects that.

The heart of a compact is Article III.

You have — you seen earlier today in this reprint Article III (a) which apportions to the Upper Basin and the Lower Basin, the waters of the Colorado River system.

It defines — it has already defined that Colorado River System has meeting the drainage area.

The Colorado River System in II (a) is defined as that portion of the Colorado River and its tributaries within the United States of America and its tributaries as a claim.

Article III (a) apportions from that same Colorado River System 7,500,000 acre-feet to the Upper Basin, to the lower.

Potter Stewart:

But then — if we didn’t so define it, Wyoming wouldn’t be in the picture at all, wouldn’t it?

Mr. Attorney General:

Wyoming has tributaries that —

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 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

del

Potter Stewart:

It has tributaries in those parts of the mainstream (Voice Overlap) —

Mr. Attorney General:

Exactly so, exactly.

That is true of Wyoming and it is true of New Mexico.

Neither of those States have any access to the main river.

You’re quite correct, Your Honor.

And I pause here to say the Boulder Canyon Project Act uses Colorado River and Colorado River System, Colorado River and its tributaries in general its interchangeable terms.

Everywhere — everywhere throughout the documents then describing is a system — a system compact, not a main river compact.

On Article III (b), it gives the Lower Basin the right to increase its use by 1,000,000 acre-feet per annum.

Well, if, however, in III (a) and III (b) through into one article, 8,500,000.

The reason seems to be — it seems to be that Article III (b) is not treated as a perpetual apportionment at all.

But if the Lower Basin has in fact used this 7,500,000 then it can put the added million acre-feet to use because of the problem encountered in Article III (c) of the next article.

Article III (c) provides that if we make a treaty with Mexico, Mexico is to be satisfied first out of the waters that are surplus to those specified in Articles III (a) and (b).

That is surplus to 16,000,000 acre-feet of consumptive use.

But if that surplus isn’t enough, then the two basins are to contribute equally to bear-in the deficiency.

Now, let me pause there to point out the significance of that.

If the tributaries are included as a compact so claim he says in the accounting, then, 2,000,000 acre-feet of useless in the Lower Basin tributaries are chargeable, accountable against the Lower Basin in deciding how to divide up this Mexican burden.

If a 2,000,000 acre-feet or Lower Basin tributaries didn’t exist, if you excluded them from the accounting, then the Upper Basin is in trouble because it must contribute at an earlier level than — than otherwise.

If we have 2,000,000 acre-feet of uses on the tributaries, that’s part of the resource which we’re accountable, then it is to the Upper Basin’s advantage of course to have those tributaries included in the accounting, and they were insistent upon it for 22 years.

That is why Arizona rejected the Colorado River Compact because the tributaries are so plainly included within its scope.

And if the Lower Basin is accountable to the Upper Basin for the fact that Arizona is getting the advantages out of the tributaries then he can be very sure that in any accounting between Arizona and California, which had the effect of restricting to 6,500,000 acre-feet what the States in combination will take out of the main river, Arizona was accountable for those same advantages, those same benefits.

And for that very reason, no part of this compact for 22 years, it’s because the tributaries were included.

Article III (d) provides that the States of the upper division, that’s Colorado and New Mexico, Utah and Wyoming will not deplete the flow at Lee Ferry below 75,000,000 acre-feet every 10 years, that has nothing at all to do with Article III (a).

Article III (a) encompasses the uses on the tributaries.

It deals in diversions less returns.

It has nothing to do with 75,000,000 acre flow or acre-feet of flow at a distant point Lee Ferry upstream on the main river.

Potter Stewart:

Is that — that’s what the Master says —

Mr. Attorney General:

That’s right.

Potter Stewart:

That’s what you say.

Mr. Attorney General:

That’s correct.

Potter Stewart:

Is there a unanimity about that?

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 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

del

Mr. Attorney General:

No, Arizona contends that the III (b) and III (a) as to remedies and moreover that III (b) can be claimed at Lee Ferry too.

Potter Stewart:

Yes.

Mr. Attorney General:

Article III (e), (f) and (g) are importance, with peripheral importance, the points I want to make here.

The heart of the — the heart a compact is this Article III and the heart of Article III is the deliberate decision to include the tributaries in the accounting.

Now, you could have written the compact obviously that they’re only Lee Ferry.

They didn’t do it.

They deliberately included the tributaries.

That’s in the Compact.

That’s in the document of which the Limitation, the California Limitation in the Section 4 (a) makes cause reference.

That is a point of which the Master’s says the Project Act made in inappropriate reference because the Limitation doesn’t include these tributaries.

Why did you say that the three tributaries, I didn’t know —

Mr. Attorney General:

I didn’t.

Excuse me, I did not hear you sir.

Why did you say that the three tributaries —

Mr. Attorney General:

At the Article II (a) of the Compact finds the Colorado River System to do so.

It’s in Article III, I thought you said (Voice Overlap) —

Mr. Attorney General:

No, it is define in two-way and the Master specifically interprets the Compact at the — to just as I described it as including the tributaries.

He says at page 142 and 23, “The limits established by the Compact on the acquisition of appropriative rights were applicable to the mainstream of the Colorado River and to its tributaries.

And at the later point, the plain words of the Compact permit only one interpretation on Article III (a), (b), (c), (f) and (g), deal with both the mainstream and the tributaries.”

And he says on page 143, “The various arguments of Arizona failed before this unmistakable language of the Compact.

The historical fact that the Upper Basin was primarily concerned with the mainstream will not nullify a language of the Compact that subjugates both mainstream and tributaries to its rule, nor is the argument persuasive that because some provisions deal only with the mainstream, all provisions are so limited.”

Now the — after the other States have verified in 1923, Arizona rejected it.

I say rejected advisedly because that is the word this Court uses in referring to it in decisions all come to later 283 U.S.

The reason Arizona refused to ratify the Compact is the précised one that the Compact include the tributaries specifically the Gila.

The other States in 1925 adopted the statutes which recognized a political fact of life that Arizona was not going to ratify the Compact that the Boulder Canyon project, if it was going to get built, it’s going to be authorized by a statute that it’s either going to accept six States as a membership of the Compact or not yet passed at all.

Consequently, the other States passed statutes that waived.

The requirement of seven ratifies and in fact converted the Colorado River Compact into a six state compact by reciprocal legislation.

When this came before the Congress, it resulted in the inclusion and the Project Act of the alternative provisions I have referred to in Section 4 (a), the reprint you have, which provide either for the required at the — as the condition proceeding one of two things, either seven States ratification in whichever that everybody is happy or failing that six state ratification and in that event, passage by California, this Limitation Act.

That was the alternative that went into the — into the Project Act.

Now, as a result of this language of Section 4 (a), California on March 4, 1929 passed two statutes.

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 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

del

Mr. Attorney General:

One was a statute that ratified the Colorado River Compact and the six States agreement all over again.

The other was in Limitation Act.

Both passed on March 4, 1929.

They have a very narrow and tight question statutory interpretation.

In the California statute that ratifies the Colorado River Compact as a six States agreement, the Compact has set forth, and the Limitation Act appears the same language, 4,400,000 acre-feet of the waters apportionment of the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact.

The narrow question is that the California Legislature in passing these two statutes on the same day used in one of them the expression Article III of the Colorado River Compact as encompassing the tributaries in which event we were assuming as against the Upper Basin the inclusion of the tributaries and the accounting which respect to the Mexican burden.

And on the same day, passed the statute that said with respect to Arizona exclude those tributaries, Article III (a) is inappropriate reference.

Now, that is a problem before the Court.

Does this language and the underscore, on reprint you have before you, we repeated in the Heichberger, the California Limitation Act mean it when it says 4,400,00 acre-feet of the waters apportioned of the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact?

If it does, it includes a system, the tributaries.

If it does then the 3,100,000 from which were precluded in — I include also Arizona’s uses all of those same tributaries.

If it doesn’t, as the Master believes, then that 3,100,000 we can’t take and be asserted against the Red River from Lake Mead below.

Yes, let’s get the — yes.

Potter Stewart:

(Inaudible).

Mr. Attorney General:

Not over in Oklahoma.

Now —

It’s clear I take it that what California was assigned to was to satisfy the requirements, addition or whatever you use to call it, this Project Act that it’s passed its Limitation Act.

Mr. Attorney General:

That is right.

Therefore, I would suppose that the crucial question is now what California was thought it was doing, but what Congress intended California to do?

Mr. Attorney General:

Well, we are quite content to meet the problem on either those basis.

The —

In terms — in terms with California is intended (Voice Overlap) —

Mr. Attorney General:

Well, that is true.

That is because our statute is the operating statute and the Master has plainly says with respect to the uses above Lake Mead and that is the tributaries to come in.

He says, “It is inconceivable that the California Legislature and the California Senators have voted for the bill intended to waive California’s priorities against this substantial tributary inflow.”

He looks to the intent of the California Legislature.

We do too, then we say it’s even more inconceivable that the California Legislature intended not only waive its priorities against the substantial tributary inflow above Lake Mead but to leave all of that resource out of the accounting and furthermore, to waive the same priorities against the projects across the river.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes.

Felix Frankfurter:

(Inaudible)

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 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

del

Mr. Attorney General:

Well it —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, I don’t recall that at all.

I don’t recall that at all.

So I said, it refer to meet the problem on the Basins being intended either of the — either the two suburbs.

But the point I want to emphasize is if this is an agreement, it is a statutory compact enacted by reciprocal legislation.

Statutory compact is what Arizona called in their briefs here on a previous occasion.

It’s a good expression point.

Take a look at the sort of language that’s used, at the bottom of the first page of this reprint in Italic.

The State of California is required by — act of its Legislature to do something.

What is it?

It shall agree irrevocably and unconditionally with the United States as an agreement and for the benefit of the States of Arizona, Colorado, Nevada and New Mexico, Utah and Wyoming, third-party beneficiaries.

As an expressed covenant, more contract language and in consideration of the passage of this Act that the aggregate annual consumptive use and so on shall be restricted.

Now, the problem is what is the statutory compact between these two sovereigns?

The Master believes that the underscored language on the second page starting with the item one has this effect that the California Legislature, when it passed the statute accepting this offer and that Congress is making the offer, intended that the word “compact” which appears three times in the last half dozen lines, 4,400,000 acre-feet of the waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact.

That time, the word “compact” doesn’t mean compact at all at shorthand, shorthand for 7,500,000 acre-feet in the Red River, Lake Mead to the Mexican body.

The second time it’s used plus not more than one half of any excess or surplus waters apportioned by it said compact.

That’s an inappropriate reference too.

That means shorthand for the Red River.

But, such users always to be subject to the terms of said compact.

The third time is used compact means compact.

This time, we mean the Colorado River Compact.

Well, this is an extraordinary piece of statutory construction.

It is repeal, wholly contrary to the whole purpose of the requirement of the limitation.

What was that purpose?

It’s written into the Act by Upper Basin Senators, fearful.

Now, the seven States compact would not come about a six States compact plus the Limitation had to be in substitute.

You cannot get the equivalent of a seven States compact by the device of a six States compact plus a Limitation Act that uses with respect to Limitation at entirely different body of water.

Why struggled?

Why struggled to include the tributaries in the Colorado River Compact with the protection of the Upper Basin if we’re going to exclude them in the one — in the whole Boulder Canyon project that worth counts most?

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 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

del

Mr. Attorney General:

Mainly, the situation where Arizona won’t ratify this Compact and you have to protect the Upper Basin by the best way you can.

Let me illustrate, in the bridge of the river from the Lake Mead to Lee Ferry, that is the blue area above the red.

At the time, the Project Act was under consideration, diversions were being planned both by Arizona and by California.

The Metropolitan Water District had under review four routes for its great project, a great aqueduct to the California coastal plain.

One of them would have taken off from Bridge Canyon then the gravity route.

(Inaudible)

Mr. Attorney General:

It is a feasible engineering and feasible route, right away problems of Arizona, of course our major problems.

But so far as the engineering is concerned, that is a quite a feasible route.

(Inaudible)

Mr. Attorney General:

Oh yes.

That is right, that is right.

(Inaudible)

Mr. Attorney General:

That is correct, yes sir.

But two Arizona Senators Cameroon (ph) and Ashurst both speeches to Senate in 1927 and 1928 said, “This is the place where the Colorado River aqueduct should diver, Bridge Canyon.

We don’t want any dam at Black Canyon inside the Hoover Dam at all.

We don’t want it.

We will go along with the dam at Bridge Canyon, which can divert for Los Angeles there.”

It was a possibility and it was not abandoned for many years, it avoids all pumping.

At the same time in Arizona, they have remained what it called the quarter filings were out giant project that divert in the same bridge of the river, the Grandfather of the Central Arizona project.

It is inconceivable that the Upper Basin Senators would have intended to redefine the Article III (a) of the Colorado River Compact so as to mean a Red River, Lake Mead to Mexico.

Nobody knew where Hoover Dam is going to be.

It might build it upstream with Black Canyon or Boulder Canyon.

The Compact talks about a damn in the Upper Basin for the benefit of the lower, meaning Glen Canyon Dam.

And you don’t — as I say, you avoid the whole purpose of the Colorado River Compact if you exclude the Gila River and the other tributaries.

Now, the Senators very carefully wrote into the Boulder Canyon Project Act in any number of places that the Colorado River Compact should control despite anything it might be said in this Act.

If you’ll turn to page 389, here, you’ll find Section 8 (a) of the Project Act, the United States, its permits, licensees and contractees, and all users and proprietors of water stored, diverted carrying and so on.

It shall be subject to in control by the Colorado River Compact and the construction management, operation and said reservoir canal, other works and so on.

And then the third line from the end, anything in this Act to the contrary not withstands in all permits, licenses, and contracts are so provide.

And in the 13 (b), the rights of the United States, they entered to two of the waters of the Colorado River and its tributaries also river claimed were required, as well as the rights of those claiming under the United states shall be subject to in control by said Colorado River Compact, the 13 (c) and 13 (d) for the same effect.

Now, it is inconceivable.

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 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

del

Mr. Attorney General:

It is inconceivable that it was intended in Congress in the one place where encountered most to redefine Article paragraph (a) of Article III of the Compact.

Specific articles of the Compact are referred to specifically in the Boulder Canyon project on a number of occasions, several times in the same Section 4 (a).

It refers to Article 11, Article 3 (a) and another paragraph refers to Article 3 (c).

It’s incredible draftsmanship to assume that in this one plate crucial place, Article III (a) doesn’t mean III (a) for something else.

Now also, respect to the function of the Limitation Act, just protection in the Lower Basin.

Arizona knew it was feasible that we were thinking about diversions of above Lake Mead for the Colorado River Aqueduct.

The two Arizona Senators were inviting us to do that.

It was a limitation assuming that to be written for Arizona’s benefit intended to exempt to California diversions above Lake Mead.

It is not an inviting piece of construction.

Actually, the bridge to the main river from the Lee Ferry to Lake Mead is one further that the whole length of the river from Lee Ferry to Mexico.

Now, the reasons that the Master gives for rejecting the language of Section 4 (a) of declining to give what the meaning that they agreed from the natural reading of the words is this.

He says that — pardon me.

He says that the debates indicate that the Senators were contemplating the division of 7,500,000 acre-feet from the mainstream, the main river.

That the second paragraph in Section 4 (a) provides authority for compact among Arizona, California and Nevada, which would only operated on the main river.

And that consequently, he must reject the literal language, the plain language of the Act and look to the debates.

Now, let us look first at the — at the language of what these Senators said.

The — it is quite true — it is quite true that in the debates on the Boulder Canyon Project Act, you’ll find considerable confusion but the confusion is this.

Some Senators whom a — special Master quotes, Senator Pittman in particular, Senator Hayden, unquestioned were talking on the assumption that the Article III (a), not the same thing as Article III (b), the flow at Lee Ferry.

The Master rejects that literal language of the debates like he rejects the literal language of the statute.

But all of this — all of this business of what was meant by Article III (a) was cleared up like a flash of lightning by author of the — of the limitation amendments.

Senator Phipps of Colorado after this debate had indicated, developing confusion as to what they meant by this limitation.

“What are you doing about the tributaries?

What are you doing about the Gila?”

This is a language with the Senator Phipps used.

It is in California as opening brief at pages 118 and 119.

What happen was that the Fifth Amendment which brought this limitation into being was before the Senate, Senator Phipps, was the Chairman of the Reporting Committee, the author of the amendment, spokesman of the Upper Basin has to perfected at the time he did so.

The language instead of saying paragraph (a) of Article III said simply the waters apportion to the Lower Basin.

Senator Phipps said this, “Referring to the Amendment which is now before the Senate in order to remove any possible misunderstanding regarding the 4,400,000 acre-feet of water, I had desired to perfect the amendment by inserting on page 3 line 4 after the word by, the words paragraph (a) of Article III of so that it will show that that allocation of water refers directly to the 7,500,000 acre-feet of water that are mentioned in paragraph 3.”

If you refer now to paragraph (a) of Article III of the Colorado River Compact, there’s only 7,500,000 acre-feet mentioned in the Article III, that is III (a).

He was making its specific but he was looking to that resource as the one to which the limitation.

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 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

del

Mr. Attorney General:

On California, it was applicable and hence, it is that resource against which the 3,100,000 acre-feet that were excluded.

Well, that (Voice Overlap) what the emphasis in reading that language on 7,500,000 or on 3,100,000?

Mr. Attorney General:

There’s only —

I see that it clears up the (Inaudible)

Mr. Attorney General:

Well if you look at Article — paragraph (a) of Article III, you look at Article III as a whole, there is only one 7,500,000 acre-feet —

That divides this whole on that, on both sides of the (Inaudible).

Mr. Attorney General:

There is no other 7,500,000 acre-feet mentioned in the Article III, Your Honor.

I realized that but I’m just wondering if you want to go (Inaudible).

Mr. Attorney General:

No.

Phipps said that earlier said that Arizona is entitled to have the Gila taken into account.

There’s no question in the world that Phipps was intending to rate in to the limitation.

The same function at the Upper Basin had insisted on writing into Article III of the Compact.

The Lower Basin tributaries have got to be included.

Here’s what Phipps said, earlier said, this is on page 121 of our opening brief — page 120.

He says at the top of page 121, “For years passed, at least some of the waters in the Gila River have come into the canal that is now supplying the Imperial Valley.

It is not a definite fixed pack that where the enactment of this proposed legislation.

The All-American Canal is going to be build within the period of 70 years.

As a matter of fact, it may not be rebuilt at all.

We do not know as to that.”

But I do not think that the water from the Gila River, one of the main tributaries of the Colorado, should be eliminated from consideration.

I think that California is entitled to have that account again as being a part of the basic supply of nature.

But in offering this protecting amendment, he wasn’t protecting our interest, he’s protecting his own.

You cannot get the result of the Colorado River Compact in protecting the Upper Basin against 3 (c) the obligation of New Mexico unless you charge the Lower Basin with the uses on the tributaries.

Now, the other reason the Master gives for rejecting the literal language of the first paragraph of Article — Section 4 (a) is the authorization for a tri-state compact found in the second paragraph, which is also in the reprint you have before you.

Here, the third of Arizona’s filibusters against the Boulder Canyon Project, the Swing-Johnson bill was terminated by an agreement of the Senate to accept Senator Hayden’s amendment that which is the second paragraph.

As originally drafted, it was a — it was a condition preceded like the first one provided that the statute, the Project Act should not take effect unless California would agree to this too, water for Arizona and Nevada.

As finally amended on a Senate floor, it was amended to make it wholly permissive.

Hugo L. Black:

Then the second paragraph of what?

Mr. Attorney General:

Section 4 (a), it is on the reprint before you on page 2.

It is in the — on the Master’s report —

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 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

del

(Inaudible)

Mr. Attorney General:

— under Project Act at a —

(Inaudible)

Mr. Attorney General:

Yes sir, commenced at the bottom of page 382.

Now, before getting to the substance of it, let me tell you what the Senate did with it before it passed it.

The — after considerable debate, Senator Pittman prevailed upon Senator Hayden to modify by making it wholly permissive.

And the — this was the language of the colloquy which brought that about.

The language of the second paragraph of Section 4 (a) was accepted as an amendment to the Project Act by Senator Johnson between the bill’s order and became a part of the bill upon the following representations, “colloquy.”

Mr. Johnson, “I want to make clear that this Amendment shall not be construed hereafter by any of the parties to it or any of the States as being the expression of the will or the demand or the request of the Congress of the United States.”

Mr. Pittman, “Exactly not.”

Mr. Johnson, “Very well then.”

Mr. Pittman, “It is not the request for Congress.”

Mr. Johnson, “I accept the Amendment then.”

No senator voiced any objection to that amendment.

Hugo L. Black:

What was meant by that?

Mr. Attorney General:

This was — Senator Pittman explained simply a consent in advance to a contract versus three Legislatures might then put in to effect by reciprocal legislation.

They’re about to be in recession.

If they choose to do so and their time would be save.

They wouldn’t have to sign a treaty and bring it back for ratification.

And he explained that was he’s only purpose to save time.

The Legislature might or might not accept this but if they did, time will be saved.

Hugo L. Black:

That was the division, was it not, (Inaudible) whether the Congress should (Inaudible)?

Mr. Attorney General:

Yes.

Senator Bratton made that point and the there was a– I won’t say a division, almost unanimity among the Senators who expressed themselves that the Congress could not divide or allocate the water at all, that it had to be by interstate compact and the question was a wisdom.

Senator Bratton said, “The spelling out to the state in advance and what they should do.”

Hugo L. Black:

Well, is that your position that they — they can not divide the river?

Mr. Attorney General:

Well —

Hugo L. Black:

— allocate it as they did in 4 (b)?

Mr. Attorney General:

They did not allocated in the 4 (a).

Hugo L. Black:

I thought (Inaudible) surplus, it could be divided in (Inaudible), would be not?

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 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

del

Mr. Attorney General:

In the second paragraph — in the second component of the limitation in Section 4 (a), they provided that California should limit theirselves to one half of the surplus.

By agreement of the California Legislature, the operating language is not that of Congress which says, “We do know here now divide the water.

If they had intended to do that, there is no necessity for requiring California’s Legislature to agree with.”

Hugo L. Black:

What about this position, these 300,000 acre-feet, thousand acre-feet above (Inaudible)?

Is that what you’re saying it’s not — it’s not mandatory?

Mr. Attorney General:

That is correct sir.

This was a — by plainly, this is as its — the introductory language says, “The States of Arizona, California and Nevada are authorized to enter into an agreement to do the following.

There is nothing compulsory about it.

It had been originally written as a condition.”

The action not effect unless California so agrees that was deleted on the Senate floor by Senator Hayden and the author after Senator Pittman had persuaded into, and then follow the colloquy between Pittman and Johnson.

This is not the request to the demand of the Congress at all.

Hugo L. Black:

And is it your position, the California is entitled for 4,400,00, under any of one these (Inaudible)?

Mr. Attorney General:

Not under — it’s not on the second paragraph that which I’m just referring at all, it’s wholly inoperative.

Under the first paragraph, we would be entitled under the law of appropriation to far more than 4,400,000 acre-feet are appropriations vastly exceeded that.

We are restricted to 4,400,000.

Let me make this clear.

We do not say that the first paragraph of Section 4 (a) is in a grant or a patent to California of anything.

It is the limitation, the Master is correct and so constraint.

It is a limitation upon California’s rights, which absence the limitation would be greater, would be greater under the law of equitable apportionment.

Our appropriations then in existence were greater and on any bases of estimate.

We were — could have taken from this river more than we can now take under the limitation.

The limitation cut us down.

Hugo L. Black:

Do you agree that California is bound by that limitation?

Mr. Attorney General:

Yes, we raised before we do, we raised the point, Your Honor that since it was exactly devoirs on the — if Arizona refused to ratify the Compact, then if Arizona is now construed to ratify as the Master said she did, 22 years after in 1944, then we should — we held to this limitation.

He says, “No, you’re bound by it” and we intend to carry out our obligations.

We — our Legislature enacted this.

We build our projects at the time it was enforced and we do not ask that — that it’d be — that it’d be lifted promise.

We do not welsh on it.

We asked that we be entitled to the — to take what they’re up to, what the limitation gave us and that the statutory compact be respected by the United States as it is by us.

But the second paragraph is wholly inoperative.

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 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

del

Mr. Attorney General:

This compact was never signed by any State, never ratified by any State.

It is a proposed — that is a proposed Compact that all three States want to know part of, Arizona alone, but the three of them passed an Act even before it even it ratified.

And that was in 1939 and she amended it, amended it in the vital particular of saying and in addition the Gila River before she’d pass it.

Now, the second paragraph, the Master feels should be used as a dictionary to construed the first paragraph.

If you look at the second paragraph, it is not a useful or valuable dictionary.

In the first place, it’s not operative, there is no such compact.

In the second place if hey — it has no water at all into California, not a drop, nothing for New Mexico, nothing for Utah.

It’s all efforts to amend this or tear it up seize when it was made permissive and who cared what it said, the Legislature didn’t have to take it.

But, if the first paragraph as the Master holds is just the limitation on California, then the second paragraph is just a limitation on Arizona and Nevada to gives them nothing, gives them nothing.

Now, the Master treats the references to 2,800,000 for Arizona and 300,000 for Nevada in the second paragraph as meaning, the Congress intended, the Congress intended that these two quantities in California’s 4,400,000 all have to be come out of the main river below Lake Mead, below Lake Mead, the Red River.

Now, if that so, this would have been one of the most curious compacts ever signed, ever ratified by anybody.

Can you imagine a compact that spelled out the implications the Master finds here?

Namely, that if Arizona diverts in the flung third of the main river from the Lee Ferry to Lake Mead, what she takes there shall not be charge against the 2,800,000 acre-feet under this hypothetical compact where she takes it below Lake Mead and (Inaudible).

She can take as much as she likes above no matter how much it diminishes a common resource but not to be charged with it.

And furthermore, how can you possibly reconcile — reconcile a divorce of the limitation from the compact in the teeth of the provisions of the Clause 6 of this proposed compact on page 3 of my reprint, that all the provisions are said price state agreement shall be subject in all particulars to the provisions of the Colorado River Compact.

Clause 7, said, agreement to take effect upon the ratification the Colorado River Compact by Arizona, California and Nevada.

Now, the Master says, the Master says in page 173 that I read at the beginning this morning that the Project Act in Section 4 (a) use a reference to paragraph (a) of Article III as shorthand, that his expression shorthand for 7,500,000 acre-feet in the main river, the Red River from Lake Mead to Mexico.

Now, these three Legislatures were authorized by the second paragraph to enter into a compact provided it was exactly as written in Heichberger here.

Is it sensible to say that not only it was Congress talking in shorthand in the first paragraph to the Legislature of California and California responded in shorthand?

But moreover, if these three States of Legislatures adopted the compact to the second paragraph, they’re supposed to be talking in shorthand in each other too by using a cryptogram.

When they say at paragraph (a) of Article III of the Compact, which by definition includes tributaries, all four sovereigns concerned, Congress, the three State Legislatures, all are presumed to be using that shorthand for something quite different.

It is a remark it will be at statutory construction.

The true — the true dictionary here isn’t the second paragraph of Section 4 (a) at all.It’s the Section 13 (b).

The rights of the United States, that’s at page 393 and 394.

The rights of the United States in or two waters of the Colorado River and its tributaries, and its tributaries, howsoever, claimed or acquired as well as the rights of those claiming under the United States shall be subject to in control by the said Colorado River Compact.

So much then for the limitation, the limitation issue has repairs and the legislative history of the Project Act.

Senator Phipps making as clear as a man could make it what they offer to California map.

What body of water he’s talking about?

The Master rejecting, rejecting the alternative interpretation that Senator Hayden and Senator Pittman gave.

It’ll maybe useful to site you the Master’s characterization of what they were saying.

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 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

del

Mr. Attorney General:

At pages 189 and 190 —

Hugo L. Black:

In your brief?

Mr. Attorney General:

No, excuse me of the Master’s report, at 189 excuse me, 189 and 190.

Here, the Master discussing the origin of the figures that were being quoted on the limitation.

The conference about provision of the Governors in 1927 had proposed a formula.

It was related to the division of the 3d water, the water of the Upper Basin let down at Lee Ferry.

The Master says after quoting the report from a remark from Senator Pittman, it was quoted from Governor’s recommendations.

He says, “This report by Senator Pittman did not adopt or perhaps fail the grass that portion of the Governor’s resolution which expressly found the source of the allocated waters in the Article III (d) obligation of the upper division, instead Senator Pittman related the limitation Article III (a), not III (d),” and he quotes Senator Pittman.

On page 190 near the top he said, “Thus Senator Pittman used Article III (a) to define this — the area against which the limitation was to operate.

He did this in apparent misunderstanding of the Governor’s recommendation.”

All subsequent discussion in the Senate flowed in the same channel.

Here, we’re dealing with the debate that the Master characterized were confused and he doesn’t — he does not adopt the interpretation that Pittman is giving namely that the III (a) equals III (d).

Having rejected it, there is not a single word in the legislative history, the Project Act to support the Master’s truncation of the Colorado River at Lake Mead.

True enough, you’ll find Senators who thought III (a) was the same thing as III (d).

True enough, you’ll find Senator Phipps rejecting and correcting that, III (a) means the tributaries.

You will not find one Senator, you’ll not find one word of support for the notion that the Senate of the United States intended to divide this river at Lake Mead, either Lee Ferry or include the tributaries but nobody said the Red River.

Now, the other element of the statutory compact that I want to emphasize is a priority feature.

The Master’s concept is at Section 5 of the Project Act, which is in the reprint before you, delegated to the Secretary of the Interior, the authority to “impose a federal apportionment,” on the States if they fail to enter into a compact, and that the Secretary by its water deliver contracts in later use did that.

The Master rejects Arizona’s contention that Section 4 (a) which we’ve just left creates a mandatory formula, a mandatory formula that the Secretary’s bounded putting into effect but the States didn’t accept it.

He rejects that completely.

He — in doing so, he relies upon the colloquy I’ve quoted.

He says, “I have rejected the contention of the second paragraph, in Section 4 (a) page on 202.”

The Act established a mandatory form and they’re governing them out of water, Arizona must receive.

He says at Section 5, “Authorize the Secretary of the Interior by in his discretion, in his discretion to place a formula in effect.”

And that by the contract as Secretary later made, he did that.

And at that the conflict of the contracts of the Secretary were — what I’ve described this morning namely proration, 44/75ths, 28/75ths, 375ths or whatever what was available.

Now, there is nothing in Section 5 which makes any such delegation of the Secretary of the Interior.

The record is replete with statements by Senators that the Congress did not have the power to divide the water, they — as replete with the assurances that we’re not delegating to the Secretary of the Interior.

Delegating to the Secretary of the Interior, the powers that they refused to exercise themselves.

Here, typical expression, Senator Bratton of New Mexico, they’re only two ways known to me through which titled the water of an interstate stream either for purposes of irrigation or development of power may be adjudicated.

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 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

del

Mr. Attorney General:

One is by a contract or agreement, the method sought to be followed in this case, and the others by a decree rendered in a suit instituted originally in the Supreme Court of the United States.”

Here’s Senator King, in the colloquy of Hayden, “If the Senator means by his statement,” as the King speaking, “That the Federal Government may go into a stream, whether it be the Colorado River, the Sacramento River or a river in the State of Montana and put its powerful hands down upon the stream and say, “This is mine.

I can build a dam there and allocate water to whom I please, regardless of other rights either suspended, inquorate or perfected.

Now, I deny the position which the Senator takes.”

And Senator Hayden said, “The amendment that I have offered contemplates no such possibility.”

That’s the second paragraph of Section 4 (a).

Hugo L. Black:

May I ask you that, (Inaudible) intended to do in violate Senator Kings (Inaudible)

Mr. Attorney General:

Yes.

Hugo L. Black:

Does that (Inaudible) to the fact that the Secretary was giving the right to make a contract that should be finding (Inaudible)?

Mr. Attorney General:

No Your Honor, in response to Senator King’s comment, one week later, he introduced what became Section 18 of the — of the Project Act.

And that says, “Nothing herein shall be construed as interfering with such rights as the States now have either to the waters within their borders or to adopt such policies and enact such laws as they’re may be necessary with respect to the appropriation, control, and use of waters within their borders except as modified by the Colorado River Compact through other interstate agreement.”

Now, that language, it was construed by this Court in the first of the Colorado River cases here 283 U.S. by Mr. Justice Brandeis as preserving to the States the rights of control of appropriations on their boundaries.

Arizona’s raise against California are not cut-off or perfected by the Project Act.

Hugo L. Black:

What you meant by this (Inaudible) in Section 5 (Inaudible) entitled to have a use.

(Inaudible).

Mr. Attorney General:

That language, Your Honor came into the Act as an amendment proposed by spokesman for the Upper Basin, Mr. Carpenter of Colorado.

And it is designed to require that no land may use waters of the Colorado River except by a contract which in turn shall contain the provisions required by 13 (b), (c) and (d) that it is subject to and in control by the Colorado River Compact.

That is no use in Arizona could escape the consequences of the Compact.

He had to get water by a contract.

The contract had to contain a compact — a compact term.

Here’s — here is Carpenter’s explanation.

Except by a contract made as herein stated means this, ”If the flow of the Colorado River is controlled and regulated by the constructions of Black Canyon Dam and any person of the State of Arizona attempt to take any water out of the stream, which has been discharged from the reservoir.

It’s been carried in the streambed as actual conduit but (Inaudible), this law would be brought into effect and he would prevented from using any of that water independent with Colorado River Compact but unencumbered by any other condition for the benefit of California and Nevada.”

In other words, a Compact does not disturb the right — does not disturb the rights between Arizona, California and Nevada intercedes to their fortune of the water.

The thought of this amendment is that any water stored in this reservoir, under the terms of the Compact when released through storage shall be burdened by the Compact wherever it goes.

As far as water is concerned, existing claims of the lower States are protected by the Compact and water must pass through this reservoir to take care of the person existing to lower claims.

As the future development from the river, we insist that water stored in this structure by the United States be stored and released upon the expressed condition that the persons who received their water shall respect and do so under the Compact.

It has nothing to do with the interstate relations between Arizona and California.

Hugo L. Black:

Your argument, I think —

Mr. Attorney General:

Yes.

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 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

del

Hugo L. Black:

Your argument with respect (Inaudible) having provided that all has been made existing rights at that time (Inaudible) observed then they had no rights that how the Secretary or did not did not invalid.

Mr. Attorney General:

Did not (Inaudible)

Hugo L. Black:

— to allocate and sell the water at he saw (Inaudible).

Mr. Attorney General:

That is right.

We do not reach the constitutional question, Arizona does.

She says, “Unless you take the — the Section 4 (a) as a mandatory formula, they’re not sufficient constitutional guides with the Secretary in Section 5.”

We say they are that that the guide is in the reclamation law, Section 8, the basic 19 to Reclamation Act.

That is a statute which controls stored water as well as — as well as a natural — use of natural flow.

And it is a statute that says that the right to the use of water acquired under the provisions of this Act as a reclamation law which the Project Act is a supplement, shall be appurtenant to the land irrigated and beneficial use shall be the basis, the measure and the limit of the right.

We say that the Section 5 contracts of the Secretary of the Interior simply initiate perforations under federal laws stored water and of the basis, the measure and the limit of the rights so acquired is a quantity of water, in fact put to use as it would be under a state law of corporation.

The Section 5 contracts to us are patents or grants.

They’re not a reversion to the riparian doctrine of — that you may have something that you can be a dog in a manger about you can keep.

It’s not related to use.

The right has measured by use and the priorities are preserved.

Now —

Hugo L. Black:

One more question.

Mr. Attorney General:

Yes sir.

Hugo L. Black:

Let assume how the Congress did say that should be divided to 4,400,000 (Inaudible) little 2,000,000 or whatever you have figure (Inaudible), 300,000 will be divided.

And then asking all the existing corporations (Inaudible).

Then you say the Act does not commit the Secretary to determine to whom he will sell that one over (Inaudible) delivered.

Mr. Attorney General:

If we —

Hugo L. Black:

Am I right Mr. Attorney General?

Mr. Attorney General:

If we accept this as premises, the statutes have said in so many words, the water is divided as follows among these three States.

And I would think it would follow that the Secretary would be — be so bound and that he would have to make his contracts conform to those three quantities, whether you call them limitations —

Hugo L. Black:

But he has the right —

Mr. Attorney General:

— when you call graphs.

Pardon?

Hugo L. Black:

But he has the right under the bill that you see, the power under the bill to determine to whom within the States have waters to grow or would that be a matter that would take (Inaudible) that he makes the contract (Inaudible) inside the State?

Mr. Attorney General:

Under the statute as it stands now.

Hugo L. Black:

Assuming that — assuming that which you do not assume that there has been a division among the States to (Inaudible).

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 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

del

Mr. Attorney General:

Made by Congress.

Hugo L. Black:

Yes.

Mr. Attorney General:

I would suppose, Your Honor depend on what the statute said is to with respect to that particular point, that the statute said the Secretary shall decide who gets intrastate so be it if the statute says the Secretary shall deliberate to those who qualify under the state law, so be it.

The Master adopts the latter interpretation of the Project Act.

The state law controls who gets it within the State.

Hugo L. Black:

That’s what I was —

Mr. Attorney General:

“You have to have both valid states right on the contract to get the water”, says the Master.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes, Your Honor.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, there —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

No, you’re substantially right.

In 23 U.S. Arizona suit turn to join the Colorado River Compact and the Boulder Canyon Project Act in place in effect.

And according of Mr. Justice Brandeis’ opinion, Arizona sought regrets against two ascertained wrongs.

The first was invasion over sovereignty by building the dam and now Hoover Dam, and the second was the threatened invasion of Arizona’s quasi-sovereign right to prohibit or to permit appropriation under risk laws of the inappropriate water of the Colorado River flowing within the State.

Now, with respect to the first, he held the dam could be built, with respect the second after defining the law of appropriation is, he went on to say, “The further claim is that mere existence of the Act, it will invade quasi-sovereign rights of Arizona by preventing the State in exercising its right to prohibit or permit under two laws, the appropriation and inappropriate of water and so on.”

Then, he quotes Section 18 of the Act —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

That is right.

As — and he goes on to conclude as we hold that the grant of authority to construct the dam and reservoirs of valid exercise of the congressional power that the Boulder Canyon Project Act does not purport to a bridge, the right of Arizona to make or permit additional and appropriations of water flowing within the State or on its boundaries and that there is now no threat by will or any of the defendant’s States to do any Act which will interfere with the enjoinment of any present or future appropriation.

We have no occasion to consider other questions which it has been argued.

The bill is —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Pardon me?

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well —

Felix Frankfurter:

I think though the — (Inaudible)

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 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

del

Mr. Attorney General:

Well, it goes on with the final sentence or he perhaps clarifies it.

He says, “The bill is dismissed without prejudice to an application for relief in case the stored water, the stored water is used in such a way as to interfere with the enjoinment by Arizona or those claiming under it of any rights already perfected or with the right of Arizona to make additional, legal appropriations and to enjoy the same.

Now, it’s —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well clearly, the account reconcile Judge Rikfkind’s holding that the Project Act did cut off the right of the appropriation when Justice Brandeis’ statement that Arizona could come back to this Court if the future uses stored water interfered with then perfected the appropriations to right to make further ones.

If Judge Rifkind is right, the answer in 283 U.S. to where Arizona was yes, you’re qualified now.

You can’t come back to complaint of appropriation being interfered with or any such things anymore.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

I can’t — I don’t have the qualification, I think he’s very careful in this.

Here’s what he says about Section 18.

What this Court says through Mr. Justice Brandeis at page 262 and 23 U.S., “The act does not purport to effect any legal right of the State or to limit in anyway the exercise of its legal right to appropriate any of the appropriated 9,000,000 acre-feet which made flow within on its borders.”

On the contrary, Section 18, specifically declares that nothing therein shall be construed as interfering with such rights as the States now have, either to the waters within their borders or to adopt such policies and act such laws as they may deem necessary, with respect to the appropriation control and use of water within their borders except as modified by the interstate agreement.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, it’s canvassed to say but —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Not the —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, he was dealing with issues and presented —

Felix Frankfurter:

I know but (Voice Overlap) —

Mr. Attorney General:

— and the Arizona —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

— right.

And —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, I recall sitting in this courtroom and hearing (Inaudible) argue that case for Arizona and the issue between Arizona and the Solicitor General is this precise one.

Did the Project Act, “in throne the Colorado River Compact?”

Did it as of that moment cut-off Arizona’s right to further appropriate?

Did it require Arizona to come to the Secretary had in-hand to get a contract, which should be a subject to the Colorado River Compact?

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 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

del

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, I shared your regret, 1954 Mr. Justice Frankfurter.

But the point that we have all argued about for this 39 years, the only reason we call about the means of the Colorado River Compact and the suit between Arizona and California is that it was relevant, it was relevant.

The Master says, “It isn’t.”

Then what we care what it means?

Why has Arizona been here four times on they joint their motion in which you denied California’s motion to joint these upper States?

A question was whether on Arizona’s three issues of interpretation of the Colorado River Compact, those absent States were indispensable parties, interpretations of the Compact.

The Court held that they weren’t.

And I supposed the law of these cases therefore that the Colorado River Compact can be construed here in the absence of those States because in three issues you then had before were compact issues, nothing else.

Now, the subsequent history in this — and in this Court doesn’t indicate that the Section 18 was found ambiguous or the 283 U.S. was found ambiguous.

As a matter fact, this Solicitor of Interior Department subsequently interpreted as just exactly as we have here in withdrawing regulations Interior Department were issued on the river.

Hugo L. Black:

Did the record show when California exceeded on its commitment by equipment or use of the water for 4,400,000 —

Mr. Attorney General:

Yes.

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

Yes, I believe so speaking from memory.

Arizona alleged in their complaint that we were then using about 4,500,000 in 1952 or 1953 and the last probably not far off, we —

Hugo L. Black:

Did it show that (Inaudible), that this has been a running pipe, as we all know for (Inaudible)?

Mr. Attorney General:

No, the California projects that are before you now are the same ones that would have been for it were described to the Court in the three previous cases, we have no new ones.

It’s quite true that the Colorado River Aqueduct, which is built-in with tunnels with full capacity, did not add the pumps, all its pumping equipment until later, it’s come on by status and some in fact added during the course of this trial.

But the eradicable decision to build the aqueduct full size and drive 80 miles of tunnels have made in 1932 to 1935.

So there’s been no increase in the sense of going into the river and building a new project.

Same is true to the All-American Canal.

The Coachella branch, it’s true that more land has been added under the Coachella branch of the Canal in recent years but this is all in accordance as what we described as the law of relation of act of reasonable diligence.

The project diversion capacities are as it where initially.

It just gradually flexed them up.

But the quantity of water in fact consumed in California as they close the trial was they ordered 4,600,000 acre-feet.

Hugo L. Black:

I do not understand this, all of the equipment and all of the project (Inaudible)

Mr. Attorney General:

No, sir.

They’re all initiated in a sense of appropriations made and project —

Hugo L. Black:

Appropriation (Inaudible)?

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 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

del

Mr. Attorney General:

Under the laws of the State of California, notice his file.

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

Well, these were notices of appropriation under which work has been done.

The Colorado River Aqueduct to the Metropolitan Water District had spent some $2,000,000 on this project before 1929, but the project was not in fact gone on a big scale until 1931 after — after the Project Act.

The Imperial Valley was served from 1901 by a Canal that squirted around through Mexico and back.

The All-American Canal project to authorize by the Board of Canyon Project Act was commenced, authorized in 1929, commenced 1931 or 1932.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes, sir.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

No, Arizona is —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

That’s correct, Your Honor and the six dates and the Secretary of the Interior.

The motion — that was the one case that was dismissed on motion, the other was moved for leave to file is not granted.

On the question of the power of the court to proceed to the interpretation of this Compact, I should refer you as a Special Master did on the joint motion to the Hinderlider case, Hinderlider versus La Plata River in Cherry Cheek Ditch Company 304 U.S. 92.

(Inaudible)

Mr. Attorney General:

That a compact — an interstate compact may be construed despite the fact that all of the sovereign parties do it or not before the Court.

(Inaudible)

Mr. Attorney General:

Well, the language from a decision was it has been suggested that this Court lacks jurisdiction to determine the validity in effect of the Compact because Colorado and New Mexico, the parties to it are not parties to this suit kind of we made so, the contentions unsound.

The cases were many, were entitled to land dependent upon the boundary between States have been passed upon by this Court upon reviewed of judgments of federal interstate courts and suits between quite the litigants.

(Inaudible)

Mr. Attorney General:

That is correct.

Hugo L. Black:

I assume that probably do you have a questionable judicial (Inaudible) and have a considerable weight thereafter deciding what should be done in connection with abatement.

If you assume in other words that what is to be done, might be done in such way that is a thing about a continuing existing demand to existing plants necessary (Inaudible), would it be rather inappropriate, would it not, to decide —

Mr. Attorney General:

Well —

Hugo L. Black:

— have that effect on the Upper Basin?

Mr. Attorney General:

Well the — the Master’s report opposes to remind that a very dilemma, Your Honor.

If there is no shortage now and no prospect of any foreseeable shortage until, “vesting projects to authorized, why are we here?

Nobody knows what those statutes would say.

If they say that they’re subject to the priorities of existing projects, will not destroy them, that’s one matter.

They say on the other hand that we take irrespective of the effect on existing projects such another.What he does say is that you should have your rights now determined as being pro rata of the quantity available.

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 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

del

Mr. Attorney General:

I reassure you this can’t hurt you very much because the Upper Basin isn’t going to develop.

We say that’s a wholly unsound premise.

If that premise were sound and this case shouldn’t be here, it’s not justiciable.

We say the Compact means what it says.

It’s glaring its right in the eye and it enforced as indeed it will have to be enforced if the Upper Basin expands at all, then we are subject to the disaster’s consequence, being cut back to 3,800,000 acre-feet.

Hugo L. Black:

That argument could be used the other way that (Inaudible) development in case, would it not that besides, let’s say, disaster condition might (Inaudible).

Mr. Attorney General:

I do not follow that, Your Honor.

If the —

Hugo L. Black:

What I meant was if — what is to be done here is (Inaudible) on the basis of water.

Mr. Attorney General:

Well, I —

Hugo L. Black:

You potentially use a reservation.

That was (Inaudible)?

Mr. Attorney General:

I think I totally — sir, no.

I assure you most honestly the reverse is true.

Nothing you do here with respect to the decision of the case of Arizona versus California to our mind is going to add to or detract from the burden upon the Upper Basin.

Their obligations are fixed by the Colorado River Compact.

The obligation is to deliver not less than 75,000,000 acre-feet at Lee Ferry every 10 years and to bear a portion of the Mexican burden under the Article III (c).

Now, the trouble the Upper Basin faces results from the fact that it cannot possibly expand that all if the Master is correct that there is at least 7,500,000 acre-feet of consumptive use available to these three States.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, we say that they cannot deplete the flow below the 75,000,000 and in addition thereto parts of the Mexican burden on under III (c).

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

That is right but the point I am honestly trying to make is that the Master can’t be right that we both getting a — have our cake in either two that you —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes.

That you cannot assume — you cannot assume abundance in the Lower Basin, 7,500,000 of consumptive use plus a 1,500,000 for Mexico, plus 1,000,000 losses, 10,000,000 of requirements at Lee Ferry.

You cannot assume abundance for the Lower Basin and at the same time assume abundance for the Upper Basin.

One or the other is going to be short.

If we have the abundance that he foresees for us, no possibility of shortage in the foreseeable or the unforeseeable future then the Upper Basin cannot expand one acre-foot, unless you assume there is more water than there’s been for 30 years in the hydrology of this river basin.

If on the other hand, you accept as a reality of life, the flow of the stream, the reference of the last 30 years, of the last 40 years as the Court did in Nebraska versus Wyoming, Wyoming versus Kansas then, then, there is an inevitable reinforcement of the Colorado River Compact against our supply and are being cut back under the Master’s quantity, the treatment of 3,800,000.You can’t have it both ways abundance in both bases.

Now, I’m —

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 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

del

Potter Stewart:

If Arizona’s destruction of the meaning of the compact were adapted, then that would’ve adversely the effect of the Upper Basin.

Mr. Attorney General:

Oh yes, indeed.

It would indeed —

Potter Stewart:

Of course —

Mr. Attorney General:

Yes.

Potter Stewart:

Of course, they wouldn’t be concluded because they’re not parties as those States are not parties —

Mr. Attorney General:

That is right.

If you adapted there — right sir.

If you adopted Arizona’s interpretation of the compact, the Lower Basin tributaries were excluded —

Potter Stewart:

Yes.

Mr. Attorney General:

— from the accounting as to III (a) and (b).

We can claim from the Upper Basin 8,500,000 acre-feet of Lee Ferry plus water from Mexico plus losses.

Then they are broken, then they are broken.

Potter Stewart:

Yes.

Mr. Attorney General:

The Upper Compact is destructive but the Upper Basin is so construed.

We don’t assert that construction.

Your Honor, I had — like to be able to conclude in a rather short time, I can’t do it this afternoon.

I will — first thing in the morning, I should like to reserve about an hour for rebuttal time.

So, I will now attempt even now and as we start in the morning to give you a resume of what we think is involved on these two critical issues prior — limitation and prior order.

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

The two critical issues.

The limitation issue that I have spent so much time on and the priority issue which I do want to leave very firmly in your minds because we feel that even if you should decide that the Master’s right on the limitation issue that reference to the Compact and the Limitation Act is inappropriate somehow.

Nevertheless, we are entitled to protection for the priorities of our existing projects in California within that 4,400,000 acre-feet.

You should not prorate a shortage.

It should be borne by the new project.

And if you follow our construction of limitation, there’s no shortage, you stop is a risk.

But the priority issue I have want to — before I threw emphasize, then I want to take up the prior decisions of this Court then bear upon both of those two issues give you something of the way of which these two issues bear upon the project that’s hazard here, the Metropolitan Water District and finally to conclude.

So I shall endeavor within the minute of so now left and about half hour in the morning to cover that ground and reserve about an hour for me.

The case has been here not only in 283 U.S. but also in the perpetuation of testimony case in the 292 U.S. case of United States versus Arizona in 295 U.S., and the final Arizona and California cases in 1935 and 298 U.S.

Now, the Arizona, the first of these cases, I have already mentioned to you.

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 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

del

Mr. Attorney General:

If the Special Master is right in his interpretation of the Project Act, then it passes all comprehension that the Arizona Senators and Congressmen should’ve voted against this Act, should’ve opposed the appropriations to build Hoover Dam that conferred these benefits upon them.

And in 1930, the State of Arizona sued in this Court to enjoin the Project Act in the Compact in going to effect.

Why?

That is the question I’ll weigh about the morning.