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

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Archibald Cox:

— the Court.

Before the recess, I had set forth a summary of our view on the first division of the case.

That view as I said is essentially the same as Arizona’s and essentially the same as Nebraska, although there are differences in emphasis and differences on subsidiary points notably that they had served the waters above Lake Mead.

California’s view at the —

William O. Douglas:

But you — you go with Arizona in the — as respects the water and the tributary?

Archibald Cox:

We would say that the tributaries flowing in the Lake Mead should be treated the same way as the mainstream above Lake Mead.

William O. Douglas:

Yes.

But, below —

Archibald Cox:

With the effect to the —

William O. Douglas:

— below Lake Mead.

Archibald Cox:

Below Lake Mead, we say that the Gila is Arizona’s.

And the real substantial difference here when you come right down to it is that California wants to apportion the waters of the Colorado River plus the Gila, and Arizona wants to keep the Gila and the portion of the waters in the Colorado River.

William O. Douglas:

As far as I —

Archibald Cox:

That’s the hard one.

William O. Douglas:

As far as I said earlier —

Archibald Cox:

I misunderstood and I was thinking of the upstream tributaries.

William O. Douglas:

You’re more with Arizona than the —

Archibald Cox:

Where — with respect to the Gila, we’re completely with Arizona and therefore, we’re much more with Arizona in the whole Justice Douglas.

William J. Brennan, Jr.:

But Mr. Solicitor, I gather in the stretch above Mead up to Lee Ferry.

Do you think the Secretary has contract powers to divert it —

Archibald Cox:

Well I think he —

William J. Brennan, Jr.:

— before the water get to —

Archibald Cox:

— well, I think he has power to do two things.

We think he had power to say to Arizona, “We will give you 2,800,000 less your existing upstream uses” because we think he had power to give in the neighborhood of 2,800,000.

Second, we think he has the power to say, “If you do divert from saying the little Colorado that then I am going to give you less water out of Lake Mead.”

William J. Brennan, Jr.:

Why would the same thing be true to him?

Archibald Cox:

Because the Gila is not part of the supply that the Congress thought it was apportioned.

William J. Brennan, Jr.:

Into the Lake?

Archibald Cox:

In the Lake.

William J. Brennan, Jr.:

Into the Lake, yeah.

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

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Archibald Cox:

Into the Lake, yes.

It was quite plainly, I think quite frankly that I think I can show this.

William J. Brennan, Jr.:

Quite of what?

Archibald Cox:

Quite plainly allocated to Arizona.

I think one could see this if he follows down the legislative history in the way I’m trying to emphasize that.

William J. Brennan, Jr.:

Excuse me, I still don’t think I’m clear about your position as to that Secretary’s power of contract in respect to diversion before water gets to Lake Mead after this differ.

Archibald Cox:

Well, we don’t find it necessary to argue here or indeed to discuss whether the Secretary has power to contract out of water into Little Colorado River before it gets to closer to the dam.

I would assume that he has not, that his contracts relate to water coming out of Lake Mead.

But, I had — so that I’ll state the whole thing.

I say that he does have the power to say, “I’ll give Arizonians 2,800,000 feet out of Lake Mead as long as you Arizonians do nothing to diminish the supply going into Lake Mead.”

I think he has a power to say that if you diminished it, I’m going to take that away from you.

William J. Brennan, Jr.:

Or charge it against —

Archibald Cox:

Charge it against you, that’s the right description.

Yes.

William J. Brennan, Jr.:

Thank you.

Felix Frankfurter:

(Inaudible) you prefer you give Gila’s, Arizona of (Inaudible) tributaries part of the river on the basis of a different (Inaudible)

Archibald Cox:

Yes, yes

Felix Frankfurter:

In other words that’s the (Voice Overlap) —

Archibald Cox:

And — and partly on the basis of the language of Section 4 of the Project Act Your Honor, both, I have in mind particularly the second paragraph of Section 4 of the Project Act which I will — I was really just trying to outline it now.

Felix Frankfurter:

Does your view (Inaudible) there is difference (Inaudible) of the significant with contrary to legislative history of the treatment so called (Inaudible)

Archibald Cox:

A decisive difference between the Gila and what I call the upstream tributaries, yes?

It’s decisive.

Hugo L. Black:

— (Voice overlap) — did I misunderstand Mr. Wilmer?

I thought you said that Arizona was not taking any effects on the upstream tributaries, (Inaudible)

Archibald Cox:

Well, he said that there were some uses as our preference of all uses he said along the Little Colorado.

There are not — they don’t mount to verify.

Hugo L. Black:

Be above Lee Ferry?

Archibald Cox:

That would be above — that would be below Lee Ferry, between Lake Mead and Lee Ferry.

He said —

Hugo L. Black:

What does he said it then in the project?

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

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Archibald Cox:

Well —

Hugo L. Black:

I’m just wondering whether that (Voice Overlap) —

Archibald Cox:

It’s not.

It’s the — there isn’t enough water to be worth flushing about really.

Hugo L. Black:

I thought they get the possibility rather than reality.

Archibald Cox:

I think it’s a possibility, a theoretical point that comes into the analysis rather than a practical difference in the use of water.

Hugo L. Black:

Do they have a permit to do this from the Federal Government if they want to take the water out of the — above the Lake?

Archibald Cox:

I don’t think so.

No, no.

No.

Because not unless — no is the answer period.

California’s analysis as I understand it is that the Project Act is irrelevant to the interstate allocation of this water.

In all but one respect, they do conceive that Section 4 puts a limitation on the amount of water that California can have.

They say that the universe that Project Act apportions is all the water in the basin, the mainstream plus the Gila to put in pragmatic terms, and that they are entitled to 7.5 million plus one half of the amount over 7.5 million of all the water in the basin so that we —

4.4?

Archibald Cox:

Excuse me, 4.4 so that the — did I say 4.5?

You said 7.5.

Archibald Cox:

I should have said 4.4 out of 7.5 plus one half of the remaining water in the basin where as we say the universe being apportion, is the Colorado River was and specifically excludes the Gila.

That Colorado — California’s apportion as I understand it, foreseeing its price saying that first what should estimate the total dependable supply of the amount, there on the basis of present guesses is not to be assured.

And that that water should be apportioned between Arizona and California on the basis of the priorities, the time of appropriation under western water law.

The water in the surplus, the excess over 7.5, there would also apportion of partly to — to existing project.

I am not quite clear frankly whether California’s position is the law of prior appropriation governs as to the apportionment of the excess over 7.5 or whether it does not.

I think the thesis, central thesis of their whole case is that the law of prior appropriation does govern as to the whole thing.

But this is the point which seems to me not to be clear on the briefs or oral arguments.

William J. Brennan, Jr.:

Of California’s based?

Archibald Cox:

Yes.

Now, it maybe worth pointing out in practical terms just how the water would be divided under these two rival views, and I have taken in breaking it down the dependable supply as one assumption because that’s what California asks us to make.

And the assumption that there is a total of 7,500,000 acre-feet in the mainstream, which is the assumption that Congress made.

Taking the 5,850,000 first, you would find that under California’s view, California would get 4,400,000.

Arizona — under California’s proposal, they would get 4,400,000.

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

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Archibald Cox:

Arizona would get 3,400,000.

I’m sorry I’m lost by my own table.

I’m talking of — I’m going to divide it, California proposal and Master’s report.

California out of the assumed dependable supply would get 4,400,000 their proposal and 3,000,000 for on the Master’s report.

Nevada out of the same assumed dependable supply would get 120,000 on the California theory and 234,000 on the Master’s report.

Arizona’s, out of the total supply of 5,800,000 roughly would get 1,100,000 on the California theory and 2,100,000 on the Master’s report.

So there’s a difference of something over 1,000,000 acre-feet between Arizona and California and that assumption of the flow of the stream.

Now, if you assume as Congress did in 1927 and 1928 that there would be 7,500,000 acre-feet a year.

It works out this way.California on its proposal would get 5,400,000.

On the Master’s report, it would get 4,400,000, again, about 1,000,000 acre-feet of water.

Nevada on the California proposal would get 300,000 in either event.

Arizona would get 1.8 under the California theory and 2.8 under the Master’s report.

So, there’s about 1,000,000 acre-feet of water difference in the two —

Charles E. Whittaker:

Why would California?

Archibald Cox:

Oh California gets 5,400,000 because they get 4,400,000 plus half of the —

Potter Stewart:

2,000,000 (Voice overlap).

Archibald Cox:

That’s right.

And to calculate what it would be —

Potter Stewart:

I see.

Archibald Cox:

— on the whole if there is 7.5 in the mainstream, I took California’s assumption that it was 2,000,000 in the Gila.

Potter Stewart:

Right.

Archibald Cox:

I should say that is an assumption.

It depends on contested issues with respect to measurement, a very sharply contested issues that Master’s report was rejecting, but it seemed — one have to take some figure and it seem as well take this one.

Potter Stewart:

It’s 2,000,000 in the Gila plus the Bill Williams River.

Archibald Cox:

Yes, which isn’t worth — really isn’t much worth wearing on that.In fact I assumed 2,000,000 in the rest of the basin, not just for Gila.

In choosing between these two basic approaches throughout plus the number of subsidiary issues, but the central ones, the ones which I should try to focus on concerned first the definition of the universe that is being divided here whether it is all the water in the basin as California said or whether it is the mainstream including some of the upper tributaries as we say along with the Arizona and to some extent massive.

Then the second issue of course is how once the Universe has been decided shall claims against it the rank in order of priority according to the law of prior appropriation as California says or shall the available supply be distributed pro rata on the basis of the Project Act and the statute as the Master says, the Arizona content as we think is proper.

I would emphasize — I think I said this before, but I would like to emphasize that it does not seem to me here necessary to reach any final decision on the meaning of the Compact.

It is relevant.

There are possible meanings to the Compact that one surely has to take into account.

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

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Archibald Cox:

But on our view of the case and on the Master’s view of the case, there’s no necessity for reaching any final judgment on any question concerning the meaning of the Compact because we think regardless in which way those questions are decided, the result should be the one the Master recommends, something to my mind are difference.

I would also like to point out now if I may a little more detail.

The questions that arise if the basic theory of the Master is accepted because there are a number of them, maybe helpful at least to have them in mind as we examine that theory in more detail.

Hugo L. Black:

Do you mean by basic theory, the — it is the interpretation of the Project Act?

Archibald Cox:

I do.

His — his basic interpretation.

The reason I used basic theories because the first of the questions that arises even if the Court contempt its basic theory is whether he was right in — in validating the clauses that pertain to the upper tributaries and the mainstream above Lake Mead.

Of course, we say that it was wrong.

A second question is whether Nevada users require additional contracts with the Secretary of the Interior or whether the contract intended to the Master’s report is a sufficient contract to give them the right to use the water.

But we think that further contracts with users in addition to the bear allocation to the state is required.

There is a problem which was mentioned —

Felix Frankfurter:

Well, the thing required to be — that’s (Voice Overlap) —

Archibald Cox:

Required before they have any right to the one.

Felix Frankfurter:

That’s their duty to — if the motion on the Secretary —

Archibald Cox:

The Secretary must contract —

Felix Frankfurter:

— (Voice Overlap) not that he may — the power but he must.

Archibald Cox:

But he has power to choose with whom may will contract.

That’s the important thing.

Felix Frankfurter:

But the power can give it (Inaudible)

Archibald Cox:

Not unless the State is going to be a user in gross in this — yes.

We’re saying he is confined to contracting with users.

Another question which is of no importance in this case but therefore I should ask the Court —

Felix Frankfurter:

(Inaudible) the State may choose to be to consider (Inaudible)

Archibald Cox:

We would say —

Felix Frankfurter:

(Inaudible)

Archibald Cox:

We would say that the Act does not contemplate that, that the Act contemplates the actual man who applies the water is to have a contract with the Secretary.

The Master — another subsidiary question concerns priorities intrastate.

The Master indicated in his report and in his decree the goals were to be determined according to state law.

We think that that was a wrong and unnecessary determination on his part.

I shall argue particularly that it was unnecessary and that the issue is not right for determination now that simply that the decree should say nothing on one way or the other about question of intrastate priorities.

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

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Felix Frankfurter:

What — couldn’t you tell us why?

Archibald Cox:

Oh yes.

I was just trying to put this in focus.

I may be complicating it by listing so many.

But then of course, there is the further question concerning the meaning of present perfected rights in which there’s an issue and finally, there is the big question concerning Indian Reservation.

Now, what further preliminary point?

I do think it’s important to suggest to the Court the difference that in the disposition of the case at this stage, it would do well to focus on upon whether to accept or reject the essential thesis of the Master’s report that if it determines to accept it, then some of these other questions may be appropriately decided.

But then if it rejects the essential thesis, the basic thesis of the Master’s report, that it would be unwise to attempt on the basis of these briefs and this oral argument to determine any of the remaining questions because there are large number of questions.

Now, I would just like to indicate their nature which were exceedingly complex of which have been assumed for the purpose into the present argument by a number of us, which don’t matter very much in determining the sound as to the essential thesis of the Master’s report, but which have not been adequately kept.

Felix Frankfurter:

Combining essential use (Inaudible) regarding the dependant grounds of the distance of the 1,000,000 acre-feet.

Archibald Cox:

Yes.

The two points, the meeting of the limitation — what the Universe being decided is — and whether there are to be priorities or ratable apportion.

If you reject the notion that his definition of the universe or if you reject his notion of a ratable reduction at the event of shortage, then there are such a hostile questions that I suggest to the Court that it would be unwise to attempt to determine them on the present briefs which it —

Felix Frankfurter:

Do you think that if you reject the first (Inaudible)

Archibald Cox:

I think it would.

I think I do indeed.

Felix Frankfurter:

So what’s about the two, first one is enough.

Archibald Cox:

I think — I think it really either of them, certainly the first one.

Felix Frankfurter:

Yes.

Archibald Cox:

For example, if you reject either branch of the main thesis, then there comes the question, should there be an estimate, a finding on the dependable mainstream supply?

And if so, what is it?

That is something on which as of now there is no finding.

There’s no question (Inaudible).

If you reject his essential thesis, there is a major issue as to what becomes of what we call the Article III (b) (1), the 1,000,000 acre-feet allocated to the Lower Basin and in addition to the 7,500,000.

There’s no dispute about that so long as the Master’s recommendations prevail.

But if I understand the history of this case is extreme dispute about it then I can see many grounds of dispute if that is rejected.

Again, if Arizona is to be charged for the use of the water on the Gila River, it becomes a question as to how you measure those uses, a question that has been very hotly argued at times in the past.

Do you measure them by beneficial uses along the stream or do you measure them by the amount that those uses reduce what flows in to the mainstream of the Colorado River?

You get very different answers according to your method of measurement.

If just to mention one more, if there is to be a compact of apportionment, that is to say one must determine the meaning of Compact, there’re two questions arise.

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

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Archibald Cox:

One is how do you charge evaporation loses in Lake Mead?

Maybe they should be charged against beneficial use.

Many of my associates think they should.

That’s not important in the present posture.

Again, if you are going to determine the meaning of the Compact because that determines the meaning of the Project Act, I would think the Court after this closer study of the case by — well, I wish to determine whether the Upper Basin States didn’t have to be heard.

So that all I’m trying to do is to indicate that there is a great deal of this isolated theory theory and it shouldn’t be assumed that it’s all been canvassed here.

With that respect, you’re in an agreement with Mr. Wilmer’s position in colloquy in the Court yesterday?

Archibald Cox:

Substantially.

I hesitate a little bit be candid because I am not quite certain whether there should simply be a further argument with briefs in this regard or re-argument or whether it should go back to the Master for further evidence.

Your view being the latter?

Archibald Cox:

With some hesitance.

Mr. Wilmer is being clearly that it should go back.

I don’t feel quite so sure.

I have one reason to be candid.

I — if I were the Master that had worked this hard and adapted this certain theory then it was sent back to me and I had told the theories are all wrong, well it could be awfully hard for me to really put my back into it Justice Harlan the next time around that I don’t mean to —

And so you mean consideration.

Archibald Cox:

Well, (Inaudible) other and it certainly implies no reflections at times, had rifted it all.

I’m just stating the way I would react.

I don’t know how he would react.

I come that (Voice overlap) —

Felix Frankfurter:

And that the lower court, the lower court that constantly confronts to invest water, lower court that constantly confronts (Inaudible)

Archibald Cox:

Yes.

Felix Frankfurter:

After the (Inaudible)

Archibald Cox:

That’s true.

Felix Frankfurter:

And beside, wouldn’t you mind define the orthodoxies (Inaudible)

Archibald Cox:

Well, there are certainly some things on which further evidence would have to be taken.

And I guess that while I perhaps taken more time and I should to express my hesitance as to whether it wouldn’t be well to have a further re-argument.

I suppose I come out the same way as Mr. Wilmer here.

First, if we go to the tributary, their upstream Indian reservations as their rights, we would contend it should be adjudicated and the Master did not ask the States to put in all their evidence of those questions.

So clearly, they couldn’t be adjudicated without that evidence being put 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 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California

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Archibald Cox:

The mainstream controversy, it seems to us that the dominant fact is that it was the vast expenditures of the Unites States for the Hoover Dam and the related works which tend to Colorado River that made so much of its waters subject to beneficial use, irrigation along the Colorado dates back to very early Indian times.

But until the building of Boulder Dam, virtually all of those projects where occurs first by flood and then by drought.

For example, there were occasions where the Palo Verde, one of the first (Inaudible) here the middle of the lower river and the Colorado Indian Reservation Irrigation work just had to be suspended because of the flood.

Downstream at the Imperial Valley, there were even more spectacular droughts, not only where the shortages in some seasons but there were at least two occasions where as a results of their diversion work, the Colorado River changed its course and began at empty into Salt Sea.

And indeed, one can say that if it had not been for the taming of the river by the Federal Government that it might well be emptying into the Salt Sea today and the Imperial Valley would not be as prosperous and luxurious as it is.

The major step in the development of the Project, the Project Act was the Fall-Davis Report in the early 1920s.

I mentioned it because it expressed the conclusion that everyone concerned, subscribed too, that the problems of the Colorado River were in such magnitude as to be beyond the reach of other than a national solution.

And after the report recommended, the building of a dam either at Boulder Canyon or at Black Canyon which is just a little way up stream and also and further canal down here so that it would run entirely within the United States and the Imperial Valley uses would not be subject to recurring difficulties with the Mexican Government.

Would you mind indicating roughly where Black Canyon is.

I can’t find it on the map that I’m seeing this (Inaudible) so far.

Archibald Cox:

Well I have — I separate it from the term (Inaudible) but I have told that it’s just further up above Boulder Canyon and I think it would be between Boulder Canyon and Bridge Canyon.

I have wondered at times whether they aren’t — Black and Boulder aren’t two dams for the same plates.

So I was wondering.

Archibald Cox:

But if they are separated, it’s just a little further upstream and it’s not as far up as Bridge Canyon.

Although there was agreement by the mid-20s on — pretty much agreement on the physical aspects of the project, they were very considerable political problems which have been described the Upper Basin, was afraid that the Lower Basin would develop first and rather then open the door to federal expenditures for Lower Basin development, they wanted to have something set aside for them.

Arizona was afraid that California would develop first therefore, she wanted to be protected before she would vote in the support of this project.

Eventually, the political difficulties were resolved by the Colorado River Compact and the enactment in 1928 of the Project Act.

And when then had constructed this very elaborate and expensive federal work is not only starting at the top of the river, in the Hoover Dam and the Lake Mead area that when — then comes down to Davis Dam, Parker Dam, Palo Verde which the Irrigation District paid for and finally the Imperial Dam.

So this is a succession of works all along the river.

And they are — I suggest in a very real sentence, the works which control and make manageable and therefore useable these waters.

California talks a great deal about their appropriations of the waters of the Colorado River.

I think two things should be emphasized.

In the first place that the water actually being put to use in 1928 and this is a rough estimate but it shows the proper order of magnitude, was only 3.2 million but what she talks about today as existing project it’s not water that is being used today, the water that California hopes to use through those projects.

The Metropolitan Water District in 1928 was a gleam in somebody’s eye.

They’ve spent some money on engineering.

It was a big thing.

But there had been no physical works construct to take the water out of the Colorado River.

And indeed if the Federal Government had not come along with this project, I think it’s fair to say that this simply would have been no opportunity to divert water for Metropolitan, Los Angeles.

Under these circumstances, I think it’s unnecessary to argue that the United States had the constitutional power to allocate the waters impounded and controlled by this federal works.

The point seems to me to be established by the Ivanhoe Irrigation District case.

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Archibald Cox:

I understand it not to be contested on the basis of what was said here on the oral argument and I don’t plan that (Inaudible) Indians.

The question becomes whether the United States Congress did make an allocation of the waters of the Colorado River as controlled by Hoover Dam and the related work.

And that takes us to a more detailed examination of the Project Act for the purpose of saying whether the allocation was made.

The core of the act I find in Sections 1, 5 and 6, and I shall refer and talk into the act to the print in the back of the Master’s report.

That’s in sets one that we can all conveniently put our hands on.

The exact words of Section 1 are not important.

It simply authorizes the Secretary of the Interior to construct, operate and maintain the Hoover Dam and the All-American Canal down at the lower end of the river.

Section 6 of page 387 provides how the dam at reservoirs will be used.

The dam and reservoir provided for by Section 1 shall be used first for river regulation, improvement and navigation and flood control, second for irrigation and domestic uses and satisfaction of present perfected rights pursuant from Article 8 of the Colorado River Compact and third for power.

You will note that it emphasizes federal ownership and operation and that it cause for the both protection of present perfected rights.

A perfected right is one which has vested in the sense that the owner of the right, claimant to the right has not only claimed to one but he has done the work necessary to bring the water to his land and to apply it to his land.

And it’s not a perfected right until he has actually made beneficial use of the water.

Potter Stewart:

Now, this is a matter of definition (Voice Overlap) —

Archibald Cox:

This is a matter of definition which as I understand it —

Potter Stewart:

Is not —

Archibald Cox:

— is not disputed by anyone, certainly as the Master’s definition.

And then I —

William O. Douglas:

And the rep — and the standard would be state law.

Archibald Cox:

The standard would be for that state law I think, yes.

It was a term that – it was a work of art which I think have no different definition anywhere.

So that when I said it would be state law it was – it would be the general law.

I didn’t mean to indicate that one must refer to state law to determine whether it had been perfected.

William O. Douglas:

Well, is there any other ways since the 1907 in the Western States determining water rights and reference to state law?

Archibald Cox:

Well, I should think that Congress could use words that were familiar in — in water law with a federal meaning.

William O. Douglas:

Well, that’s a theoretical intervention.

I’m saying is there in the body that law — since 1907, is there any body of law that does not refer to state law to define water rights in the Western States?

Archibald Cox:

Well, I think there are certainly some rules with respect to water rights laid down by the federal statutes.

It was the case for example dealing with the 4860 acre lot, the Ivanhoe case.

William O. Douglas:

That’s a – in terms of quantity, what — how much may be — (Voice overlap) —

Archibald Cox:

If it didn’t lay down to federal rules —

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William O. Douglas:

But the mechanism — is the mechanism provided by the state law for protecting a right.

Archibald Cox:

Well I think —

William O. Douglas:

I don’t know how important this is but —

Archibald Cox:

It does seem to me that it is important.

I think the reason I —

William O. Douglas:

Just so to want me —

Archibald Cox:

(Voice overlap) — there are some questions with respect to state law that I will come into later.

I don’t think there’s any controversy about whether you look to federal law or give a federal substantive meaning to the term perfected rights.

Felix Frankfurter:

But if you look at the state law, there might be a difference in view that it is important (Inaudible)

That, I don’t know.

Archibald Cox:

It could be.

The Master reserves the problem of what qualified as present perfected rights.

He gave his definition and said a perfected rights, that think this is true at every State is one where the water has been applied to the actual use on the land.

And he said that a present perfected right is one which has been perfected as of the time that the act speaks because that’s the only thing that it could add.

It meant a right that presently been perfected in 1928.

William J. Brennan, Jr.:

Which is the (Voice Overlap) actually was being taken.

(Inaudible)

Archibald Cox:

To the extent that it was being beneficially used, yes.

I understood Mr. Ely draw a distinction between perfected rights under the contract and prior appropriated rights under California law.

Archibald Cox:

Oh yes, yes.

So that —

Archibald Cox:

For example, Mr. Ely and I think is 00 the part could be illustrated with reference to Metropolitan Water District.

Yes.

Archibald Cox:

Mr. Ely would say that the Metropolitan Water District had a prior appropriated right going back to the time they filed a claim of some time in the mid20’s for the water and began to a do some engineering and then gradually built project.

And under California law hence under the law I think of all the Western States you get — what you do complete — if you do complete the project and deprive the water, it relates back the concept of present perfected rights as the Master defined it would exclude those for every use of the water came after 1928, and would say that it covered only those which have been perfected by the use of water before 1928.

That’s why I say that 1928 is cut off.

William O. Douglas:

But that construction might in fact change state law of governing water rights.

I’m sure it was in the State of Washington.

I don’t know about California.

Archibald Cox:

Well, it would mean that certain rights were not respected, were not given priority for the purposes of this Act in accordance with the state law of water act.

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Archibald Cox:

Yes, because this Act lays down a federal rule with respect to present perfected right.

It doesn’t say go and look to —

Well, (Voice Overlap) is up on a question as to whether that’s the exclusive case.

Archibald Cox:

Oh yes.

Or it doesn’t foreclose the argument, there’s no allocation here, federal allocation.

Archibald Cox:

Not at all.

I think it bears on it all — really all I was trying to suggest was that Section 6 contains some guidance.

It does a partial job of the allocation.

It says that you are to honor a present perfected right, that’s one of the first things.

And I may say that the legislative history cited in our brief quoting to Congressman Douglas from Arizona and Congressman Colton seems to me that it makes it very clear that not only this sentence in Section 6 but the critical sentences in Section 5 which right now as the Court to turn do contemplate an allocation through, “The Secretary of the Interior.

On the first sentence of Section 5, on page 384, the Secretary of the Interior is hereby authorized, under such general regulations as he may prescribe, to contract for the storage of water in said reservoir and for the delivery thereof at such points on the river and on said canal as may be agreed upon.”

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

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

This seems to us to be the clear as to indication that henceforth right charges stem to have contracts with the Secretary but the Secretary is to determine what uses shall get those contracts.

Are you going to deal with the legislative history of how that clause got into the Act?

Archibald Cox:

It got into the –-

(Voice Overlap)

Archibald Cox:

Yes, I come to it a little later.

The previous sentence which I slid over a little shall perform to paragraph (a) of Section 4 of this Act, we think it could use the Secretary still further instructions because it tells him that he is to make his contracts within the arrangement visage by Section 4.

And we think Section 4 is really the key to the scheme visage by the Project Act reading it in conjunction with the provisions that I sought to emphasize out of Section 5.

I should emphasize I think that Section 4 in its interpretation which I’m currently now in some detail is important for three reasons.

It’s important first because I say I think it is the key to what the Master thought and we thought was the scheme of federal apportionment.

Its interpretation is important for second reason because whether one rejects that view or accepts it.

Section 4 imposes a limitation on our friends from California.

It’s important for a third reason.

It’s part of the Secretary’s instruction, therefore a part of the limitations on his power and we must of course show that his contract conform to those constructions so that this in essence is the heart of this part of the case.

Now, the issue with respect to Section 4 as I understand it turns essentially a part with meaning of words found on page 382 down in the last quarter of the page.

The earlier part says that the actual not take effect until the Colorado River Compact has been ratified or until California has accepted this limitation upon her rights that her users shall not exceed 4,400,000 acre-feet, waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact plus not more than one-half of any excess or surplus waters of the apportionment by said Compact.

The Master took the view as I have said before that this reads in terms of a universe of Colorado River waters that it does not include the tributaries below Lake Mead.

California takes the opposite view.

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Archibald Cox:

California imposes — that we briefed, of course, with the best.

California imposes the issue in a way which it seems to me to be false.

California says, “Do these keywords waters apportions of the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact referred to Article III (a) of the Colorado River Compact.

Well, of course they do.

I don’t dispute that.

I don’t think the Master really disputes that.

The Master as I understand it was saying essentially this, “Congress are questionably referred to Article III (a) of the Colorado River Compact.

It did this supposing that Article III (a) apportion to the Lower Basin 7,500,000 acre-feet out of all the waters in the mainstream.”

The Congress may have been wrong in that.

He, in fact — the Master goes on and says, “The Congress was wrong in that, that the true meaning of the Compact is that Article III (a) apportions a universe or apportion 7,500,000 out of the universe of all the waters in the Lower Basin including the Gila.

But Congress was wrong” so the Master says, but that was the last Congress put a meaning which is quite clear from the legislative history and for the words of the Project Act on the Compact and we must did interpreting the Project Act, give effect to what Congress thought it meant rather than what we now in our after the event wisdom may concluded that it means.

And I think what can put the issue fairly so sickly by saying that the question is whether Section 4 (a) of the Project Act to these critical words should be read to incorporate the meaning of the Compact had which Congress suppose it had.

Now, as a matter of fact — which is had — I mean which suppose the Compact had.

As the matter of fact, Arizona read — argues that Congress’s assumption as the meaning of the Compact was correct.

And if you were to delve into that, I think you would conclude that there was a good deal to be said for that view.

If Arizona is right in its meaning about Compact, then there is now a departure from the literal meeting of the Section 4 (a) of Project Act.

There’s now departure from the proper meaning of the Compact and therefore knowing consistency in the words.

If the Master is right in saying, “Oh, that’s not the meaning of the Compact” then of course we are not putting a literal interpretation.

Compact and we are not giving the quite of reference, the meaning which it truly has but rather the meaning which Congress opposed it to have.

Potter Stewart:

And you —

Archibald Cox:

We say that it is not only — not only unnecessary but would be inappropriate to determine here what is the proper meaning of the Compact.

Potter Stewart:

Well, I understood your brief, just disagree with Arizona’s (Voice Overlap) —

Archibald Cox:

I don’t think we intended to disagree with Arizona with that.

We say even if Arizona is wrong about that, the Master’s interpretation of the Project Act is still right.

Potter Stewart:

Yes.

Archibald Cox:

And I take it, we therefore go to the point of saying that we are willing to have the Project Act construed on the assumption that Arizona is wrong and California is right about the Compact.

Really what I’m trying to suggest and all I’m trying to suggest is that the meaning of the Compact was not beyond debate and that therefore, there is nothing very cruel or — about saying, “We’re going to give it the meaning that Congress thought it had” and — rather under that what we know — think is the actual meaning.

Now, I would like to turn to the implications both in the statute and in the legislative history, which indicate that Congress refer to the Compact supposing that if apportioned that, therefore as way of apportioning but I call loosely the mainstream water, the mainstream and the waters in the upper tributaries above Lake Mead.

I found the first indication of that in the Project Act itself as the Master said.

It seems to me that there are three — well, it seems to me that once you doubt first that no one spouses here a completely literal meaning of all the documents.

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Archibald Cox:

For example, California while it contents for a literal meaning of the Compact and a literal reading of the words 4,400,000 acre-feet of the waters apportioned to the Lower Basin States by Article — by paragraph A of Article III of the Compact says, “We should read those literally and should read the Compact literally.”

When it comes to the phrase not more than one half of any excess or surplus waters unapportioned by a said compact, it doesn’t want to read the Compact literally because the only time that unapportioned by the Compact comes in to the Compact is it one of the closing articles where it says it preserves those waters for later apportionment after 1963.

At the 3b water cannot be called, we think water unapportioned by the Compact if one is govern by the literal work.

Now, Arizona is not willing to have a literal meaning put on the Compact and have it been literally incorporated into the Project Act neither as the Master and neither as we, and neither are we.

So that all of us agreed that what cannot resolve is by an absolutely literal meaning that some construction is necessary.

And I don’t think anyone advances the case where I thought by saying, “Oh well, you are trying to go behind the words, what has to go behind the words?”

Now, the second thing which I would emphasize about the Project Act itself is that the second paragraph of Section 4 contains three strong indications that the Master is correct in his reading of the first paragraph.

Subdivision 1 of the second paragraph, “The states of Arizona, California, and Nevada are authorized to enter into an agreement which shall provide water.

That those 7,500,000 acre-feet, annually apportioned to the Lower Basin by paragraph A of Article III of the Colorado River Compact.”

Now, there you see, Congress indicated quite plainly that it sought that paragraph A of Article III of the Colorado River Compact was at apportionment of 7,500,000 acre-feet, which was not present — or which is not mentioned in the first paragraph.

And the two paragraphs are quite plainly belong together as opposite have of the same apple or opposite has at the torn piece paper and indeed if the edges on one piece of paper have been sculpt and rumpled and obliterated, I think you could find the meaning, find their true shape by lucky get the other half of seeing how they fit together because this obviously were meant to fit together.

The second indication that is important is that enclosed to, the second paragraph of Section 4 (a) says that the State of Arizona may annually use one-half of the excess or surplus waters of apportion by the Colorado River Compact.

Well now, currently says given the half to California, half to Arizona.

If Congress has in mind all the waters in the Lower Basin, it’s authorized these three states to take all of them, excluding the New Mexico, Utah and gives that nothing at all which is something which would seem most extra ordinary.

Furthermore, if that were the meaning, Congress is undertaking to divide between these two states without qualification.

The water had switched the Compact it selves speaks off as subject to further apportion that measure.

On the other hand, if you read the whole thing on the Colorado River water excluding the Gila then this speaks in terms of the States that had accessed to the river water and of course leaves the tributaries out and the rights of New Mexico and Utah are not impaired.

Third, the third subdivision that the State of Arizona shall have the exclusive beneficial consumptive use of the Gila River and its tributaries within the boundaries of said States.

It seems to me that nothing further is required to be said to show that this obviously gives the Gila to Arizona in addition to the waters apportioned as 7,500,000 acre-feet, add one half of the excess or surplus.

Now, California says that they have seen this.

Well, this is just a specification that Arizona is to be able to take her share out of the Gila that out of Arizona’s 2,800,000 apportioned by the earlier subdivisions.

She used to have the right to take it out of the Gila.

But what they normally looked back to say that there was no need to make any declaration to that effect.

California can’t take water out of the Gila and Nevada certainly can’t take water out of the Gila.

Furthermore, as you read this second paragraph through, I think it will become quite clear that each of this is an addition to the previous subdivision that there should be this one addition which is a sub-specification of the meaning of an earlier subdivision, just as not in keeping with the general scheme of gratitude.

California has a broader argument as I understand it.

She says in her brief, I think I’m stating it accurately that well paragraphs one and paragraph two of Section 4 (a) were alternatives, it was never thought that they would both take effect at the same time.

The paragraph 2 contemplates tri-state compact, if you’ve got the tri-state compact, there would be no problem about getting ratification of the Colorado River Compact.

And therefore, there would be no reason for the Limitation Act ever to come into play.

I think that there are several complete answers to that.

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Archibald Cox:

The first one is that the first paragraph of Section 4 (a) requires ratification of the Compact within six months and says that the California must adopt their Limitation Act unless the Compact is ratified within six months.

There is no such time limitation of the second paragraph of Section 4 (a).

In other words, if six months runs, California must enact its Limitation Act.

There still would be an opportunity for a tri-state compact under the second paragraph.

Now, there’s an indication in Section 8 (b) which I think makes it fairly clear that the Congress did visualize that the tri-state compact might be negotiated after the Project Act had taken in effect.

And that would mean had almost surely had taken effect pursuant to California’s adopting a Limitation Act.

Section 8 (b) contains further instructions about the way the United States is to manage the river.

And it instructs the United States down at the very bottom of the page, the last word of the third from the last line.

Shall observe and be subject to and control anything contrary not withstanding, by the terms of such compact if any between the States of Arizona, California and Nevada, skipping some words which may be negotiated and approved by said States and to which congress shall give its consent on approval on or before January 1, 1929.

And the terms of any such compact concluded between said States and approved and consented to by the Congress after said date.

So, in that Section talking about something that would happen after January 1, 1929.

And then it says, provided that to the latter case, such compact shall be subject to all contracts if any made by the Secretary of the Interior under Section 5 Gila prior to the date of the approval and consent by Congress.

So there was, at least a possibility that the Secretary would make contracts under an effective Project Act before the tri-state compact became affected.

I may say this is also further evidence that Congress did contemplate the Secretary making an interstate allocation because it says that any later arrangement by the States as to what their allocations must be is to be subject to the contract he has already made, which certainly speaks in terms of a Secretary of interstate allocations.

Then the third reason for assuming that these were concluding, that these two paragraphs of Section 4 (a) go together is in the legislative history because I shall saw in a moment all the way through to the last page, the paragraphs where in terms of the conjunctive and the chains that was made to make the second paragraph permissive.

It was not in terms of its operating as an alternative to the first.

Our third reason for thinking that the statute does contemplate a federal apportionment is simply as a matter of commonsense, the commonsense logic to the situation.

Congress was concerned with water which the project would make available when the water that would come down for Lake Mead — from the Lake Mead.

And what would be more natural in the event of despite between the State than for Congress to indicate how the water was to be allocated and to authorize its delegate to fill in the gaps that it left.

Indeed, I find out —

William O. Douglas:

That would be true — I suppose the first federal then — the reclamation then, when was it 1997?

That would be true of any federal dams, that argument, wouldn’t it?

Archibald Cox:

Well, as I understand it, under most of this project —

William O. Douglas:

The law has been quietly opposite as you know.

Archibald Cox:

The Secretary has frequently decided with whom he would contract.

I don’t know any — I don’t know of any decision by this Court Justice Douglas that says the States determine with whom the Secretary shall make his contracts.

The Court has held at the Gerlach case that if rights are destroyed by the federal project rights under state law that they must be compensated.

But the court —

William O. Douglas:

The Secretary is not on this — does not form a dispensing function under our decisions up-to-date, he sets to determine under state law who has the perfected right, who has priority, who has the — and then he issues it at to them.

Archibald Cox:

As I understand it, certainly therefore isn’t what was done in the Gerlach case and I don’t recall —

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William O. Douglas:

It’s at the Section 8 of the Reclamation Act.

Archibald Cox:

Well, Section 8 of the Reclamation Act has been applied to the exact meaning has been a matter of some argument.

The farthest I know the court had gone was —

William O. Douglas:

The Ickes case, we have it up to —

Archibald Cox:

The Ickes — the Ickes case held that where the Secretary had started the project had made contract.

William O. Douglas:

This argument, same arguments was made in Nebraska, Wyoming.

Archibald Cox:

But in those — in that case as in the Ickes case.

The question that what the court held was that after the Secretary had started the project, after the Secretary had made appropriations, after he had let contracts with the users then, certain rights under state law vested but —

William O. Douglas:

I wonder Mr. Solicitor General why you didn’t refer us to Section 14, Section 18 of the —

Archibald Cox:

Well, simply that I hadn’t reached that part in the sequence of my argument, I’m sorry.

I think that since I’ve been dealing with 4, if I might finish dealing with it —

William O. Douglas:

I’m sorry.

Archibald Cox:

— with its legislative history.

William O. Douglas:

In your own time.

Archibald Cox:

And then I do, I assure you —

William O. Douglas:

Yes.

Archibald Cox:

— it tend to come to Sections 14 and 18 because they are, of course, an important part of California.

William O. Douglas:

Yes.

I thought you have reached that point.

Archibald Cox:

I would like now to ask of course to turn if I will to a consideration of the legislative history.

It seems to me that the legislative history and I won’t — I’m trying not to repeat all the ground, which been covered.

But I do think that there are three conclusions that emerged up.

I want to state them now and then show how they develop because the important thing to me here is the lesson from the sequence of the legislative history and not simply reading various statements by the Senate.

The three things which I ask you to keep in mind, there’re three of us running through it, what I think were assumptions of the basis of which everyone discussed this case.

I mean the statute in Congress.

The first was that the waters of the Gila River went to Arizona and that appears as an assumption all the way through, besides the sequence show.

Second, that what Congress — that was being dealt within the Project Act and what was the subject matter of Section 4 in the Limitation Act was 7,500,000 acre-feet of water coming down the mainstream, deliberately just little but of vague because I think the Senators would just a little bit vague.

I said three things.

I was going to say dealing with the mainstream waters and an assumption that there was 7,500,000 acre-feet which was very clearly in their assumption all the way through.

The background of controversy was outlined and outlined very accurately as I see it by Mr. Wilmer.

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

The problem was to get some kind of assurance for the Upper Basin States that the Lower Basin States wouldn’t appropriate all this water once Congress had made it usable in order to assure them since they anticipated that they would develop later that there would be some water left for it.

And the problem also from California’s point of view since she would be the first in the Lower Basin of the use water was to find some way of getting Arizona to go along or to state converts Arizona either have to be satisfied sufficiently to go along or else there had to be some kind of a provision written into the Act whereby all the rest of the States were willing to say, “Well Arizona, you can go your own way, fight it out.

We are satisfied with this and we think this sufficiently protects the Upper Basin.”

Now, the history as I understand the evolution of problem goes back at least until 1925.

In that year, there were direct — I’m using Arizona’s legislative history, the fatter one.

In that year, there were direct negotiations between Arizona and California.

And I ask you first to look at the proposals made by California in 1925 which appear beginning at page 144 of the Arizona legislative history.

Hugo L. Black:

44?

Archibald Cox:

144, 145, I’m going to begin on.

Article III (a), the States of California and Nevada hereby release to the State of Arizona any and all claims of every kind or nature to the use of the waters of the Gila River, Williams river, the Little Colorado and all their tributaries, so they said we put all refers for Arizona, the waters would be —

Hugo L. Black:

What are you reading from?

I’m very sorry that I —

Archibald Cox:

Page 145 of the Arizona’s legislative history.

Hugo L. Black:

145?

Archibald Cox:

Yes sir.

Hugo L. Black:

Yes, I see it.

It does go that far (Inaudible)

Archibald Cox:

Below that the Article III, begins just about the middle of the page.

Hugo L. Black:

Yes, thank you.

Archibald Cox:

What I was seeking to emphasize was that the first bit of the allocation gave Arizona the Gila.

Now, in return for that, California, the latter part of that paragraph, gets 1,095,000 acre-feet that to come out of the Colorado River.

Then Nevada was given her 300,000 acre-feet that nobody has ever thought about.

The Arizona was given 232,000 for her present perfected rights then California was given something over 2,000,000 for her present perfected right and the rest was divided equally.

Hugo L. Black:

May I ask you there?

I assume at that time, they were not thinking of present perfected rights according to the definition, the masticated year, was it?

Archibald Cox:

Well, I think they used the word in the same sense.

I can’t find any direct proof of this but.

Hugo L. Black:

I mean with reference to claim or with reference to existing projects.

Archibald Cox:

No, I think they were using it with reference to existing beneficial users and not simply that claims based upon hopeful.

Because as I — I can’t claim be an expert in water level but as I read to the Kenny and the other books, giving through them, looking to get a sense of the used word.

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
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Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
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Archibald Cox:

I understand them to speak of the — as it (Inaudible) rights until the water has been applied to Gila, throw the title dates back.

Once you applied it to use but if it’s a perfected right, you’ve done everything necessary to perfect it.

William J. Brennan, Jr.:

And they’re actually using the water.

Archibald Cox:

They’re actually using the water.

William J. Brennan, Jr.:

That’s what makes it perfected —

Archibald Cox:

That’s what perfect —

William J. Brennan, Jr.:

— in Utah.

Archibald Cox:

That’s right.

And therefore, it isn’t the perfected right unless waters has been put to you.

Now, what’s Master have to answer that is that — I take it was —

William O. Douglas:

You would surprise I assure you, lot of western right lawyers to that statement in terms of what it is the perfected water right.

Archibald Cox:

You mean —

William O. Douglas:

I don’t speak of California as I don’t know or Arizona.

Archibald Cox:

Well, I did bring with me this — I certainly — I could bring — will bring in the morning a statement from Kenny saying that if perfected right is one where everything necessary to the right including the application of water to the land that has been accomplished.

I pretend to anything — no ones beyond what I read in the books that is clearly an objection.

This proposal of course looked towards a disposition of the Lower Basin water in terms of an interstate compact.

Archibald Cox:

That’s correct.

The points that I’m tying to make concerned are really two.

One is Gila went to Arizona.

Yes.

Archibald Cox:

Two, that they then and divided up to Colorado River, meaning the mainstream.

Now, let’s look at Arizona’s reply to them.

Potter Stewart:

Well, Arizona, how much did Arizona get in addition to the Gila?

Archibald Cox:

Arizona got 232,000 and in addition, they got half of the Colorado River and to subtracting 300,000, 232,000, well after he subtracting the amounts allocated in California and —

Potter Stewart:

California did get the (Voice Overlap) —

Archibald Cox:

They got a lot going, oh yeah.

Potter Stewart:

In other words, it could be argued that the dedication of the Gila to Arizona was a — was a charged against but the Arizona were otherwise have gotten from the mainstreams.

If these —

Archibald Cox:

Well I don’t —

Potter Stewart:

— these figures rather.

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
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Archibald Cox:

Well, it was thrown into the part with a sense in that stage.

On the other hand, I think you will see as we go through here that the debate, that the argument began to focus at the mainstream, and that the Gila was assumed to be what something what Arizona got all the time and leave.

They are now going to find about the division of something else.

William J. Brennan, Jr.:

Well, after all, this was California and Nevada’s proposal which —

Archibald Cox:

Yes.

William J. Brennan, Jr.:

— which is not the Arizona’s liking (Voice Overlap) —

Archibald Cox:

No.

Now, we get with Arizona, we get with Arizona proposed that begins at 149 and you find it the critical words over 150.

Arizona proposed all the waters and tributaries if the Colorado River which flow into the river below Lee Fairy, or hereby allotted and appropriated exclusively in perpetuity to the States in which such tributaries are located, and this must specifically meant to the Gila went to Arizona.

Then they went on and gave about a 300,000 acre-feet and divided the waters, the mainstream waters 50/50, but I emphasize again that the — there’s no fight about the Gila.

The fight is about who gets what, out of the mainstream.

Then hey went to the conference because the so called Governor’s conference which was described yesterday and we know for the legislative history that when they went there, the fight had narrowed to this point.

The California wanted 4,600,000 out of the river leaving 300,000 for Nevada and the rest, which at that State would have been 3,000,000, something 3,100,000 for Arizona.

Arizona — and Arizona takes the Gila.

Arizona said, “No.

California should have only 4,200,000.”

William J. Brennan, Jr.:

This was in 1925?

Archibald Cox:

This was a following.

William J. Brennan, Jr.:

What page is that?

Archibald Cox:

It was 27.

William J. Brennan, Jr.:

27.

Archibald Cox:

In 1927, the Governors’ conference made these recommendations that appear on 158 to 159.

And they divided it 300,000 to Nevada, 3,000,000 to Arizona, 4,000,000 to California.

And in addition, they made it perfectly clear that Arizona was to get the tributaries, and then they found out in paragraph 3 at the bottom of the page.

So that it is perfectly clear that in talking about the allocation at the Governors’ conference.

They are talking about an allocation of water in the river and are in addition giving Arizona the Gila.

William J. Brennan, Jr.:

What’s the (Inaudible) the second paragraph?

Archibald Cox:

The second paragraph has to do with a complicating, and I find complicated question.

Arizona was interested into two things.

She was interested in getting the used of the Gila as against the rivals in the United 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
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Archibald Cox:

She was also interested in having the Gila exempted for — from any charge for getting water to Mexico.

As a practical matter you see, the Gila either has to be used in Arizona or used virtually in Mexico.

There maybe a little you can divert out, but it’s pretty much one or the other.

And they want to — they didn’t want to have the Gila charge with water perfection.

And you will find that also in one of the subdivision of the second paragraph of Section 4.

But now, after the Governors’ conference whereas I say there was apparently no dispute about tributaries that where attention was out focusing set — was an allocating 7,500,000 other than the water at tributaries.

We turn to the situation in Congress.

In May 1928, there was a debate in the Senate on this subject.During the course of that debate, Senator Pittman introduced what really became after some changes, the substance of Section 4 (a) of the Project Act.

He said it was — it’s found at pages 24 and 25 of the Arizona legislative history.

He said, “This was based on the recommendations of the Governors’ conference.”

Except that in the interim, something has been discovered.

They discovered that they forgot about 1,000,000 acre-feet in the mainstream in addition to the 7,500,000.

And so he drew up a proposal which attempted to incorporate the Governor’s recommendations plus an equal division of that additional 1,000,000 acre-feet.

And if you read, I will check to it now.

If you read his proposed amendment through, you will find two things about it.

First, you will find that it has the heart to these two paragraphs in Section 4 (a) and that they are plainly treated as being conjunctive as I say, opposite halves of the same full.

Because to the middle page —

William O. Douglas:

What page are you on now?

Archibald Cox:

About 24 and 25.

In the middle of page 25, the start of the second paragraph as it then read said, “The said ratified act shall further provide.”

In other words, it was going to be something in addition to what was done under the first paragraph.

And if you take the Pittman Amendment as a whole, there is just no way of reading it other than saying that it was talking about the mainstream that gave the Gila to Arizona, which I can’t see any other way in briefly.

We come to the climax of the Senate debate in December, 1928.

There was a very revealing debate there at that time, and the Act was passed in that same session in the closing days of the year.

The parliamentary situation, there is a little impart.

There was bill before the Senate, which has been introduced by Senator Johnson of California.

It proposed to break this impasse by giving California 4,600,000 acre-feet.

I didn’t say anything about Gila and so far as I can see, it didn’t say anything very revealing one way or the other on the issue before us except that it used 4,600,000 acre-feet.

Then Senator Hayden introduced as amendment to the Johnson bill.

An amendment is exactly the words of this Pittman proposal.

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
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Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
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Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
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Archibald Cox:

It would have differed from the California proposal from the Johnson bill clearly and then it limited California to 4,200,00.

It would also seem to me but I’ll take judicial argument if that clearly gave the Gila the tributaries of Arizona and we clearly come — clearly concentrated at the mainstream.

The debate that — debate will call it became one over the difference between California’s claim to 4,600,000 plus one half of the surplus.

And Arizona’s insistence that California should have over 4,200,000 plus one half of the surplus.

There was very little explicit mentioned of the fact but it seems plain that everyone at that time was talking about 7,500,000 acre-feet plus an uncertain surplus of mainstream one.

I say that’s clear because of the two halves to the Hayden proposal if you read both halves, if you read one in the light of the other.

The Gila necessarily was not included.

I would say it furthermore because the light of the Governor’s recommendations.

No one who was taking in terms of the apportionment of anything other than the mainstream could possibly have said as a number of them did in that State that the difference was oddly between 4,600,000 and 4,200,000.

Now, there were in fact expressions from all the Senators prominently engaged with the debate.

Let me say the word in fact expressions from this — from the Senators most prominently engaged in the debate would seem to me to indicate that they all knew or assume that they were talking about mainstream one.

Senator Pittman is quoted on page 67 of the Arizona legislative history.

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

That is all.

Now skipping down to the end of the quotation of the 7,500,000 acre-feet of water let down that river they have gotten together within 400,000 acre-feet.

They’ve got to get together that not Congress should bring them together.

Senator Hayden repeatedly spoke of the amounts of water to be received from the Colorado River.

Senator Johnson himself — I’m now reading from 70 (Inaudible) record at the page 237, spoke of what was the fight was about.

He said that the discussions relating to the use of water in California, in Denver and indeed here and elsewhere, it is the — it is only the mainstreams that Your Honors will recall that has been discussed.

The tributaries of the Colorado River in Arizona have a flow of at least 3,500,000 acre-feet.

Arizona’s claim in writing on some occasions that it runs 6,000,000.

So what it is proposed that California will take 4,200,000 acre-feet and Arizona at 3,000,000 acre-feet plus one half at each instance from the surplus water.

It means in reality that California shall be accorded 4,200,000 acre-feet plus one half of the surplus and then at least 6,500,000 acre-feet plus one half of the surplus shall go to Arizona.

So he had no doubt that he was representing California that they were talking about the mainstream.

And then he says, a little further down, “To divide the mainstream 4,600,000 acre-feet to California and 2,600,000 acre-feet to Arizona still gives Arizona more than 60% of the water from the Colorado River.”

He meant and tributaries there clearly or nearly two thirds there up.

So that — I think this — well, it’s to 70 congressional record 237.

Hugo L. Black:

Who was that speaking?

Archibald Cox:

This was Senator Johnson of California.

So we have expressions from Senator Pittman, Senator Hayden and Senator Johnson who are certainly three of the main figures of the debate.

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
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Archibald Cox:

Now, California quotes in her brief, a statement from Senator Phipps of Colorado saying, “Well, you’ve got to remember that Arizona gets the water to the Gila.”

As I read that, he was saying that in deciding between 4,600,000 and 4,200,000, you’ve got to remember that Arizona is also getting the Gila.

That’s what Senator Johnson was arguing that in addition to what we do here or as the Gila for Arizona.

Now at that this stage, there was a change in the parliamentary situation.

Do you remember I said it was the Johnson Bill, in which itself was a substitute for the pending house bill.

And then there had been the Hayden Amendment.

Senator Phipps then offered an amendment which was designed to give California 4,600,000 instead of the 4,200,000 which was proposed in the depending Hayden Amendment.

There could have been a vote or straight out on the Phipps Amendment as a matter of parliamentary law.

Well, the Senate decided not to do that because there were two differences according to Hayden Amendment and the Phipps Amendment.

One difference was in the amount of water specified in the California Limitation Act.

The other difference was that while the Hayden Amendment contemplated a seven State Compact but it would have still made the whole act in addition to Arizona’s ratification.

The Phipps Amendment contemplated a six State Compact plus the California Limitation Act.

That Senator Hayden desired to have these two issues was voted on separately.

And so what they did was they’d agreed that Senator Hayden would withdraw his Amendment that the Phipps Amendment would be offered proposing 4,600,000 and a six State Compact.

And then Senator Hayden simply moved to strike out the 4,600,000 and substitute the 4,200,000.

Senator Phipps’ motion lost.

Senator Bratton then proposed the 4,400,000 and that motion was carried and was certain perfected changes the Phipps Amendment became the first paragraph of Section 4 (a) of the Project Act.

Now, I repeat once more that the whole debate seems to me to focus especially when one remembers the prior historical incidence and the assumptions in the prior proposal that they were allocating the mainstream and the Gila would go to Arizona as indeed, remember it did clearly in the second paragraph of the Hayden Amendment.

But at that point, Senator Hayden now has left with the second paragraph of his Amendment hanging.

So he rose and moved that the second paragraph of his original Amendment be added to the Phipps Amendment which had already been adopted.

You will find the second paragraph which is much like — which is identical with the second paragraph of the Pittman proposal and the original Hayden Amendment set forth on page 98 and 99 of the Arizona legislative history.

The part that I wish to emphasized is in his statement reprinted over on page 102 where he said, “The first part of my Amendment is a mere corollary to the Amendment offered by the Senator from Colorado.

It provides that the remainder of the 7,500,000 acre-feet there apportion to this — there shall be apportioned to the State of Nevada of 300,000 acre-feet to the State of Arizona 2,800,000 acre-feet, which combined with the 4,400,000 which the State of California will use completely exhaust the 7,500,000 acre-feet apportioned in perpetuity to the Lower Basin.”

Now remember, he was describing the first part of an Amendment which in the third part gave Arizona the Gila in addition to all of this, as is the case in the third part of the second paragraph of 4 (a) statement.

So then it grew up opposition to Senator Hayden’s proposal in only one respect that this goes to provide for Judge Stewart phrase later.

One of the subdivisions of Senator Hayden’s proposal said that the Gila should be free from any burden with respect to the perspective of Mexican Treaty that Senator Johnson objected very vigorously to that.

He didn’t object so far as I can find anywhere in the record to the recitation that Arizona was getting the Gila in addition to the apportionment made by the Phipps Amendment.

Indeed, the language of the debate indicates that he knew very well what had happened and that the only thing he was currently fighting about was the attempt to exempt the Gila from part of the burden of the Mexican treaty.

At 70 conversional record, beginning at page 466, what has a long debate to dial — to find myself to his little (Inaudible) as I can between Senator Hayden and Senator Johnson about this proposal.

In the course of it, Mr. Johnson said, “What Arizona says that she has but 2,800,000 acre-feet of water.”

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
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Archibald Cox:

That’s what she just had been given by the Phipps Amendment.

“To that, there must be added the Gila River with its 3,000,000 and 3,500,000.”

That’s very little.

“And then it will be found that Arizona has in reality two thirds of the water of the Colorado itself.”

Then he goes on to say, “If we should exempt as possibly we may — should this Amendment be inducted, the Gila River from any burden or any servitude that might thereafter attached because of water to Mexico.”

We should then exempt from burying its just share to paraphrase.

And a little later, there is a — in the colloquy between Mr. Hayden and Mr. Johnson.

Mr. Hayden said, “The Senate has settled it by a vote that California may have 4,400,000 acre-feet of that water.

It follows logically that if that demand is to be conceded as everybody agrees, the remainder is 2,800,000 acre-feet for Arizona.

That settles that part of the controversy.

Senator Johnson, “How much from the Gila?”

“Whatever is in it”, Mr. Hayden replied.”

That is ours anyhow.

It’s yours anyhow?”

“Yes.”

“Then your Amendment is of no use?

If that is yours anyhow then you’re already on your tributaries, what are you putting this in for?”

And the reply was that, “I’m putting in to except it from the Mexican treaty.”

There are two different problems here.

One is the allocation.One is the burden of treaty.

And when he said that’s the burden of the treaty, Mr. Johnson said, “That’s exactly what I objected.”

And then Mr. Johnson after bringing that out and saying he objected said, “Alright, I’ll accept your figure of 3,500,000 for the Gila.”

Now, in the division of Mr. Johnson, now, in the division of water with Senate sought it to impose yesterday, Arizona had 2,800,000 acre-feet and 3,500,000 from the Gila, did it not?”

“That is correct.”

Then Mr. Johnson goes on and said, “Then you wish to put on the California and Arizona equally the burden of the Mexican treaty” and says that’s what he objects it.

So it seems —

Is that (Inaudible) here?

Archibald Cox:

I understand it’s on page 119.

I couldn’t find it.

Well, some of it is but all —

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Archibald Cox:

Some of it — I couldn’t find it all there.

We can have it citation.

Archibald Cox:

Yes sir.

It’s 70 Congressional record, beginning on page 466.

I was skipping over about three pages, 466 to 469 would cover it.

I may say incidentally that the full debate of this December session of the Senate is not terribly long and I found it myself more convenient to read it in here that — while this is a very helpful job of excerpts, really isn’t so long that one can’t get the feel of it and going through the whole thing in reasonably short time.

The part that I was seeking was one further thought that I was wish to emphasize that in this debate, after Senator Hayden and Senator Johnson got at loggerheads about burden of the Mexican treaty, then Senator Pittman came in and said, “Well, I don’t think it’s right to impose a tri-state compact terms of which we have specified as a condition of this active Congress being effective.

Let’s tell the States that they can enter into this Compact and we’ll give them advance ratification.

But let’s not impose it on all three of them the way we imposed the California Limitation Act on California.”

And Senator Hayden agreed to that.

And they changed was then made, which you now find in the beginning of the second paragraph of Section 4 (a) which says the three States may enter into this treaty rather than they must.

But it would have been extraordinary at that stage having treated this as two parts of the same thing, all the way through to have jumped and made this permissive thing an alternative to the first paragraph, and then the discussion was certainly in terms of being two parts of the whole.

And I submit therefore that the meaning of one throws a great deal of light indeed if it is not controlling.

Hugo L. Black:

At the time of the discussion you’ve just read between Senator Johnson and Hayden that the Amendment then pending contained this provision, two and three with reference to reservations of the Gila River above here.

Archibald Cox:

Yes sir, it did.

Hugo L. Black:

It did so.

Archibald Cox:

It was in — except for the first few words which in — are you in the act today?

Hugo L. Black:

Yes in the act.

Archibald Cox:

Well, it was the same as this, the same as the act Mr. Justice Black except at the very beginning what is now at the bottom of page 382 of the Master’s report, where it said the States of Arizona, California and Nevada are authorized to enter into an agreement.

It said instead the ratifying act — that the ratifying act is becoming affected should be conditioned upon they’re entering into such an agreement.

Otherwise, it was the same.

Do you think that the change over from a proposed requirement, a factual requirement of two States to a permissive requirement has any barring on the contractual sectoral allocation of area domestic?

Archibald Cox:

Well, it would be hard to say that it is irrelevant and I think it led some comfort to the California argument that Congress apparently was not willing to go the whole way here and say to each of the three States, “You must take this.”

And we do allocate this.

On the other hand, I think it is quite plain that Congress came very close to that so far as California was concerned, they didn’t say, “You must take this.”

They said, “Here is the apportionment we made.

If you want the project, you must take this.”

And California enacted the Limitation Act that did consent this so that you had California’s agreement.

That may be a fine distinction too, but still it didn’t take the form of compulsion, did it?

Archibald Cox:

It still was something added for the same reasons since California’s consent came 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 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California

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Archibald Cox:

There was something less and then an out and out congressional compulsion with respect the apportionment.

They said, “You can take the choice between what the apportionment we proposed here or nothing at all.”

Well, (Inaudible) how much — argue when that blew up over this question of State rights, wasn’t it?

Just let her debate on it?

Archibald Cox:

Well, it’s an indication.

I wouldn’t deny it.

I don’t think that it’s anywhere enough to describe the theory especially as what Congress did do here, taking the language to the Project Act at the legislative history together, and I do emphasize that the California was given a choice.

They could ascend not ascend before the Project Act became effective.

Now, so far as Nevada was concerned, there was never any argument that she was going to get 300,000 acre-feet.

Arizona possibly retained some rights whatever they might be.

She was told in effect, you could come along on these terms or you can stay out and fight.

She chose to stay out and fight after getting nowhere from protected period and she finally chose to come in and signed the contract with the Secretary.

There’s one other California argument that I think I should deal with that California says that if there was just 8,500,000 acre-feet apportioned to the Lower Basin by the Compact, not the act, the Compact.

And if we assumed that there are 2,000,000 acre-feet in the Gila then California would not get the 4,400,000 acre-feet.

The Congress plainly contended third half and therefore, she argues that this camp have been what Congress intended.

Charles E. Whittaker:

Do I understand that’s treating, the 2,000,000 feet in Gila as being in the mainstream at Lee Ferry?

Archibald Cox:

Well Congress of California — now, I don’t think that’s quite right.

Let me restate it.

I’m not sure if I understand you but let me, if I restate it what I tried to say I’ll make it clear.What California says, “We were intended at a minimum yet 4,400,000 acre-feet.”

Now, the most you can say that was apportioned to the Lower Basin by the Compact is 8,500,000 acre-feet.

This means that if we say 2,000,000 for the Gila, it would be 6,500,000 in the mainstream.

And if Arizona gets the Gila plus this allocation of the mainstream according to Master’s report.

This allocation of 6,500,000 in the mainstream then we won’t get the 4,400,000 that Congress clearly intended as to have.

And therefore, the assumption that the Gila is to be excluded from the accounting must be wrong.

Now, I think there are two faults, two evident faults in that argument.

In the first place, Congress assault beyond question that there were 7,500,000 acre-feet available in the mainstream.

And with respect to determining what was the intent of Congress during the course of this debate of what can make an assumption contrary to the assumption that Congress was making.

The second difficulty with this is that saying, “Two million –” that it making the Compact counting and charging 2,000,000 for the Gila, this assumes a disputed question about the way in terms of water, the Gila uses are to be charged in disputed question as to whether the charge is the depletions of the mainstreams fly or divergence less returns to the stream, upstream.

Another assumption that make which is certainly debated is that the reservoir losses are not to be included in the account, the evaporation that Mr. Ely was talking about.

But if one goes to a compact counting, it doesn’t make much difference under the Master’s theory.

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

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Archibald Cox:

That question too would have to be looked at.

But I think that the really basic point is that the Congress — one of the three essentials assumptions it made was that there were 7,500,000 acre-feet.

And therefore, you can’t interpret what the Senator said by making a different assumption what they do.

Charles E. Whittaker:

That’s get back to what I — the question that was asked for whether or not this (Inaudible) was relevant.

If the figure 7,500,000 acre-feet, it seems — it seems at the point where the (Inaudible) and likewise, the other one is (Inaudible)

So the water in the Gila is not racking into it in those complications, is it?

Archibald Cox:

Well, I supposed that the — I think to say about itself that the Senators did mean 7,500,000 acre-feet at Lee Ferry.

The Master says that they didn’t.

We don’t think that it is really necessary to decide in order to resolve the present case.

What gets appealing that there was a — that they didn’t think much about this probable evaporation loses or other stream loses between Lee Ferry and Lake Mead, and that maybe they didn’t think about the additions in it.

They spoke more generally of water let down.

Well, that would seem to me Lee Ferry but it was simply in terms of water in the river without this kind of precise measurement, which is certainly necessary here in the writing the appraisal.

So the way it lies in my mind is that the core of their meaning, it was made mainstream and not the Gila is presently clear but their precise definition of mainstream is pretty hard to get out of the debate.

If there is anything that prevails, it is the 7,500,000 coming down at Lee Ferry as you suggest.

Potter Stewart:

Well, that would be — indicate that perhaps that 3 (d) in mind rather that it’s 3 (a).

Archibald Cox:

Well, I think that would — one way — yes it were or one could go step further and say the Master rejected it.

And say that they equated 3 (d) with 3 (a) that they really didn’t see there was any difference, that adds it to this and they could go here that’s going to be average of 7,500,000 over ten years, a Boulder Dam is — it’s perfect.

It’s going to be given out in the big years and the bad years.

Well, if you get 75,000,000 ten years, you get 7,500,000 each year that you could use that 7,500,000.

Potter Stewart:

But physically, just a matter of physical facts that you are not correlative, is that right?

Archibald Cox:

Just as a matter of physical facts, they can be correlative because you have evaporation —

Potter Stewart:

And additional (Voice Overlap) —

Archibald Cox:

Evaporation, transpiration, plant is taking it off —

Potter Stewart:

Additional tributaries.

Archibald Cox:

You have additional tributaries coming in and there is — you can’t physically get it together.

Now, there are various ways you could lessen the — lessen the difference, narrow the gap if it were necessary to relate what is done here to the Compact.

For example, you could say Mr. Justice Stewart that evaporation out of Lake Mead is chargeable to each of the States as part of their beneficial consumptive us.

After all the Upper Basin, if you think of yourself as being in Colorado.

You might very well say to Arizona.

If you thought it’s going to store the water there for ten years so that half has been evaporated, it’s not fair to charge that to 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 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California

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Archibald Cox:

You’re the fellow who’s — whose benefit is being held there, that should be charged to you.

That’s one of the reasons as I said if you reject it the Master’s theory down on a readable shape.

I had put it in absolute terms that what has to face this kind of question and his recommendations concerning it, I think would that be accepted by all parties as they’re willing to accept if the thesis of his decree stands.

I’ve now completed with the legislative history simply summarizing very briefly the conclusions that I draw from it, are that all the way through after those early negotiations, there was an assumption that the waters apportioned by Article III (a) for 7,500,000 million feet of mainstream water and that the excess was the mainstream waters in excess of 7,500,000 acre-feet which would include the Article III (b) (1) since not everything in excess of 7,500,000 acre-feet and borrowing the questions about the diversion above Lake Mead that of course is the conclusion that the Master has written.

Conversely, it seems to me to have been assumed and agreed by everyone concerned from the initial direct discussions between Arizona and California on that Arizona was getting the Gila in addition to whatever allocation was made out of the mainstream.

Now, I come to the question that was raised earlier.

And that is don’t, Sections 14 and 18, indicate that Congress was not making a federal allocation but rather that the entire right — the entire question was to be decided in accordance with state law.

The Master partly accepted and partly rejected that notion.

So far as the interstate controversy is concerned, he wholly rejected the notion and as he said, “There is nothing in Section 14 and nothing in Section 18 that quite in a different direction that all the indications in Sections 4, 5 and 6 that there is to be a contractual allocation by the Secretary.”

He accepted the notion Justice Douglas to this extent.

He did say that once the Secretary decides with whom he will contract from thereon, the relative priorities between those people intrastate is to be determined according to state law.

William O. Douglas:

I understand him to say something quite different that at the bottom of page 203, he talks about interstate rights and priorities being controlled by state law.

Archibald Cox:

I’m sorry.

I don’t understand the difference between that and what I just said.

William O. Douglas:

Well, if that’s what you said I misunderstood you.

Archibald Cox:

I didn’t say — I said that that was what he said.

I didn’t say I agreed with it.

I said that — I meant to say that that was what he said that he said — let me repeat so we could go — start off from the place that he said that interstate, the act in the Secretary’s allocation control.

William O. Douglas:

That’s right.

Archibald Cox:

Intrastate, the Secretary has the right to determine with whom he will contract at least in Arizona that in Nevada, he doesn’t have that right because he’s already contracted for the full amount with the State of Nevada that once he does contract with users then their relative priorities shall be determined according to state law.

That’s my understanding of the Master’s brief.

Now, we agreed that the Master is correct so far as the proposition that Sections 14 and 18 have nothing to do with the interstate allocation is concerned.

We agree that the Master was correct in sharing that the Secretary of the Interior has the power and duty to determine who will use the water within Arizona.

We think that the Nevada contract is not a contract with users and the Secretary was directed to allocate the water by contracts with users and that therefore and a Nevada person wish he could use the water must to get a contract with the Secretary.

As to the relative priorities among people who have contracts with the Secretary, we think that it’s a matter of principle that the Master was wrong.

We think that that question is one to be determined as part of the contractual system.

However, I —

Potter Stewart:

Rather than by state law?

Archibald Cox:

Rather than by state law.

Potter Stewart:

I’m talking about relative priorities within any —

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

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Archibald Cox:

Yes.

Potter Stewart:

— given state.

Archibald Cox:

After the contracts have been made.

Then a fortiori, we think state law doesn’t determine who should get the contract.

Hugo L. Black:

Is that the way contracts for the sale of power are made?

Archibald Cox:

The Federal Government as I had recalled it makes a complete determination about contracts for the sale of power here but I — I haven’t concentrated on those Sections.

Hugo L. Black:

There was an argument as I recall it, there is figures argument in the sentence that the State should have a right to determine to whom this — the power would be sold (Voice Overlap) —

Archibald Cox:

There are expressed provisions in the act Justice Black, and I think anything I might say now would only be confusing.

Let me overnight review those and try to answer your questions, because I got to concentrate on that.

Hugo L. Black:

Your power to sell water — your power to sell water and the power to sell power are given in the same Sections.

Archibald Cox:

Yes, although there are far more detailed provisions —

Hugo L. Black:

That’s right.

Archibald Cox:

— with respect to the power.

Hugo L. Black:

That’s right.

William O. Douglas:

But on the water irrigation, water rights, you disagree then with the Master on page 217 when he says that, “Only Secretary has authority to make delivery contracts.

He has no power to make a delivery contract with the person who is under a disability to receive the water according to state law,” about the middle of the page.

Archibald Cox:

We think the Secretary — our position in principle is the Secretary shall whose briefs determined with whom he will contract —

William O. Douglas:

Without —

Archibald Cox:

–regardless of state law.

William O. Douglas:

Regardless of state law.

Archibald Cox:

Regardless of state law.

Now, I would like to follow that right —

William O. Douglas:

I will say that the Federal Government has been consistent throughout the years in trying to get our — this Court to hold that —

Archibald Cox:

All — all I want to try to get you to do now is not to hold the upstream.

That is our position, no question about it.

What — what we say is that this is not a question which it is necessary to decide in order to resolve this controversy and indeed that it would not be timely to decide it, that by a reason to take — that it would — is not necessary and would be untimely is that we don’t have any specific controversy here where there is a clash between some decision taken by the Secretary and some alleged provision of the state law.

It — it seems to me that there must be some room for state law in this overall system.

Your Honor pointed in the — what are the interstate apportionment cases that once the contracts had been left and the users had contracts that then the state law took hold of that.

And as I understand it’s something for the contract, the time of the character of the users, rights and subject to contracts, the rights between users.

Well, unless we — unless we come — unless we accept the California’s thesis that you reject on the limitation, is that to come to briefs in this problem, the other problem on a much broader problem?

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

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Archibald Cox:

Well, I don’t think that you do have to consider whether Sections 14 and 18 —

No, not 14 and 18, we’ve got to decide whether it contracts your allocation or state law governed to the allocation of this water?

Archibald Cox:

Oh yes, yes.

But you don’t have to — I must have become confused.

I said you don’t have to make any decision now about the relative rights of users within the same State other than the claim about the Indian reservation.

What — what concerns me frankly here is that I’m very reluctant to argue in a generality how far the state law control the Secretary’s rights to contract intrastate.

I can think of a great many difference specific questions that might come up.

For example Justice Douglas, the Secretary has entered into a number of contracts on reclamation projects providing that the event of a shortage for water on those projects, the users so far should be ratably diminished.

Now, if we have that specific question that we could debate whether state law prevailed over those contrasts.

If we had a question as to — such as I think that come up, if my memory is right in the some of the lower courts as to whether a State can say, “No, you shade the water to enable the establishment” then we could debate on that specific question.

But what I fear the Master has done here, and I’m not sure if they’ve been through because the decree doesn’t reflect this to certain extent, has to say generally without reference to any specific dispute of rights interstate determined by a state law what will —

Felix Frankfurter:

Mr. Solicitor, can you (Inaudible) the relationship between the power of the Secretary grant licensees (Inaudible) enter relationship those two in connection with the utterance relevant to state law that was enacted by (Inaudible)

Hugo L. Black:

That question was based on this general idea.

During this debate, there was quite a fight or controversy over the sell of power.

The argument being made that the Government, although it had the constitutional right to build the dam, build the dam.

He did not have a right to dispose a power and the same argument related to some extent to the right to sell water, so those — that — the two — two do bear or rather close relationship in some assets although there is a distinction with reference to water run and the power to sell power.

Felix Frankfurter:

Because there — hence the water right, there were three (Inaudible) claims upon.

Archibald Cox:

Up to a selling.

Felix Frankfurter:

Up to — yeah.

Hugo L. Black:

Up to that time.

Felix Frankfurter:

And after elected use of the water, the one who (Inaudible) made to be creative but there may had been some — some (Inaudible)

Archibald Cox:

Yes, in fact there were two kinds of claims of course with respect to water, one was for what we call — had been going prior perfected rights, the good claims, the ones — and then there were the — what I called the gleam in the Metropolitan Water District’s eye.

The things it hoped to do and it’s take out our which there were some debate in the Senate about how good those were.

Felix Frankfurter:

May I (Inaudible) tomorrow, the discussion in (Inaudible) important right, and present perfected rights, (Inaudible)

Archibald Cox:

I mislead you.

Felix Frankfurter:

I don’t (Inaudible) debate.

Archibald Cox:

If I said there was any discussion of present perfected rights, I misled you.

I meant to say there was a discussion — they — the phrase perfected rights was used.

Felix Frankfurter:

Even better (Inaudible)

Archibald Cox:

Well, I don’t know about (Inaudible) Kenny.

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

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Felix Frankfurter:

Alright.

Archibald Cox:

Kenny I believe is —

Felix Frankfurter:

Well, (Inaudible) but I just like to —

Archibald Cox:

Yes I will.

Felix Frankfurter:

And I wonder whether this is a new (Inaudible)