ETSI Pipeline Project v. Missouri – Oral Argument – November 03, 1987

Media for ETSI Pipeline Project v. Missouri

Audio Transcription for Opinion Announcement – February 23, 1988 in ETSI Pipeline Project v. Missouri

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William H. Rehnquist:

Mr. Minear, you may proceed whenever you are ready.

Jeffrey P. Minear:

Thank you, Mr. Chief Justice, and may it please the Court:

Section 9 of the Flood Control Act of 1944 approved the Pick-Sloan Plan, a comprehensive multiple purpose program, jointly administered by the Army and the Interior Department, for the development of the Missouri River Basin’s water resources.

The question here is whether the Secretary of the Interior may enter into a contract pursuant to the federal reclamation laws to supply a portion of the program’s unneeded irrigation waters for ETSI Pipeline Project’s state-approved industrial use.

I would like to begin by briefly describing the Pick-Sloan Plan.

Pick-Sloan represents a comprehensive yet flexible response to the needs of a vast and varied river basin.

It combines the flood control features of the Army’s proposed Pick plan and the reclamation features of the Interior’s proposed Sloan plan into a unified inter-agency program designed to provide maximum basin-wide benefits.

Under this plan, the arid upper basin states dedicated a great expanse of productive lands for construction of the massive main steam reservoirs that would protect the lower basin states from disastrous seasonal floods.

In return, the upper basin states received assurances that water stored in these reservoirs located within their borders would be available for irrigation and other needs.

The main stem reservoirs have now been completed, and the lower basin states are secured from the once devastating flood waters, but the upper basin states anticipated irrigation needs have not yet fully materialized and those states wish to put this water which presently inundates their territory to other beneficial applications.

The dispute here centers on Lake Oahe, a main stem reservoir that was central to both the Pick and the Sloan plans.

The Army originally proposed two small flood control reservoirs at this location.

Interior, by contrast, recommended one large reservoir with much greater capacity to meet the upper basin states’ reclamation needs.

The Army and Interior ultimately agreed that Interior’s proposal with its massive reclamation storage capacity would best serve the needs of the basin.

However, it became clear in the early 1970s that the upper basin states’ irrigation needs were not developing as quickly as expected.

The Interior Department, with the cooperation of the Army, therefore agreed to market the resulting unneeded irrigation water at Lake Oahe and other reservoirs for state-approved applications.

Sandra Day O’Connor:

Mr. Minear, have the two agencies, Interior and the Army, always agreed consistently on the proper interpretation of the Flood Control Act?

Jeffrey P. Minear:

Yes, Your Honor, I think that they have.

This agreement has been–

Sandra Day O’Connor:

There was some suggestion certainly by the Respondents that they have not always agreed that the Army had maintained at one time that the Secretary of the Interior could not market water from Army reservoirs independently.

Jeffrey P. Minear:

–The Army General Counsel, at the time that this proposal was first made, indicated that the statute appeared somewhat ambiguous but, nevertheless, agreed to cooperate with the Interior Department’s proposal, deferring to the Interior Department’s expertise in supplying industrial water.

Sandra Day O’Connor:

Well, has there been some uncertainty of the position of the two agencies in the past?

I have… apparently they have come together for purposes of this litigation, but I’m trying to get a candid assessment of what their position was before.

Jeffrey P. Minear:

I think at the highest levels of the Army, with the Secretary of the Army and the General Counsel of the Army, who are in a position to make these determinations under the Flood Control Act, there has been substantial agreement between the two agencies throughout this program.

The Respondents cite several memoranda, internal memoranda, obtained through discovery, that express some doubts at lower levels.

However, the Army General Counsel has been quite consistent in his approach to this matter throughout… since… essentially since 1974.

Sandra Day O’Connor:

Since I have you interrupted, let me ask you one other thing.

Under Section 6, now, the Corps can market surplus water.

Jeffrey P. Minear:

That is correct.

Sandra Day O’Connor:

Now, unused irrigation storage water can be marketed by Interior.

Jeffrey P. Minear:

Yes, that is correct, also.

Sandra Day O’Connor:

Now, can it be the same water?

What is surplus water as opposed to unused irrigation storage water?

Is it the same water we’re talking about?

Jeffrey P. Minear:

Not necessarily.

Sandra Day O’Connor:

Could it be?

Could it be the same?

Jeffrey P. Minear:

Usually not.

For instance, I would think that the water that now… the ETSI contract, this particular 20,000 acre feet of water, would not be treated as surplus water by the Army.

Sandra Day O’Connor:

Why not?

Jeffrey P. Minear:

Because it is being put to a use by the Interior Department.

It’s being put to a use in accordance with the federal reclamation laws.

Sandra Day O’Connor:

Am I mistaken then in thinking that the Corps has changed its position so it now believes that it could have marketed the water in this case as surplus water?

Jeffrey P. Minear:

I believe the Army’s present position, which is presently being formulated at this point, it is still under evolution, would be that it would not be able to market the ETSI water, and the reason is this: let me go back, first, to 1974.

The Army made a determination at that point that it probably could not market unutilized irrigation water in these circumstances because it would run through the hydro-powered turbines and would, therefore, serve a beneficial use.

The Army has found that this interpretation, in fact, has resulted in some very harsh applications.

In particular, with small towns, for instance, Parshall, North Dakota, was the example used here.

The town requested a very small amount of water, 323 acre feet, for its municipal uses.

The town almost adjoins the reservoir and was in need of water.

The Army’s initial determination was that perhaps it could not supply this water because the water could be used to go through the turbine.

The Army has attempted to ameliorate that policy by, in fact, making this water… by concluding that when the water can be made available to a municipal application without interfering with other project purposes, that it then can supply the water.

This is really what the Army’s policy is designed for.

Antonin Scalia:

And supply it why?

Because it becomes surplus?

Jeffrey P. Minear:

They have decided to treat that type of water as surplus.

Antonin Scalia:

Well, that’s nice, but what does surplus water mean?

I thought it meant spill-over.

Jeffrey P. Minear:

Traditionally, that’s how the Army defined it.

Water that would, in fact, pass over the spillway, that would not be used for any other purpose.

Antonin Scalia:

What else could it possibly mean?

Jeffrey P. Minear:

Well, in this case, take the example here where the water, in fact, the water is being used to produce hydro-power, and that is the only purpose that this water can serve at all.

If, in this case, a small town, in this case, Parshall, is willing to pay enough for that water, in fact, recoup the lost hydro-power purposes, then it fulfills the ultimate objective of the reservoir.

Antonin Scalia:

Well, that’s very desirable, but does that transform it into surplus water?

That’s the issue.

Jeffrey P. Minear:

It depends.

It appears that that was, in fact, what Congress meant when, in fact, it adopted these surplus water provisions here in the Flood Control Act, Section 6, that it was, at that time, addressing these types of problems.

Antonin Scalia:

Well, it was addressing one aspect of problems of water that is not being used and making that water usable, but only one type of water that wasn’t being used; that is, surplus water, which means spill-over water, that is not being reserved for irrigation, is not being reserved for any other use.

Jeffrey P. Minear:

Well, Your Honor, I think, in any event,–

Antonin Scalia:

You know, that’s meeting one aspect of that problem, but to say you meet one aspect of the problem is not to say you intend to meet all aspects, including water reserved for irrigation that is not being used.

You would not consider that surplus water, would you?

Jeffrey P. Minear:

–No, Your Honor.

But, Your Honor, I think what’s important to remember here is the Army’s authority is not what is in question here.

Instead, it’s the Interior Department’s authority.

That is what has been challenged and is the subject of this dispute.

Antonin Scalia:

But the meaning of surplus water is quite relevant to the entire case, whether it… because it pertains not just to the Army’s position but to what the two agencies can do.

Jeffrey P. Minear:

And I think what the two agencies have reached a reconciled position to, based on their two definitions, that, in fact,–

Thurgood Marshall:

You represent both agencies.

Jeffrey P. Minear:

–That is correct.

Thurgood Marshall:

Mr. Minear,–

–Very ingenious position to be in.

Jeffrey P. Minear:

Yes, Your Honor.

Harry A. Blackmun:

I share Justice O’Connor’s historical concerns.

It seemed to me that for awhile this was a turf battle between the Army and the Interior until it got under the jurisdiction of the Solicitor General and brought them together.

Let me read one sentence from Judge Bright’s dissent.

“It leaves the irrigation water stored in the main stem reservoirs without a governing agency or law. “

Do you agree with that, are you defending that, or is Judge Bright completely wrong?

Jeffrey P. Minear:

I think that Judge Bright is partially correct.

Harry A. Blackmun:

Partially correct.

Jeffrey P. Minear:

The Army simply cannot market all of the water that’s available in this reservoir as surplus water.

It’s simply… you must remember the Army’s mission is primarily flood control and navigation protection.

Jeffrey P. Minear:

Their supply of surplus water is simply an ancillary power that has been given to them by Congress to assure maximum utilization of these reservoirs.

Congress’ ultimate objective in these cases is to assure that these reservoirs do the most good for the most people.

That point is repeated throughout the legislative history.

It’s the guiding principle of the Pick Plan and the Sloan Plan, and that is what the Army and Interior Department are attempting to do here.

Harry A. Blackmun:

Of course, it’s a strange thing that the 8th Circuit panel divided upper basin against lower basin judges, too.

Jeffrey P. Minear:

Yes, Your Honor.

Byron R. White:

Well, wasn’t this… this reservoir was designed to have… and built to include irrigation water?

Jeffrey P. Minear:

That is correct, Your Honor.

Byron R. White:

Quite a lot of it.

Jeffrey P. Minear:

Yes, it was designed so.

Byron R. White:

And the Secretary of Interior has found that that water… none of that water or at least all of that water is not needed for irrigation.

Jeffrey P. Minear:

Not at the present.

That’s correct.

Byron R. White:

And, so, there the water sits unused for irrigation anyway, and your claim is, I take it, that the Secretary of Interior has the power to use that water for some other purpose.

Jeffrey P. Minear:

To make that water available to states.

Byron R. White:

So, it’s unused irrigation water.

Jeffrey P. Minear:

Yes.

Harry A. Blackmun:

For a coal slurry in Wyoming.

Jeffrey P. Minear:

Yes, that is right.

William H. Rehnquist:

Mr. Minear, getting back just for a moment to this business of the relationship between the Secretary of the Army and the Secretary of the Interior, certainly if the Secretary of the Army had joined in signing this contract, there wouldn’t be any lawsuit at all, would there?

Jeffrey P. Minear:

Oh, I’m not so sure about that at all.

The Respondents, the states, have challenged the Army’s authority as well as Interior’s authority.

In any event, this authority was executed under the Interior’s power, under the reclamation laws.

So, whether the Army signed the contract or not is probably not relevant given the authority that was asserted.

John Paul Stevens:

Well, it certainly would have answered the theory of the Court of Appeals decision,–

Jeffrey P. Minear:

Yes.

John Paul Stevens:

–which was that it’s a joint responsibility rather than a single responsibility.

Jeffrey P. Minear:

But, in fact, they did cooperate here.

In fact, the contract states that.

John Paul Stevens:

But they didn’t sign it, did they?

Jeffrey P. Minear:

No.

The contract–

John Paul Stevens:

This lawsuit would be over if the Secretary of the Army had signed this contract.

Jeffrey P. Minear:

–I respectfully disagree with you, Your Honor.

John Paul Stevens:

Certainly, the Court of Appeals decision wouldn’t have been written the way it was.

Jeffrey P. Minear:

Perhaps it would have been written differently.

John Paul Stevens:

Perhaps.

But what was the vise in the agreement according to them that they didn’t have the approval of the Army?

That’s the only vise according to the Court of Appeals.

Jeffrey P. Minear:

Your Honor, I don’t think that that is correct.

I think because… remember, the water service contract was executed under the reclamation laws pursuant to a state water right that ETSI now holds.

Now, the Army is generally not involved with the application of the reclamation laws in these cases.

John Paul Stevens:

Do you think that the case would have been the same if the Army had endorsed the contracts, we ratify and approve everything that’s being done here?

Jeffrey P. Minear:

Oh, I think there still would–

John Paul Stevens:

And then the states would make the same claim?

Jeffrey P. Minear:

–It’s likely that there still would have been a lawsuit in this case.

John Paul Stevens:

Well, some other ground, certainly.

But you’re telling us that the Secretary of the Army agrees that the Secretary of the Interior has this authority but isn’t willing to sign these papers.

That’s what the lawsuit is all about.

Jeffrey P. Minear:

But, Your Honor, it was not necessary for the Secretary of the Army to sign these papers.

John Paul Stevens:

Well, whether it was necessary or not, they could have avoided a lawsuit and a lot of judicial time if they had signed the contract.

Jeffrey P. Minear:

Yes, Your Honor.

The contract even specifies that the Army, in fact, was consulted on this and approved this… not approved, but, in fact,–

John Paul Stevens:

Is there any legal significance to their having been consulted and approved?

Jeffrey P. Minear:

–I think that there is legal significance because the–

John Paul Stevens:

Then, the Secretary of the Interior does not have the authority to act independently.

Jeffrey P. Minear:

–Well, in terms of acting independently, I think it’s important to get this point straight, and that is, that under the Pick-Sloan Plan, the Army and Interior constantly consult on all of these matters because what one does affects the other.

So, I think that it is true that there is an obligation for consultation and coordination.

That took place in this case.

John Paul Stevens:

What if, after the consultation, the Army says I’ve heard everything you’ve consulted me about, but I just think you’re all wrong, I’d like to use this water for down stream purposes?

Jeffrey P. Minear:

Then, that can be resolved within the Executive Branch.

John Paul Stevens:

Then, the Secretary of Interior could not act independently?

Jeffrey P. Minear:

That is right.

If the Secretary of the–

John Paul Stevens:

The Secretary of the Interior can act independently unless the Army objects?

Jeffrey P. Minear:

–That is right.

John Paul Stevens:

Strange law.

Mr. Minear, the Secretary of the Army couldn’t have signed this contract, could he, purporting to act under the Reclamation Act?

Jeffrey P. Minear:

Yes, Your Honor.

That is the point.

Antonin Scalia:

He has no authority under the provision under which the contract purported to be executed.

Jeffrey P. Minear:

That is absolutely correct, Your Honor.

Antonin Scalia:

Nor is it clear that he had any authority nor is it clear that he even asserts to have any such authority under the surplus water provision of the Act which he is in control of.

Jeffrey P. Minear:

Every one of those points is correct, Your Honor.

Antonin Scalia:

So, there’s no possible basis on which he could conscientiously have signed the contract.

Jeffrey P. Minear:

I agree completely, Your Honor.

Antonin Scalia:

The most he could do–

–The Army–

–would be to agree with Interior that it was a good idea to do it, which he did.

Jeffrey P. Minear:

Yes, that is correct.

Byron R. White:

Even if the Army decided that it had authority to execute a contract like this on its own, it would be pursuant to a completely different set of rules.

Jeffrey P. Minear:

That is correct, also.

Byron R. White:

Which is of fundamental importance, I would think.

Jeffrey P. Minear:

Yes, that is right.

Thurgood Marshall:

The Army doesn’t assert anything here because the Army is not here.

Jeffrey P. Minear:

Your Honor, the Army did sign our brief, but this is primarily–

Thurgood Marshall:

Is the Army here?

Jeffrey P. Minear:

–Pardon?

Thurgood Marshall:

Is the Army here?

Jeffrey P. Minear:

In what respect, Your Honor?

Jeffrey P. Minear:

The Army was sued in this case, yes.

Thurgood Marshall:

Do you represent the Army?

Jeffrey P. Minear:

Yes, Your Honor.

Thurgood Marshall:

And the Interior?

Jeffrey P. Minear:

That is right, Your Honor.

Thurgood Marshall:

Well, which side should I take?

Jeffrey P. Minear:

You should take the side of the United States.

We speak with one voice in this case, Your Honor.

As I was saying, the water marketing program advanced three important objectives in this case.

First, it permitted the upper basin states to apply some of their presently unneeded irrigation water to other beneficial uses.

Second, it allowed the Interior Department to recoup some of the costs incurred in providing irrigation storage, and, third, it secured water for alternative energy sources at the height of the Arab oil embargo.

Now, we submit that Section 9 of the Flood Control Act authorizes the Secretary of the Interior to enter into the FC contract.

Our legal position is quite straightforward.

Section (a) of the Flood Control Act approves the Pick-Sloan Plan, which, in turn, designates the Secretary of the Interior as the appropriate authority to manage the reclamation aspects of the main stem reservoirs.

Section 9(c) then identifies the body of law, namely federal reclamation law, that governs how the Secretary shall exercise that authority.

The Secretary may, therefore, enter into contracts to supply unutilized irrigation water from a main stem reservoir, in this case, Lake Oahe, in accordance with the provisions of the Reclamation Project Act, a federal reclamation law that permits the Secretary of the Interior to provide unneeded irrigation water for miscellaneous purposes.

There are two points here that bear special emphasis.

First, the Pick-Sloan Plan sets forth the basic policy for the systematic development of the river basin, and it expressly recognizes that the Secretary of the Interior shall have authority over irrigation storage at the main stem reservoirs.

It naturally follows under this functional division of authority that the Secretary is authorized to administer the application of irrigation waters not presently needed for irrigation use.

Second, when Section 9(c) instructs that the reclamation developments to be undertaken by the Secretary shall be governed by the reclamation laws, it is referring to the Secretary’s reclamation activities and not merely the physical work constructed by the Bureau of Reclamation.

Thus, Section 9(c) makes clear that the reclamation laws shall govern the Secretary’s entire reclamation program beginning with his initial assessment of irrigation storage requirements, continuing through to final repayment of costs, and including in his determination what should be done with unneeded irrigation water.

Respondents have only modest quarrels with our construction of Section 9.

They principally contend that two other provisions of the Flood Control Act, Section 6 and 8, override Section 9 in the functional division of authority set forth in the Pick-Sloan Plan.

The reply briefs filed in this case explain in considerable detail why Respondents are wrong.

I will simply summarize our answer here.

First, Respondents observe that Section 6 gives the Army general authority to market surplus water from Army flood control projects.

They then surmise that the Army must have exclusive authority to market water from the Pick-Sloan Program to main stem reservoirs.

Claiming Respondents’ logic does not follow, Section 6 does not purport to give the Army exclusive water marketing authority, nor does it indicate how that authority should be exercised in hybrid facilities, which combine both flood control and reclamation features.

There is no basis for interpreting Section 6 to override the functional division of authority expressly set forth in the Pick-Sloan Plan.

Second, Respondents suggest that Section 8, which specifies the general procedure for adding reclamation features to Army flood control projects, provides the only avenue by which Interior can exercise reclamation responsibilities at Army projects.

Jeffrey P. Minear:

Respondents’ Section 8 argument is also untenable.

Section 8 deals with how to add reclamation features to flood control projects.

The section has no application here where Interior is attempting to assure that Lake Oahe’s pre-eminent and existing reclamation feature, namely its massive irrigation storage capacity, is optimally applied to a permissible reclamation use.

Respondents also contend that the Secretary’s interpretation is not entitled to deference.

However, this is precisely the type of case where deference is appropriate.

First and foremost, the Secretary’s construction of Section 9 is certainly reasonable.

The most that Respondents can argue is the statute may be ambiguous, in which event the Secretary’s reasonable interpretation–

Byron R. White:

Wasn’t even ambiguous.

I thought it was so clear that there was no room for doubt.

Jeffrey P. Minear:

–But the Court of Appeals relied on Section 6 and Section 8, which, as I’ve indicated, really have no relevance here.

They simply read the wrong sections of the statute.

They saw perfect plainness in the wrong provisions.

Second, the Flood Control Act is written in unusually broad language that indicates Congress’ intention that the responsible agencies would fill in the gaps in this legislation.

Furthermore, the Interior Department was intimately involved in the formulation of this legislative program and its interpretations are, therefore, particularly persuasive.

John Paul Stevens:

Can I ask one other question before you get any farther into your deference argument?

Jeffrey P. Minear:

Yes, Your Honor.

John Paul Stevens:

What is the status of the contract right now?

As I understand it, the project is not going to be used for the originally-intended purpose.

Jeffrey P. Minear:

The contract, in essence, has been simply held up.

There are still obligations that are owed by ETSI under the contract, and we continue to have an obligation to provide that water.

The contract has been enjoined.

Performance has been enjoined and, therefore, neither of these activities are taking place.

Sandra Day O’Connor:

But I thought ETSI had cancelled.

Jeffrey P. Minear:

No.

ETSI has not cancelled the contract.

They have essentially shelved their project, but the contract remains a tangible asset of theirs, which they are free to assign under certain conditions.

John Paul Stevens:

Is it a matter of indifference to the Secretary of Interior what use the water is put to?

Do you care what they do with the water?

Jeffrey P. Minear:

Yes, we do care what they do with the water.

John Paul Stevens:

But you don’t know what they’re going to do with the water?

Jeffrey P. Minear:

Well, the water, they can only apply the water in accordance with a state permit.

Now, they obtained a state permit.

I believe the permit has since lapsed because they are obligated to make a very large payment.

John Paul Stevens:

They were going to use it in some kind of coal slurry, weren’t they?

Jeffrey P. Minear:

Yes.

John Paul Stevens:

And that purpose was approved, but you don’t know what they really will do with it now?

Jeffrey P. Minear:

No, we don’t, Your Honor, but if it went outside of the terms of the contract, the understanding of the contract, I’m sure that the Secretary would object.

We did supply this water for a particular purpose in this case.

Antonin Scalia:

What are the terms?

So, it would have to be used for coal slurry.

Jeffrey P. Minear:

It is for industrial purposes, I believe.

I think this would be a matter of really contract interpretation.

I’m not sure I’m well enough versed on the contract to make that determination.

John Paul Stevens:

That’s a matter entirely within the authority of the Secretary of Interior to approve of the purpose or disapprove?

Jeffrey P. Minear:

Yes, and, of course, there would be consultation with the Army once again about this.

John Paul Stevens:

Is there an obligation to consult with the Army now?

Jeffrey P. Minear:

We believe that there is an obligation for the two agencies to consult in the activities that take place at the Pick-Sloan reservoirs, given the nature of their hybrid facilities.

As I was saying before, I think that the Secretary’s interpretation is certainly entitled to deference here, particularly because the question here is complex and requires specialized knowledge of a vast water resources program that has been committed to the care of expert agencies.

Furthermore, the Interior Department has consistently adhered to its present interpretation throughout the life of this contract and to the same–

John Paul Stevens:

If I may ask one other question.

I hate to keep interrupting.

But supposing there was a dispute as to a given quantity of water, whether it was surplus water the Army had jurisdiction over, or unutilized irrigation water, to whom would we defer on that… on resolving such a dispute?

Jeffrey P. Minear:

–That dispute would be resolved within the Executive Branch, mostly likely would not be answered by the courts.

Instead, the determination would be made between the Secretary of the Interior and the Secretary of the Army.

John Paul Stevens:

That could be resolved in the Executive Branch if this one can’t be?

Jeffrey P. Minear:

Pardon?

John Paul Stevens:

I’m not sure why that dispute is resolvable within the Executive Branch any more than this one is.

Jeffrey P. Minear:

Well, it is because both of those agencies ultimately are answerable to the President, and, in fact, when this project was originally formulated, it’s clear that President Roosevelt was very active in determining the hybrid nature of these facilities.

So, there is an answer in the Executive Branch for any inter-agency dispute that might exist here.

John Paul Stevens:

And you’re telling me that in this case, you wouldn’t have solved the dispute by resolving that dispute and having the President of the United States tell them both, I think this water should be used for that purpose, I’d like you both to sign this contract?

John Paul Stevens:

We’d still have this lawsuit?

Jeffrey P. Minear:

Well, again, I think as Justice Scalia mentioned earlier, the contract was executed under the reclamation laws, after consultation with the Army.

The Army had no–

John Paul Stevens:

Well, another whereas clause, by virtue of authority given by that statute and by the authority given by Section 6 to the Army, we sell you this water.

Jeffrey P. Minear:

–Yes, but Section 6 wasn’t mentioned.

I think it’s useful to know exactly–

John Paul Stevens:

I know it wasn’t mentioned.

Jeffrey P. Minear:

–what statutes these waters are being applied because they might have different repercussions.

John Paul Stevens:

I was puzzled as to what disputes are resolvable within the Executive Branch and why you have to come to us about them.

Jeffrey P. Minear:

I think that the disputes between agencies are resolvable within the Executive Branch, but this is not a dispute really between agencies; this is a dispute between the upper and lower basin states over the use of this water.

Antonin Scalia:

Yes, but Justice Stevens obviously would be correct if it were clear and if you acknowledged that the Army had authority, if it had jurisdiction over this water, to dispose of it, but that isn’t clear.

Jeffrey P. Minear:

Yes, that’s right, it is not clear.

Antonin Scalia:

And that not being clear, the only way to do it with assurance of lawfulness was through Interior.

Jeffrey P. Minear:

That is correct, Your Honor.

John Paul Stevens:

Yes, but it’s perfectly clear that one or the other or both had the authority to dispose of this water, is it not?

Jeffrey P. Minear:

I’m sorry?

John Paul Stevens:

Either the Army or the Secretary or both clearly had the authority by virtue of a combination of Section 6 of one Act and Section 9.

Jeffrey P. Minear:

Our position is that Interior clearly has a–

John Paul Stevens:

I understand that’s your position, but nobody could contest the power to sell this water if they both agreed and invoked both statutes, that we won’t try to define the water as either surplus or irrigation, because whatever it is, we want to dispose of it for this purpose.

Jeffrey P. Minear:

–In terms of contesting, I’m quite confident that we would still have a lawsuit here today, Your Honor, even if Army had signed that contract.

I would like to reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Minear.

I will hear now from you, Ms. Osenbaugh.

Elizabeth M. Osenbaugh:

Mr. Chief Justice, and may it please the Court:

The question here is what law governs industrial use of water stored in Army reservoirs on the Missouri River.

Respondents submit that the courts below very properly held that the Secretary of the Interior may not claim unilateral marketing authority over waters in Army reservoirs for industrial use.

Instead, Section 6 of the Act expressly provides the terms which govern industrial use of this Army reservoir.

Section 6 provides that the Secretary of the Army makes the decision whether water is available for industrial use and Section 6 also very specifically protects other uses of the water.

It establishes the terms and conditions for industrial use of water at Army reservoirs.

John Paul Stevens:

Would you help me with the problem I’ve had with your adversary?

John Paul Stevens:

Would you agree that if the Secretary of the Army had said, well, we’re not sure whether it’s surplus water or irrigation water, but we join in the contract, would you still have an objection to this transaction?

Elizabeth M. Osenbaugh:

There would be two issues if the Secretary of the Army had joined in the contract.

There would not be the issue, I’m sorry, of which agency can market the water.

Then, the question would simply be whether the Secretary of the Army complied with the terms of Section 6.

John Paul Stevens:

In other words, would you take the position that if you win this lawsuit, the Secretary of the Interior can’t dispose of this water, then they said, well, we will now classify it as surplus water rather than that, you’d say they can’t, and would you also say they couldn’t sell it then either?

Elizabeth M. Osenbaugh:

Then, the issue would be the reasonableness of Army’s interpretation of Section 6.

As is shown by Army–

John Paul Stevens:

So, the answer is you would be opposed to that sale, too?

Elizabeth M. Osenbaugh:

–No, I’m not saying that, Your Honor, but I am saying that Section 6 does impose substantive protections of other uses.

John Paul Stevens:

Well, let me ask you another… put it a different way.

Say the President of the United States thinks we ought to sell this water and he calls in the Secretary of the Army and the Secretary of the Interior and says, how can we do it, and they do all the paper work in the world on it, would you find any objection to their power to dispose of this water, if they all agreed they wanted to do it?

Elizabeth M. Osenbaugh:

No.

We’d agree that they would have power to make the decision whether to dispose of the water, and the Army General Counsel’s opinion indicates that Army does have authority to determine whether this water is available for industrial use and to determine that a certain portion of that water is surplus, even though it may reduce the power generated at the reservoir.

The difference, though, between Army’s current position and the position of the Secretary of the Interior is still quite significant.

John Paul Stevens:

Well, I’m trying to get your position.

Elizabeth M. Osenbaugh:

Yes.

John Paul Stevens:

What would you… would you have any objection to a contract that was signed by both the Secretary of the Army and the Secretary of the Interior and sought its authority in both statutes, said we don’t want to worry about which… whether to classify it as surplus or extra irrigation water, we just want to dispose of this water for this purpose, would you say they had no power to do that?

Elizabeth M. Osenbaugh:

No, I would not say they had no power.

I would say that provided that they did reasonably accommodate other project purposes and meet the requirements–

John Paul Stevens:

They didn’t do anything except what they’ve done here.

They’ve accommodated nothing else.

They have all this very large amount of water in this particular reservoir.

Would you say that given the facts we all know are true as of now and just recited them all in the contract, both the Army and the Interior signed the contract, would you have any valid objection to the contract, to the sale of the water?

Elizabeth M. Osenbaugh:

–If they did not adequately protect other uses.

John Paul Stevens:

Well, they gave precisely the same protection that this contract gives.

Well, if I understood it, if Interior markets it, all interior has to be concerned about is whether other irrigation needs are met, and it’s not necessary for Interior to think about down stream users at all if they aren’t using it for irrigation.

Now, if the Army sells it as surplus, then it’s my understanding that consideration must be given to the flood control and other possible power uses and other uses of down stream users above and beyond irrigation use, is that correct?

Elizabeth M. Osenbaugh:

That is correct, Your Honor.

Sandra Day O’Connor:

And under this contract, the consideration to down stream users was not given because Interior was considering only irrigation and there wasn’t any irrigation, isn’t that right?

Elizabeth M. Osenbaugh:

That is correct.

Sandra Day O’Connor:

Okay.

Elizabeth M. Osenbaugh:

Interior takes the position that the Reclamation Projects Act requires that it not only… that it need consider only the effect on irrigation and not even just the effect on irrigation, but only its own irrigation units.

So, we have challenged the adequacy of their consideration.

Byron R. White:

But they can only… they only purport to reach that part of a reservoir’s capacity that has been set aside for irrigation.

Elizabeth M. Osenbaugh:

There is no specific block of water set aside for irrigation.

That is, the water is in multi-purpose storage where it is used for all the purposes that Congress envisioned.

Byron R. White:

I know, but if the lake hadn’t been built to irrigate also, it wouldn’t have been built the way it was.

Elizabeth M. Osenbaugh:

That is correct.

It was built for a variety of purposes.

Byron R. White:

It was built to have a specific amount of irrigation water capacity.

Elizabeth M. Osenbaugh:

There is no defined specific amount.

It was clear that Congress contemplated that there would be significant irrigation development and that the reservoirs–

Byron R. White:

May I’m wrong.

I thought I read that it was agreed between the two agencies that what the capacity of the lake would be, this reservoir would be, and that a specific amount of it was for irrigation.

Elizabeth M. Osenbaugh:

–Well, I don’t believe–

Byron R. White:

Is that right or wrong?

Elizabeth M. Osenbaugh:

–that they’ve ever shown a specific amount for the irrigation.

The agencies did agree and the capacity of the reservoir was established in the documents that coordinate the plans.

The district courts specifically noted that the only thing, function, Interior has ever had at the reservoir was, other than marketing hydro-power, which was the power taken away, was to… the language in the Senate documents indicating that the two agencies would agree on the reservoir capacity.

Byron R. White:

Let me ask you.

Do you think there’s water available for irrigation in this reservoir?

Elizabeth M. Osenbaugh:

Yes, there is water.

Byron R. White:

And if there was a need for it, Interior could go ahead and sell it for that purpose?

Elizabeth M. Osenbaugh:

Yes.

Section 8–

Byron R. White:

Without anybody’s consent?

I mean, without the Army’s consent?

Elizabeth M. Osenbaugh:

–Under Section 8, for them to develop any irrigation works to utilize the water, congressional authorization would be required.

Byron R. White:

Well, yes, but not Army’s?

Elizabeth M. Osenbaugh:

For them to construct the work, there is an advanced determination requirement by Army, but the Section 8 has been construed to indicate that reclamation law and Interior would have irrigation purposes.

Byron R. White:

They have control.

There is irrigation water in that reservoir, and Interior has a responsibility for that water.

It says it doesn’t need it now.

Elizabeth M. Osenbaugh:

No, Your Honor.

The reservoir was placed under Army control.

The entire reservoir of the Pick-Sloan Plan.

There’s water in that reservoir which could be used for irrigation.

Section 8 provides for Interior to carry out that irrigation function, and Section 6 provides for Army to carry out the industrial use provision.

Byron R. White:

Right, exactly.

Elizabeth M. Osenbaugh:

So, Interior… water could be provided for irrigation, but nothing in the Act or in the Pick-Sloan Plan gives Interior jurisdiction over the block of storage or for the use of that water for industrial purposes.

Byron R. White:

Well, so, you’re saying… you’re really saying, which is not what the Court of Appeals said, that Interior would never have any power to sell any water for industrial purposes?

Elizabeth M. Osenbaugh:

No, Your Honor.

I’m saying that Section–

Byron R. White:

You just said that.

Elizabeth M. Osenbaugh:

–I don’t believe so.

Interior has no authority to dip directly into the reservoir and say this block of water is under our control, we are going to divert that for industrial use.

Interior does have authority, if the procedures in Section 8 are followed, to operate separate irrigation works.

If it operates separate irrigation works, it has incidental powers under the reclamation law, including power to provide water for municipal–

Byron R. White:

So, if they had irrigation works here, they needed water for irrigation and they developed whatever works were necessary and were using the water for irrigation but they said, well, there’s a lot of other water that could be used for irrigation, could they sell that for industrial purposes?

Elizabeth M. Osenbaugh:

–Only if it was incidental to the irrigation function.

Byron R. White:

Well, that’s a completely different rationale than the Court of Appeals, which may be quite right.

Elizabeth M. Osenbaugh:

Well, I… perhaps I’m misunderstanding the question or misstating it because I believe the Court of Appeals specifically talked about–

Byron R. White:

What you’re saying is, as I understand it, that the Interior has got no power whatsoever to sell unused irrigation water for industrial purposes.

Elizabeth M. Osenbaugh:

–Directly from an Army reservoir in the absence of a work authorized by Congress.

Byron R. White:

Exactly, exactly.

But it’s got power to take… to develop and use that water for irrigation right out of the Army reservoir, and I don’t know that… and you would say that the only purpose that it can divert water from that reservoir is for irrigation.

That may be right.

Elizabeth M. Osenbaugh:

The question would arise if Interior had a congressionally-authorized irrigation work, as to what incidental functions it could carry out through that work, but directly from the reservoir,–

Byron R. White:

But you certainly wouldn’t say that this kind of a project would be incidental to any kind of irrigation, would you?

Elizabeth M. Osenbaugh:

–It’s very unlikely.

Byron R. White:

So, you do have quite a different approach, and it may be quite right.

Elizabeth M. Osenbaugh:

The significant difference between Section 6 and the reclamation law is that Section 6 does protect other uses of the water.

Congress placed the Missouri River reservoirs under the control of the Secretary of the Army because of their peculiarly-close relationship with flood control and navigation.

That is, their dominant purpose was flood control and navigation and not irrigation, and the water is contained in multi-purpose storage where it is used for a variety of purposes, including navigation, flood control and hydro-powered generation.

Because Army manages the reservoir and Army has control over all the waters in that reservoir, it is the logical entity to determine what water is surplus to the functions and the purposes of the reservoir.

Interior carries out no function at Oahe Reservoir.

It has no interest in protecting other uses of the water.

Additionally, its Bureau of Reclamation, which is the entity of the Department of the Interior involved in this case, has limited geographic reach.

It has no interest in the States of Iowa, Missouri or Minnesota, three of the ten Missouri Basin states.

By contract, it is a national agency that represents all interests in the inter-state river.

It is incongruous to take the position of the Secretary of the Interior that two agencies can market the same water for the same use, we’re talking only about industrial use, on different terms.

It encourages form shopping for entities, such as ETSI, that seek to exempt themselves from the limitations Congress directly imposed in Section 6.

Now, when ETSI approved this contract in 1982, it was its first assertion of unilateral authority to market the water and it asserted that it would market a million acre feet of water annually for energy or industrial use without further consideration of other uses.

In so doing, it relied on the reclamation law.

It did not rely on Section 6 or Army authority because Army had terminated the memorandum of understanding by which they had jointly provided a temporary solution from 1975 to 1978.

During that time period, Army made a number of statements, including one by the Secretary of the Army, that the memorandum of understanding was only a temporary solution, that there was concern about statutory authority, and that modifications would be brought back to Congress if desired, and at no time did the agencies obtain congressional approval, and Army terminated the memorandum of understanding.

Army specifically did not approve the ETSI contract under Section 6.

The Court of Appeals asked for further information on that point and the federal defendants stated that Army did not approve the contract under Section 6.

It was entirely dependent upon the authority of the Secretary of the Interior.

Now, they argue that, first, there is a block of irrigation water and it’s unutilized irrigation water, but concede that there is no specific block of water there that is not under Army control.

It’s clear from the Army General Counsel’s opinion–

William H. Rehnquist:

Ms. Osenbaugh, when you say under Army control, you don’t mean day-to-day management; you mean under Army jurisdiction under the statute?

Elizabeth M. Osenbaugh:

–I mean, Army has jurisdiction over the entire reservoir that this water is contained in.

It’s clear from the Pick-Sloan Plan, Army controls the main stem reservoir.

It manages it for all functions.

William H. Rehnquist:

But what are the consequences of that control that you’re referring to, so far as Interior’s right to dispense water for… to use surplus?

Elizabeth M. Osenbaugh:

Well, Section 8 establishes the terms under which Interior utilizes Army reservoirs for an irrigation purpose.

The Secretary of the Interior does not rely on Section 8.

They do not contend that Section 8 would justify their action here.

In fact, they argue that… the general sections of the Act, such as 8, which provides for the irrigation function at Army reservoirs, and Section 6 don’t apply to the Secretary of the Interior on the Missouri River.

Elizabeth M. Osenbaugh:

And, so, their entire claim of authority is certain statements and legislative history that Interior would adopt regulations for the use of storage available for irrigation at Army reservoirs.

However, Congress specifically rejected that approach when it rejected the language like that in the House bill and instead adopted present Section 8.

So, Section 8 is limited to irrigation purposes and irrigation works.

Army, however, physically operates the reservoir and it not… so, it operates and has control over all the water.

It doesn’t just have jurisdiction over surplus water.

Surplus water is the water that can be made available for industrial use.

But Army has jurisdiction to determine what is surplus and, thus, the Army has taken the position, as is shown in the 1986 General Counsel’s opinion, that it does have authority over the water which is stored in multi-purpose storage in the reservoir, even though that water would be available for irrigation, if needed.

It is not a separate block that reclamation law controls this block of storage in the reservoir and Army controls the rest.

Instead, all the water is subject to Army control with Section 6 defining when the water can be made available.

And the Secretary of the Interior concedes that in both industrial use at this Army reservoir and the reservoir itself and that this water are within the scope of Section 6.

Section 6 clearly sets forth the terms on which the water can be used.

The Army General Counsel’s opinion shows that it’s a reasoned construction, that they’ve abandoned the position of the dissent below, that all water would be locked up and could not be used for any purpose, or even that there would be no water available for industrial use.

The current position of the Secretary of the Army is clear that some water could be made available for industrial use at Oahe under Section 6.

Now, there’s nothing in the Act that says that Interior controls industrial use of water at Army reservoirs.

To the contrary.

They cannot cite anything in either the Act or the Pick-Sloan Plan that says–

Antonin Scalia:

It says in the Pick Plan, the Pick Plan, I believe, utilization, utilization of storage reserved for irrigation in all multi-purpose reservoirs should be in accordance with regulations prescribed by Interior.

Now, this is certainly utilization of storage reserved for irrigation.

Now,… at least it’s, you know, close enough for government work.

It’s certainly a reasonable meaning of that phrase and that’s the meaning that Interior and Army have both chosen to give it.

Why shouldn’t we accept that?

Elizabeth M. Osenbaugh:

–Because Congress did not.

That language, that identical language, was in Section 6 of the House bill.

Congress and the Conference Committee rejected Section 6 of the House bill and instead adopted Section 8, which speaks in separate irrigation works and irrigation purposes.

Antonin Scalia:

But 6 and 8 don’t just apply to this dam; they apply to everything, right?

Elizabeth M. Osenbaugh:

Right.

Antonin Scalia:

But this Pick Plan only applies to this one facility and for this one facility, Congress did approve in the statute the Pick Plan.

The broad outlines of it and it seems to me that’s a broad outline, that utilization of storage reserve for irrigation shall be in accordance with the regulations prescribed by Interior.

Elizabeth M. Osenbaugh:

Well, all right.

First, it’s in the transmittal letters.

Elizabeth M. Osenbaugh:

It’s not an integral part of the plan itself that was adopted by Congress.

Second, even if that section did become law for the Missouri River and only for the Secretary of the Interior’s actions on the Missouri River, because they agreed that Sections 6 and 8 applied to Army’s use of the Missouri River, it would only mean that Interior would adopt regulations for the use of that storage for irrigation purposes.

Army would still operate the reservoir.

Army would still enter into the contracts.

Interior has never adopted regulations governing the use of this storage.

So that Interior has not acted as if it believed that that language in the transmittal letters became law.

Antonin Scalia:

I agree.

I can see arguments pro and con, both, but, you know, I don’t think that either of them is so over-powering that I’m willing to ride over what both Interior and Army agree should be the accepted meaning of it.

Elizabeth M. Osenbaugh:

Well, Army’s litigation position in this Court is only… is a very guarded statement that Interior’s position is acceptable so long as it does not interfere with Army’s duties.

Byron R. White:

The Solicitor General submits.

Elizabeth M. Osenbaugh:

Well, I’m referring to the statements in the Solicitor General’s brief.

Byron R. White:

Well, isn’t the Solicitor General representing the Army here?

Elizabeth M. Osenbaugh:

Yes, Your Honor.

Byron R. White:

So, do you question his statement of what the Army’s position is?

Elizabeth M. Osenbaugh:

No.

I was merely stating that their description of what Army’s position is does not–

Byron R. White:

Well, I still don’t understand–

Elizabeth M. Osenbaugh:

–give us Army’s interpretation.

Byron R. White:

–why if this water is so much under the control of the Army, how would Interior ever go about, without getting Army’s consent, to utilizing this water for irrigation?

Elizabeth M. Osenbaugh:

They would follow the procedure in Section 8.

Section 8, the Act, does specifically provide for use of Army reservoirs for irrigation purposes.

In practice, irrigation from the Missouri River reservoirs is not pursuant to Interior contracts, but, instead,–

Byron R. White:

That isn’t what I asked you.

I asked you how would Interior ever use the water for irrigation without Army’s consent under your position?

Elizabeth M. Osenbaugh:

–Well, I think that Section 8 does provide the procedure.

I think irrigation is clearly an authorized purpose of the reservoir and that under Section 8–

Byron R. White:

That may be.

So, that wouldn’t require any thing from the Army.

Elizabeth M. Osenbaugh:

–It requires coordination with Army because Section 8 begins with the requirement of the–

Byron R. White:

So, you’re telling me that Interior cannot without Army’s coordination use the water for irrigation purposes.

Elizabeth M. Osenbaugh:

–I think that Section 8 establishes the procedure.

Now,–

Sandra Day O’Connor:

Well, the SG says we look to Section 9(a), not 8, that 8 is something else, and that Interior can proceed under Section 9(a) by administering reclamation aspects of the program, isn’t that right?

Elizabeth M. Osenbaugh:

–Yes, and it is clear that the Pick-Sloan Plans did contemplate an irrigation purpose.

It is clear that nothing in the Pick-Sloan plan gives the Secretary of the Interior authority over industrial use at Army reservoirs.

Irrigation clearly can be provided and is not affected by the issue in this case, which involves industrial use, and Section 8 had been construed so that the Secretary of the Interior can… that reclamation law would apply to irrigation use of Army reservoirs even in the absence of works.

Now, Congress has rejected the applicability of the requirements of reclamation law even to irrigation, which undercuts the theory that reclamation law can be the source of authority for industrial use.

I think it’s clear that Oahe can be made available for irrigation use under Section 8 and that industrial use is under Section 6.

John Paul Stevens:

May I just ask another stupid question, probably?

But is it your position that the water that would be supplied pursuant to this contract is surplus water within the meaning of Section 6?

Elizabeth M. Osenbaugh:

It is our position that the Secretary of the Army makes the determination as to whether it is surplus water and the Secretary of the Army has, and the Army General counsel’s opinion indicates, that they have determined that they can define the term “surplus water” to make water available for industrial use from the reservoirs.

John Paul Stevens:

So, the answer is yes?

Elizabeth M. Osenbaugh:

Yes.

It is also our position that the term “surplus water” defines what water is available for industrial use.

It does not limit the Army’s jurisdiction over the water for multiple purposes.

Antonin Scalia:

Where does it go if the Interior lets the contract as opposed to the Army?

The money the Army gets from it goes into the Treasury.

Isn’t there some other disposition if the Interior Department sells the water?

Elizabeth M. Osenbaugh:

On appeal, the contention has been made by the Secretary of the Interior that it should be paid into the reclamation fund and that Section 6 provides for deposit in the Treasury as miscellaneous–

Antonin Scalia:

Right.

Do you contest that, that there’s a different disposition depending on which agency has it?

Elizabeth M. Osenbaugh:

–It’s… no.

I would only point out that Interior in discussing power revenues, which was a matter that they clearly had authority over the marketing of power at Army reservoirs until ’77, that they could not find a basis in the reclamation law to place power revenues from the Missouri River for developments in the reclamation fund and that was resolved by subsequent congressional action that’s not involved here.

So, where the money went could not have been a basis for the Congress in 1944 to have decided whether Interior could market any of this water for industrial use.

There’s amendments in the Pick-Sloan Plan regarding the utilization of reservoirs for irrigation storage was specifically rejected by Congress, and Congress also rejected amendments to Section 6 that would have specifically given the Secretary of the Interior authority over industrial use of Army reservoirs, and at that time, the Secretary of the Interior in 1944 specifically stated in asking for that authority that he recognized that industrial use in Section 6 in no way involves reclamation but sought it for purposes of administrative efficiency.

Congress did not adopt those amendments to Section 6 and Congress adopted the version of Section 8 which gives Interior authority over separate irrigation works and gives Interior authority over irrigation purposes but not over industrial use.

I believe that the Secretary of the Interior’s decision is not entitled to deference because the very question here is what law applies to industrial use at Oahe.

Deference assumes that Congress has delegated authority to the agency to decide a question, and in this case, that is the issue.

Congress did not delegate to the Secretary of the Interior the decision whether it would be Interior or Army or whether Section 6 would apply.

Antonin Scalia:

Well, maybe not to Interior.

Antonin Scalia:

If the SG were here just representing Interior, I might agree with you, but certainly Congress delegated to Interior and Army the decision of what their respective jurisdictions are as an initial matter.

I mean, it’s always ours in the last analysis, but as an initial matter, surely the division of jurisdiction between Army and Interior is a matter for Army and Interior to decide.

Elizabeth M. Osenbaugh:

No, Your Honor.

I believe Congress did address it in Section 6.

Rather than saying Army and Interior shall decide how to run these reservoirs, Congress specifically provided for specific uses, such as industrial use.

Antonin Scalia:

Well, the theory always is that there is some real jurisdiction, but the initial decision as to what that real jurisdiction is is for Interior and Army, not Interior alone.

If you said that, I’d agree with you.

Interior might be impinging on Army’s ground, but, here, you have both Army and Interior saying this is how we think the jurisdiction comes out.

Now, it may be absolutely wrong, but at least you’ve got to say that that’s the initial cut at it and that cut should be given some deference, shouldn’t it?

Elizabeth M. Osenbaugh:

No.

They make the decision initially, but Congress didn’t give them any discretion as to the factors used in making that decision.

Congress specified the terms in Section 6, and it’s a pure question of law as to whether the Secretary of the Interior can do it.

Antonin Scalia:

We give no deference on pure questions of law.

Elizabeth M. Osenbaugh:

If Congress has spoken and it’s ascertainable by principles of statutory construction and Congress did not in the statute delegation discretion to the agency on that, then, no, I don’t believe this Court should give deference.

I think this differs from cases in which Congress clearly indicated that an agency shall develop rules for its jurisdiction over counter claims or the agency shall determine whether this is a flood claim so that permits are required.

In each of those, the Court makes the initial determination, we’ve delegated… that Congress has delegated the law-making function, the discretion to the agency, to consider matters of policy and to resolve it.

In this statute, under Section 6, under their argument, it is a question of did Congress delegate a decision.

It’s a question of construction.

Section 6 versus their suggestion that Congress silently created an exception for the Missouri River to the positions of the Act.

The Missouri River Basin was clearly a major focus of the debate on the Flood Control Act of 1944, but questions of jurisdiction were resolved in the debate over Section 8 and the debate over Section 6, and in both of those debates, what happened was that Congress rejected the approach that the Secretary of the Interior is asserting here today and every official position of the Secretary of the Army indicate that they cannot rely on the authority of Army under Section 6.

We believe that Interior’s position ignores the legislative history and the protections that Congress imposed in the Act for other uses.

Our protection by contrast protects all uses as provided in Section 6.

Interior has no authority to correct flaws that it perceives–

Byron R. White:

Would you like us to affirm or would you like us to embrace all the reasoning of the Court of Appeals?

Elizabeth M. Osenbaugh:

–I believe that the decision of the Court of Appeals is correct, Your Honor.

Byron R. White:

And the reason for it, that this is just not a reclamation project?

Elizabeth M. Osenbaugh:

I think clearly they have not established the threshold requirement for their contention that reclamation law applies, which is that it must be a reclamation development to be undertaken by the Secretary of the Interior under the Pick-Sloan Plans.

It is not.

Oahe is currently undertaken by Army and not Interior.

William H. Rehnquist:

Thank you, Ms. Osenbaugh.

William H. Rehnquist:

Mr. Minear, you have five minutes remaining.

Jeffrey P. Minear:

Thank you, Your Honor.

First, to answer Justice O’Connor’s question about whether or not existing uses were taken into account, under Joint Appendix Page 226, the contract is set out, and I’d like to read what was said in the contract.

“The Secretary of the Interior, after consultation with the Secretary of the Army, has determined that providing water service for industrial use to ETSI for 20,000 acre feet of water annually will not impair the efficiency of the product period, project for irrigation, interfere with the operation of the project for flood control nor adversely affect existing uses of water, and is a beneficial consumptive use of water. “

What page?

Jeffrey P. Minear:

This is on page 226 of the Joint Appendix, paragraph D.

Thank you.

Jeffrey P. Minear:

Next, I would like to just note some of the incongruities in Respondents’ position.

If, in fact, Section 9(c) requires that physical irrigation work must be completed before the Secretary of the Army–

John Paul Stevens:

I’m sorry.

I’ve got to go back to that finding.

That finding was not necessary, though, under your theory of the case.

Jeffrey P. Minear:

–Indirectly, it was, Your Honor.

We believe the consultation between Interior and Army is necessary as part of the Pick-Sloan Plan, and it’s important to focus.

The question here is what Pick-Sloan Plan requires, which is set forth in Section 9.

So, insofar as it’s required, yes, that consultation, we believe, is required, and that is the fruit of that consultation.

John Paul Stevens:

And it’s not only consultation, but a finding similar to that requirement, no adverse effect down stream?

Jeffrey P. Minear:

I’m not certain about that, but I think it might well be.

As I was saying, there are certain incongruities that come from Respondents’ position.

If Section 9(c) requires a physical irrigation work must be completed before the Secretary of the Interior can invoke the reclamation laws, then the Secretary could not follow his standard practice of entering into reclamation contracts with irrigators prior to completing irrigation works.

Notably, he entered into such a contract here with South Dakota’s Oahe Conservancy District at the time he initiated the construction of the now-suspended Oahe irrigation works.

These works were in progress at the time that the contract, the ETSI contract, was entered into.

Furthermore, the Secretary is wrong in construing Section 9 to establish a functional division of authority of these reservoirs.

In his determination of hydro-powered cost allocations for the entire Midwest,–

Byron R. White:

Mr. Minear, what is your short answer or is it a long answer to why Section 8 is not applicable?

Where it just says that if the Secretary of Interior decides that there’s irrigation water available and if the Secretary determines.

Jeffrey P. Minear:

–Yes, Your Honor, because those works… there has already been authorization for those works.

This is for adding irrigation works to flood control projects that only have flood control features.

The Sloan Plan was, in fact, fulfilled.

Byron R. White:

And this particular reservoir was the result of that kind of a consultation?

Jeffrey P. Minear:

Exactly.

Those steps were followed in this case at the time the project was authorized.

Finally, there’s some question whether Interior’s reclamation activities in Pick-Sloan, in fact, Interior’s quite active or has been quite active in participating in the determination of reclamation storage requirements here.

It conducted extensive surveys of irrigation needs.

It entered into a reclamation contract.

It secured water rights for reclamation purposes.

It obtained… it continues to coordinate its main stem and tributary activities with the Army.

So, it’s simply not accurate to say that Interior is not active in the Oahe reservoir.

Finally, I would like to address the practical considerations that lie at the very heart of this dispute.

Congress approved the Pick-Sloan Plan to serve the needs of the entire Missouri River Basin.

The congressionally-approved plan was carefully formulated and coordinated by the Corps and Bureau Engineers to provide a fair and efficient distribution of the Missouri River resources to all states within the Basin.

The upper basin states now seek a reasonable and, indeed, a reasonably anticipated benefit from their support of the program.

The opportunity to put a portion of the waters stored within these reservoirs to a beneficial use.

The lower basin states, which already have far greater water resources than their northern neighbors, show no persuasive reason for their unwillingness to share–

Byron R. White:

Well, is the only basis for your saying the Interior has the power to sell water for industrial use that provision in the reclamation law that says it may sell for irrigation and miscellaneous purposes?

Jeffrey P. Minear:

–In conjunction with Section 9 of the Flood Control Act.

The Flood Control Act gave Interior responsibility for these reservoirs, to exercise its authority under the reclamation laws, and this particular reclamation law, 9(c) of the Reclamation Project Act, gives the Secretary express authority in this case.

Byron R. White:

To do what?

Jeffrey P. Minear:

To provide irrigation… unneeded irrigation water for miscellaneous purposes as discerned throughout the–

Byron R. White:

And this industrial use is a miscellaneous purpose?

Jeffrey P. Minear:

–That is correct.

William H. Rehnquist:

Thank you, Mr. Minear.

The case is submitted.