Arizona v. California – Oral Argument – January 11, 1962 (Part 2)

Media for Arizona v. California

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

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R. P. Parry:

— the validity — upon the validity of this contract was asserted.

I had some discussion with Solicitor General during the recess and if I could state it correctly, it is still the United States’ position that the contract, not that the contract is invalid but that it must be implemented by independent contracts.

Is that (Inaudible) simply — that was simply not in the contract (Inaudible)

R. P. Parry:

Precisely that — I think that is rather the fundamental leverage between United States and State of Nevada.

(Inaudible)

R. P. Parry:

I think the state of the record is this.

The Master recommends that the contract stay as it is.

That’s the report now.

And if — if affirmed, that’s the way it would stand.

(Inaudible)

R. P. Parry:

Pardon me.

As the Master’s final report now stands and he recommends that the Nevada contract stand as it is.

The Government accepted to that point.

If the Master report were affirmed, the contract would stand the way it is and Nevada would be the party who would receive the water, would pay for it and would make the distribution among the various people in the area.

And I might add there’s been disinteresting developed through in the Congress, one of the — a valley that adjoins the Las Vegas Valley is the El Dorado Valley and the Congress of the United States has passed legislation authorizing the State of Nevada to take 115,000 acres of land over in that valley at an appraised price which, I’m pointing, which this water will be used for people living on that land, all the sides.

And also another separate act of Congress for a similar handling of 15,000 of ac — acres down near the Mohave Indian Reservation and then the State of Nevada working list, the Department of Interior in the last appropriation got tons for a study for putting this water on there.

So, it’s a partnership operation between the State as such and the — and the Federal Government and it is our taking not to belabor the point that, as I said earlier, there’s no difference say between the State of Nevada and — and any irrigation district of the State might be — might create nor is there any difference say between the State of Nevada and the Metropolitan Water District.

Can I ask you?

R. P. Parry:

Yes.

As a matter of (Inaudible)

R. P. Parry:

I think so.

(Inaudible)

R. P. Parry:

No, I think —

Most of the legislative (Voice Overlap) —

R. P. Parry:

As I say the Congress has already authorized the latter to be — become a little like north to go to (Inaudible) and takeover this land.

And if they takeover the land and people who live on it, they will have to give them water downtown to drink and to use.

(Inaudible)

R. P. Parry:

I think so as it —

(Inaudible)

R. P. Parry:

As there as — as the record now stands.

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

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(Inaudible)

R. P. Parry:

Yes, sir.

(Inaudible)

R. P. Parry:

Yes

(Inaudible)

R. P. Parry:

I read so —

(Inaudible)

R. P. Parry:

No.

They — this — the history of it, the — the industrial user originally was the United States of America or an agency on that.

In other words, I mentioned during the war —

(Inaudible)

R. P. Parry:

— that those big magnesium complex there and a part of this, Neva — and Nevada water went to that industry.

That’s what made it possible.

And now as it’s divided up around and I think I’m correct to say, none of those have a direct contract with the United States but it’s all —

(Inaudible)

R. P. Parry:

Yes, they —

The Commissioner (Inaudible)

R. P. Parry:

Yes, they could have and I think, perhaps, even prevent them.

(Inaudible)

R. P. Parry:

Well, so far as this has been a purely academic argument that is typical or less but just been going head out there.

(Inaudible)

R. P. Parry:

I suppose.

(Inaudible)

R. P. Parry:

I suppo — I — I think that is a good speech of (Inaudible) and I want to find out about it if you could have another lawsuit or that way.

The final point that we wish to discuss a little bit is another point where the controversies between the United States and Nevada and that is a provision that Nevada’s 300,000 acre-feet shall include all other users in the State.

Now, as I mentioned in the beginning of my comments and the support — the old settle area in the northwestern part of the State, just north and west of the reservoir along the Virgin River and the Muddy River, has a consumptive use.

In other words, the — the difference between the diversions and the term clauses estimated to be approximately 50,000 acre-feet.

As the United States interprets this Nevada contract, Nevada is not going to get this 300,000 acre-feet but it’s going to get 300,000 less this 50,000 and it become so — we — become 250,000 less the 300.

It has been — I think it was commented on by the Solicitor General and others if there was one thing that was consistent all through the discussion of this Project Act, setting up the project was that Nevada had said they would limit their demands to 300,000 in order to have 300,000.

And now, we find that in one paragraph of the — the Secretary drew, they — there is — this language which reduces the 300,000 by uses that existed there before the reservoir was ever dreamed of.

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

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Hugo L. Black:

But you’re —

R. P. Parry:

And —

Hugo L. Black:

— saying — but you’re saying that is not — you say you’re not, out of the 300,000, are you but they said you would not (Inaudible) 300,000 plus this other water (Inaudible)

R. P. Parry:

That’s — that is — that is not, perhaps, the more accurate way of stating it.

Now, there seems to us have no reason to — in the world that — however you analyze that penalizes —

Hugo L. Black:

Where is that water coming from —

R. P. Parry:

From —

Hugo L. Black:

— precisely?

R. P. Parry:

— from the — from springs mainly.

Hugo L. Black:

(Inaudible)

R. P. Parry:

Springs that feed into the Muddy River and the Virgin River, two small streams out there.

In other words, the sta —

Hugo L. Black:

(Inaudible)

R. P. Parry:

Yes, and that solely from the tributaries, their whole uses, they were there before the comeback and the stream and other were there before the project was conceived and the Master entered into quite an extensive discussion of the reasons for it.

I’m not attempt to take the time now to repeat it and he found that that was not a correct exercise of the Secretary’s power in putting that language in which resulted in that diminution of the — of Nevada’s rights.

In other words, under their report, again as it — the final report as he has filed it, that portion of the Nevada — of the Nevada contract is deleted so that the three full 300,000 is that Nevada’s contribution or Nevada’s right in the storage in the reservoir.

Hugo L. Black:

What is —

R. P. Parry:

Now —

Hugo L. Black:

— the similarity between the arguments you’re making with reference to the use of water there, that is Arizona as to the use of water in the field?

R. P. Parry:

I think quite similar except that ours happens to be geographically located above the reservoir.

Now, the Gila’s belong entirely with them.

Hugo L. Black:

Both from tributaries?

R. P. Parry:

Yes, they’re —

(Inaudible)

Hugo L. Black:

Pardon?

(Inaudible)

Hugo L. Black:

Yes.

(Inaudible)

William J. Brennan, Jr.:

Those two are amended (Inaudible)

R. P. Parry:

Yes, I think.

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

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R. P. Parry:

Thank you.

(Inaudible)

R. P. Parry:

(Inaudible) speak of having this small area here (Inaudible) is the Muddy River that comes down to northwest very small stream begins as some large springs.

There is enough natural rain flow that creates stream but there’s some springs there and have water taken off irrigation land, that adjoin the upper end of the reservoir where the — the Muddy — the Meadow Valley washed come down to the North and the Virgin River that heads in Utah just about the corner.

There’s some diversions of (Inaudible) that river, I think all over the state line and bring some water around for irrigation.

I think it’s your (Inaudible) the joinders (Inaudible)

R. P. Parry:

Yes, originally the Muddy River flowed in to the Virgin and the flat nature of the land there has well indicated by the back — that’s where the water backs up the reservoir, that’s why the reservoir was there.

And there was this flat land, that these pioneers could irrigate.

Felix Frankfurter:

(Inaudible)

R. P. Parry:

We might be talking about present perfected rights.

Felix Frankfurter:

(Inaudible)

R. P. Parry:

If they’re (Inaudible)

Felix Frankfurter:

(Inaudible)

R. P. Parry:

Its a present perfected right in every, not any — every variety of definition I can think of.

And now, the reason that it was given for not allowing it is that it diminishes the water in the reservoir.

If you follow that theory you would go clear to the head waters of the reservoir and penala — of the river system and penalize everyone and I think no one has any thought that that should be done.

I think that (Inaudible)

R. P. Parry:

From the beginning of this action we have and it was due to Nevada’s request that the Master rule as it then was briefed and presented to him fully.

It’s discussed at length in his report better than I can do it here.

Felix Frankfurter:

Mr. Parry —

R. P. Parry:

Yes.

Felix Frankfurter:

— do you think you should make this one (Inaudible)

R. P. Parry:

That was one of the — Nevada’s request, Your Honor.

And it has been our thinking that the Secretary is in the river in so many different capacities for proprietary with respect to the Indians, with respect to power, with respect to various federal projects that the type of Anglo-Saxon justice that we at least try for would, perhaps, be better satisfied if there was an independent commissioner there operating under specific rules and regulations.

So there wouldn’t be any question of favoritism or and that everyone would be treated alike.

Felix Frankfurter:

What kind of duty do you see that should be (Inaudible)

R. P. Parry:

The first thing would be the accurate compilation of the water available for that division among these contracts annually and fair enough it advance so that the users could plan their use.

Felix Frankfurter:

(Inaudible)

R. P. Parry:

Yes — yes, and what a real water master has all the varieties of duties that a water master should have.

And I think that there will be grave questions as a policy to be determined, probably, of how much should be safely discharged from this reservoir prorated among the contracts.

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

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Felix Frankfurter:

(Inaudible)

R. P. Parry:

I think it is of a highest potential in that way.

That’s been the history.

If there’s anything in the West that people fight over is water.

Perhaps, this litigation is a good evidence of it.

And it’s our desire and thinking and I believe California has agreed with us on that.

That an independent commissioner, probably, with an advisory board representing the States who could participate in and advising even ahead of time, would remove much incipient friction and perhaps prevent hearings coming back to this Court.

Felix Frankfurter:

The Secretary(Inaudible)

R. P. Parry:

I believe he could.

And I believe that’s one of the suggestions that — that has been thrown into the record.

But again, we have thought that it’s a — someone was in there which it was a kind of judicial capacity.

This is of such great importance to all of this vast area for water is so tremendously needed that it seems to me — seems to us, a logical way of handling it.

They did in the Congress (Inaudible)

R. P. Parry:

I do not know that it has been put up to the Congress.

Now, you see —

(Inaudible)

R. P. Parry:

Well, I would think that the Court, in the usual practice in such cases of this, has probably going to reserve some type of jurisdiction, it’s put at the decree and that the Court would re-divest in the —

Felix Frankfurter:

You’re saying —

R. P. Parry:

— most efficient way of doing it.

Felix Frankfurter:

You’re saying that (Inaudible) judgments withdrew (Inaudible) will make adjudication regarding this application?

R. P. Parry:

It does.

Felix Frankfurter:

And therefore, the (Inaudible) would be accurate, would effectuate that decree you mean that the (Inaudible) attached to it as well as the inspection of the effectiveness of the decree?

R. P. Parry:

And that — and —

William O. Douglas:

Such as we appointed in the Nebraska-Wyoming —

R. P. Parry:

Yes, Your Honor.

William O. Douglas:

— litigation.

R. P. Parry:

Yes, Your Honor.

The continuing jurisdiction of the Court, I think is —

Hugo L. Black:

Where will get the apportionment?

R. P. Parry:

Well, I think —

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

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Hugo L. Black:

Are these necessities called?

R. P. Parry:

Yes, I think so, (Inaudible) the waters or something.

So this is the (Inaudible) matter of (Inaudible)

R. P. Parry:

Pardon me?

(Inaudible)

R. P. Parry:

Yes, Your Honor, they are permanent.

And —

William O. Douglas:

That was true in Nebraska case?

R. P. Parry:

I believe, that’s my memory, Justice Douglas, if that was a permanent one thereto.

(Inaudible)

R. P. Parry:

Yes.

Thank you.

Mr. Attorney General:

Mr. Justice Black, may it please the Court.

It is my desire very briefly to state the position of the State of Utah in this case.

Utah was impleaded as the party defendant by order of the Court but only in its capacity as a Lower Basin State.

Utah’s principal interest in the Colorado is, of course, as a member of the Upper Basin.

The portion of the Lower Colorado River Basin located within Utah lies in the extreme southwest corner of the State.

In its north-south dimension, it is about 35 miles.

In its east-west dimension, it is about a hundred miles.

(Inaudible)

Mr. Attorney General:

Where the Virgin River comes through.

The principal streams are the Virgin River System, Kanab Creek and Johnson Creek and they enter into the Colorado below Lee Ferry.

Of these three streams, the only one which contributes any appreciable quantity of water to the Colorado River is the Virgin River.

By its pleadings in this case, Utah asked for a decree awarding it the right to the consumptive use of 125,000 acre-feet of water per annum from these tributaries of the Colorado River flowing through the Utah portion of the Lower Basin.

This included approximately 50 — 58,000 acre-feet of water for present uses and approximately $67,000 — 67,000 acre-feet for future development.

The future development consisted principally of an irrigation project known as the “Dixie Project” on the Virgin River.

As the hearings before the Master progressed in this case, it became evident that no other State of the Lower Basin challenged any — in anyway Utah’s present uses.

Only California expressed any objection to Utah’s proposed development.

On the — and the California objection in that respect wasn’t made only as a part of its general contention that because of the inadequate water supply in the mainstream, no new project should be permitted.

In this date of the record, the Special Master held that no justiciable controversy was presented so far as Utah’s present or future uses were concerned.

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

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Mr. Attorney General:

In fact, the Master’s ruling applied not only to Utah but he declined to adjudicate any main stream rights to inflow from the tributaries.

Likewise, he declined to adjudicate any rights as between the tributary states.

He did say, the Special Master, that in the event that the dispute arose that such dispute should be settled by application of the doctor — doctrine of equitable apportionment.

Although Utah naturally would have preferred a decree from this Court affirming to it the rights it claimed as to present uses and future uses, we did not take any exceptions to the Special Master’s Report and recommended decree.

This, for the very practical reason, that so far as the report and recommended decree were concerned, it left us free to continue our present uses and to pursue our future development.

Presently irrigated acreage in the Utah portion of the Lower Basin is about 25,000 acres.

The Dixie Project, the plans for which have already been implemented by state action, will increase this amount of irrigated acreage by about 13,500 feet.

If the Court please, Utah is not directly concerned in how the Court may choose to divide the waters of the mainstream of the Colorado as between the States of the Lower Basin located on the mainstream, particularly, a division based upon a construction of the Project Act as distinguished from the Colorado River Compact.

It is our considered judgment that the Lower Basin rights of Utah are left unimpaired by the Special Master’s Report and recommend decree.

And we are —

Felix Frankfurter:

That means — that means that California (Inaudible) new Senators (Inaudible)

Mr. Attorney General:

That is —

Felix Frankfurter:

— new function.

Mr. Attorney General:

That’s my understanding of the report.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

That’s my understanding.

Felix Frankfurter:

That is I’m not quite (Inaudible)

Mr. Attorney General:

I — per — perhaps, they are — both, I would think Justice Frankfurter.

We at one time, made a claim before this Court on the joinder issue that it was de minimis.

And although, the Master didn’t couch his holding in those terms, he did say that we were in effect seeking the declaratory judgment and he didn’t think it was right for such a judgment.

(Inaudible)

Mr. Attorney General:

58 — 58,000 acre-feet of water.

(Inaudible)

Mr. Attorney General:

We are using 58,000, irrigating 25,000 acres and —

58,000 of water would be an addition to (Inaudible)

Mr. Attorney General:

Would be an addition of the Dix —

(Inaudible)

Mr. Attorney General:

And we are claiming the right to an additional 68 — 67,000 acre-feet of water which would be a supplemental water supply for the present acreage which is inadequate, actually, as well would bring new acreage in the cultivation.

William O. Douglas:

You didn’t file any brief at all?

Mr. Attorney General:

We didn’t file any brief.

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

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William O. Douglas:

Yes.

Mr. Attorney General:

Mr. Justice Black may it please the Court.

The issues are in recommendations of the Special Master that our primary concerns in New Mexico have not been discussed by the other parties to this action.

As defined in the Colorado River Compact, New Mexico is both a part of the Upper Basin and Lower Basin.

Where Lower Basin’s State by reason of the fact that the Little Colorado and the Gila both originating in New Mexico have their confluence with the mainstream below Lee’s Ferry.

Upon motion of the defendant, the State of California and the cause of our tributary interest in the Lower Basin, this Court ordered us to be made a party to the action and the order of December the 12th, 1955.

As the hearings progressed, it became increasingly more evident that our interest in the principal controversy was more academic than real.

However, in view of our important, though by comparison de minimis, uses of water from the two aforementioned tributaries, New Mexico had a great expense prepared and submitted to the Special Master, evidence of these uses both present and contemplated.

Since there had not heretofore been an apportionment of the waters of the two streams between the States concerned, we precede on the premises of — of equitable apportionment as previously enunciated by this Court in the case of Nebraska versus Wyoming, 325 U.S. 589, to sustain our burden and because of certain rulings of the Special Master as to evidentially matter to be received was necessary to take the deposition of something over 200 witnesses comprising a deposition of some 3,700 pages.

And this deposition was for the purpose of proving or providing direct evidence of present uses of water for irrigation in New Mexico, largely from the Utah River.

The Special Master found that there was no present controversy as to the waters of the Little Colorado and thus no — thus no apportionment of those waters was necessary at this time.

However, as to the Gila River and the tributaries, we found it is presently over appropriated and therefore, apportionment was necessary to this end and in keeping with the principles of equitable apportionment.

It awarded New Mexico the uses that he found present.

Now, you mentioned that our uses are de minimis, however, I would be remised with my duties to the people of my State if I did not emphasize to this Court the extreme necessity of this water to maintain even the present low-level economy of the Southwestern potion of our State which is based primarily on ranching and mining.

The —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes.

Felix Frankfurter:

You said that the (Inaudible)

Mr. Attorney General:

Yes, sir.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

As the uses —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

It’s between New Mexico and Arizona primarily, Your Honor.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Of the simple reason that the problem was found to exist once we were brought into the case that the —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

— water for over appropriated.

Felix Frankfurter:

That’s between Arizona and —

Mr. Attorney General:

And New Mexico.

Felix Frankfurter:

And to that effect, the appropri — the appropriation of what (Inaudible) have among the other State?

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

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Mr. Attorney General:

Not at all, Your Honor.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes, sir.

Felix Frankfurter:

And that question was (Inaudible)California case against Utah for the State Congress (Inaudible)

Mr. Attorney General:

What they perhaps would always or rather.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

First, we are in here involuntarily, Your Honor.

We’d be doing very — the best — very best we could under the circumstances that evidence loss induced the —

Felix Frankfurter:

(Inaudible) driving me out?

Mr. Attorney General:

Now at this point, no sir.

We — we think we had gained a few things worth retaining.

(Inaudible)

Mr. Attorney General:

No, sir.

No one here?

Mr. Attorney General:

No one here.

(Inaudible)

Mr. Attorney General:

Yes sir.

We have in the —

(Inaudible)

Mr. Attorney General:

We hope too, Your Honor.

We — the — the potential future development down there is also great, the Gila wilderness being the greatest undeveloped recreational area in the United States at this time.

My co-counsel has some further remarks.

May it please the Court.

On behalf of the State of New Mexico, I would merely like to mention a few factors in — as to how the report of the Master was arrived at.

The New Mexico had, after it had been brought into this case involuntarily, did request equitable apportionment as to its uses on the Gila River and its tributaries in New Mexico.

The Master in his report did make his decision with reference to the uses on the Gila River between New Mexico, Arizona and the United States on the theory of equitable apportionment and with which willingly we’re very much pleased.

However, it is true that we felt in the draft report that there had been considerable limitation of the actual uses in the Gila on the New Mexico side of the line and that we were unhappy with that result and filed our comments to the Master’s Report with him on that matter.

Subsequently, Representatives of Arizona and New Mexico entered into negotiations to attempt to compromise as to the actual uses on the Gila and its tributaries within the State of New Mexico and after considerable negotiations that compromised was affected and a stipulation was filed with the Special Master.

The Special Master adopted in full the findings of facts, conclusions of law and even provisions of the decree dealing with these uses in accordance with the stipulation between the parties.

As a result, the — although New Mexico did improve its situation, we were not completely happy as — as true in most cases in negotiating a compromise but we did improve our situation and we are here to request this Court, at this time, to adopt in full the findings of fact and conclusions of law and the provisions of the decree insofar as applies to New Mexico and its uses.

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

del

Mr. Attorney General:

At this time, however, there is one slight error in the decree which is really an omission and it’s obvious, which I think that I should call to the Court’s attention and which should be corrected.

On page 340 of the Master’s report — 341, about the middle of the page under the heading of owner, appears the name Chris Dotz, D-O-T-Z.

Hugo L. Black:

Under the heading of what?

Mr. Attorney General:

Under the heading of owner on the left hand column of page 341 about halfway down the figures.

Hugo L. Black:

Chris Dotz.

Mr. Attorney General:

Chris Dotz.

And under that, you will note that there are two separate and distinct lines involving legal descriptions of land.

Now, in drawing the decree, on page 356, which — an examination of disclosed copies, verbatim, the ownership, subdivisions and descriptions in the finding, to which I had called your attention, at the bottom of page 356, is the name, again, Chris Dotz but it will be noted that the second line of the description, as shown in the finding of fact on page 341, has been omitted and we merely request that the decree include this description the same as it is shown in the finding of fact on page 341.

Now, as to one other matter, I would like to request at this time of the Court and that is that specifically, the provisions of Article 9 of the proposed decree be incorporated in the final decree of this Court.

We appeal it is every important to New Mexico as well as to the other parties to this case that the future — the Court retained its jurisdiction and if future circumstances should warrant New Mexico, for example, to come in and ask for additional relief that it be permitted to do so and we think that is of extreme importance and we respectfully request this Court that that article be retained in full.

Thank you.

What page is (Inaudible)

Mr. Attorney General:

Article IX.

I call it your attention to (Inaudible)

360 (Inaudible)

Mr. Attorney General:

60 yes.

So —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

No, no.

If the Court please, we — we request that it be retained as it is written in the final decree.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

I hope not.

Felix Frankfurter:

(Inaudible) Mr. Justice Black (Inaudible)

Mr. Attorney General:

Certainly, sir, thank you.

May it please the Court.

I shall endeavor during the course of the remaining times to answer some of the questions that have been asked here.

But in the preliminary way, Your Honor, I should like to place this in the perspective.

As Mr. Justice Harlan observed that yesterday in a question or a comment relate, California does have two strings to its bow.

One is a so-called “limitation issue”, that is our contention that the claims marshaled against us on the main river should not be 3,100,000 acre-feet but should be only of the order 1,100,000 because 2,000,000 of the 3,100,000 from which we are excluded are accounted for by the advantages, the beneficial use which our neighbors make on the tributaries.

The second string of our bow is that if there is less than 7,500,000 acre-feet available for consumptive use in Lake Mead and below then the burden of shortages should be adjusted by application of the rules of equitable apportionment and should not fall pro rata upon this contract users irrespective of any of the elements of equitable apportionment, namely, priority of their inception of their use nor the magnitude of their existing users.

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

del

Mr. Attorney General:

I shall deal first today with that second problem, namely, assuming, for the moment, that there is a shortage that is that the Secretary of Interior cannot deliver from Lake Mead and below as much as 7,500,000 acre-feet of consumptive use in any year, how shall that shortage be borne?

With respect to that string of our — on our bow, we have two errors.

One is that the statute did not either set up a — an apportionment, an allocation among these States nor authorize the Secretary of Interior to do so but if he did do so then he did not impose a federal apportionment a proration scheme upon us but he preserve the doctrine of priority.

I shall take up first the question of what the statute did.

If any authority is to be found in the Boulder Canyon Project anywhere for the imposition of a federal apportionment absent a — I presume, an interstate compact, that authority must be found in Section 5, no other source is suggested by anyone.

This is a section which directs that the Secretary of Interior is authorized a contract with the storage and delivery of water and second that no person shall have the right to use of the water stored as aforesaid without a contract.

Did or did not, that language delegate to the Secretary of the Interior, the authority to “impose a federal apportionment” those are the Master’s words.

Upon these three States absent the consent of their legislatures to a tri-state compact.

Now, as a preliminary matter, this Master is quite firm — quite firm in rejecting Arizona’s contention that the Section 5 language, which says that such contract shall confirm to Section 4 (a), means that the Secretary was given a mandatory formula by Section 4 (a) which he should impose by his contracts.

The Master is unequivocal upon that point.

He says that the authority in Section 4 (a) to these States to enter into a compact is permissive only.

It was never entered into and has no operative effect whatsoever.

It did not control the Secretary.

That means so if the Secretary did impose a contractual allocation scheme upon us, it was by the exercise of his own discretion at some later time and the Master says that he voluntarily looked to the apportionment which might have been made by an interstate compact had one been made in the pattern of Section 4 (a) and more or less adopted that scheme and, hence, imposed it upon us against our will a compact which our legislature had rejected.

We find that to be an extra ordinary piece of statutory construction.

We looked to the language of the statute and we look to the temper, the time, the spirit, the language of the debates.

This was a Congress which was acutely sensitive to the necessity of proceeding by a consent of the States and not by a mandate of Congress attempting — attempting to divide water.

That is inherit in almost every section of this Act.

Have this been the simple problem above Congress laying its mighty hand upon the river and dividing up the water.

There was no occasion whatever for the Colorado River Compact in the first place, the cumbersome device of first, an authorization by Congress in 1921 to the States to negotiate.

They send in of a federal commission to preside and then bringing back that Compact for a consent of Congress.

Second, there was no necessity had they to offer to the legislature of California a limitation agreement to be made effective by the legislature of that State.

All Congress had to do was to make the division on the phase of the statute and that’s all it was to it.

Why go through to this cumbersome device of the — of the consensual arrangement?

And third had Congress indented to divide up the waters among Arizona, California and Nevada, why not say so and do it?

Why again go through the cumbersome device of inviting these three States to agree in either in the pattern here offered or in some other pattern in the latter event bring it back for the approval of Congress?

Why throughout these Acts set up the — the enthronement, as the Senate Committee called it, of a compact clause of the constitution, use that device to bring about agreement rather than impose it by a federal mandate, for the very good reason, for the very good reason that all of the Senators who address themselves to this subject denied the existence of the constitutional power in Congress to affect any such division of the waters.

They control the sovereignty, the jurisdiction and the, let us say, ownership of the waters vested in the States and not in the Federal Government.

Whether they were right or whether they were wrong in their constitutional analysis is beside the point.

There was a complete absence of intent by Congress to make any such division.

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

del

Mr. Attorney General:

And of course, a fortiori, a complete absence of any attention to delegate to the Secretary of the Interior an authority which the Congress itself denied that it possessed.

Let me read to you a few examples of what the Senator said.

But first may I call the Court’s attention to a compilation of — on this subject of the legislative history.

You have it before you.

It is captioned, legislative history appendixes accompanying the reply brief of the California defendants to the answering briefs of the United States, Arizona, Nevada is dated October 2, 1961.

This contains a collection of the — what was said by the proponents and the opponents of the — of the bill upon five related topics.

Appendix A, beginning at page 7, is a collection of extraction, the debates evidence in Congress view the Congress had no power to allocate the waters of the Colorado River System.

Appendix B, beginning at page 31, is a collection of the extracts from the debates showing that both the proponents and the supporters of the Swing-Johnson bills clearly and consistently denied that the bills purported to make or to authorize any federal allocation of water among the States.

In Appendix C, beginning at page 79, says the legislative history items selected by Arizona do not relate to any Federal allocation within the Lower Basin but rather to substantial effectuation of the Colorado River Compacts apportionment to the Upper Basin without Arizona’s ratification.

Appendix D, beginning at page 103, makes the point that the legislative history refused Arizona’s contention that the proponents and opponents of the Swing-Johnson bills believe the Project Act would abrogate interstate priority principles within the Lower Basin.

And Appendix E, beginning at page 134, makes the point that the legislative history of the Section 5 requirement that water delivery contracts executed pursuant thereto shall conform to Section 4 (a) refutes Arizona’s argument that Congress, unilaterally, imposed a federal allocation of Colorado River waters upon Arizona, California and Nevada.

The specific items that I would like to call the Court’s attention to are these.

Let me start with a Senator who was disinterested not for any of these States, Senator Borah.

This — the extract I am about to refer to is in page 75 of the legislative history compilation.

And the particular statement appears at 70 Congressional Record 391-92.

He says, “I can see how Arizona might loose her rights not by reason of this legislation but by reason of Acts of appropriation and going on, and going in carrying out the terms this bill in case Arizona did not assert her rights in the Court.

If she stood by and water were appropriated to beneficial use in other States, she might loose her rights.

She would not loose it, however, by reason of this legislation but by reason of the Acts of appropriation.”

And he goes on to say “Undoubtedly,” referring to page 92, “Undoubtedly, if Arizona stands idly by and does not protect her rights either by appropriation or by such action in the Courts as will protect them, she will loose her rights ultimately.

That is one of the penalties of living under the doctrine of prior appropriation.

If an individual has a farm or a ranch and the water is running by it, he does not use his neighbor below him or above him can appropriated and taken away from him ultimately.”

So, here, I presume, if Arizona should not act, she perhaps would be prejudiced by this legislation in the sense of the Acts carrying out would result in appropriation by others.

It would not be act to Congress which took away her rights however but the acts of appropriation following as a result of it.

Senator Pittman, Congressman White, Congressman Bankhead others all made statements to the same effect.

Senator Bratton said — he — his expressions are the same effect, I shall not take your time to review it.

All of this, Your Honors, points up the points of appearance.

It seems to us that Section 5 when it use the expression “That no person should have a right to the use of waters stored aforesaid without a contract” was talking about the incremental supply not therefore appropriated.

The Court may recall that in the last time the Court wrote an opinion on the Colorado River case in the 298 U.S. 558, the Court denied to file on the ground of United States was unnecessary party to Arizona’s suit brought against the States of the Colorado River Basin for what it has been called a judicial apportionment of the unappropriated waters.

Now, there, the Court to Mr. Justice Stone said this, I — what — the point and want to emphasize is that the Court construed the Boulder Canyon Project Act as dealing in its authority delegated to the Secretary where the unappropriated waters.

The unappropriate waters, what is the fond 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
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Mr. Attorney General:

The water stored as aforesaid to which the contractual power shall relate, and the Court said this, at page 565, “It is conceited both by the bill of complaints and the returns that all the States in the Colorado River Basin except California and California so far as material to the present case apply the doctrine of appropriation to the waters of flowing streams in their respective territories.”

Under this doctrine, diversion and application of water to a beneficial use constitute an appropriation and entitle the appropriator to a continuing right to use the water to the extent of the appropriation but not beyond that reasonably required and actually used.

The appropriator first in time is prior and right over others upon the same — same stream and the right, when perfected by use, is deemed effective from the time that purpose to make the appropriation is definitely formed and actual work upon the project has began or from the times statutory requirements of notice of the proposed appropriation or complied with provided the work is carried to completion and the water supplied to have beneficial use with reasonable diligence.

At page 567, this Court said, “A judiciable controversy is presented only if Arizona, as a sovereign state, order citizens, whom she represents, have present rights in the unappropriated water of the river or if the privilege to appropriate the water is capable in division and when partitioned maybe judicially protected from appropriation by others pending it — its exercise.”

Now, the question is when Congress delegated to the Secretary the authority to make contracts and directed that no one should have the right to use the water stored as aforesaid saved by a contract, did it mean as the Master oblige that it cut off, took over all of the — all of the waters not there before in fact put to use by 1929 and cut off all appropriative rights to the extent they had not been in fact put to use by the use of water, took that appropriation away and that the Secretary may now contract out that appropriated but it’s — as yet unused water to others or did the Court — did the Congress says we believe, especially in the light I have just read from 298 U.S., mean that it was not cutting off appropriative rights but was dealing with the unappropriated water.

The distinction is this, the Master construes a present perfected right as being a right measured by the quantity of water in fact put to use by June 25, 1929.

There were, as of June 25, 1929 as everywhere on every western stream, appropriative rights perfectly valid, vested, existing property rights to the — to quantities in excess of those in fact used as of that date.

Let me illustrate.

When you build a great project, it may take years to put all the water to use.

A municipality that doesn’t build ahead 25 years ahead of its requirements is delinquent in its duty.

A federal reclamation project automatically under the reclamation law allows a ten year period of development in which the farmers pay nothing toward repayment of the cost of the project because everyone recognizes it takes time to get farm started.

You can’t begin to grow crops and pay up.

The history of the west is if the water used gradually increases on every project.

You don’t put it to use the day after you complete your — your dam and your canals.

That is a very reason for the requirement of diligence.

It is a reason for the law of relation back.

Did or did not Congress, in Section 5, intend, without saying so, to abrogate a doctrine of relation back and to recognize and protect then the valid appropriative rights only to the extent that the water had been applied to use.

That would be a remarkable conclusion to read into this statute written by western Senators acutely conscious of the — of the fact that water rights depended in all of their States on the law of appropriation and it — either on state law.

(Inaudible)

Mr. Attorney General:

Yes, sir.

The word “present” is derived in — in the statute from the use of the word “present” in Article VIII of the Colorado River Compact which provides that this present perfected rights are unimpaired by this Compact and in the Second Section provides that when a storage has been provided on the main river to the extent of 5,000,000 acre-feet, those present perfected rights shall attach to that stored water in effect releasing up stream flow for use by junior appropriators in the Upper Basin.

So far as the matter of statutory interpretation is concerned in Section 6 of the Boulder Canyon Project Act, all that Section 6 did, written by Upper Basin representatives, Mr. Carpenter of Colorado, as he explained was to designate that this reservoir, Boulder Dam — Hoover Dam is the reservoir referred to in Article VIII.

That when this reservoir has built, a present perfected rights in the Lower Basin attached to that reservoir and or not to remain operative against the Upper Basin pending the completion of a dam say Glen Canyon in the Upper Basin.

Why they use the word “present perfected rights” is not apparent.

It is not apparent.

It has — as used in the Boulder Canyon Project Act, surely, not the — the implication that we are restricting the recognition of appropriative rights to the quantities in fact used as of June 25, 1929.

There are two reasons.

One, the Master gives is why that can’t be so.

He treats as a present perfected right as of June 25, 1929, the full requirements of Indian Reservations created prior to that date even though they hadn’t use or drop the water.

To him, present perfected right as to a federally created reservation doesn’t mean the water put to use as of June 25, 1929, it’s the ultimate requirement of the irrigable acreage of the reservation even though he may not discover that until a land of — utilization surveys made 20 years later.

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

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Mr. Attorney General:

Second, a more controlling from our view point, is the fact that this Act offered to California a limitation applicable to her rights which may now exist, rights which may now exist.

Article III of the Compact provides that the 7,500,000 acre-feet apportioned to the Lower Basin shall include the water necessary to supply “rights which may now exist”.

That is a different definition and a greater right than a more restricted “present perfected right”.

Did Congress, did Congress in offering to California a — an agreement which would limit the quantity of water available for our “rights which may now exist” intend without saying so to redefine and limit that expression down to the quantity in fact used in 1929.

In short, when we get onto the discussion of what is a present perfected right, we are on a subdivision of the true problem which is what is a right which may now exist as of 1929, a right which may now exist.

If I may have your attention to Section 4 (a) at page — on top of page 382, start at the bottom of page 381, if you please which is a direction of the Act shall not take effect until conditions are met.

But this is a pro — language of the prohibition.

This Act shall not take effect, no authority be exercise so forth and so on then as return the page and no water rights shall be claimed or initiated here under and no steps shall be taken by the United States or by others to initiate or perfect any claims to the use of water pertinent to such structures unless meant held.

These conditions as to the enactment — limitation are met and ratification of the Compact.

But two thirds the way down the page appears the language of the limitation which California is to enact.

The quantity stated is to include all uses under contracts made under the provisions of this Act and all water necessary for the supply of any rights which may now exist, any rights which may now exist.

Consequently, we say, Your Honors, that our rights which may now exist as of June 25, 1929 were preserved, not cut off as of the magnitude of the quantity of water there before put to use and that those rights are entitled to retain their interstate priorities as against Arizona.

We think that the language of this Court in the first of the Colorado River cases, 283 U.S., is precisely to that point because there, the Courts speaking through Mr. Justice Brandeis relied upon Section 18 of the Act to accomplish precisely that result in reassuring Arizona that her appropriative rights were not cut off by the statute as against us.

Section 18, appears 395 of the report, and this provides that nothing herein shall be construed as interfering with such rights as the States now have either to the waters within their borders or to adopt such policies and enact such laws as they may deem necessary with respect to the appropriation control and use of waters within their borders except as modified by the Colorado River Compact or other interstate agreement of the United States gives out or Arizona that gives that language inter-basin affect only as to practically Upper Basin.

The Master gives it intrastate effect.

He relies upon it to preserve the priorities intrastate within Arizona, let us say, as between contract holders and appropriators under state law.

We say that Mr. Justice Brandeis speaking for this Court gave an interstate effect because the claim of the State of Arizona was that the Project Act had in effect cut off its right of control of appropriation and for that reason was unconstitutional for variety of reasons.

The Court rejected that claim relying upon Section 18.

Now, the — to pursue this line of thought for a moment, the distinction between what the definition of what our water stored as aforesaid which the contracts of a right shall relate.

This question came up early for administrative determination.

And in 1930, the Secretary of the Interior advised the Palo Verde Irrigation District which was then had a problem before of whether should or should not apply for a contract.

It had used since 1877 the natural flow of that.

And on July 31, 1930, the Secretary of Interior wrote to the Palo Verde Irrigation District.

This is California Exhibit 351 and he construed Section 5 of the Project Act as relating only to the incremental stored water.

He said, “If no stored water is required by the Palo Verde Irrigation District, no contract between that District and the United States will be required.”

Those possess their priority rights to the unregulated flow of the river will be privileged to continue the enjoinment of those rights without an interference by storage in the Boulder Canyon reservoir.

As a result, the Palo Verde contract and all of the contracts subsequently made in California provide for the delivery of so much water from storage as together with all other waters diverted, all of the waters diverted, equally stated quantity.

We think that when the Master disowns and rejects the contention that Section 4 (a) imposed a mandatory proration formula, he thereby holds under opinion out the many contention that the Congress made any division of the water.

And we do not find in Section 5 any delegation of authority to the Secretary of Interior to do that.

What Section 5 does say is that the Secretary shall make contracts for the storage and delivery of water and those contracts shall be for permanent service.

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 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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del

Mr. Attorney General:

Why?

The Master twice explains the phrase “permanent service”.

It is required, he says, in order to give a project a reasonably stable and reliable source of water, legally and — and physically available.

That is precisely the policy, the purpose of the law of priority of appropriation.

So that he who has by his efforts to put water to use shall not be deprived of it at a later time by some administrative proration.

The Secretary did in fact enter into a contracts before California agencies.

There are not many contracts involved here to control these problems.

There are contracts in existence with four California agencies, two with the State of Nevada, one with the State of Arizona.

We do not find in Section 5 any authority to the Secretary to make any interstate allocation.

These are to be, in our mind, contracts with such as those that had been made for years under the reclamation law.

Section 8 of the 1902 Reclamation Act provides that beneficial use shall be the basis of the measure and the limit of the right.

United States doesn’t issue patents or grants to water rights.

The States don’t.

The United States beginning in 1902 has followed the pattern established by the state law, which is that possession, beneficial use measures the right.

The State doesn’t issue you a grant or patent to water rights anymore than does to wild flower or fish in the rivers.

It gives you a license to appropriate them, to take possession of them.

The right is possessory in character.

You establish it by self-help.

It is measured by what you do for yourself.

There is no such thing in the doctrine of any States water law or until this moment, until this moment in the laws of United States which delegate to any administrative officer the power to set aside to reserve or as this Court said in 298 U.S. to somehow apportion, judicially apportion irrespective of use to set aside.

That isn’t the way of life for the West.

Water is not locked up in that way.

It is made available for use to the extent its use, the right is acquired.

Now, the Congress intend to generate some new kind, some new kind of a water right never there before heard of in the western water law, of course not.

It was dealing against the — the background, the pattern, the whole tapestry of the water law of the West and it took care not to tinker with it, not to tinker with it.

If Congress, if these Senators disclaim that the United States the power to divide up the water, if they insisted that the legislatures of the States do — do so, it is inconceivable that they’ve delegated this great power to any Secretary of Interior.

Now, I turn to the second phase of this problem.

If the Congress didn’t divide the water and didn’t delegate to the Secretary the power to divide it, the search ceases.

No such creature as a contractual allocation scheme imposing a federal apportionment likely now a priority exist.

But if did delegate any such power to the Secretary, where is the piece of paper that made the apportionment?

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

del

Mr. Attorney General:

And if we can find that piece of paper, does it throw out the window the law of priority or does it preserve it?

Let’s embark briefly upon that search.

Yesterday afternoon, the question was asked by Mr. Justice Black and by Mr. Justice Frankfurter about the power — disposition of electric power to Hoover Dam.

Now, that opens up a very interesting comparison.

Section 5 of the Boulder Canyon Project Act in the one section provides for the disposition of power and the disposition of water.

With respect to power, with respect to power, it provides for contracts with States.

With respect to water, it does not, it does not.

With respect to power, the — as Mr. Justice Frankfurter indicated, there weren’t any preexisting rights to power, there were as to water.

There wasn’t any preexisting pattern as to how you allocate power.

This was a new resource being freshly created.

There wasn’t existing pattern of water law.

What did the Secretary of the Interior do under the authority of Section 5?

First, let’s glance at the statute itself.

It appears that at the bottom of page 384 of the — of the report.

“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 for irrigation and domestic uses.”

I’ll stop there in a minute.

That looks and sounds like a delivery to a water user and not to a State.

Next, “And generation of electrical energy and delivery at the switchboard to States, municipal corporations, political subdivisions and so on upon charges that will provide revenue adequate”, and so on.

Then it goes on with the language in which it will become familiar here, “Contracts respecting water for irrigation and domestic uses shall be for permanent service and shall conform to paragraph (a) of Section 4”, and so on.

Now, did any in Secretary of Interior construe this language as authorizing him to make an interstate apportionment of water?

Did he construe this language as authorizing him to make an interstate apportionment of power?

The answers are diametrically opposite.

Here is what in fact happened.

The Secretary of the Interior in 1930 did sign general regulations for the — governing the allocation of power to be generated at Boulder Dam not Hoover Dam.

These appear in special Master’s Exhibit Number 4, the Hoover Dam documents at page A237.

Here you find the piece of paper we’re looking for with respect to power.

It is a general regulation signed by the Secretary of the Interior which does make allocations to the State of Nevada, to the State of Arizona, to main power users in — in California in percentages, in percentages of the power to be generated.

It is unquestionably an —

Hugo L. Black:

May I ask you about (Inaudible) percentage claim here is water or just (Voice Overlap)?

Mr. Attorney General:

No, there is no correlation at all, Your Honor.

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

del

Mr. Attorney General:

The California power users were required to obligate themselves to take and pay for or to pay for if not taken the entire firm power production at Hoover Dam subject to the right of the Secretary to draw back 36% of that power for subsequent contract with Arizona and Nevada if they should want it.

They did take it at a later time.

The Metropolitan Water District at Southern California was looked to by the Secretary as a major contractor for this power, 36%.

That power is, however, earmarked and restricted to be used solely for pumping water into an (Inaudible) to put it in a —

Hugo L. Black:

Does the contract provide (Inaudible) for the water?

Mr. Attorney General:

No, the Metropolitan had another contract that did require to pay for water stored and taken.

Hugo L. Black:

Are all the Metropolitan contracts require payments for water?

Mr. Attorney General:

Yes well — yes, sir, the Metropolitan’s contract does.

All of them require payment for — in two components.

These are the power contracts you’re asking about?

Hugo L. Black:

No, I’m asking about water now to the United States, does it require payments to the United States for the water?

Contract is to be either (Inaudible)

Mr. Attorney General:

This is for irrigation or domestic use or for power?

Hugo L. Black:

— (Voice Overlap) yes.

Mr. Attorney General:

Irrigation and domestic use.

Hugo L. Black:

For both.

Mr. Attorney General:

For both.

Hugo L. Black:

Irrigation and domestic.

Mr. Attorney General:

The irrigation and domestic use a statute.

In Section 1, provides that no charge shall be made for the storage and delivery of water in the Imperial and Coachella Valleys for the announced reason of the Senate Committee that, “They already had a water right.”

Hugo L. Black:

What about the other (Voice Overlap) —

Mr. Attorney General:

With respect to the Metropolitan Water District, it was required by its contract to pay 25 cents per acre-foot for water taken for domestic use stored in the dam.

And with respect to the Arizona contract, it also provides for a charge not to exceed 25 cents per acre-foot.

I am speaking of the water contracts, not the power contracts.

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

But where the provision, Mr. Justice Black, that no charge shall be made for the storage and delivery of water to anyone who has a present perfected right and the date of that contract, I suppose present means now, is 1944.

Throughout days and — not — not a penny has ever been collected from any Arizona water user for the storage and delivery of water under that provision, nothing.

Nevada contract does provide as the Metropolitan does that that State shall pay for water, 25 cents or 50 cents in the case of water taken above the turbines for domestic use.

And Nevada has paid, the Metropolitan Water District has paid but Arizona has paid nothing.

The contract provides, nothing shall be paid with respect to water taken for any present perfected right and not withstanding the fact that the bulk of the users in Arizona originated after 1929.

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

del

Mr. Attorney General:

The projects weren’t built until after then, the (Inaudible).

Nevertheless, no charge has ever been collected from Arizona for irrigation, domestic use of water.

Nothing has ever been collected from Palo Verde Irrigation District in California, yet, also had a water right.

The practical administration of the Project Act, I’ve — I’ve switched now to talk about these water contracts, has been not to collect from anybody except the Metropolitan Water District.

And that is for the reason that its right, clearly, is dependent upon the existence of storage.

The others had preexisting rights.

But I started on the trail of telling you about these power contracts and the power regulations of 1930 for the reason that here is the interstate percentage pro rata allocation made by the Secretary of Interior under Section 5 of the Project Act dealing with power.

Now, did he do that with respect to water?

He did not.

Instead, he wrote the letter, I’ve referred to, to the Palo Verde Irrigation Districts and you don’t need any contract at all if you have a natural flow right.

He never made any, by he — I mean, any Secretary of Interior.

Never put his pen at any piece of paper like the power regulations that make any interstate allocation of water.

John M. Harlan:

What is the exhibit number?

Would you give me the document you (Voice Overlap) —

Mr. Attorney General:

Yes, sir, this is Special Master’s Exhibit Number 4.

The particular page for the 1930 power contract general regulations is page A237.

Now, to follow the power story unto a little further, in — by — by 1940, it had become necessary to readjust the Hoover Dam power rates to bring them in more nearly in the competition of those established in Bonneville.

The seven States said the Colorado River Basin adjoined, for the first and last time that I know of, the 14 Senators or sponsors of a single bill to reestablish the rate basis of Hoover Dam.

The statute that did that is called the “Boulder Canyon Project Adjustment Act”.

It is the Act of July 19, 1940, 54 Stat. 774.

Now, under that statute, again, the Metropolitan Water District of Southern California was set by the Secretary of Interior as a primary obligor.

It pays for 35% of the cost of Hoover Dam, a dam from which it will be denied all water whatsoever if the Master’s decree is approved and if the Colorado River Compact is ever enforced, which it will be, to restrict the water supply in the main river.

As I mentioned earlier, the Metropolitan Water District’s water rights by a federal contract as well as by the terms of the state priorities enforced in these contracts are junior to agricultural priorities in California to such an extent that if the Colorado River Compact has ever enforced against the Lower Basin, this great district that face 35% of the cost of the dam that makes all of the water here in dispute available, gets not one drop of it.

(Inaudible)

Mr. Attorney General:

Yes, sir.

(Inaudible)

Mr. Attorney General:

Yes, sir.

(Inaudible)

Mr. Attorney General:

Yes, sir.

In 1930, the first of these suits was brought here, Arizona versus California 283 U.S.

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

del

Mr. Attorney General:

Before I take up what happen in that suit, may I say that —

(Inaudible)

Mr. Attorney General:

Oh, pardon.

(Inaudible)

Mr. Attorney General:

Well, it is perfectly clear that the — the same, that the setting up of internal priorities of California, which subjugated Metropolitan to the agricultural users was delayed until about a month after the decision came down in the first of these cases 283 U.S.

And the priorities that Mr. Justice Brandeis bare said should have interstate effect, under Section 18, had to be recognized and were recognized as senior to those, the Metropolitan intrastate.

The great tragedy we now face is with those same senior priorities are blunted and denied interstate effect so that the Metropolitan is impaled by them.

But to answer your question directly, the — the internal division of California was made after the decision of 283 U.S.

Subsequently few years later, the Secre — Secretary Wilbur had signed regulations setting up a draft of a contract with Arizona and Secretary Ickes withdrew them on the basis of the decision made in 283 U.S. saying in retrospect that now appears that the appropriative rights of Arizona are unaffected by anything done under the Boulder Canyon Project Act and it seems therefore unwise for us to attempt by a contract to make any reservation of water for Arizona, her appropriative rights have continue.

William O. Douglas:

That was because she had not read or have the Compact?

Mr. Attorney General:

No, Your Honor, it — it truly, I — I think it’s fair to say that that may have been the political motivation for — for it but it had nothing to do with the — the intra-basin, the rights of Arizona versus California.

In 19 — in 1930 — does that answer your question?

I would like to follow through this trail of the power contract for a minute because of the contrast of what the Secretary did about the water.

Under the 1940 Boulder Canyon Project Adjustment Act when it was pending, the Senators of these seven States wrote in to Section 14 of that Act precisely the language of Section 18 of the Boulder Canyon Project Act that nothing herein shall be construed as interfering with the rights of the States with respect to the waters — within their boundaries and so on.

And it went on to restate that Sections 13 (b), (c) and (d) of the Project Act should continue in full force in effect.

Those are the sections that make the Colorado River Compact controlling in every respect in the interpretation of the Project Act.

Now, Secretary Ickes, pursuant to that authority, again signed general regulations affecting the division of the — of the power, interstate by — by percentages.

Those appear at page A279 of the same Special Master’s Exhibit 4.

At page A281 appears a schedule to the State of Nevada so much, State of Arizona so much, Metropolitan Water District so much and so on.

Now, here is a type of an administrative action you’d expect if the Secretary of Interior was going — so in the Section 5, the same Section 5 any authority to him to make a pro rata interstate apportionment of water.

The same two Secretaries, Wilbur and Ickes, did nothing of the kind.

They did the reverse.

Secretary Wilbur instructed his representative, who is a man named Van Noorden and who had written that he was about to attend an interstate meeting on the water allocations.

He instructed him by telegram in September 27, 1929, this is California’s Exhibits 7553 for identification.

It read “Your message is here.

We have endeavored to keep out of all controversy regarding allocation of Lower Basin water.

Do not consider this our field once your help on technical questions but do not want you to represent me in any conference on allocation of Lower Basin water.

What you may do individually is a different question.”

That’s kind of blunt instructions.

Secretary Wilbur was not a man to talk shorthand.

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

del

Mr. Attorney General:

He wrote to the State of California and to the — to the agencies in California requesting that they submit to him a proposed division of the water to be made internally in California.

And this is beside the priority question for a moment.

But again, to illustrate the chair with which the Secretary of Interior on 1930 was keeping out of the water allocation business.

And here, he requested the — the States to submit recommendations of this sort.

He’s — this is over Ray Lyman signature, Ray Lyman Wilbur signature and he submits a draft of recommendations to be made by the California Division of Water Rights to the Secretary of Interior.

This is California Exhibit Number 1810.

And he wants the State to send back this recommendation to him, leaving — he gives blanks that I want filled in, says he.

It is recommended that the water which maybe available to California under the Colorado River Compact is limited by the Boulder Canyon Project Act.

The apportion as follows: One, of the water which maybe available to California by paragraph (a) of Article III of the Colorado River Compact.

Now, that the Secretary of Interior talking shorthand when he says paragraph (a) of Article III of the Compact —

Bring here map (a) please?

Mr. Attorney General:

Is he talking about the something other than paragraph (a) which encompasses tributaries?

Is he talking about the Red River?

He doesn’t say so.

Now, that’s beside the priority question.

That’s the limitation question.

But in chronological order, I want to get before you as graphically as I can what these four Secretaries of Interior did.

Where is this illusive piece of paper that somebody must have signed to make an interstate apportionment?

It’s either Wilbur or Krug — Wilbur or Ickes or Krug or Chapman.

Those are the four.

And who done it?

Who done it?

You won’t find the corpse because there isn’t any.

And you won’t find that any Secretary of Interior did it because nobody ever signed this piece of paper.

What they did was precisely the opposite.

In direct contrast with the power regulations, we did make this interstate allocation.

When Secretary Ickes made his contract with Arizona in 1944, here, if anywhere, you must find the interstate allocation.

Bear in mind that for 14 years, there had been in existence only the regulations contract signed by Wilbur and the two in Nevada signed by Ickes, one at Nevada.

Now, none of these purport to make an interstate allocation.

The California projects had been built.

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

del

Mr. Attorney General:

They were in existence.

Now, are we going to read in Section 5 handwritten, the subliminal message, “To California, if you accept this Limitation Act taking 4,400,000 as the ceiling on your appropriation should do so with the implied knowledge that some Secretary of Interior is going to come along 14 years later after your projects are built and then impose an allocation on you.

Or do your contracts for “permanent service” give you what the Master calls the assurance of a stable water supply.

We’ve built, we’ve built.

283 U.S. have come down in which the quote to Mr. Justice Brandeis said in effect interstate priority survive.

292 U.S. have come down of which Arizona had sued to perpetuate the testimony of the — of the Colorado River Compact negotiators.

And here, this Court said that the limitation related the California Limitation to the III (a) and III (b) waters in the sense of the system.

Arizona had sued to stop the — the United States had had to sue Arizona to stop the military interference of the building of Parker Dam.

And this Court, in that case, had said that Arizona owns the bed and banks of the stream from the thread of the river at East and had a right to appropriate.

And this is what this Court said in that case in denying the right of the United State to enjoin Arizona’s military interference with Parker Dam’s construction.

Arizona owns the part of the riverbed that is east to the thread of the stream.

Her jurisdiction in respect to the appropriation use and distribution of an equitable share of the waters flowing therein is unaffected by the Colorado River Compact or Federal Reclamation Law.

So that Secretary Icke, in 1944, had had the advantage of reading four decisions of this Court dealing with the Colorado River question and he surely could not find in any of those decisions, any determination aid that the — the reference to the Colorado Red River Compact means something other than the Compact, the fond of water that I — Secretary administering is different from that which statutes seems to talk about nor could he find in that statute any obligation of priorities.

So that when the Arizona Water Contract was signed in 1944, it doesn’t purport to be an interstate allocation at all.

Secretary Ickes was just as careful as Secretary Wilbur to stay out of that business.

Let’s look at the Arizona Water Contract.

Here, if anywhere, you find the piece of paper which is the interstate apportionment and what do we find?

This begins at page 399.

The very first preliminary paragraph says this contract is made as such in such a date under the Act of Congress approved June 17, 1902.

That’s the reclamation law enacts amendatory thereof and so on including the Boulder Canyon Project Act.

Now, the fundamental of the reclamation law is Section 8 which provides a beneficial use shall be the basis to measure the limit of the right.

Did this contract attempt to setup anything other than beneficial use says the basis to measure the limit of the right?

Did this put in deep freeze, so to speak, 2,800,000 acre-feet?

Now, turn to page 400.

Here is Article VII (a), Delivery of Water, subject to be availability thereof for use in Arizona under the provisions of the Colorado River Compact in the Boulder Canyon Project Act.

United States will deliver, top of Page 401, a maximum of 2,800,000 acre-feet up to a maximum.

And how is he going to do it?

It is — he’s going to deliver to actual users.

Thereafter shall make contracts for the Secretary of Interior.

It is simply a — an expression of intent.

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

del

Mr. Attorney General:

The Government is quite explicit about this in saying that this about this contract.

And this is from page 47 and 48 of the — of the United States answering brief.

It is our understanding that this contract with Arizona does not, by itself, authorize the actual delivery of water in compliance with Section 5 of the Project Act since that Section requires that the contracts be entered into with the actual users of water.

We think so too.

United States goes on.

Rather, this contract is in nature of a commitment by the Secretary to enter into contracts with users in Arizona up to the limit of 2,800,000 acre-feet.

In this sense, it is an allocation by the Secretary, that amount of water for a future contractual use.

We say there’s no such authority in the Boulder Canyon Project Act of the Secretary of Interior to make any allotment for future contractual use.

He’s authorized a contract with users.

And to deliver to them a specific name points on the river or on the canal.

Any contract by the Secretary of Interior that seems to take over the authority to make an interstate apportionment is ultra vires, ultra vires.

And Secretary Ickes didn’t attempt to do it all.

Here’s what he go on say.

He says at page 40 — page 405, Article X.

“Neither Article VII”, Article VII is the one that provides for delivery of water, “neither Article VII nor any other provision of this contract shall impair the right of Arizona and other States and the users of water therein to maintain prosecutor defend any action respecting and result prejudice, too, any of the respective contentions of said States and water users as to: One, the intent, effect, meaning and interpretation of said Compact in the said Act.

Two, what part, if any, of the water used or contracted for by any of them falls within Article III (a) of the Colorado River Compact.”

Now, let me pause there a minute.

Is Ickes talking shorthand when he says our paragraph (a) of Article III of the Colorado River Compact?

He was not a man inclined to use shorthand either.

Now, it passes all understanding that every Secretary of Interior for all of these decades was talking shorthand by paragraph (a) of Article III something other than the Compact said.

Here, he goes on to say, “And furthermore, if the Master is right, this is wholly irrelevant question.

What part falls within Article III of the Colorado River Compact?”

That’s nothing to do with the case.

Ickes’ goes on to say “Three, what part, if any, is within Article III (b) thereof?

Four, what part if any has excess or surplus waters unapportioned by the said Compact.

And five, here’s my point, “What limitations on use, rights of use and relative priorities exist as to the waters of the Colorado River System provided however, by — by these reservations?

There’s no intent to disturb the apportionment made of Article III (a) of the Colorado River Compact”, same article “between the Upper Basin or the Lower Basin.”

Now, how can you use reference to Article III of the Colorado River Compact in the disclaimer at the end as meaning of something other than the same Article when he refer to it as relating to their respective rights of these Lower Basins States, all in one sentence.

But the significant thing is if the Secretary of Interior had made an interstate apportionment that wiped out relative priorities.

Why in the world, in 1944, Secretary Ickes announcing that this contract that does not make any determination with respect to relative 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 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

del

Mr. Attorney General:

If the Master is right, it didn’t exist.

And they ceased to exist by the Secretary signing of this very piece of paper.

This is the piece of paper if any is.

You can’t find anything that even touches it.

Because until 1944, until 1944, by no one’s contention was there any interstate apportionment made.

No contractual allocation scheme was completed or came into existence until Harold Ickes signed this piece of paper and this doesn’t do the job.

I have to turn back to page 403.

You’ll find that in — in paragraph — paragraph (l), the last sentence, “Present perfected rights to the beneficial use of waters of the Colorado River System are unimpaired by this contract.”

As of 1944 — present, I suppose means 1944.

Now, at the same time the Secretary Ickes signed that contract, he promulgated a decision dated February 9, 1944.

He’d held hearings before he signed that contract.

This appears the Special Master’s Exhibit Number 4 at page A567.

This is a decision in which he explains what he’s done.

You won’t find here the statement I have “forever allocated” or I have “determined priorities” or I have substituted proration with priorities, not at all.

He says, Article X, that’s the one I read to you a moment ago that made these reservations, was purposely designed to prevent Arizona or any other State from contending that the proposed contract or any provision of the proposed contract resolves any issue on the amounts of water which are apportioned or unapportioned but the Compact, any amounts of apportion or unapportioned of water available to their respective States under the Compact and the Act.

It expressly reserves for a future judicial determination any issue involving the intent, effect, meaning and interpretation of the Compact and Act.

The language of Article X is plain and unequivocal and adequately reserves all questions of interpretation of the Compact and the Act.

Now, there is not the announcement by the Secretary Of the Interior that — that I had made an interstate apportionment, I have forever allocated, I have substituted proration with priorities.

Here is an announcement by the Secretary of the Interior that all questions as to relative priorities are reserved.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, yes, Your Honor, the — the Master reaches his result by interpreting these documents as affecting the contractual allocation as making it — being a contractual allocation scheme, the Secretary apportionment.

We say they conflict in the sense they just don’t do any such thing.

They just claim it.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes, Your Honor, we think they empathically are.

With respect to California contracts, these — first, those are the ones that would be undermined and in effect destroyed.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes.

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

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Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

That is correct, quite so.

Felix Frankfurter:

But beyond that (Inaudible) Secretary of the Interior (Inaudible)

Mr. Attorney General:

Well, if I can sort out my reply to that in two or three components.

But first, Mr. Justice Frankfurter, the — we — we conceive the contracts made under Section 5 with the California users has been true Section 5 contracts to the type the United States talks about the contracts with — with users for permanent service.

We treat those and any Section 5 contract that conforms to the requirement and being a contract with the user as being in a sense, a — an initiation of an appropriation stored water under federal law.

These contracts to us are licenses or permits to appropriate stored water.

No one may have the use of stored water without a contract.

But having a contract, he has the same thing as a license to hunt birds or a permit from the State to appropriate water.

He doesn’t have any grant or patent.

He may then put the water to use.

And thereupon, Section 8 of the Reclamation Act of 1902 becomes controlling.

That is a control over the effect of Section 5 contract’s beneficial use.

These are basis of measuring the limit of the right.

As the Court said in Ickes versus Fox, United States is a carrier of water under its contracts to the man who is establishing the right to — right to that water by its user.

And under Section 8, in general, that water is appurtenant to land as a property right.

The law of relation back applies.

To our mind, the contract with Arizona is not that at all, it doesn’t purport to be.

If the United States puts its finger right on it, it is not a Section 5 contract at all, at all.

It is — if given that effect as an apportionment, as a reservation and perpetuity for Arizona, it’s ultra vires, secretary didn’t have it.

The wrong, the Master’s (Inaudible) is by his — creating the Arizona contract of 1944 as only it were authorized by statute to be and it in fact was an apportionment in substitution for interstate compact.

There just isn’t any such creature contemplated by the statute.

The Arizona contract re-visualize as nothing more than an announcement by the Secretary of the amount of to which he will contract with individual users in Arizona just as the California Limitation Act was a determination of the ceiling up to which he might contract with users in California.

He didn’t call it limitation by agreement if you like.

It’s — if the Limitation Act is not a grant of anything to California as the Master concludes, and I — I think he’s probably right about it, then the Arizona contract is no grant of anything that Arizona.

It’s a statement of the conditions on which he will contract with individual users up to a ceiling that may or may not ever be reached.

And if this tri-state compact had been signed between Arizona or ratified between Arizona, California and Nevada.

That’s where the Master says that the Secretary got these figures and I don’t doubt he did.

But if that — if that interstate compact had become effective, then, as to Arizona and Nevada, it, too, was a ceiling on appropriations.

Merciful heavens if the Colorado River Compact itself is just a ceiling on appropriations in the Master says and if the limitation on California is a limitation, not a grant, it’s inconceivable that this tri-state compact, we were invited to sign, is somehow a limitation on California but a grant to Arizona and Nevada.

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 09, 1962 (Part 2) in Arizona v. California
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Mr. Attorney General:

They have same effect on all three of us, some sort of a reciprocal ceiling on appropriations.

Now, the Arizona contract certainly can’t do anymore for Arizona than the ratification of that tri-state compact would’ve done.

Even assuming that the Secretary did somehow, somewhere get some authority to impose a federal apportionment on us.

So, it is not so much, Mr. Justice Frankfurter, what this Master has done that violates — the effect of the contracts.

Its 40 years read into Section 5 and into the Arizona contract is just isn’t there and never intended to be there.

Now, I — I like to make this plain.

I want to make it clear that we are not saying, we are not saying that our second string to our bow the continuation of a — principles of equitable apportionment depends upon our proving to you that we have somehow a State generated right to control the United States in the disposition of the water stored at Hoover Dam.

That is not it at all.

Now, for purposes of argument, I would start with the position that if this statute had said, “We impound the unappropriated.”

I emphasize unappropriated waters, that in Hoover Dam and we direct that they’ll be put in tank cars and taken to New York and sold as bottled water, that the statute could have done so and that the Secretary of Interior wouldn’t have to come to Arizona or Nevada or California for permission to do it either.

And much as in the Ashwander case is — the Government can dispose a power.

That’s not it.

The question here is one of statutory interpretation, what did the United States intend with respect to the newly created resource?

And what is the newly created resource?

It’s the water unappropriated.

By unappropriated, I mean the water beyond — beyond that to which valid existing rights are attached under state law even though not fully put to use as of 1929.

I don’t think this statute wiped out the law of relation back.

But the question is one of statutory interpretation, what did Congress intend with respect to this newly created — newly created research?

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, the — we don’t deny that.

It’s the incremental supply.

Felix Frankfurter:

Yes.

Mr. Attorney General:

We say, we offer —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes, because we — we have proof in the record, Mr. Justice Frankfurter, on anticipating that for our issue.

How much could we have taken out of the unregulated river by our own efforts?

And the proof uncontroverted is that it could, by our own works and taking the regiment of the river as it existed prior to regulation, had actually diverted and used in California about 4,500,000 acre-feet per year.

We could not have used the 6,000,000 that Hiram Johnson talked about.

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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Mr. Attorney General:

The true figure developed by the engineers on the stand, subject to cross-examination is that the — we could, without Hoover Dam, storage have taken and used in California about 4,500,000 acre-feet per year under appropriations that were in excess of that and all of them senior to Arizona’s appropriation.

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

— I did not —

Felix Frankfurter:

Both opinions (Inaudible)

Mr. Attorney General:

Well, the proof was that the — taking the river as it came, high and low.

We could have, in fact, have obtained that quantity out of the year.

The proof is that in only some 54 months out of — out of something over 600 months of the period involved in the study, would there have been any reachable shortage at all.

Now, what the — this — the specific problem is, and what I’m attempting to say, is that the Congress of the United States intended with respect to the incremental stored water, however you define it, to apply to that water the principles build up by this Court in the doctrine of equitable apportionment.

I am taking the instance now in which the — the hypothetical project is using water that would not have existed at all before the creation of Hoover Dam.

This is, we’ll say, stored water by anybody’s definition and ignoring what the definition maybe.

And we have competitors who each hold a contract for the use of stored water.

There is not enough to satisfy both of them.

What happens?

The Master’s very clear if these two competitors are within the same State, Arizona let us say.

They both depend on contracts.

Neither of them had any antecedent right under state law.

They’re both revealing solely with incremental stored water.

Priority applies, state law controls.

The very question says he of whether a contract constitutes a water right is to be controlled by state law.

Now, that’s quite a concession.

That the very question of whether a contract with the United States constitutes a water right at all, it’s a question of state law says he.

But in any event, if these competitors are both in Arizona, priority controls, priority is applied.

If they’re both in California, priority controls.

If one’s in California and the other is in Arizona, but above Hoover Dam, priority controls.

We’re invited to come back to this Court to sue anybody that depletes the flow of the river by a new diversion above Hoover Dam.

Priority will control even though the right we here assert is that solely of a contract user, a — a contract holder has no preexisting right in — under state law at all, priority preserved.

Now, the very narrow question is did or did not Congress intend, having to recognize priority of appropriation and surviving everywhere except in this narrow little field of competitors on opposite sides of the river below Hoover Dam, didn’t intend somehow, but I’m saying say so, that priority maybe abrogated by the Secretary of Interior if he feels like it, it’s his discretion and then did any Secretary undertake to do it?

The answer is no in both instances.

Why write into the statute Section 12 which defines reclamation law of Section 14 that says that this Act is a supplement to the reclamation law which shall control unless otherwise specifically provided.

Unless they intended that Section 8 of the reclamation law be given effect, that beneficial use is the basis for the measurement of the limit of the right and why put in Section 18 after Senator King, it’s author had ex — expressed his vast discontent with the notion that the Federal Government somehow delay its mighty hands on the river dividing up the water except for reassurance that state priorities are to be preserved?

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 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
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Mr. Attorney General:

And why did this Court say in 283 U.S. of Section 18 should have precisely that effect and therefore Arizona was not wounded by the passage of the Project Act?

And why in offering to California the limitation referred to California as right which may now exist if they’re cut off at the level of the users therefore made of them?

These things are all — are all in the notion that somehow priorities were abrogated is foreign to anybody’s thinking in — in this basin or in any litigation here from the beginning.

It cannot be found.

Now —

Hugo L. Black:

Are you talking about the power because I — I get a little confuse, I just (Voice Overlap) —

Mr. Attorney General:

Yes.

Hugo L. Black:

— before 1929 or as of 1929, the administration of the Act —

Mr. Attorney General:

I’m talking, Your Honor, of two kinds of priorities with the same result.

One is a right of a project, let us take the Palo Verde Irrigation District with State generated water rights, priority is dated from 1877.

And we’ll assume that this prior to Palo Verde Irrigation District had a valid appropriative right for, let us say, 400,000 acre-feet per year, take any figure you like if that will do, was proceeding to put that water to use with due diligence, came 1929 and it had in fact put to use say 100,000.

We say that the priority of the Palo Verde Irrigation District continues and is not struck down by the Project Act to the full 400,000 acre-feet if that water is put to use with reasonable diligence after 1929.

The period of reasonable diligence been affected by the magnitude of the project, the quantity of water.

That’s still good against Arizona.

We think this Court said so in 283 U.S. to Arizona against us with respect to any Arizona project similarly situated.

Second, with respect to a — a water right that was initiated, let us say, after the passage of the Project Act in 1930 by the signature of a water storage and delivery contract by someone else, it happens that all of the California projects had initiated appropriations under state law prior to 1929, the most recent of them being the Metropolitan Water District which had filed this notice of appropriation, spent $2,000,000 in — in truly gigantic preliminary work.

But let’s say that we had no such project with any — any roots at all prior to 1929, this is project X, I don’t what project that is going to exist, but let’s preposterous say that here’s a California project that nobody ever thought of before 1930 and it came into the Secretary of Interior and got a store — water storage and delivery contract and it did went ahead and built that project and put the water to use and then now comes along a project in Arizona, which in some later date, 1933 let us say, came to the Secretary and got a contract and built this project, put that water to use and comes a time when there’s a shortage on both these contract holders cannot be satisfied, what law shall govern in — in distributing the shortage?The Master would say proration.

He would go further than that and apply proration even though our California project is one that builds and operating along before 1929.

Hugo L. Black:

(Inaudible) proration — proration or must the State according to the figures given in the Act?

Mr. Attorney General:

Yes, sir.

That’s right.

And I’m trying to simplify this by assuming just one project in existence on each side of the river for the moment.

We say that the doctrine of priority of appropriation of all interstate apportionment applies between these two competing projects, one in Arizona, one in California, even though they both derived their water right wholly and solely from contracts with the United States relating to incremental new stored water.

And that Congress did not intend to abrogate the principle of priority in the distribution of shortages of stored water between contract holders.

We do not depend upon the fact or accident that one or the other of them may have roots in an appropriation filed under state law.

We say Congress intended to apply this great principle hammered out by this Court for the adjustment of shortages in the Western States.

You do it by priority of appropriation.

And it doesn’t any just doctrinaire notion.

It’s founded on the necessity of life in the Western States.

The stability of water supply depends upon your keeping what you’re put to use.

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 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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Mr. Attorney General:

Is — you don’t jump a mining claim.

You don’t jump an appropriative right.

They’re both originated at the same time and by the same doctrine of necessity as this Court has said in the Gerlock (ph) case.

And that Congress recognized that.

It didn’t intend that if a man built and spent $1 or hundreds and millions of dollars in building his project, it’s going to be destroyed, destroyed by proration with some latecomer at a later time that it intended, it priority to apply.

And —

Hugo L. Black:

You had concrete — I think I could understand that it’s late to ask you a question —

Mr. Attorney General:

No.

Hugo L. Black:

— concrete, what do you claim so far one quantity of water do you claim California had previous protected water rights in 1921 when the Act was passed?

Mr. Attorney General:

Yes, sir, I have those figures.

We say this, Your Honor, if I answer to you comes in — in under three — I’ll give you three figures.

First, we say that we had valid vested appropriative rights owned by projects built and in existence to the — in which could have been satisfied out of natural flow unregulated, to the extent of 4,490,500 acre-feet per year.

Hugo L. Black:

Well, may I stop you (Inaudible) do you claim that you’re entitled to get (Inaudible) in view of your limitations agreement?

Mr. Attorney General:

Yes, these two are not related and I — I do enter the (Inaudible) two lesser figures in the moment before I’m held to this one.

But the — the limitation is 4,400,000 acre-feet plus one-half of the excess or surplus.

We think that the dependable supply, this river, is not over 6,000,000 acre-feet for a division on Arizona, California and Nevada.

If we’re right about that, then our share of excess or surplus would be, perhaps, 250,000 acre-feet and consequently, if — if we prevail and if you took our rather sovereign to serve the user of the water supply, we would obtain on a dependable basis of about 4,600,000 acre-feet.

We say the Limitation Act gives 4,400,000 or rather limited as to that and that the translated into figures, it means about 4,600,000 because there’s no more than 400,000 acre-feet of service.

Hugo L. Black:

Are you claiming that California does file what is to be as of 1929 give enough more water 4,400,000 to review the 2,800,000 (Inaudible) that Arizona would get?

Mr. Attorney General:

Well, Arizona —

Hugo L. Black:

Will get under that, under (Inaudible) that apportionment.

Mr. Attorney General:

Under — well, I have to sort this out again, Your Honor.

Arizona’s 2,800,000 to a couple of those two works — expressions together, Arizona’s 2,800,000 acre-feet is derived from a contract made in 1944, not from the statute the Master so holds, the statute made no apportionment.

Hugo L. Black:

Well, the statute — statute does state (Inaudible)

Mr. Attorney General:

It authorizes the States to agree upon that figure and they did not agree.

Hugo L. Black:

— (Voice Overlap) — well that’s a fact (Voice Overlap) —

Felix Frankfurter:

— (Voice Overlap) — on California.

Mr. Attorney General:

But to limit on California, that paragraph is operative until our mind, the 2,800,000 that did refer to as to Arizona includes the Arizona uses on the tributaries.

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

Yes.

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

But assume that — what I found (Inaudible) with argument leads to the — (Inaudible) California had a right despite its Limitation Act to depend water of the United States and get water as of 19 — when do you say that, 1929 which would refuse Arizona the load of 2,800,000.

Mr. Attorney General:

Oh, yes, just as Arizona had a right by what it did after 1929 to put to use of water which might diminish the quantity that California might get.

It’s not the fact.

It was done before or after 1929, Your Honor.

Hugo L. Black:

Well, Arizona, didn’t have a limitation right.

Mr. Attorney General:

That is correct.

But nevertheless, to the extent that’s her appropriations were put to use whether before or after 1929, it might substantially reduce our quantity available for us.

Hugo L. Black:

Well, then I am correct that in your argument, California’s argument leaves inevitable to the conclusion that by doing something after 1929, California, whether right or wrong, I’m not guessing, California could get water at the expense of Arizona loosing the 2,200,000 — 2,800,000 which is supposed that they had the right to give.

Mr. Attorney General:

Well, on your — say thought it had a right to, I — I’ll put that —

Hugo L. Black:

Well, I (Voice Overlap) —

Mr. Attorney General:

— in italics.

Yes, I’ll put that in italics.

Hugo L. Black:

— 2,800,000 acre-feet —

Mr. Attorney General:

Oh, yes, Your Honor, yes, to give you a direct answer, the answer —

Hugo L. Black:

How far —

Mr. Attorney General:

— the answer is yes.

Hugo L. Black:

How far does that go?

Mr. Attorney General:

If we prevailed —

Hugo L. Black:

How far does that go?

Mr. Attorney General:

— if we prevailed here, we would — California would — if 6,500,000 acre-feet is truly available under — on the mainstream to the Lower Basin States of that quantity, California might have 4,400,000 acre-feet plus half the surplus and the surplus in — on this hypothesis would be 1,000,000 acre-feet.

We’d have 4,900,000 of the six and a half million.

And Arizona and Nevada would have, out of the main river, 1,600,000, the residue of the 6,500,000.

John M. Harlan:

That of course, they will be subject to your proving your priorities if they request it?

Mr. Attorney General:

That is correct, Mr. Justice Harlan.

John M. Harlan:

Not —

Mr. Attorney General:

That is correct.

John M. Harlan:

— necessarily in this lawsuit.

Mr. Attorney General:

You are quite — quite correct.

That is a ceiling.

Hugo L. Black:

(Inaudible)

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
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Mr. Attorney General:

Now —

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

Excuse me, sir.

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

Well, in united — what date they arose or how it approved in here?

Hugo L. Black:

Could you based that on something you did to get the —

Mr. Attorney General:

Well —

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

No, our priorities, in all respects, relate back to dates prior to 1929.

Hugo L. Black:

Does that depend on considerations whether the Government (Voice Overlap) —

Mr. Attorney General:

No.

Hugo L. Black:

— to be construed as you —

Not anymore.

Hugo L. Black:

— could relate it back (Inaudible)

No.

Hugo L. Black:

(Inaudible)

No, it wasn’t (Inaudible)

Hugo L. Black:

(Inaudible) as perfected right?

Mr. Attorney General:

Yes, Your Honor, we do not feel that we are restricted to present perfected rights in any respect.

The limitation refers to water for the satisfaction of “right which may not exist” that is a less restricted quantity.

Hugo L. Black:

That is affected?

Mr. Attorney General:

Yes, sir.

Hugo L. Black:

What rights may now exist?

Mr. Attorney General:

Yes, sir, they are in two ways.

The Article III (a) of the Compact provides that the apportionment of 7,500,000 acre-feet to the Lower Basin in perpetuity shall include all water necessary for the supply of any right which may now exist.

Felix Frankfurter:

That — that is 29?

Mr. Attorney General:

That’s — no, that’s in the Colorado River Compact, Article III (a).

The statute, the Boulder Canyon Project Act in Section 4 (a) proposes to a California a limitation in quantitative terms which shall apply to two categories of water in the Act of it.

One is right which may not exist.

The other is uses under contracts made under the provisions of this Act.

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 09, 1962 (Part 2) in Arizona v. California
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Mr. Attorney General:

We say that rights which may now exist are intended to be protected within the apportionment made by Article III (a) and that Arizona in ratifying the Compact in 1944 agreed with California, she agreed with the other States and that was so.

And hence that our 4,400,000 acre-feet is intended to be out of a category of water is earmark for the protection of rights which may now exist.

John M. Harlan:

Under your theory of priorities, what room is left for the play of the — of present protective right of the —

Mr. Attorney General:

The —

John M. Harlan:

Or what would — could you give me an example of —

Mr. Attorney General:

Yes.

John M. Harlan:

— how would it apply?

Mr. Attorney General:

Yes, may I first complete the — the — when Mr. Justice — may I complete this (Voice Overlap) —

John M. Harlan:

I didn’t mean to interrupt you.

Mr. Attorney General:

I will —

John M. Harlan:

I was —

Mr. Attorney General:

— come to that if I finish giving the answer to Mr. Justice Black as called.

You asked for us a figure and I give you 4,490,500 as the magnitude of California’s natural flow rights as of 1929.

The question now is that, Mr. Justice Harlan asked and I’m intended to give few — anyhow, Mr. Justice Black, what do we claim within that to be present perfected rights as of 1929?

If we take as a magnitude of present perfected rights, the quantity that could have been diverted by actual existing structures in existence in 1929, the figure would be 3,707,100.

These two figures should have supported by citation, the 4,490,500 acre-foot figure, you will find in California’s supplemental findings and conclusions, Part IX (C) that is bound into our volume called “responses” filed before the Special Master.

The figure of 3,707,100 is in the same document and it is finding 19 (d) 201.

We have a third figure.

If we are restricted as the Master would do to the quantity in fact used in 1929 and the figure then becomes 3,275,000 acre-feet that is shown in our findings and conclusions in 19 (d) 202, also bound in the responses.

Now, we say, Mr. Justice Harlan, that first of all, when we speak of present perfected rights, we’re on the wrong railroad track as measuring the — the magnitude of the State generated prior — pre-1929 rights.

They’re bigger than present perfected rights by any definition.

They are rights which may now exist which include the right of relation back and that consequently the figure of 4,490,000 is the proper measure of them.

But if — if the Master should be sustained that present perfected rights are measured by the quantity in fact put to use in 1929, then our figure becomes 3,275,000 thereabouts and Arizona is about 250,000 and Nevada is substantially zero.

We’re talking about an aggregate of about 3,500,000 acre-feet.

Now, the Master would add to that in the category of present perfected rights, the ultimate requirements of Indian and other federal reservations.

We don’t agree with that.

But if you have those in, then you increase the Arizona figure to about 600,000 and you just my total of to about something less than 4,000,000.

But if — if present perfected rights are restricted in this manner, then the provisions of the report and of the decree, which provide for two years of attempted negotiation, failing that determination by this Court of a magnitude and priorities of present perfected rights, really results in a supplemental decree that is not likely to ever have a great deal of utility because nobody forecasts that the flow of this river is ever going to get down to 4,000,000 acre-feet.

You’re never going to reach a point where you are subsisting on present perfected rights only because the river is that low that no — no there’s no evidence to support that — that notion at all.

The true significance of a determination of — of present perfected rights, it seems to me is this.

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 10, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
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Mr. Attorney General:

If the Master’s formula is approached for correcting every other respect is wrong in this, that he has lumped together in his numerator and his denominator 44/75ths, 28/75ths, 3/75ths, this present perfected rights that didn’t depend on storage at all, though should be subtracted.If you’re dealing with an allocation of “water stored as aforesaid”, the incremental stored water then the power to allocate doesn’t go further than the power to store.

The Government had the right to interrupt and store the unappropriated water.

Now, we said the inappropriate water is much narrower margin because valid appropriative rights should all be subtracted but if he subtracted only the present perfected rights then he’s got the wrong equation because he’s much in the position of saying I — I agree that bonds have our priority ahead of stocks or the ventures.

But in the event of insolvency of this corporation, I’m going to give you pro rata as your numerator of your fraction on your total holdings.

Present perfected rights being bonds and stored water stocks and the denominator, the total quantity of the water that I’d like to be able distribute, total amount of resources.

And it’s why it is wrong in lumping together gold and silver having the same value.

But the —

Hugo L. Black:

May I ask you just one more thing?

Mr. Attorney General:

Yes, sir.

Hugo L. Black:

If it’s alright with you.

I want to find out.

Do you claim that under any circum — or do you claim — do you agree that you — California is bound by the Limitation Act by Section 4 to a limitation under which it will never go beyond, for California, 4,400,000 acre-feet plus one-half of any excess or surplus?

Mr. Attorney General:

Well, that is our assertion, Your Honor.

That is our assertion that we —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes, right.

Felix Frankfurter:

— present perfected (Inaudible) perfected right.

Mr. Attorney General:

We agree that that includes our present perfected rights, that limitation they entered.

Hugo L. Black:

Do you agree that you are limited to that amount you — you argue (Inaudible) that the method by which the computation of (Inaudible) to what is separate was wrong?

Mr. Attorney General:

No, it is much more serious than that, Your Honor.

It involves that —

Hugo L. Black:

(Inaudible)

Mr. Attorney General:

— may I — you —

Hugo L. Black:

— you claim that is (Voice Overlap)?

Mr. Attorney General:

That is a one feature but the surplus question is of minor importance to us because if we’re right about the water supply, there isn’t much surplus.

(Inaudible)

Mr. Attorney General:

If we were right —

(Inaudible)

Mr. Attorney General:

That is right.

Your Honor — yes, if — if we are right that Congress intended to preserve the — the principle, the theory of equitable apportionment, whether you’re dealing with incremental stored water or old rights then we don’t — this question of definition of person perfected rights is really immaterial to us because — it’s really immaterial because we’re contending for the principle that priority applies whether you’re dealing with incremental stored water or water that you could’ve taken out of natural flow.

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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Mr. Attorney General:

We only reach the question of what’s a present perfected rights if we’re driven back to away from that and you prorate the store water, we then say, well, we’ll certainly entitled a full protection of the priorities of our preexisting rights and they’re not limited to present perfected rights.

And as a third line of defense, we say that if you are going to respect only the priorities of present perfected rights, he’s got to — he’s got to a (Inaudible) definition we’re entitled to —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Well, it’s — I — well, I — I misspoke, Mr. Justice Frankfurter.

What I mean to say is quantitatively, if we’re sustained on the application of priorities to the incremental stored water and sustain upon the principle of priorities with respect to the rights in natural flow, the question of how much of the rights in natural flow of water to be called present perfected rights doesn’t concern us because it’s a — it’s a small portion of the — of the argument —

Felix Frankfurter:

(Inaudible)

Mr. Attorney General:

Yes.

Now —

John M. Harlan:

That was the question I intend to convey by my earlier question.

Mr. Attorney General:

Yes, sir.

John M. Harlan:

Namely, if you’re theory of priorities is correct, what purpose is the statutory raised present protected rights served?

Mr. Attorney General:

Well, it had a — a definitely defined source.

It came into the statute on the demand of an Upper Basin representative, not in the Senate but in the House that he wanted to get in this statute some indication of the — of the dam that was going to satisfy the function prescribed in Article VIII of the Compact.

Article VIII of the Compact says first present perfected rights are unimpaired by this Compact.

And second that when storage to the extent of 5,000,000 acre-feet has been provided, then present perfected rights are to attach to that storage and he wanted this dam named as that storage and he did it.

And he was very careful to say, this is Mr. Carpenter of — of Colorado, he was very careful to say just prior this was being done, and that purpose was to, as I’ve indicated, to protect the Upper Basin.

And he made it very clear, indeed, that he wanted to designate this — this dam as — that to which the present perfected rights were apply to trigger Article VIII.

“It had nothing to do”, he said with a determination of rights between Arizona and California.

Indeed, Arizona and Nevada are both quite empathic here in saying that Section 6 of the Project Act has only inter-basin effect.

And we don’t think that the presence of Section 6 in the statute thereby demand of an Upper Basin representative.

That’s anything at all to do with limiting the doctrine of equitable apportionment in Lower Basin to the protection of present perfected rights.

And now, if you’ll bear with me Your Honors, I’d like to return briefly to this other problem, the other string to our bow of — of the — the limitation question.

You only reach this problem of priorities.

If you hold against us, if you hold against us upon our limitation issue, and let me just briefly answer some of the things that has been set here about that, the question is not, is not whether California shall get it’s 4,400,000 acre-feet out of the stream below Lake Mead what I call the “Red River”, of course, it will.

That’s the only place it can now go unless they builds a new aqueduct to confine above Lake Mead.

The question is may or may not the 3,100,000 acre-feet from which we’re excluded be claimed against the Red River, Lake Mead and below or must it be asserted against the whole Lower Colorado River System including the tributaries?

That is the question here.

You don’t reach your question of shortage unless you decide that question against us because the flow of the resource of the Lower Basin including the tributaries of 2,000,000 acre-feet and the — the mainstream is adequate to sustain the 8,500,000 acre-feet to which the Lower Basin is restricted by the Colorado River Compact.

You run into the problem of shortages only if you honor the 3,100,000 acre-feet of claims that we can’t have and which we perpetuated against the stretch from Lake Mead and down.

Now, as to this, as to this, there is in the Master’s Report this relationship between Section 5, on which I have devoted so much time today, and Section 4 (a).

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 09, 1962 (Part 2) in Arizona v. California
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Mr. Attorney General:

Section 4 (a) authorize the Compact among Arizona, California and Nevada to which it had been ratified would have divided up the waters of the Lower Basin.

Now, the Master says that when the Secretary of Interior under Section 5 made water delivery contracts, he voluntarily, although not obliged to do so, looked to Section 4 (a) to the figures these States would have adopted in their Compact and they ratified it and picked those out and made them effective.

Note this, Section 5, by its terms, operates only with respect to the Red River water stored and Lake Mead and below.

Does Section 4 (a)?

Of course, not, of course, not.

Whether or not Section 4 (a) encompass the Gila, which was the subject of the — of the legislative material offered yesterday by the Solicitor General, it is perfectly clear from the debates that Section 4 (a) as a minimum comprehended that main river from Lee Ferry down and not just from Lake Mead down.

There’s no doubt about that.

The Master relies upon Senator Pittman and Senator Hayden.

But those Senators were not contending, that’s the Compact opposed in Section 4 (a) was one that dealt with the stream from Black Canyon or Boulder Canyon to Mexico.

They were identifying, they were misconstruing the Compact as dealing with the main river from Lee Ferry to Mexico.

Now, there’s a vast difference.

The inflow between Lee Ferry and Lake Mead is approximately equal to the Gila River inflow at the mainstream.

All the tributaries in the Lower Basin in the state of nature contributed about 3,000,000 acre-feet per year to the river.

And though that the Gila contributed about one-half.

So we are — there is a disparity between Section 4 (a) arithmetic that resource was dealing with and then the resource dealt within Section 5 to the extent of 1,500,000 acre-feet per year.

They can’t mean the same thing.

Now, if you, consequently, if you — you cannot restore the rationale of the Master’s argument by correcting his truncation of the river at Lake Mead.

If you drew that river back together again, you do not restore, you do not give validity to his interpretation of Section 5 as taking into — putting into effect the tri-state compact because it can’t.

We are dealing with entirely separate bodies of water.

May I have that map, the pictured map?

It’s about time.

Mr. Attorney General:

Now, before I sit down, I want to call your attention to — to all these pictures of yesterday of the — the water flowing out of the Imperial Valley in the Salt Sea.

But he did not tell you, it’s — the salt content of this river as he call it is higher than the salt content of the Colorado flowing into Mexico which has occasion this current international crisis to which Mr. Justice Douglas referred to.

The Mexicans are complaining because the water reaching them in the main Colorado River has a salt content of three and a half tons per acre-foot and they can’t irrigate with it.

This water that is leading the Imperial Valley has a salt content of four and a half to five tons per-acre foot.

We can’t irrigate with it anymore than the Mexicans can and this water is agricultural sewage.You see it the sewer flow and that’s all there is to it.

We are content.

We would happy to have in this decree exactly the same provision before California as for Arizona that there shall be no waste of water.

We applaud that, we will — our projects were held to a higher standard of efficiency in their shore.

And let — nobody be misled that there is vast amounts of water wasting to the contrary.

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 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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Mr. Attorney General:

Now, Your Honors, in — in the closing, I — I would like to come to this.

We are defending here California projects built at a cost in excess of $600,000,000 over the past 30 years.

The youngest of them, 20 years old, serving 7 million people or more built and rely and it’s upon an agreement with the United States, the statutory compact that our legislature accepted in good faith.

The great principle at bay here at stake is whether a State may safely enter into an agreement with the Congress of the United States unambiguous on its States, unambiguous on its States.

And they rely upon it, built our projects and then find that 30 years later that they are to be destroyed by an interpretation of the federal statute that no one has suggested in five previous trips to this Court.

Yesterday the — someone objected to what do you call — to my epithet describing this as a patentable novelty.

That was the Special Master description of his severance of the limitation from the Compact, not ours.

He said if these were a patent case, I would claim novelty upon this invention.

Great projects are not to be destroyed by a patentable novelty.

We are here defending a rule of property.

The contracts made for permanent service, projects built in reliance upon them, upon the understanding of the law of the river, promulgated by the present and simultaneously in three enactments on June 25, 1929, brought back to this Court four times, back to Congress six times and never until the Special Master’s Report came out in May of 1960, had anyone suggested that when we agreed to limit our rights in terms of the Colorado River Compact, this was “shorthand”.

That simply is not basis of — of confidence of reliance between the United States and the State in making this — planning the project of this magnitude.

We are not writing on a clean slate in 1929, not writing the lower view article how to interpret the Coloro — the Colorado River Compact or the Boulder Canyon Project Act, we are here 30 years after the event.

And here, Your Honors, we rest our case into confidence that we will have the protection of the application here of the law of this Court has applied in every other interstate water case that a law of equitable apportionment.

Thank you, sir.

Admirably done — admirably done.