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

del

Mark Wilmer:

I am told that I may have misspoken this morning in stating the figures which Senator Johnson placed in the record as being the — then uses of California until I said a million, two hundred and some thousands, two million a hundred and fifty-nine thousand, I believe.

The amount which he claimed was six million and nine thousand, I think I stated that big, his claim but the uses which he specified were in the neighborhood of two million one or two hundred thousand rather than if I did say so, one million Your Honor.

Secondly before going on, I would like to make it clear that Arizona concurs in the Master’s conclusion that inflow below Lee Ferry and in to the reservoir is part of the water which is the subject of the congressional consideration and distribution.

I may have spoken improvidently, a time of Upper Basin water, it is the Master’s view and it is our view that Congress dealt with the supply of water at Lee Ferry mainstream which of course is Upper Basin water.

And in addition, recognized there would be inflow below Lee Ferry and above Hoover or Boulder Dam.

Arizona does not contend for a moment that this water when and as it reaches the mainstream is not subject to the provisions of the Act, it is.

Make no contention to that effect at all.

Your Honor, there is one as known as the Little Colorado, actually the most water which reaches the stream from that is and what is known as Blue Springs which are down at the bottom of a rather deep canyon and close to the river.

On occasion, the Little Colorado runs in the spring and flood.

It — it drains an area of Northern Arizona much like the Upper Basin that is, it’s a high country in snow and that sort of thing.

(Inaudible)

Mark Wilmer:

Pardon?

Yes, there are old consumptive uses Your Honor, going back to the ’70s perhaps, it was the — some of our — for a moment, the early seven — the northern part of the state in that area but not large and the inflow is sporadic and is not large, there is an addition from Utah and Nevada, the Virgin River, the Muddy River.

There are miscellaneous springs and inflows but, actually as I remember the figures they gained from Lee Ferry to the dam generally is recognized as in the magnitude of a million acre-feet, maybe a little higher.

(Inaudible)

Mark Wilmer:

We were — we — we cons — we concur Your Honor and this concludes that after water is freed from the tributaries and reaches the main stream, it falls squarely within the Secretary’s power to contract.

(Inaudible)

Mark Wilmer:

Our view is this Your Honor, that uses on the tributary below Lee Ferry and above the dam within the state are not chargeable against the California limitation.

In other words, we believe that Section 8 again protects us, in that — it says that water within the state except as it is modified by the Colorado River Compact is not to be disturbed by the Project Act.

We say and we agree with the Master in his conclusion that when the Secretary said that you have to accept uses on your tributaries which might never reach or which — I’m — would be making an accurate statement.

The statement was that uses on the tributaries to the extent they diminished the flow into the reservoir are chargeable against our two million eight.

We disagree with this requirement that we accept uses to the extent they deplete the flow.

We do concur that to the extent that flow reaches the river and becomes a part of the stream, it then becomes subject to the Project Act.

I cannot add it, if it please the Court to the Master’s treatment of our objection.

(Inaudible)

Mark Wilmer:

If it gets into the mainstream, its part of the mainstream.

Congress — excuse me, Your Honor.

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

No — no, I didn’t mean that if I said so, I misspoke Your Honor.

I meant this.

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

del

Mark Wilmer:

We do not concur — we do not contend that we have any right to a credit so to speak for inflow below Lee Ferry and above the dam for our contribution after it reaches the stream.

We concur in the Secretary’s — in the Master’s finding that Congress did recognize there was a miscellaneous inflow, did not look to it for the supply but it recognized it was there and we would be — we would be very unrealistic to contend.

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

Our view Your Honor is that exactly that the Congress said you can construct a reservoir on the dam, that’s all Congress told him he could do.

That’s all he should’ve done.

(Inaudible)

Mark Wilmer:

I’m sorry, Your Honor.

(Inaudible)

Mark Wilmer:

Until it got in Lake Mead.

I would — yes.

I — I should answer Your Honor directly.

He would not have any power —

(Inaudible)

Mark Wilmer:

— to contract with Arizona to take water out of the river above Lake Mead.

I — I certainly — sorry if I misspoke myself in that respect Your Honor, that unquestionably is our position and unequivocally, I think it’s correct.

(Inaudible)

Mark Wilmer:

No, he has not Your Honor, the — the contract provision of Arizona which we objected to and we contested before the Master in which he accepted as a proper objection, it’s a provision of 7 (l) of our contract which says that to the extent, our uses on the tributaries above Lake Mead and below Lee Ferry diminish, deplete, the flow in the lake — into the river and into the dam to that extent, we’re charged against our two million acre.

We contest that that on the ground it was beyond the Secretary’s power and the Master has accepted that and had said it was beyond the Secretary’s power and has recommended that that provision be held improper.

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

I do, Your Honor.

I understand in California’s position is that in some strange fashion the Master has separated out of the context this whole thing that stretch between Lee Ferry and the head of the reservoir and in some fashion, removed that from consideration, we don’t think that’s true at all.

We think the Secretary’s power if I can again say this, the Secretary’s power has distinguished from the dedication of that water by the Congress is limited to the water that the Congress told that he could store and use.

That’s — that’s a distinction.

Now, if I might turn back again to the progress of the evolution of Section 4 (a), the significant thing which I would like to call your attention to in respect to this next several amendments which were printed but not offered in the first session of the 70th Congress.

First of, on page 8 of this little pamphlet that we have provided is an amendment printed but not offered by Senator Phipps.

This amendment later became the first paragraph of Section 4 (a), the first paragraph of the limitation on California and the requirement for seven States or six States ratification.

Now, may I again call this sequence of events to the Court’s attention?

The water amendment which I have referred to as to Section 5 but it again was working upon, if I may use that word, deferment was working of some method of controlling the uses in the mainstream.

Section 4 (a) as printed by Senator Phipps in the first session did this very significant thing.

It eliminated it from Section 5, if you would turn back if you please, to Section 5, to the portion I emphasized on page 3 that is italicized.

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

del

Mark Wilmer:

Senator Phipps’ amendment deleted from Section 5 this limitation language which restricted the Secretary’s power to contract as a limitation.

In Section — to Mr. Justice Frankfurter, if you look at Section 3.

(Inaudible)

Mark Wilmer:

In Section 5, if it please the Court, we will let that at the end of the first session with a limitation on the Secretary’s power to contract in Section 5, which restricted his power to four million six.

Senator Phipps offered this amendment, which eliminated it from Section 5, this limitation on the Secretary but transferred it to Section 4.

The language of the Phipps amendment as introduced on page 8 provided for the ratification and provided and inserted for the first time the requirement that the limitation on — use should be stricken from Section 5 and should be incorporated in Section 4, page 8 and 9, Your Honor.

In other words, it provides first for the alternate of the little book, Your Honor.

The top of page 9, it provides, “And until the State of California by Act of its legislature shall agree with the United States and for the benefit of the States of Arizona, Colorado and Nevada, New Mexico, Utah and Wyoming as an expressed covenant.

And in consideration the passage of this Act, that the aggregate — angled diversions of water coming from the Colorado River for use in the State of California, including all diversions under contracts made under the provision of this Act and so on, shall not exceed four million six hundred thousand acre-feet of the water apportioned to the Lower Basin States for the Colorado River Compact or one half of the surplus.”

Now this point — in this amendment Senator Phipps proposed the excision from Section 5 of the contractual limitation on the Secretary as imposing a limitation on California and inserted it in Section 4 (a).

The last portion on page 7 strike out the land’s four to 12 inclusive and insert a neuter on the following that you will find is an excision from Section 5 of the italicized portion which is found in the page 3, termination of that in the 69th Congress.

Senator Bratton offered an amendment along the same general lines and Senator Pittman offered an amendment which later became the Hayden amendment that is found on page 9.

The Pittman amendment envisage not only a transfer of the limitation to Section 4 (a) but a mandatory compact, and over to this point, we have in Section 4 (a) (1) a limitation by — I mean a ratification by seven States, the ratification by six States, a limitation in California and a mandatory compact.

In other words, Congress in this language said California must agree.

If Arizona and Nevada accept the limitation which is proposed in paragraph 1, California then must compact along the lines of the division which we have previously indicated.

In that connection, in discussing the matter, Senator Pittman made this observation that is why he said that he was at the Governors’ Conference.

I wish to play — this is from our legislative history at page 24, I wish to place in the record at this point a suggested amendment.

It is not to be proposed because it will be perfectly useless but it had been suggested.

It is in accordance for the conference to which I have just referred, Governors’ Conference.

That it’s designed to carry out that idea at some date.

Now, Senator Pittman in substance said, this has been proposed to carry out what was arrived at at the Governors’ Conference.

Someone offer it now because it isn’t time but at some date, this is what we’re going to do.

It was largely drawn by Mr. Wilson.

That’s Mr. Francis Wilson, who was a well-known and respected attorney from New Mexico and a very highly regarded water attorney.

The law only drawn by Mr. Wilson the Commissioner of New Mexico in the course the conference to which I have just referred, it is only to be published in the record.

It’s not offered as an amendment.

Now that, if it please the Court, about concludes the first section of the 70th Congress.

We find pending the Bratton amendment, the Phipps amendment, the Pittman amendment, all having the same central theme, a limitation in California, the Pittman amendment and mandatory compact in California and the removal of the limitation on the Secretary’s power to contract from Section 5 as a limitation in California to Section 4.

Now, it is most significant — most significant, that the excision of five at the same time was in connection or was at the same time a part of a connection with the amendment to four, which put the limitation in Section 4.

In other words, I can draw no conclusion reasonably I think.

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

del

Mark Wilmer:

But what the Phipps amendment said, “No we won’t put this in Section 5.

We won’t limit the Secretary’s power to contract in this fashion, we’ll make it part of Section 4 (a) and say that until California has by statute, limited herself, nothing so happen.”

In other words, I think it is logical and reasonable inference that the 4 (a) limitation language being excised was transferred to and put into Section 4 (a).

That becomes important in connection with our so-called mandatory allocation argument.

Now at the opening of the — incidentally the first section is probably you all know entered in a filibuster which repeated the — the passage of the Act to that session although the House had passed and sent to the Senate a companion measure introduced by Representative Swing.

Now, at the opening of the second —

(Inaudible)

Mark Wilmer:

Yes, Your Honor.

(Inaudible)

Mark Wilmer:

Forces behind it were the — our good Senator Hayden and our good Senator Ashurst.

(Inaudible)

Mark Wilmer:

Because the allegation which we were seeking had not been arrived at.

In other words, these are — these amendments Your Honor had been offered but — have been printed but not offered.

There was still — there was still not enough meeting of the minds to arrive at what at least Arizona considered to be an inducement to ratify the compact what the Upper Basin’s considered had gone — progressed far enough to protect it.

(Inaudible)

Mark Wilmer:

Pardon?

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

To these amendments?

No, Senator Hayden offered the Pittman amendment at the opening of the second session Your Honor.

I would say contrary to execute — to indicating hostility, the only hostility that Senator Hayden who carried them all for Arizona, really, indicated was the four million six versus the other allocation and to the —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

The bargaining was in process Your Honor.

I think that’s a fair analogy and a fair statement.

But it is significant, to please the Court, that at the opening of the second session of the 70th Congress, the Senator from California, Senator Johnson asked unanimous consent to take the House measure which had been passed, check up the title and insert underneath it the Senate measure, the Senate Bill 728.

In other words, at the outset of the 70th Congress, the Senate discarded the passed statute as sent forward from the House in the previous session and simply gave it the House number and did that by unanimous consent.

Now, in line with Justice Frankfurter’s observation that the bargaining hadn’t ended, I would conclude that the bargaining had made some satisfactory progress or this legislative maneuver would never have been achieved with unanimous consent.

I would have assumed that Senator Hayden and Senator Ashurst at least could have arose and said, “No, we won’t agree to that.”

Now, the next amendment which is in order, is on page 11 which is the Hayden amendment to the — to the then pending bill.

I would bring to Your Honors’ attention this fact because of the fact that Senator Johnson asked and received unanimous consent to amend the House measure by eliminating the entire body of the Act and inserting in lieu thereof the body of the Act of 728, that then became an amendment, a pending amendment and that becomes important as we will see as we go on.

So that actually the matter pending before the House was the Johnson amendment to the House measure which had come forward and had been passed.

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

del

Mark Wilmer:

The Hayden amendment was the Pittman amendment word per word.

It proposed the mandatory compact.

It proposed the four million two to California, three million to Arizona and the same division in the mandatory compact.

Now, the thing that I now would stress, if it please the Court, is that the Phipps amendment had been printed in the first session.

The Phipps amendment as I may go back just briefly, one transferred from Section 5 to Section 4, the limitation on the right of California to get water.

That became a part of Section 4 and it provided for a six-to-eight ratification.

But the significant thing is that the Phipps amendment called for (Inaudible) — for a excision of this limitation and its transfer to 4.

The next significant thing if I may say is this, Senator Phipps had offered — had printed this amendment in the first session but had not offered it.

He did not offer it in the second session until Senator Hayden had offered his amendment.

Now mind you, his amendment had been printed within the record.

Hayden’s amendment had not been printed and was in the record.

And yet Senator Phipps for some reason waited until the Hayden amendment had been tendered and offered.

And then he said this, offering his amendment.

Mr. Phipps — I’m reading from page 15 of our legislative history.

So I’m reading from page 15 of — we printed this little excerpt on page 15 of this matter.

Mr. Phipps, I understand that the pending amendment is the one offered by the junior Senator from Arizona, Mr. Hayden.

I desire to offer an amendment to that amendment which I believe is permissible under the rule enforced.

In other words, not only did Senator Phipps wait until the Hayden amendment had been offered but before offering his amendment, he carefully inquired and was assured that it was a Hayden amendment to which his amendment was being offered.

Now, may I suggest the significance of that?

The Hayden amendment then contained the mandatory formula.

The Hayden amendment then provided that California must compact along the lines indicated.

Now, if Senator Phipps have not been keenly aware of what Senator Hayden’s amendment contained, that was two paragraphs and not one, he wouldn’t have been so careful and he wouldn’t have waited but he first found out it was a Hayden amendment.

And in the Hayden amendment, there was a mandatory formula.

Senator Phipps in his amendment struck out the language.

I mean, in his amendment to Section 5, not only changed over the limitation on the Secretary but added the language, “and shall conform to the provisions of Section 4 (a) and shall conform to the provisions of Section 4 (a).”

California has told you that when the Phipps amendment was offered, there was nothing for Congress, it was an isolation.

That is not the fact.

The legislative history clearly indicates that when Senator Phipps offered his amendment, he offered it by striking out the first paragraph of Section 4 (a) of the Hayden amendment and as a part of his amendment requiring that contracts shall conform to Section 4 (a).

We say that is significant.

We think it indicates that Senator Phipps that the bargaining have progressed if I may use your term Mr. Justice Frankfurter, had progressed and that it was all part of a more or less agreed course of conduct.

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

del

Mark Wilmer:

Now, the — the amendment then became the amendment in the second degree, the Phipps amendment, the Hayden amendment and the Johnson amendment.

This was debated for some time and then this parliamentary maneuver ensued.

The Senator from Wis — from Arizona, Mr. Hayden asked in page 17 of our little excerpt here, “Mr. President, I would like to have the attention of the Senator”, and if the Court will permit me, I would like to read this because I think it’s important.

I — that I may discuss the parliamentary situation as it exists and what am I do if possible to remedy it.

In order that the amendment offered by the Senator from Colorado, Mr. Phipps maybe perfected.

As I understand the situation, the amendment offered by the Senator from Colorado is an amendment in the second degree, an amendment to the amendment which I have offered and therefore not subject to amendment.

The Senator’s amendment contains three substantive propositions upon which there is a difference of opinion between the States of Arizona and California and we must vote upon all of them as one if this amendment is not subject to amendment.

But if the Senator’s amendment could be made subject to amendment, the Senate could vote upon the various propositions separately, for example, the Senators taken from another part of the bill, a provision that refers to Section 5.

A provision that the State of California shall have four million six hundred thousand acre-feet of water on the Colorado River, on the Colorado River.

Now there’s no dispute about what the Colorado River was, it wasn’t the tributaries and it wasn’t the system.

Arizona agrees that the State of California shall have four million two hundred thousand acre-feet of water.

Now, I desire at the range so that the Senate may vote upon the question of whether it shall be one figure or the other.

Now, if anyone can tell you gentlemen that that wasn’t a square cut issue before the Senate that they were voted — vote upon how much water California should have and how it should be divided?

I wouldn’t know how to, more strongly express it if I were in the Senate.

(Inaudible)

Mark Wilmer:

Yes, Your Honor.

The Cal — Arizona contended then for four million two.

In fact, the way that came about was it in the Senate in the Senate Committee.

The Committee reported out the amendment not recomm — except in the Governors’ Conference recommendation but they’re all of four million six and four million two and Arizona had accepted that as an — as a compromise.

“I would like to inquire of the President of the Senate whether I should withdraw the amendment which I have offered, would then the amendment offered by the Senator from Colorado be an amendment in the second degree and subject to amendment?”

Mr. Hayden, “If I withdraw the amendment which I have offered to which the amendment of the Senator from Colorado is a substitute, will this amendment be an amendment in the first degree and subject to amendment?”

The Vice President told him, “No, it would — it couldn’t be done.”

Mr. Hayden “Would it then be possible — no, they said he could withdraw it.

“Would it then be possible for the Senator from Colorado to immediately re-offer his amendment?”

The Senator from Colorado could do that.

Now, Senator Hayden said, “I wish to state to the Senate that what I am trying to accomplish is to get a vote on the one particular question of the quantity of water which the State of Colorado may divert from the Colorado River, should it be two million four hundred thousand acre-feet or four million six hundred thousand acre-feet?”

I can state in 15 or 20 minutes all the reasons why Arizona favors the lesser figure and then the Senate may have a vote upon the question.

Mr. Phipps (Inaudible)

I desire to call attention to the fact that the four million six hundred thousand acre-feet was a figure adopted by the Senate Committee.

It was written in the substitute then offered by the Senator in California, Mr. Johnson.

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

del

Mark Wilmer:

Therefore it seems to me and so on, whether right down to the question of four million six hundred thousand acre-feet as recommended by the Senate Committee and four million two hundred thousand acre-feet as written in the amendment by the Senator from Arizona.

Mr. Hayden, “And upon that particular issue and upon nothing else, I desire to have a vote of the Senate at this time.”

Mr. Phipps, “The other item that is in the amendment to which the Senator calls attention as I understand it is the provision regarding the Federal Power Commission, that is the only matters in that.”

My amendment has originally offered — provided for seven State ratification of the Colorado River Compact.

The Senator from Colorado in his amendment provides for a six State ratification.

That is another question upon which I — we should like to have the Senate take a vote.

If the Senate will bear with me for a moment, I desire to say that it’s only fair to the State of Arizona that the several substantive propositions which are contained in the amendment of the Senator from Colorado and in my amendment be voted upon, each upon its own merit for the Senate and not grouped together in one particular amendment.

If I am privileged to do so Mr. President, I withdraw without prejudice the amendment I have offered.”

The Vice President, “The Senator has that right.”

The amendment of the Senate from Arizona to the so-called Johnson amendment is withdrawn.

Senator Hayden, “Now, if the Senator from Colorado, Mr. Phipps will again offer his amendment, just as it is, we can proceed to debate it, to amend it, and to vote upon it.”

Mr. Phipps, “Mr. President, I understand the Senator from Arizona has withdrawn his amendment.

I desire again to offer my amendment as it now is before the Senate.”

Mr. Vice President, “The question is on agreement with the amendment from the Senator from Colorado.”

And Senator Hayden then offered an amendment which would have changed it to four million two and which was lost.

Thereafter, Senator Bratton, who has been described by California as not believing the Senate could describe the water offer the Bratton amendment.

And that amendment changed the figure to four million four and the Senate enacted that amendment and it became four million four.

Now, I do not want to bore the Court with a lot of excerpts of legislative history.

I feel, however, that in view of the statements made by California that at least a modicum might be in order.

First of all, I would call your attention to the report of the Senate Committee which reported out this bill with four million six.

And this is what Senator Hiram Johnson said in proposing that bill and recommending it for passage in the Senate in the second session of the 70th Congress.

“Here, finally is presented a unified — excuse me.

What is that?

Mark Wilmer:

It’s our legislative — it’s on — not in this Your Honor.

It is — the citation is 70th Congress first session, Senate Report Number 592.

(Inaudible)

Mark Wilmer:

Is it on our legislative history?

We’ll check it, Your Honor, if so — well, I’m sure it is but I wouldn’t — probably that was here.

Here is what he said, “We will provide it if necessary Your Honor, we will provide it.”

It’s the second session Your Honor, it’s the Senate Report Number 592 of the 70th Congress first session, I’m sorry, first session, 1928.

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

del

Mark Wilmer:

Here finally is presented a unified plan — this I may have read to you before with respect to 5.

For perfecting those entitled for protecting those entitled to protection and then he said, “For the allocation among the States desiring that allocation of the waters of a great river to which all are entitled.”

In other words, here is Senator Johnson telling them that in this bill, which is reported out, they’re making allocation of the waters of this great river to those who shall be entitled to it.

Now, if I might, I would like to refer to the colloquy from — between Senator Walsh and Senator Johnson, which is found in Arizona legislative history at pages 40 to 43.

I haven’t copied the whole thing, I have taken excerpts but it is set out substantially in full.

(Inaudible)

Mark Wilmer:

Mr. Walsh of Montana, “Yes, but I have always understood that the interest that stores a water has a superior right to prior appropriations that do not store.”

Mr. Johnson, “Possibly so, what is the point?”

Mr. Walsh, “The point is that apparently if that is correct, then this expenditure is being made with no right in the Government of the United States to control the water which is stored but that it must go to those appropriators.”

Mr. Johnson, “No.

The bill provides that a contract in advance must be made for the storage of water by the Secretary of the Interior.”

Mr. Walsh, “The contract with whom?”

Mr. Johnson, “With those who utilize and take and inappropriate the water.”

Mr. Walsh, “That is to say, the Government may dispose of the stored water as it sees fit.”

Mr. Johnson, “Yes, under the terms of the bill.”

He goes on.

Mr. Walsh, “I directed the inquiry merely for the purpose of trying to find out if I can, under what kind of obligation the Government of the United States should have built this dam would be to those who have the appropriations.”

Mr. Johnson, “The Government would be under no obligations until it makes its terms.

I see I’m unable to make that plain.

But here is something in this — but here is some — everything in this theme, plan or design.

Everything is dependant upon the Secretary of the Interior contract with those who desire the benefit of the construction and he is not to undertake any expenditure or to undertake any construction until that shall have been accomplished.”

Mr. Walsh, “Let us suppose the Arizona people are perfect and willing to meet the requirements and that the Los Angeles people are perfect and willing to meet the requirements.

And other people have not even attempted to make any appropriation are perfectly willing to meet the requirements.

Who has the right?”

Mr. Johnson, “The Secretary of the Interior and the Government have the right.”

Mr. Walsh of Montana, “The Secretary of the Interior may possibly ignore those appropriations?”

Mr. Johnson, “Possibly so.”

(Inaudible)

Mark Wilmer:

He said possible.

Mr. Johnson has been accused for being at times confused by California when some of his legislative history has been a little embarrassing 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 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

del

(Inaudible)

Just — just to demonstrate it, if it please the Court, that the legislative history completely and unequivocally demonstrates that Congress was disposing of the water and was dividing the water.

California has made the assertion that no Senator contended that they were dividing the water.

That there were no contention that they are dividing the water.

(Inaudible)

William O. Douglas:

The — under this law the — all state rights, the rights under state law in water were displaced and a new federal domain erected over the dispensation of water?

Mark Wilmer:

Precisely.

Precisely, Your Honor as to stored water.

William O. Douglas:

That’s been the argument — that’s been the argument the Government has been trying to get us to take many times but we’ve never done it so far.

Mark Wilmer:

Well, Your Honor, let me make this distinction.

William O. Douglas:

I — I say, the Federal Government.

Mark Wilmer:

I understand that.

William O. Douglas:

You know the cases?

Mark Wilmer:

Yes.

In fact I think that troubles my Brother, Mr. Reed a little bit.

In any event, our position is this Your Honor, that this is not a question of the Government claiming water in the sense of owning it in a flowing stream.

This is a question of the Government in the exercise of its power under the Commerce Clause storing a large body of water.

William O. Douglas:

Well, that’s a Government right to store, comparing, you would recognize that.

Mark Wilmer:

Yes.

William O. Douglas:

I’m not talking about that.

I’m talking about allocation of water to land which had — we’d always assume under all the federal legislation unless this changes it, it was a matter of state law.

Mark Wilmer:

Your Honor, I think that the distinction is this, where you have a federal project which stores water under the power of navigation under the commerce power to store water then there inheres in the Congress the right to say how that water shall be disposed of.

In fact, there’s an early Supreme Court decision which involves almost the same general type of situation that’s — its back in the — in the —

William O. Douglas:

There’d be no recourse in these — and you’re a Western lawyer, you know about water rights probably better than any of us, but would these be compensable interests that the Government takes them?

Mark Wilmer:

Your — Your Honor assume —

William O. Douglas:

I — under the law — the water rights of the West that these were — these were rights, were much of a property interest, this building or a factory or?

Mark Wilmer:

If this were a non-navigable stream, Your Honor there’d be no doubt about that.

The distinction arises from the fact this is a navigable stream and that under the Commerce Clause, whether there is appropriate — I would take this Your Honor appropriative right is a no greater consequence than the right in the appellation case of the power company which had a permit on that stream.

William O. Douglas:

That power can protect the commerce goes way up into the tributaries so to carry that out logically then there would be the power in part of the Federal Government to destroy all the subsidiary property rights that it (Voice Overlap) —

Mark Wilmer:

Well Your Honor in —

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

del

William O. Douglas:

— state law.

Mark Wilmer:

— in — in United States versus Rio Grande Dam and Irrigation and Dam Company in 174 United States, a landmark case.

That is precisely what this Court held.

That in a navigable river in that case, the Rio Grande, a navigable river up to a point, the State of New Mexico was — I believe the Elephant Butte Dam, I’m not sure of that but it was a dam construction anyway.

And by that, it was proposed to dry up the tributaries, not the mainstream, but the tributaries.

United States had a stormy course in that — in that case.

The —

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

Yes, Your Honor.

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

No.

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

No.

William O. Douglas:

Are you different from the Federal Government then?

Mark Wilmer:

Well Your Honor, we make this distinction, I think it’s valid.

I started to say the — the Rio Grande case, the Court squarely held that in a navigable stream, anything that impair the navigable capacity of that stream transgress the Act of Congress of 1890.

In that case, the transgression was to occur on the stream, on tributaries of a navigable stream.

And this Court said, “You can’t do that.”

That Congress has in effect under it’s — under its control over navigable stream complete power over the tributaries as well as the stream itself to the extent that those tributaries are necessary to maintain a navigable capacity of the stream.

We say therefore that, we see no distinction between a power permit up on the river in the east issued under state law which this Court has said in the navigable stream when the Government preempts the stream, it becomes a nullity and then no compensation involved.

We say there’s no difference between that and appropriate divide if you can gain one of the navigable stream that when the Congress assuming it wasn’t appropriative rights Your Honor, we believe the words of this Court in many cases to the effect that when the Congress exercises its power, its dominant servitude over that stream under the navigation, it’s power into the Commerce Clause to control and improve navigation, that all lesser interest must give way.

I don’t care whether they be appropriative right, a power —

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

There’s nothing in the Project Act —

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

Excuse me, Your Honor.

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

Oh, I believe that the legislative history barely read shows that the Congress recognized they were allotting to the various states water over and above they then uses.

And as Senator Hayden said at one point and I have his quote, that what that is — well I have it right here, “And this is just what my amendment proposes.”

He said, “We have — we have allocated the water and then who shall use it within the respective states is a matter for the courts to the state or for the state.”

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

del

William J. Brennan, Jr.:

Or state law?

Mark Wilmer:

Or for state law, yes.

I — I — I know this one of the — the more or less major — major but problems that Nevada has with the United States as a contention that the contract with Nevada because it is with the Nevada River Commission, the Colorado River Commission State Agency is not valid, the Master displaced that, the Master said, “No.”

(Inaudible)

Mark Wilmer:

We have a few —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

No —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

No, the — the Solicitor General Your Honor takes the position and the United States takes the position that that contract is (Inaudible) — is — is invalid because it is with a state agency and not with the individual users.

But the United States further takes the position that the Secretary can allocate intrastate according to priorities as he sees fit.

We disagree with that.

William O. Douglas:

That’s — that’s what I was trying to get at.

Mark Wilmer:

Oh no, we do not contend Mr. Justice Douglas that the Project Act controls at any respect the use of water intrastate.

We have made no such contention.

Our sole contention is limited to the proposition —

William O. Douglas:

Were you in California filing a degree upon one thing then?

Mark Wilmer:

I want to be careful what I say, Your Honor.

May I study the transcript and that’s without New Orleans.

(Inaudible)

Mark Wilmer:

We are in disagreement, correct.

Now, I would say this in this Court.

The Arizona contract provides that the Secretary shall make contracts with individuals, corporations who aren’t qualified under the Reclamation Act within the State of Arizona.

We originally took the position that it should be the state with whom he contracts and the state apportioned it out.

The Master held that under the Arizona contract we had desi — delegated to the Secretary the right to make those contracts and it’s a valid provision.

We have not accepted that — to that holding of the Master.

So that in any event, it would be a question of our contract having made that designation.

The Secretary has an agent to make the contracts and he living up for our contract rather than anything in the Project Act which says to the contrary.

In fact, that California’s position is, the Project Act preserves priority of appropriation that preserves the rights of various users to come and demand of the Secretary water in accordance with their historic appropriative rights.

That is why we said at the outset that California in effect asked this Court to tell the Congress of the United States and the Secretary that that stream is to continue flowing as it was — want to flow.

We say that just can’t be.

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

del

Mark Wilmer:

We say that is impossible to interrupt the regiment of that stream as established by the Secretary to respond to appropriative rights as we — excuse me — as we know them normally.

We say it just isn’t in the cart.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

I would say, Mr. Justice Frankfurter that within the state, if the state wants to apply that law, I don’t think it’s any business of this Court.

I don’t think its any business of the other states for that matter.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Or the Secretary.

Might I make one further suggestion on that respect — respect to this matter of appropriative rights.

In any event, as Nevada has suggested, as United States has suggested and as Arizona has suggested, there has been a complete abandonment of any attempt to live up to appropriative rights.

There had been no attempt from the day of the first water restored on that project to this day to take any water in accordance for the appropriative rights.

There has been no attempt, whatever.

Hugo L. Black:

There has been has there not a record, (Inaudible) of rights that were existing in 1929?

Mark Wilmer:

Only in the Project Act, if that is true, Your Honor.

In other words, the Master has held the language of Section 6 in satisfaction of present perfected rights in pursuance of Article VIII of the Compact is a protection of perfected rights existing as of 19 — June 25, 1929, when the Project Act became effective.

Hugo L. Black:

So that so far as 1929, there’d be no question of just compensation there?

Mark Wilmer:

Well Your Honor, they’ve got better water more than they ever had before 1929.

Hugo L. Black:

No, what I mean is, that — under that interpretation of the Act engaged no private rights have been with the water made (Inaudible) done away with it.

Mark Wilmer:

None, none.

It — we — we have a mild disagreement with the Masters just what that means, we think if it means anything, it means 1922 when the Compact was signed.

Hugo L. Black:

If your disagreement exists there with reference to what could be done after the Act was passed and the project was built in connection with the distribution of the water.

Mark Wilmer:

I would say this that if the Master’s holding is correct, that the Act does prefer — preserve present perfected rights.

And if those rights are not protected and if they haven’t been abandoned then the holding of this Court in the Gerlach case I believe that would be to the effect that Congress didn’t intend to preempt the whole stream but intended to make compensation.

In other words, I would say then that if that is the meaning of the Project Act and if they haven’t been abandoned, then there may be a basis for a contention if they’re not satisfied, they’re entitled to compensation but —

Hugo L. Black:

That there would be no questions — I’m trying to get to that, there’d be no question of just compensation could arise with reference to future rights.

Mark Wilmer:

None, none.

Hugo L. Black:

(Inaudible) — after the Government Act was passed because there would be none —

Mark Wilmer:

There would be none.

Hugo L. Black:

— whatever the law is.

Mark Wilmer:

And I think the matter have raised it, if it please the Court, with respect to what then existing rights the Congress recognized.

Your — this is — this Court has said that, you’ve said it with not — with respect for appropriative rights although you approached it in one case in which Mr. Justice Jackson said that you’d never held that you could store up a navigable stream in a bottle of water and sell to somebody else but you passed the question and answered with respect to appropriative rights in a navigable stream.

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

del

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Yes, Your Honor.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Yes.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Oh, I’m sorry.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Well to that extent, Your Honor I —

Felix Frankfurter:

To that extent (Inaudible)

Mark Wilmer:

Your Honor, if I may pause for just a moment to be mildly (Inaudible) it reminds — my conduct reminds me of the statement —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Maybe I should justify my conduct by saying I don’t know what I’m thinking if I hear what I say because maybe that’s the case.

The — the balance of the legislative history, I would like to treat them quickly.

You were given a quotation from Senator Phipps in which he perfected his amendment.

Mr. Justice Harlan suggested that maybe language wasn’t quite as clear as was indicated by California.

I would like therefore to read to you a statement made by Senator Phipps before he perfected his amendment, shortly before that.

It’s in congressional record at page 390, 1928.

Senator Phipps, “Just a word — in a word, I wish to state that my understanding of the effect of the pending amendment is that under it or under a State Compact, the upper states would be compelled to send down 7,500,000 acre-feet.”

It’s a misprint.

It should be 75 million acre feet, “Of water in 10 years or to put it the other way, they would have for their own use the 7,500,000 acre-feet annually.

If the seven State Compact is entered into, it settled the question as far as the future Upper States’ basin are concerned.”

William J. Brennan, Jr.:

(Inaudible)

Mark Wilmer:

Your Honor I copied this fairly, I’m quite sure it is there, we’ll supply the reference, I’m sure it is there.

“If we enact this legislation without providing for a six state Compact, the discussions on the differences between the Lower Basin States may continue indefinitely and the Upper Basin States have no assurance if they are going to be protected in what they get, what they conceive to be their rights.

The language of the amendment providing for a six State Compact has incorporated in it the engagement upon the part of California that she will not take for her consumptive use more than six — 4,600,000 acre-feet or now 4,400,000 acre-feet of water of the estimated 7,500,000 acres annual flow.”

Now, I don’t know how you’re going to talk about a system basis of accounting when you talk about a 7,500,000 annual flow, talking about the mainstream, the Colorado River.

Now, and this I think concludes decisively the question.

Subsequent to the time when Senator Phipps had perfected his amendment, subsequent to the time he had added the seven — the 3 (a) language which was referred to.

Mr. Johnson, “Alright,” this is a colloquy between Senator Johnson and Senator Hayden.

Senator Johnson, the manager of the bill, Senator Hayden, the manager of the amendment.

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

del

Mark Wilmer:

“Now, in the division of water that the Senate saw fit to impose yesterday, in the division of water which the Senate sought to impose yesterday, Arizona had 2,800,000 feet and 3,500,000 feet from the Gila, did it not?”

Mr. Hayden, “Correct.”

Now in other words, Senator Hayden — Johnson said, “You got 2,800,000 didn’t you, plus the Gila on the division we saw fit to make yesterday?”

And that was the division when Senator Hayden said, “I want to vote upon this question and nothing else, the division of water.”

Mr. Johnson, “Making 6,300,000 acre-feet, California was given, with its claims at its perfected rights, 4,400,000 acre-feet.

That is correct is it not?

Alright, now you wish to deduct from the burden that has imposed that upon — now you wish to deduct from the burden that is imposed by water that goes to Mexico first, 3,500,000 acre feet, do you not?”

Mr. Hayden.

Mr. Johnson, “Then you wish to put upon California and Arizona one of them having then 2,800,000 acre-feet and the other 4,400,000 acre-feet, the burden equal share, do you not?”

“I do.”

Mr. Johnson, “Alright that is just what I wanted to demonstrate.”

Mr. Hayden, “The senator is unwilling to do that?”

Mr. Johnson “Of course I’m unwilling to do that.”

Mr. Johnson “Let us say, just by way of example, that 2,000,000 acre-feet would be utilized by Mexico, I’m unable to say how much it would be but a while ago some Senator upon the floor used that as an example.

That 2,000,000 acre-feet might be ultimately allowed to Mexico under your plan then 1,000,000 acre-feet would have to go before by California, 1,000,000 acre-feet by Arizona.”

Mr. Hayden “Yes.”

Mr. Johnson “That would leave then for California, 3,400,000 acre-feet.”

Mr. Hayden “And for Arizona, in the mainstream, 1,800,000 acre-feet.”

Hugo L. Black:

Is that in your legislative history?

Mark Wilmer:

Yes it is, Your Honor, I’m sure — I will check these and we’ll supply the clerk with the reference because I — I apologize for —

Hugo L. Black:

(Inaudible)

Mark Wilmer:

— for not — including it, I did with some.

Mr. Johnson — now Hayden said, “And for Arizona in the mainstream 1,800,000.”

Mr. Johnson “Yes, with 350,000 — 3,500,000 added thereto from the Gila.”

In other words, here is a clear recognition in a debate in a colloquy between Senator Johnson and Senator Hayden that there had been a division of water that Arizona got 2,800,000 plus the Gila, that California got 4,400,000 and that the Mexican burden was shared equally.

I wonder if one of your associates could pinpoint this in the legislative history —

Mark Wilmer:

We will do so Your Honor, yes.

I mean, could you — could he —

Mark Wilmer:

Well —

— do it now (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 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

del

Never — if — if he can’t, alright, I’ll — don’t — don’t slow up your argument.

Mark Wilmer:

The reference I made to Senator Hayden statement is in our legislative history as to his statement that, “What my bill provides is for division of water.”

That’s in our legislative history at page 45.

The language is this, “The only thing required in this bill is contained in the amendment that I have offered, that there shall be apportioned to the state, to each state, its share of the water.”

Then who shall obtain that water is relative — a relative order of priority made it — maybe — be determined by the state courts.

Senator Pittman made this observation in the debate, “What is the difficulty?”

This is in our legislative history at 76, 77 — no.

Now — we’ll have to give it with you.

Page 71 and 72 of our legislative history.

As I understand —

This one is the Hayden and Johnson.

Mark Wilmer:

The Hayden and Johnson colloquy — no, this is the legislative history Your Honor, you have the pages in the legislative history.

Certainly on the legislative —

Mark Wilmer:

No.

— it’s cited in our — cited in our own brief or to them with reference with the (Inaudible)

Mark Wilmer:

The excerpt I took Your Honor is from our opening brief at pages 63.

The quotation which I gave you from Senator Phipps with res —

(Inaudible)

Mark Wilmer:

Our answering brief Mr. (Inaudible).

That’s your — in the answering brief.

Mark Wilmer:

The answering brief, Arizona’s answering brief at page 6 — 62, 63.

The quotation which I gave you from Senator Phipps is in our answering brief, our answering brief at page 64.

Now, with respect to Senator Pittman’s remark, that is in — sorry, I did have our legislative history but I don’t have it’s — the quote, it’s in the 70th Congressional Record at 232 on December 7, 1928.

It said, “What is the difficulty?”

We have only minor questions involved here.

There is practically nothing involved except the dispute between the States of Arizona and California in regard to the division of the increased water that will be impounded by in the proposed dam.

That is all.

William J. Brennan, Jr.:

On page 67 of your legislative history.

Mark Wilmer:

Thank you, Your Honor.

An agreement has been entered into between the seven states interested in the river, this river by which half of that water is retained in the four upper states and half of it let down to the three lower states.

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

del

Mark Wilmer:

The four upper states have ratified the agreement.

The question now is for Arizona to ratify the agreement.

Arizona, as I understand, will ratify the agreement whenever there’s — whenever there shall be provided in the bill or a separate agreement between Nevada and Arizona and California, dividing the water let down to the three lower states of the 3,500,000 acre-feet of water let down that river, they have gotten together within 400,000 acre-feet.

They have got to get together and if they do not get together, Congress should bring them together.

Now, California quoted from Senator Phipps with respect to a statement he made, the effect that he didn’t see why the Gila should not be included.

I would direct Your Honors’ attention to our legislative histories, pages 76, 77, 78 and 79 which demonstrates that Senator Phipps was under a misunderstanding.

He thought that there was a million acre-feet flowing into the mainstream from the Gila and he thought that Arizona was desirous of retaining control of that million acre-feet as well as the uses on its tributaries, that is quite clear.

But it was explained to him that this million acre-feet talked about was merely returned flow if a large amount of Colorado River water were diverted, he was then satisfied.

All Senator Phipps was talking about when he said that tributaries should be included was his misunderstanding that Arizona was contending that Gila River water after it got in the mainstream should be likewise exempt for the benefit of Arizona.

In view of the fact that our legislative history has, I think covered in detail, at least we have, I believe conscientiously tried to include the good with the bad.

I’m not going to take further of the Court’s time in reading excerpts.

I would like, however, to briefly dwell upon the administrative interpretation subsequent to the passage of the Boulder Canyon Project Act as to whether or not this was mainstream or other water and as to whether 4 (a) made an apportion.

The Court will recall that Secretary of Interior Wilbur at that time was in charge of this matter.

He was from California.

He was certainly not interest — disinterested party in the full sense of the word but he certainly attempted to be disinterested and we think he was.

The Wilbur-Healey documents contain these collection of the various Hoover Dam documents and also an explanation by the Secretary of the Interior Wilbur, as to what he had done implementing the Project Act.

In Wilbur and Healey, the Hoover Dam Contract, the 1933 Edition at pages 41 and 42, which is an exhibit, this statement occurs, “The Department has promulgated regulations designed to assure water supply to Arizona.

These regulations are included as an appendix in this volume.

They outlined the form of the Hoover Dam water delivery contract which the United States will enter into with Arizona upon certain conditions.

Briefly, the contract calls for the delivery of 2,800,000 acre-feet annually.

In return for which Arizona undertakes to make no interference with the diversion by other government contractors.

This quantity of water is adequate for all of the Arizona projects below Hoover Dam and is without prejudice to the power of parties to contract from the future for a delivery of additional water as required.”

Then this significant language, “Arizona is thus offered an assurance of 2,800,000 acre-feet of mainstream water that given an opportunity to look to the United States rather than to an agreement with the other states for a delivery of that quantity of water in return for an agreement not to interfere with the diversions of resistive states.”

In other words, in 1933, the Secretary of the Interior, in making a regulation which proposed a contract of Arizona stated that he was allocating to Arizona 2,800,000 acre-feet of mainstream water.

Now, subsequent to the enactment of the Project Act, there were a number of contracts entered into by the Secretary.

The California contracts were pursuant to what was turned a seven-party agreement.

In other words, the Palo Verde Irrigation District, the Yuma Project of the California Division, that is the sister project across the stream from the Arizona project, the Imperial Irrigation District, Coachella Valley, Metropolitan Water District, City and County of San Diego.

Now, the significant thing on this seven-party agreement is this, it divided the proposed water delivery contracts up into several priorities.

It delivered — it divided them up into four priorities which were termed the Irrigation Priorities and the Metropolitan Water District Priority.

The significant thing is that as to the fourth and fifth priority, both of which were allocated to the Metropolitan Water District and/or the City of Los Angeles, they split them in two.

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

del

Mark Wilmer:

The first was 550,000 acre-feet which will — with the agricultural priorities, equal and even 4,400,000 — equal and even 4,400,000.

In other words, at that time, California herself understood that the 4,400,000 was a first priority and in their own seven-party agreement so indicated.

Now, the next thing that is significant is that in each of these contracts, including the Arizona contract, the Secretary contracts to deliver storage water.

He does not contract to deliver water pursuant to any scheme of priorities.

He simply contracts to deliver out of storage so many gross acres of water for use.

In fact, the Palo Verde contract contained this provision.

This was cited by California as a typical contract and most of them are quite similar although I’m not sure this particular clause appears in all of them.

Section 4, “Whereas, the district is desirous”, and this is appendix to the Master’s brief number — number 8, (Inaudible).

“Whereas the district is desirous of entering into a contract with the delivery to it of water from Boulder Canyon Reservoir and it is to the mutual interest of the parties hereto that such contract be executed and the rights of the district in and to the waters of the rivers be hereby defined.”

In other words, the contract itself provides that it defines the rights of the district in and to the river, the waters of the river.

And that contract, may it please the Court, is strictly a storage contract.

It speaks not one word of the fact that the delivery is to — pursuant to appropriative rights, pursuant to anything, it’s a straight storage contract.

I think I’m perhaps pursuing this rather unnecessarily.

The Master himself has reached to his conclusion that the interaction of the Section 4 (a) and 5 plus the Secretary’s contracts have resulted in an allocation of the entire stream flow.

At page 224 and 225 of his report, he said this, “Since the Secretary hasn’t intentionally bound himself with contractual apportionment substantially, although not precisely, along the lines suggested by Congress as fair and equitable in the two paragraphs of Section 4 (a) of the Project Act, that section has been used as a guide for interpreting and defining the contractual allocation.

Applying these laws to the contracts, I interpret them as establishing the following water delivery scheme.

The Secretary in his discretion decides how much water is to be released from mainstream reservoirs at any particular period.

The amount available for consumption in the United States in any one year shall be the amount so released less the amount necessary to satisfy higher priorities.

The contracts do not limit the Secretary’s discretion.

They operate only upon the mainstream water which is available for consumption in the United States.

They refer that this water be apportioned as follows, of the first 7,000,005 acre-feet of consumptive use in any one year, 4.4 million for use in California, 2.8 million in Arizona and 0.3 in Nevada.

Of the remaining consumptive use during the — the year, 50% were used in California and 50% in Arizona, subject to the possibility that Arizona’s share maybe reduced 46% of the Secretary’s contract, to keep the Secretary contracts to allocate 4% of the surplus to Arizona.”

Now, I’d like to drop by just a minute Mr. Justice Black, if I might and say this because I didn’t think I answered your question accurately or fairly.

Under the Master’s allocation, there is no draft on the Upper Basin.

Under the Master’s allocation there is no fixed allocation of water.

There is no finding required or attempted that every year there shall be 7,500,000, nothing of that character.

He says that of the water available for use, for consumptive use, in the Lower Basin, be it 7,500,000, be it seven, be it six, be it four, be it nine, of the first 7,500,000, this is how it goes, 2,800,000 to Arizona, 300,000 Nevada, 4,400,000 to California.

So that (Inaudible) — I think I didn’t make it clear to you that the Master’s allocation does not impose any burden upon the Upper Basin does not in any fashion affect the Upper Basin, it merely says that that water which is here physically for use.

This is how I want it divided.

This is how I said the Project Act divides it.

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

del

Mark Wilmer:

I think that that probably answers Your Honors’ question with respect to whether or not this enlarges the obligation and provision.

It can’t.

It doesn’t.

It simply divides that which is there for division, no more and no less.

Further in that respect, I would like to say this, I may have misread some of these cases, but if I do not misread them, if I do not misread the Chandler-Dunbar case, I do not know how it lies within the jurisdiction of this Court.

When Congress has taken in its mighty hands, under the Commerce Power Clause, which the constitution gives it, this water has taken it in its hands so to speak and has said this is how it shall go.

This is how we shall handle it.

I tell the Secretary first, you shall operate this reservoir and this dam to control floods, to regulate the flow of the river and in aid of navigation, secondly and thirdly.

But fundamentally, you are charged with the obligation of operating this river in this fashion.

Now, in what fashion may I inquire, should this Court then put its hands on the river and tell the Secretary how he is to operate the river unless — excuse me, Your Honor.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Yes, Your Honor.

I think that’s true.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

The only thing I was suggesting, Your Honor, is this, that if what California suggests should be attempted, then very well, the constitutional question will be presented.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Certainly, certainly.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Certainly.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

No.

Not — certainly not, Your Honor.

I — I agree with that and I agree wholeheartedly and I think Your Honor has stated the — the central issue in this lawsuit by —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

I would say only this Your Honor, that I think they are involved to this extent and that is, you would certainly interpret the — the — or you certainly interpret what you’re asked to do in this decree within the limits of the constitutional jurisdiction granted the Court.

I would certainly not think that — that the California argument does other than put this Court in the business of running the river, put this Court in the business of telling the Congress and the Secretary how that river is to be operated.

Felix Frankfurter:

What I’m saying (Inaudible)

Mark Wilmer:

That is correct Your Honor, yes.

And I’m saying that California’s arguments are invalid because they suggest the contrary.

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

del

Mark Wilmer:

Well, granted Your Honor.

One other thing if I might in passing from the Project Act then to the remaining somewhat we regard less vital questions in the case.

I would ask Your Honors to take a look at the language of Section 4 (a) again and Section 8 (b).

8 (b) is the provision which is found in — is in the Project Act, the appendix of the Master’s report number 3 — page 380, 389.

The language of the Project Act which I would refer to is the last portion of Section 4 (a) and draw this thing — this to Your Honors’ attention.

Section 8 (a) provides in — 8 (b) provides in substance that the United States in administering the river, in the contracting for use of power or water for irrigation shall observe and be subject to and control anything to the contrary here and not withstanding by the terms of such compact, if any, between the States of Arizona, California and Nevada or any two thereof.

Or the equitable division of the benefits including power arising from the use of water going to said states, subsidiary to and consistent with said Colorado River Compact which maybe negotiated and approved by said states under which Congress shall give its consent and approval on or before January 21, 1929.

The terms of any such compact included between said states and approved and consented to by Congress after said date provided that in the latter case, such compact shall be subject to all contracts, if any, made by the Secretary of the Interior under Section 5 hereof, prior to the date of such approval and consent.

Now, in substance, this says — thank you — this says, that with respect to any compact entered into by any of the three states or any two of them, any two of them and I want to come to that in a minute.

That the Secretary shall be bound by them provided, that as to any contracts made after January 1, any compacts made after January 1, 1929, that they shall be subject to contracts made by the Secretary.

The legislative history of that is this.

This was proposed by Mr. Esquire, a Nevada witness fairly early in the game.

And he explained and he thought it was proper the state should be permitted the compact.

Mr. Delph Carpenter and that is also available, in testifying, stated that the reason for this date was to stay the hand of the Secretary until the state should have a chance to compact.

In other words, as to any compacts entered into prior to January 1, 1929, the Government was to be bound by them.

As to any compact after that date, then the Government was bound by them but such compact was subject to the Secretary’s contracts made prior thereto.

Now I ask you first of all, on what basis could this — could two states compact with respect to a body of water available to three if it hadn’t already been divided.

Now, this amendment which changed it from three states to two states or more was contemporaneous with a part of the general format that resulted in 5 (a) of the legislative history I’ve just given you.

Up to that point, this provision in the statute had been three states only.

But after this concept of the — shall conform to the language of Section 5 shall conform to Section 4 (a) after that language came into the picture and was a part of it, then, the Congress changed this to any two or more of the three states.

I respectfully say to you first that you can’t have two states dividing up water belonging to three unless the Congress has already divided it.

Potter Stewart:

Well, but Congress — if the Congress had already divided it, what would be the point of having any compact at all?

Mark Wilmer:

Except they could change it.

They could change it, Mr. Justice Stewart.

In other words, the Compact in 4 (a) was pre-approved by Congress.

That was something which they only had to approve and didn’t have to come back to Congress but Congress said in addition, “Now, if you want to make a different division, the authority resides in Section 8 (b).

You can divide this water up and still come back to us.

But California maybe only gets only 4,300,000, maybe Nevada and Arizona wants to fool around a little bit with you.”

But the significance of this is that in Section 4 (a), it was a pre-approved compact.

It was a compact which did not need to come back to Congress.

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

del

Mark Wilmer:

In Section 8 (b), a compact was authorized between two or more states.

But that had to come back to Congress for approval as if the Secretary had made any contracts because they didn’t compact before January 1, then his contract took precedence.

I say the first point is this, there had to be an understanding in Congress that the water had already been allocated otherwise, could Nevada and Arizona take some water away from California?

Congress certainly didn’t consider that but the more important point, I want to suggest to the Court is this, in Section 4 (a) Compact — in the Section 4 (a) Compact approved in advance by Congress, there wasn’t any such provision.

There wasn’t any provision in the 4 (a) Compact that the Secretary’s contracts took precedence or didn’t.

There was just as much likelihood that the 4 (a) Compact pre-approved by Congress wouldn’t be made for a year or two years, just as much as with respect to 8 (b), just as much.

Yet in 8 (b), which was not the allocation made by Congress in 4 (a), Congress said that the Secretary contracts before you do this, his contracts take precedence.

But we say that decisively — decisively, the 4 (a) is a mandatory allocation that Congress did regard it as a mandatory allocation because otherwise, they would have made some provision for the Secretary’s contracts which preceded the approval of the pre-approved 4 (a) Compact, otherwise you would have an impossible clash.

You’d have a situation of Arizona, Nevada and California not compacting for a year.

There’s nothing in the language that said the Secretary’s hand was to be tied in connection with this particular thing, this particular provision in the legislative history.

So we say that we do believe our argument that it is a mandatory — a formula is very persuasive.

We say otherwise there would have been language in the 4 (a) that would have made some provision for the Secretary’s contract deviating from the allocation made therein.

Otherwise, you would have contracts for permanent service, clashing with a compact which the Congress had already approved.

We did not make that argument before the Special Master, frankly, hadn’t occurred to us.

But that Mr. Justice Frankfurter once said that the wisdom sometimes never comes and therefore when it comes late, you shouldn’t ignore it.

Well, we had several attacks of character unfortunately in this case.

Now, I would like to briefly, if I might, advert for just a moment to the Master’s finding with respect to present perfected rights.

I have stated — we have stated that we don’t regard it as a magnitude in this case but we do regard it as having consequences for this reason.

The Master has suggested that subsequent to this termination of this case, that all parties shall file their appropriative rights with the Secretary, I believe it is and then if we don’t agree then there’s going to be another great big lawsuit.

Well, if we have a lawsuit, we’ll have lawsuits.

We believe, however, that the present perfected rights provision of Section 6 relates only to a satisfaction of the requirements of Article VIII of the Compact.

And that has gone back in the Upper Basin.

We believe that Congress simply said, if they had intended to preserve all present perfected rights, they would have said so, they don’t need to say in pursuance of Article VIII.

They would have said, all present perfected rights shall be respected but they did not say that.

They said in pursuance of Article VIII.

They had previously rejected the notion that present — that appropriative rights shall be respected.

And they therefore, we believe we’re simply providing that with respect to the provision of Article VIII of the Compact, this discharged that requirement.

Now on that connection, the Master held and I’m not going into a compact argument, but Section 6 of the Compact, contains this language, “That if there is a dispute between two or more signatory states, between two or more signatory states of the Compact with respect to waters of the Colorado River System not covered by the Compact, then the following shall occur.”

Now, you have a flat out finding there, a flat out contract — Compact provision but there are waters not covered by the Compact because that’s what it says as to — with respect to waters in the Colorado River System not covered by the Compact.

We took the position that that did again indicate that Lower Basin tributaries were not involved.

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

del

Mark Wilmer:

The Master in a sense agreed.

He said that that demonstrates that there is only inter-basin results — inter-basin effects of the Compact.

It is not an intra based and interstate matter and that therefore, that language refers to in intra-basin interstate rights.

So we say again if that is true, if that language of Article 6 says that the Lower Basin tributaries interstate of the Lower Basin are not involved, then again, the present perfected rights means only against the Upper Basin.

The — the interpretation you have suggested is that of — of the — of — Representative Swing that has — wipes out appropriative rights.

Senator Johnson made a very interesting remark in which he said, “Oh, one of these days you’re going to regret it if you maintain these theories of appropriative rights in the stream.”

That is quoted in our legislative history.

In summary, with respect to this phase of our case, we would simply say again, that there is no doubt, one, the Colorado River is a navigable stream.

That is judicially established as well as factual.

Secondly, there is no doubt that Congress took in control of the entire stream and stored the water.

There is no doubt that Congress gave directions to the Secretary as to what he was to do with that water and how was he to handle it and the purposes for which he was to put it — for which he was to put it.

And that therefore, the law is clear that this is a matter of statutory construction.

It’s a matter of interpreting the Project Act to determine what Congress intended in what language Congress spoke.

What meaning is to be inscribed to their words?

Now, the balance of the time and I will quit at the end of the day.

I want to comment briefly upon California’s talked about water supply.

The problem we face is one which is not unusual in this type of a case.

Originally before the Congress when she was opposing the Central Arizona Project, passed the Senate twice and was defeated in the House every time.

Her position was that water was not legally available dependent upon an interpretation of the Compact and related legal documents.

In fact, my good friend Mr. Ely in numerous times said it was a question of law, nothing to do with this.

Now that that question has been resolved, becomes a question of fact as to whether or not water supply is adequate.

We believe that with the Master that whether or not, there 7,600,000, 7,800,000 or seven million ten, it is of no consequence so far as the determination of this case is concerned.

The Master said only this, that he was — no, let me just stop for a moment.

The very argument that California has made today was made just as loudly, just as strongly before the Special Master in New York, August 17th, 18th and 19th I believe, before this report was filed on December 5th.

The draft report of the Master had been circulated.

Three days of argument was had in which these very arguments were made that are now being made to you.

The Master said, “If I believed, if I had any reason to believe that any of these dire consequences which you predict would ensue, I would very carefully reexamine the situation, I would strain for an interpretation which would avoid them.”

And he took the matter under advisement.

And in December 5th, he then filed this present report with respect first to the suggestion that the case be reopened, for the purpose of taking testimony in the Upper Basin as to the depletion there.

I don’t know quite how the Master could go on a so to speak frolic and detour of his own in the Upper Basin to gauge their future depletions without the Upper Basin being present.

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

del

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Yes, Your Honor.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

After he circulated his draft report —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

I can’t answer that, Your Honor.

I don’t remember.

At least not the —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

It was a motion to reopen for the purpose of offering additional truth and —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Yes, Your Honor.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

There were — two things were done Your Honor.

There was a proffer of additional evidence, some — I forgot quite a volume of it which purported to show the —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

It’s a bifurcated situation Your Honor.

First, they offered additional documentary evidence, quite a volume which —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Actually tendered which they said showed the legislative and administrative interpretation subject to 1929.

The Master heard them on that, took it under advisement and rejected the offer stating in his report that he’d examine each of the documents in detail that if they proved anything, they prove nothing.

And that is that Arizona had taken many positions, California many positions, but the Secretary of the Interior had merely been scrupulously careful not to take sides in the controversy so he rejected that.

The second prong of the of the — of the offer was that the case be reopened for the purpose of taking testimony with respect to probable depletions in the Upper Basin saying that that issue had not been litigated and that they had not been fairly apprised that this was a problem and Arizona’s position was so and so.

Just briefly and I’m sure they’re in the record, on August — on May of 1957, the year in five or six months before the case closed, Arizona filed a memorandum and served it on the parties saying what we’re saying today, which is that the navigational problem involved, the Project Act should be construed because of the overwriting power of the United States Congress.

So California was unnoticed there.

On August 5th, 1957, Arizona filed what was denominated and amended in supplemental statement of position in which we put California and noticed that we were retreating from.

We were in effect abandoning our pleaded position from the — which had been originally filed, stating that we felt that we were in error.

We also filed at that time in a memorandum entitled Decisive Effect of the Compact in the Project Act which fully explored although not in as great detail and with some departures of what we’re now saying so that as of August 5th, in 1957, California knew that Arizona had retreated from her position.

And then before the end of the California case we filed and proffered amended pleadings which the Master rejected and as he said in his brief it’d be strange in the case of this magnitude that parties were held to their pleadings, I find it unnecessary to rule upon it.

So that when we are confronted with the statement that this is a strange theory that suddenly awakened out of the deep somewhere and originally confronted California at this late hour, it just didn’t so because —

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

del

William J. Brennan, Jr.:

What was the — what — I don’t quite understand —

Mark Wilmer:

I’m sorry.

William J. Brennan, Jr.:

(Inaudible) theory of this —

Mark Wilmer:

Well, California speaks of the Master’s patentable invention.

William J. Brennan, Jr.:

Oh.

Mark Wilmer:

Speaks of the fact that Arizona’s position was pleaded so and so and that this —

William J. Brennan, Jr.:

I understand now.

Mark Wilmer:

— this wasn’t litigated that the — what you call it?

Well, frankly, we never knew whether the Special Master had part of a permitted amendment or not.

Don’t know the date.

The Solicitor General expressed an opinion maybe he didn’t.

We tendered the pleadings nonetheless because this Court was in recess at that time so there would be no question but what California fully understood before her case was closed.

But Arizona had completely abandoned her theory of treaty equating to the Gila and all the rest of that stuff which we finally could not support.

William J. Brennan, Jr.:

What was the title of (Inaudible)

Mark Wilmer:

The proposed — well, Your Honor that was not in detail.

It simply was a proposal that the Master reopen the case for the purpose of taking evidence as to the probable future depletions in the Upper Basin bearing upon water supply.

Hugo L. Black:

Suppose that — what (Inaudible) interpretation was passed.

Mark Wilmer:

None, none at all.

Hugo L. Black:

Do you that they are claiming this (Inaudible) — as I understand it that that was the pleading (Inaudible) certainly not incurred.

Mark Wilmer:

Yes, Your Honor.

Hugo L. Black:

(Inaudible) that what effect would it have on it (Inaudible) is asking with reference did it not of the water it didn’t get?

Mark Wilmer:

Speaking of California’s assertion is not our concessions, Your Honor.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Pre — precisely, Your Honor.

Hugo L. Black:

On water available, of course they can’t get it if it is not available.

Mark Wilmer:

Very difficult.

Hugo L. Black:

(Inaudible)

What in your judgment effects could that have on the determination (Inaudible) determination?

Mark Wilmer:

We concur completely with the Master that this is a statutory interpretation case.

We concur fully with the Master that the formula which he has proposed divides what water there is there in accordance with the congressional intention.

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

del

Mark Wilmer:

And that therefore the amount of water that is there is without relevance to this case.

Hugo L. Black:

You’re standing on the provision that the statute itself about — then 4,400,000 —

Mark Wilmer:

Correct.

Hugo L. Black:

— 2,800,000, Nevada, 300,000?

Mark Wilmer:

That is correct.

Hugo L. Black:

And what did they propose to show with reference to — to that (Inaudible)

Mark Wilmer:

It relates to these charts Your Honor as seen and to many shall I say, unilateral figures that have been presented to you which have — we take little relation to the record?

Hugo L. Black:

(Inaudible) — that — in the question I’m asking is not with reference (Inaudible) but what is it, (Voice Overlap) will not get their whole 4,600,000 or 400,000?

Mark Wilmer:

The approach which California takes is this, Your Honor and the Master very nicely exposed that in his report.

California says, for purposes of the Limitation Act, 3 (a) shall be construed as a system proposition.

In other words, that California is limited to 4,400,000 out of 7,500,000 of system water, not mainstream water.

Hugo L. Black:

That gets back to the interpretation of the Act, does it not?

Mark Wilmer:

Yes.

That’s why we say if its mainstream water, the case is over as far as we’re concern, we want it.

Hugo L. Black:

But if — if the interpretation of the Act is correct, can you say that once the — the relevance of the facts they offered (Inaudible) the claims they’re making would have on that interpretation?

Mark Wilmer:

Your Honor that is precisely why we quoted Justice Holmes at the outset of this case.

The law is clear and the material facts are few.

What California has offered here in the way of these many, many pages of water supply testimony has no relevance to a determination of this case if the Master is correct and if we are correct.

I think that is a fair statement.

It is a question of the division of the water which the statute — which Congress dealt within the Project Act and the Master has dealt with that and has said of that supply it shall be divided as follows.

Hugo L. Black:

Suppose they arrive on saying that the — the Act is wrong to interpret and that it should be (Inaudible) as though — as applied to the whole (Inaudible)

Mark Wilmer:

Might be necessary to re — to refer the matter back to the Master, Your Honor, I — I wouldn’t want to —

Hugo L. Black:

There was an agreement (Inaudible)

How could it — if — if that interpretation is wrong, the decision is based on that interpretation, would we go further and decide it in a (Inaudible) that court has made?

Mark Wilmer:

You could not do so, Your Honor if we are correct in the fact that this is a navigable stream stored by Congress in the exercise of its power over the stream.

Hugo L. Black:

Then it goes back to what it means.

Mark Wilmer:

Well —

Hugo L. Black:

Well, what I am saying, it proposed that — suppose that the (Inaudible) on which the Master made his report, the interpretation there is wrong, what then?

Mark Wilmer:

Well, Your Honor, we’ve been so very sure the Master is right, I really haven’t thought about it.

Hugo L. Black:

Is there —

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

del

Mark Wilmer:

I’d say we’ve been so very sure the Master is right that I haven’t given very much thought.

Hugo L. Black:

(Voice Overlap) what you’re arguing, your arguing is wrong.

Mark Wilmer:

Yes Your Honor, I realized that.

If the Master is wrong that this Project Act is improperly construed then I presume it becomes a matter of determining how much of this system water California is to get and how much Arizona is to get.

May I just pursue that just a moment?

The —

Hugo L. Black:

(Inaudible)

Mark Wilmer:

— California theory, as we understand it is this, under the Project Act, the California Limitation Act limits California to four million four of system 3 (a) one, system as distinguished to mainstream.

She next says that there is available in the Lower Basin tributary wise, two million acre-feet of use.

She says that’s all put to use.

So therefore there is a total available to California in the mainstream of her portion four million four of the remaining five million 3 (a) water and she gets half the surplus.

In other words, as the Master has analyzed the thing, the entire thrust of the California position is that she first charges Arizona — Arizona rights with two million acre-feet on the tributaries against the 3 (a) limitation which therefore puts in the mainstream two million more feet of water for surplus.

And she says now, we get our four million four out of this plus half the surplus.

Hugo L. Black:

Your argument is as I understand it, under the Master is that that — all water available (Inaudible) but not which have been — giving that meaning so that they would get more that that four million six or four.

Is that right?

Mark Wilmer:

Well, I would — again that it is yes Your Honor.

I would — I would — I believe it is.

Oh I thought — I thought maybe I’m — briefly misunderstood the argument, too.

I thought there were two facets to California’s position.

One, that the California limitation related to a system-wide water are not merely mainstream water.

Mark Wilmer:

That is correct.

And therefore if they were right on that the question of whether there was a contractual method of allocation and what now would disappear from the case because there will be plenty of water around for everybody.

Then I thought their second string was that if they were wrong on the system-wide aspect of it and their rights were conferred to mainstream water then the question arose as to whether there was a contractual allocations so-called as distinguished from — as applied to shortages at least the application in the conventional water right rules of prior appropriation and that could’ve been apportioned.

I thought there were two strings to that law.

Mark Wilmer:

Well Your Honor, I probably should not attempt to interpret California’s position.

I have understood it to be one —

Well —

Mark Wilmer:

Excuse me.

That leads me to ask you another question, supposing that the second string to their bow is taken, what would use namely that their — that you’re right as far as the limitation of being — to the mainstream is concerned, tributaries are out.

And that their right as to the question of there being no contractual allocations so-called in those circumstances, what would you say would be the desirability or the necessity of sending it back for further proceedings on that the defendant supplies.

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

del

Mark Wilmer:

May I to be sure I understand Your Honor’s question?

If the position of Arizona is correct that this Project Act dealt with mainstream water but our position and the Master’s position is wrong that there was a — an allocation of mainstream water.

Oh, I would answer that this way Your Honor.

I do not conceive it to be — let me paraphrase that, if this is a navigable stream and if Congress has in the exercise of its dominant servitude taken control over that stream and has stored that water, then I think only Congress has the right to say who shall take it out of that stream and how that stream shall be operated.

But then that’s begging the question?

Mark Wilmer:

No, I disagree Your Honor.

I — I don’t mean to do so.

You don’t concede there’s any possibility, any conceivable possibility that California might be right in any part of this case?

Mark Wilmer:

I’m not that unreasonable, Your Honor.

Almost — no, I beg Your Honor’s —

No (Voice Overlap) —

Mark Wilmer:

I didn’t mean to evade your question.

I — I would simply say this, as I understand the question of the — the thrust of your question, it is one, this is in fact a mainstream project.

Congress has in fact stored this water as Justice Brandies held pursuant to the authority of Congress under the Commerce — under the — its Commerce Clause power.

I would then braving the question Your Honor if anyone but Congress has a right to say how that water is to be used because it is done so pursuant to its power under the Commerce Clause.

That was the —

I (Inaudible) by hypothesis the California argument on this date is that the Project Act properly construed would mean that in the allocation of the water in the absence of a statutory or a contractual secretarial allocation that the Project Act properly construed meant that Congress intended that the water should be distributed in accordance with conventional water right of law.

That’s the argument as I understand it.

Mark Wilmer:

But that’s the conclusion, I quickly answer it Your Honor, it would have to go back.

You would — that’s —

Mark Wilmer:

(Inaudible)

— my question is directed to that because unless I had misinterpreted that argument, that’s one facet of the — their basic argument.

Mark Wilmer:

Well, I — I think that is correct Your Honor, yes and I would — I don’t see there’s any escape from that.

Your answer to that is that we’d have to go back.

Mark Wilmer:

I see no escape from it because to — to distribute it in accordance with the rule laid down in Nebraska versus Wyoming and otherwise many more findings was to be made than has been made here, many more would have to be made.

Felix Frankfurter:

(Inaudible) Mr. Ely says those three — if they were three California (Inaudible) establishments or corporations, those three —

William J. Brennan, Jr.:

Project.

Felix Frankfurter:

— project has seniority rights on the top of this (Inaudible)

Mark Wilmer:

May I — excuse me.

Felix Frankfurter:

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

del

Mark Wilmer:

Well, may I answer —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Except for this one thing Your Honor that if the present perfected rights has senior rights which the Master interpreted, they are well within the ceiling which the Master has placed.

(Inaudible)

Mark Wilmer:

They’re well within the amount available to California for those rights that’s why I corrected my statement earlier that it was 2,159,000 and that it was a Johnson claim.

Felix Frankfurter:

(Inaudible) — mainstream water they allocated (Inaudible) then California, California cannot have affected those (Inaudible) except on that theory (Inaudible)

Mark Wilmer:

Assuming their contract rights are not satisfactory.

May I just say in — in passing Your Honor, there is — I indicated earlier great question in our mind at least as to the validity of the California appropriative rights.

They were taken by contract from Old Mexico, not by virtue of diversions from the stream.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

No, I — its why I answered Justice Harlan as I did that if that is the rule that governs this case then there’s many more days of testimony to be taken.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

So that — I — I would answer you directly Mr. Justice Harlan that if the rule of this case with respect to the disposal of this stored water is appropriative rights and according to their seniority that that can be done upon the question that this case is not ready for adjudication.

Well, to turn around the other way, in other words, the only premise on which this case could be finally disposed of up here is on the acceptance of the Master’s contractual arrangement allocation.

Mark Wilmer:

Or our suggestion that it’s a formula, a re — mandatory formula —

Or — or that it’s just —

Mark Wilmer:

Yes.

— statutory formula.

Mark Wilmer:

Yes, I — I agree with the (Voice Overlap) —

That’s independent whether the California limitation is mainstream or tributary.

Mark Wilmer:

If Congress didn’t divide the water Your Honor, I — I — that’s it.

Felix Frankfurter:

May — may I ask you —

Mark Wilmer:

Sure.

Felix Frankfurter:

The fact that (Inaudible) that California is (Inaudible) suppose the Master is (Inaudible) how far ahead will the limitation into the Act with reference (Inaudible)

Mark Wilmer:

Well Your Honor, I am very hopeful that you will be here but I fiddled out for about being back —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

— here myself.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

I —

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

del

Mark Wilmer:

Your Honor, may I just bring this to your attention.

And that’s what I started to discuss briefly this matter of water supply.

One thing that has not been emphasized has not been made clear is the fact that we’re talking about many years in the future.

In the opening brief of California, she made the statement and that is answered in our answering brief that they were participating projects in the Upper Basin storage which had been approved for priority of completion.

We responded in our answering brief that she had misstated the statute that they were approved for priority of planning for completion.

She has not denied that.

She now comes back in our answering brief with an excerpt from a hearing held in 1961 and the testimony of a gentleman by the name of Palmer.

I’m merely asking that the Court make note of this in their brief because as it stands it is not servicing.

It is headed in her brief as a footnote, testimony of a Mr. Palmer with respect to future development in the Upper Basin.

In the hearing from which it is taken, this is the caption, “Estimated Stream for Depletions, Upper Colorado River Basin, 100 Year Period Ending 2062.”

The table which is reproduced does not have the caption which says, “Present and Future Depletions Upper Colorado River Basin, 100 Year Forecast Beginning — Ending 2062.”

The thing that Justice Frankfurter has brought in my mind — supposing this was the second year of the Civil War and we’re looking ahead a like period of time.

I don’t know of any hundred year forecast, a hundred years ago would do very similar as to conditions today.

That is the whole problem that is inherent in this lawsuit in the California water studies.

They’re based upon assumptions.

They’re based upon forecast of water supply that may possibly be used a hundred years hence and as United States said that they had mortgaged Arizona’s future today for their needs of tomorrow.

Hugo L. Black:

May I ask you, I — (Voice Overlap) —

Mark Wilmer:

Yes, certainly, Your Honor.

Hugo L. Black:

I had (Inaudible) the Master’s solution whether right — if he’s right (Inaudible) that it would go into the indefinite future.

Mark Wilmer:

That’s right.

Hugo L. Black:

A test maybe as to minor things (Inaudible) on other matters that might require readjustments (Inaudible) the formula which — if they can (Inaudible)

Mark Wilmer:

Your Honor, that is the basis — excuse me.

That is the basis upon which the Master distinguished Nebraska versus Wyoming and the other cases.

He said this is a case in which there is a stored water supply.

This allocates by a flexible formula the water that’s available any one year, and I completely agree with Your Honor’s statement but that is true.

That it is a flexible formula, good into the indefinite future unless changes occur and —

William J. Brennan, Jr.:

But Mr. Wilmer, if — if —

Mark Wilmer:

Yes, Your Honor.

William J. Brennan, Jr.:

If you’re right and we interpret the statute your way which supports the Master and the rate of (Inaudible) develops that had been told may very well with growing industry and everything else, is this going — the next time you have problems for us or for the Congress?

Mark Wilmer:

With Congress, certainly.

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

del

William J. Brennan, Jr.:

Well, I mean, how can it get back here afterwards, I don’t understand that.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Well, the Secretary has contracted for all of the water, Your Honor — the Secretary has contracted for all of the water.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

For a permanent supply, yes, sir.

William J. Brennan, Jr.:

That should be (Inaudible)

(Inaudible)

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

No sir, not under the statute.

It says, shall be for permanent service and that’s what the Master has held that it’s for permanent service.

Now I take it, the only thing might happen would be if somebody doesn’t need the water, he reallocates it, maybe you might have a problem but —

Felix Frankfurter:

(Inaudible) the effect that it might have —

Mark Wilmer:

That is why we have contend it, if it please the Court for the mandatory formula.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

That is why we have contended for the mandatory formula that we believe that that will settle for all time the — the question of who gets what water.

I think that is —

Hugo L. Black:

(Inaudible) State of California against (Inaudible) the State of Arizona gets (Inaudible) to that.

Mark Wilmer:

If the water is there.

Hugo L. Black:

(Inaudible) then they need to rule it as to appropriation.

Mark Wilmer:

That is correct, Your Honor.

Now, I — my time is running short, I had much more to cover.

I am not going to attempt to do it.

I would simply say this, that California has made many assertions of shortage.

We have stated and now stated to the Court and Master found that there are substantial wastage in the Imperial Valley.

In the draft report, the Master made no finding of waste.

We didn’t think it was material.

We asked for no findings on it.

But California made such a commotion about a shortage that he made a finding in his report filed with this Court that undoubtedly, there was substantial wastage in the Imperial Valley and that water could be far more economically used.

Now, I would like to if I might just to (Inaudible) there was introduced in the course of the trial below for a purpose of demonstrating in quick fashion whether or not there is waste in the Imperial Valley.

Because we say, that if there is waste — if there is waste, if California is throwing away water, then while it’s none of our business in so far as our present usage are concerned, it is our business if she’s claiming a water right on it.

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

del

Mark Wilmer:

This if it please the Court, this plaintiff’s Exhibit Number 237 in evidence admitted on the 7th — 5th of July 1957.

This is the Alamo River looking upstream from the bridge near the mountain.

Now that, if it please the Court, is not the inflow into the Imperial Valley.

This is the discharge from the Imperial Valley.

This is the amount of water in one river every minute flowing out of the Imperial Valley and into the Salton Sea.

Now it is said that a picture is worth a thousand words and if anyone can look at that picture and not say there is waste occurring at that point, of course, that privilege.

Now, that is only one.

Hugo L. Black:

What difference does that make to the interpretation?

Mark Wilmer:

It has reference Your Honor only to one thing.

We offered it only because of California’s talked about rights and shortage.

And the only purpose of this is to say that if California is in short supply, quit throwing that water in the Salton Sea a million acre-feet a year and start using some of that for a — for a metropolitan.

Just to take the edge of their argument?

Mark Wilmer:

Well, it’s to demonstrate, if it please the Court that — that if they are claiming a phase shortage, they have a source to turn to as well as Arizona’s supply.

We would welcome this amount of water in Arizona and we would put it to beneficial use (Inaudible)

Felix Frankfurter:

You’re arguing that’s the — (Inaudible)

Mark Wilmer:

This, if it please the Court is the other stream, flowing out of Imperial and into the Salton Sea not just one, two.

I simply submit to the Court that they can talk about leeching but I know —

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Surely, Your Honor.

Felix Frankfurter:

(Inaudible)

Mark Wilmer:

Your Honor has correctly interpreted my motives.

I think I remember once someone saying with a long practice (Inaudible) in discerning motives, that it — I do — because if I do interpret yours, the depth of your base heart, that my heart isn’t based but you have correctly interpreted my motives, Your Honor.

I think I can conclude to that Your Honor because we went to another subject unless the Court desires to sit beyond two thirty with me.

Hugo L. Black:

(Inaudible)

We’ll recess.