Illinois v. Michigan

PETITIONER:Illinois
RESPONDENT:Michigan
LOCATION:Union Station

DOCKET NO.: 15 ORIG
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 360 US 712 (1959)
ARGUED: May 21, 1959 / May 22, 1959
DECIDED: Jun 29, 1959

Facts of the case

Question

  • Oral Argument – May 22, 1959
  • Audio Transcription for Oral Argument – May 22, 1959 in Illinois v. Michigan

    Audio Transcription for Oral Argument – May 21, 1959 in Illinois v. Michigan

    Earl Warren:

    Number 15, Original, State of Illinois, Plaintiff, versus States of Michigan, Ohio, Pennsylvania, Minnesota, New York and Wisconsin.

    Mr. Bane, you may proceed.

    Charles A. Bane:

    Mr. Chief Justice, may it please the Court.

    Illinois is here seeking leave to file a complaint for a declaratory judgment and an injunction whereby it is asking that this Court declare Illinois’ rights to take an imperceptibly small amount of water from Lake Michigan through the State’s instrumentality, the Elmhurst-Villa Park-Lombard Water Commission.

    The matter we maintain is one of immediate urgency in order to meet the needs of approximately 90,000 people to be served by the commission with water for drinking, hygienic, sanitary and life and industrial-commercial purposes, all of which can be aggregated under the phrase, “domestic pumpage.”

    The amount which is proposed to be taken over the next 20 years will be about at the level of 25 to 30 cubic feet per second, which is the manner in which you measure taking of water and if that amount is expected to grow, so that by the year 2000, it will still be only in the range of about 50 cubic feet per second.

    Potter Stewart:

    Did you include industrial purposes or (Voice Overlap) —

    Charles A. Bane:

    Light industrial purposes, Your Honor, yes.

    There is no heavy industrial activity in this area, or which will be served by the commission.

    Potter Stewart:

    What — what makes the difference?

    Charles A. Bane:

    Sir?

    Potter Stewart:

    What makes the difference between light —

    Charles A. Bane:

    Between light and heavy industrial?

    Well, we simply don’t have anything in the nature of a steel works, anything — an automobile assembly plant, nothing that would be in the — in that range.

    I think the distinction is probably not important except that Justice Holmes, in Wisconsin against Illinois, expressed the general kind of reservation as to whether domestic pumpage purposes would include heavy industrial use.

    That’s the only reason that we make the point that it is light industrial use indubitably, as we’ve alleged in our complaint, which is involved here and which is in this area.

    Potter Stewart:

    Do any of the — do any of the municipalities involved have zoning that would permit heavy industry?

    Charles A. Bane:

    Well, I’m not sure that I can answer that, Your Honor.

    Potter Stewart:

    All they think were not the old cases.

    Charles A. Bane:

    I think that is — I think that is probably so.

    However, the — the nature of the communities now is primarily really residential as we’ve alleged in our complaint.

    There is a commercial operation, of course, in connection with the residential character of its community.

    The light — the industrial activity is really only incidental.

    These communities are residential communities within the Chicago suburban area.

    They are commuter communities, if you please, with some incidental commercial and industrial activity.

    Potter Stewart:

    So-called, “dormitory community?”

    Charles A. Bane:

    Yes, sir.

    William O. Douglas:

    What was the — what was the pumpage for water supply in the 1930 decree?

    As I remember that was 1700 cubic feet per second.

    Charles A. Bane:

    In the 1930 decree, Your Honor, the City of Chicago was ultimately to be restrained, I think, beginning with the year 1938 to 1500 cubic feet per second as direct diversion.

    Charles A. Bane:

    And there was evidence in the 1930 case that the taking by the City of Chicago for domestic purposes was in the range of about 1700 cubic feet per second.

    So, that in the case of Chicago, and — and when you’re talking about the — the facts involved in the 1930 decree, you’re talking about 3200 cubic feet per second, which of course —

    William O. Douglas:

    Of which 1700 was for drinking purposes?

    Charles A. Bane:

    That is correct, sir.

    Yes.

    William O. Douglas:

    Household use?

    Charles A. Bane:

    That’s correct.

    And I will come to the point, Your Honor, with respect to the reservation in the 1930 decree with respect to domestic pumpage.

    William O. Douglas:

    Now, these cities are not in the Chicago metropolitan area or are they?

    But when they are (Voice Overlap) —

    Charles A. Bane:

    They are a part of the Chicago metropolitan area, but they are not a part of the Chicago Sanitary District and they have their own sewage disposal facility.

    Felix Frankfurter:

    Were they part of it in 1930?

    Charles A. Bane:

    Sir?

    Felix Frankfurter:

    Were they part of it under the 1930 decree?

    Charles A. Bane:

    No, sir.

    They were not.

    Felix Frankfurter:

    These are new communities?

    Charles A. Bane:

    Relatively new, certainly not served by the — by the Metropolitan Sanitary District of Chicago.

    Those comparisons, incidentally, I think might give the Court an idea of what we’re talking about here.

    If I could just repeat, we’re talking about 25 to 30 cubic feet per second by comparison with that 1700 cubic feet per second which Chicago was taking in 1930 for domestic purposes and by comparison, 30 to 50, by comparison with 1500 cubic feet per second, which the 1930 decree ultimately allowed to Chicago for direct diversion down the Sanitary Canal.

    William O. Douglas:

    Had — hasn’t — hasn’t the need for the use of this water for sewage disposal — think decreased over the years or has it increased?

    Charles A. Bane:

    The need of — of the direct diversion that has been taken by Chicago?

    William O. Douglas:

    Yes.

    Charles A. Bane:

    Well Your Honor, I don’t know that we can — we can respond for that because that of course is not —

    William O. Douglas:

    Well, your —

    Charles A. Bane:

    — it’s not an issue on this proceeding.

    William O. Douglas:

    Well, but your — you — we can’t divide you or something, you’re still Illinois.

    Charles A. Bane:

    Yes, sir.

    William O. Douglas:

    You can’t put on just the different half and say on different part of Illinois.

    Charles A. Bane:

    No, sir.

    Charles A. Bane:

    We’re not — we’re not attempting to although we do maintain that the issue within Numbers 2, 3 and 4 are different from and distinct from the issue in this Number 15.

    William O. Douglas:

    Why is that?

    Charles A. Bane:

    Well, basically the — basically the proceeding in Number 2, 3 and 4 as Your Honor knows, was a proceeding which goes to the need for direct diversion of water from Lake Michigan by the State of Illinois in order to cleanse out the sanitary canal and the Illinois waterways.

    The primary purposes or the primary concerns in that — in that proceeding were with respect to sanitation and the efficient operation of the Sanitary District and with navigation.

    Now, either one of those is any kind of an issue in this case which has to do simply with the right of these communities Illinois on behalf of these communities to take water for domestic purposes.

    There’s no issue with respect to navigation.

    These communities are not within the Sanitary District.

    They do not discharge their effluent into the sanitary canal.

    The — there is no — there is no — no problem with navigation or sanitation on sanitary canal.

    William O. Douglas:

    I know but when you’re looking at the global amount to be allowed from — taken from a — from a lake you’d — I think we have to consider the global needs for the use of that water and if too much water is being taken the — for the sewage purposes it could be — the formula could be change if you’re taking for drinking purposes.

    Charles A. Bane:

    Sir there isn’t any question that the Court can concentrate on the aggregate amounts that are being taken by Illinois.

    We certainly maintain however, that when you consider what is being proposed here to be taken even if you added in what is being taken under the 1930 decree and being taken by the City of Chicago, we have — we add such an imperceptible amount to the taking by Illinois that we are fully entitled.

    We — we maintain to have come — come within the day to be permitted to do what we proposed to do.

    Actually, if you — in order to give the Court an idea of the effects of these takings on the — on the lake levels, it is generally agreed that taking about 1000 cubic feet per second would have a permanent effect on the lake levels of about five eights of an inch.

    The army engineers’ estimates which were put into the House Committee record on the hearings on House Bill 1 which had been pending before the Congress to authorize an experimental diversion of the thing 1000 cubic meters in Chicago.

    The army estimate put into that hearing range from a permanent effect of one quarter of an inch to one inch.

    But generally prior to the time of those estimates were put in it was taken that a drawing of 1000 cubic feet per second would have an effect on the lake of five eights of an inch.

    That’s not an annual effect.

    That’s the permanent effect once a taking has been established.

    That again, we ask the Court to compare with the proposed taking here of some 30 cubic feet per second, if 1000 cubic per second only affects the lake levels to five eights of an inch then we think we certainly are correct when we say that the taking of 30 cubic feet per second would have an imperceptible effect on the lake levels.

    Well, if this amount which is proposed to be withdrawn is insignificant and imperceptible in terms of its effect on the lake levels, it’s certainly is not insignificant.

    We maintain in terms of the needs of the communities which are vital significance.

    These communities which organized the commission the Elmhurst-Villa Park-Lombard Water Commission and which in the main are the communities which are to be served by the commission help and serve and are now being served by ground wells which are proving to be inadequate for the present needs of the people.

    The needs of the people have exceeded the water supply that is available from these underground sources.

    The water level in the existing wells has been dropping at an average of from 7 to 10 feet per year.

    And during the year 1958, in fact, there was a recession of water levels to the extent of 20 to 30 feet.

    Wells have been drilled deeper and deeper and pumps have been set lower and lower until at the present time the pumps have been set at the lowest practicable setting.

    And the wells themselves are now at a depth of approximately 1800 feet at 2000 feet it has been found that salt water is reached and the result is that the wells are at the lowest possible point for any type of use.

    Hugo L. Black:

    Do you know whether that problem is peculiar to Illinois or is one that is prevalent throughout the country?

    Charles A. Bane:

    Your Honor I don’t know that and I think — I think it is also would be fair to say that it is not prevalent throughout Illinois.

    Charles A. Bane:

    It’s certainly is true however with respect to this area which is to be served by this Commission.

    There is evidence and it could be demonstrated that as you go westward from these communities, the wells are likely to be adequate or seem to be adequate according to engineering estimate for the present needs of the people.

    But in this particular area to be serve by this Commission, there is this inadequacy which can’t be solved by setting the wells any lower, it can’t be solved by any additional wells because if you sink additional wells you simply divide up by wells the existing supply and do not in fact increase that supply, so with that of course no alternative.

    Felix Frankfurter:

    May I trouble you to tell us what the purpose of the village which you referred in suspending in Congress?

    Charles A. Bane:

    Yes, sir generally —

    Felix Frankfurter:

    — sponsored by Illinois?

    Charles A. Bane:

    Yes, sir.

    Felix Frankfurter:

    What is the bill?

    Charles A. Bane:

    Congressman O’Brien sponsored the bill, it’s House bill number 1, to which the dominion of Canada has objected authorized — which would authorized for a period of one year a direct diversion of an additional 1000 cubic feet per second down the Chicago sanitary canal and into the Illinois waterways.

    Maintained by the Illinois congressional delegation would be necessary in order to observe the effects on navigation, on sanitation to the canals and also to observe the effects which Illinois maintained would be insignificant in terms of any effect on the lake level.

    Felix Frankfurter:

    The diversion sought by that was unrelated to what Illinois is contemplating to this State, is that right?

    Charles A. Bane:

    Completely unrelated, Your Honor.

    Felix Frankfurter:

    Except that you want 1000 more that this 1930 decree allows.

    Charles A. Bane:

    Well, Illinois as a state is of course acting through the legislative processes to see whether it can secure the approval.

    We are appearing here for a much less significant amount and an amount which will have nothing to do, which will not be a direct diversion matter in any sense but which in fact is necessary for the needs.

    Potter Stewart:

    But — but do I establish saying this that the pass would authorize this diversion for only one year?

    Charles A. Bane:

    Sir?

    Potter Stewart:

    Would authorized that diversion for only one year?

    Charles A. Bane:

    That is correct sir.

    Yes, it would be an experimental thing.

    Potter Stewart:

    Experimental.

    Charles A. Bane:

    As we understand it, yes.

    Potter Stewart:

    Illinois find to demonstrate that you could be allowed another thousand without affecting lake level?

    Charles A. Bane:

    That’s basically it Your Honor, yes.

    The — the experiments would be observed as I understand the bill by the Army Corps of Engineers so that the Federal Government would be the — the agency which would be observing the effects.

    Illinois isn’t proposing that it itself be the observer.

    Felix Frankfurter:

    That Canada stated the ground of the company?

    Charles A. Bane:

    I don’t know that it has sir.

    It has expressed its views through the State department which in turn of course —

    Felix Frankfurter:

    Publically I mean.

    Charles A. Bane:

    Yes, sir.

    Those views intended —

    Felix Frankfurter:

    Could you state that in a sentence?

    Charles A. Bane:

    Sir?

    Felix Frankfurter:

    Could you state there a ground of opposition in a sentence?

    Charles A. Bane:

    I don’t know that — that they made it — made it specific.

    I don’t know that they — they expressed it in terms of — in fact I’m quite certain that they did not expressed it in terms of effect on water power anything of that character.

    They simply said that they had an interest and that they were unwilling to see this diversion take place.

    I think that’s the way in which it was communicated through Congress by the — by the State Department.

    Charles E. Whittaker:

    Mr. Bane —

    Charles A. Bane:

    Yes, sir.

    Charles E. Whittaker:

    — may I ask you please?

    I’m sure I do not understand you.

    I understood you to say that the withdrawal of an additional 1000 cubic feet per second would have an effect upon the lake level of five eights of an inch.

    Charles A. Bane:

    That is correct.

    Charles E. Whittaker:

    You’d said that that was not annual.

    Now, I don’t understand is that to be the immediate effect of the withdrawal of that much water?

    How is it to be use to be supplied?

    How — how do you get to the idea that — that the withdrawal of 1000 feet — cubic feet per second would affect the lake level only five eights of an inch permanently?

    I don’t see, I don’t understand.

    Charles A. Bane:

    Your Honor these are Army Corps of Engineers estimates and evidently what takes place is that as you divert, of course I assume the — I assume that the effect would be — would be felt almost immediately as the diversion was brought about.

    You achieve a — or you — you bring about a reduction in the lake levels but then you strike a balance as between the taking and then all of the sources which feed into the lakes.

    You strike a balance so that once — once that initially effect has been felt for five eights of an inch, once you felt that then — then there is nothing further beyond that.

    That’s the reason I gather.

    I am more participated in any of these studies made by the Army Corps of Engineers but that is the reason I gather that once the effect is felt that’s the effect, it isn’t repeated, it isn’t five eights of an inch year after year but it is the same effect maintained throughout the years from many give and taking.

    1000 cubic feet of course was not adapted as the standard.

    Actually, it happens to be a healthy standard, I mean a — a usable standard.

    I think it was adopted as a standard because it was — the information was being given to the Congress in connection with this proposal in House Bill 1 for an addition of diversion experimentally of 1000 cubic per second.

    Charles E. Whittaker:

    It’s quite obvious, isn’t it, that the use of 1000 feet per second would not in standard reduce the level of Lake Michigan by five eights of an inch, it takes some time (Voice Overlap) —

    Charles A. Bane:

    That’s correct sir.

    Charles A. Bane:

    Of course, sometime — sometime it would be required.

    Charles E. Whittaker:

    But that’s the maximum that would — the — of the reduction and applies from other sources would prevent it going lower than five eights of an inch over permanent usage, is that what we understand?

    Charles A. Bane:

    That — that is our understanding Your Honor which I will qualify only by saying as I did before that the range of the estimate seems to be of a quarter of an inch to one inch.

    But by enlarge there was a settling on five eights of an inch as the probable effect of the diversion of that much 1000 cubic per second.

    Charles E. Whittaker:

    And you seek the right to use 25 to 30 cubic feet per second.

    Charles A. Bane:

    That’s correct sir.

    Hugo L. Black:

    Can they express any interest in this litigation?

    Charles A. Bane:

    None whatsoever sir, no.

    The Solicitor General as you know has filed a brief amicus and we take it that if Canada had adopted the position on this, it would have been expressed and transfer them to the Court by the Solicitor General.

    So there’s been no expression for opinion on — on this.

    I will just to add with respect to the Statement of facts that — that I gave with respect to our situation here that they are of course there is no — no record in this proceeding since we are here now on our motion for leave to file a complaint.

    These facts which I have given are set forth in our complaint which we seek to file and also there is certain engineering data which is contained in two affidavits which we filed in connection with a motion which this Court denied for summary judgment.

    These affidavits and the complaint in our reply brief all amply demonstrate that in order to meet this situation with which Illinois was confronted in these communities, there is no adequate source of water now available to them except Lake Michigan.

    It’s not just a matter of preference it’s not just a matter of wanting to turn the Lake Michigan because of the purity of the water or the quality of it.

    The fact is according to these engineer’s affidavits and the allegations in our complaint, the fact is that there is no alternative source of water for these communities whose wells are now proving to be inadequate, there is no source of water for them —

    Felix Frankfurter:

    When did this (Voice Overlap) —

    Charles A. Bane:

    — except the lake.

    Felix Frankfurter:

    — (Voice Overlap) I think —

    Charles A. Bane:

    It came to ahead, Your Honor, in about the year 1957.

    About — just about two years ago.

    And at that time, the street communities organized as they were authorized to do under Illinois local law — statutory law, the commission which we have referred to here.

    Just to give you a little further orientation on the matter geographically Elmhurst is the nearest of these communities to Lake Michigan.

    It’s approximately 16 miles inland to the west of the City of Chicago.

    Villa Park then joined Elmhurst on the west being there for a little bit further away from the lake and Lombard in turn then adjoins Villa Park on the west.

    Of these were the three communities which organized the commission, which was setup pursuant to Illinois statutory law to construct the system for a common supply of water and to construct the necessary water mains leading from the source of water to the municipalities.

    The commission had authority to finance construction of its system to the sale of revenue bonds payable from revenues derived by the commission under its water contracts.

    The commission took a number of steps in the latter part of 1957 and throughout the year 1958.

    It contracted.

    It determined first of all in accordance with the engineering studies which had indicated that Lake Michigan was the only available source of water.

    The commission contracted for the purchase of a site on the shore of Lake Michigan within the village of Glen Cove for a water intake and pumping station.

    Charles A. Bane:

    It contracted for the purchase of a site a little further inland for a filtration plan and contracted also for an easement for its water mains most of which would run along the right of way of the Chicago and northwestern railroad all within Illinois.

    The transmission mains were to be approximately 14 miles in length and would be required to carry the roll water from Lake Michigan at the intake point in Glen Cove through the commission’s proposed filtration plant.

    The treated water was then to have been transmitted by the commission to the municipal boundaries of its customers.

    The location of these facilities is set forth on a general location map which is included as a part of our motion for reason to file.

    Felix Frankfurter:

    Mr. Bane, is it true whether there maybe other Illinois municipalities in this fix were about to be.

    Charles A. Bane:

    We — we think not Your Honor.

    So far as this proceeding is concern of course there is nothing in the complaint nor nothing or anything in such of a record as we have that relates to anything to any — anybody except these three communities.

    I might just say that it’s unlikely, quite unlikely that there would be any — any demand by the communities to the east of these communities between these communities and the City of Chicago because those communities are now being served with Lake Michigan water.

    They are not taking it directly but they are being served by the City of Chicago with Lake Michigan water.

    And that comes right up almost that — that service of Lake Michigan water comes almost up to the eastern boundary of these communities.

    As you go west from these communities, the — the engineering data seems to indicate that the wells with which these communities are being served are adequate and are likely to remain adequate for the foreseeable future.

    Still further west we get into the Fox River Valley area where the communities are served by a combination of wells and the Fox River and the engineering data seems to indicate that that is an adequate source of supply for those communities.

    Now, in state in Illinois 100 miles away 125, 150 miles away there have been water problem but in no instance of course has there been any proposal that those communities would come to Lake Michigan.

    They have gone to the Illinois River or they have found wells in one case an industrial plant rather ingeniously takes water from an ample source underground puts it into a river uses the river then, the riverbed is the transmitter of the water and takes it back out of the river some 15 or 20 miles down the stream.

    All ingenious, but none of it, none of it calling for any turning to Lake Michigan as the —

    William J. Brennan, Jr.:

    Well, if the — if this municipalities to the east not part of Chicago are being served by Chicago.

    Charles A. Bane:

    Yes they are, sir.

    William J. Brennan, Jr.:

    These are reasons why these three compatibly served by Chicago.

    Charles A. Bane:

    Engineering wise, it — it was — it would not have been easy and after a full study had been made it seem to these communities that it was better for them to go directly to this site which was available to them and that’s how it came.

    William J. Brennan, Jr.:

    Well would suggest that the alternative is not impossible, however?

    Charles A. Bane:

    The alternative is not impossible, Your Honor, no.

    Of course, you understand that if that alternative were adopted, these communities would be taking Lake Michigan water, they would be getting it via Chicago, but —

    Felix Frankfurter:

    But not additional Lake Michigan —

    Charles A. Bane:

    Sir?

    Felix Frankfurter:

    — but not additional Lake Michigan is important.

    Would they —

    Charles A. Bane:

    Well, it would be — it would be water which is not now, it would be water from Lake Michigan Your Honor which is not now coming to them.

    Felix Frankfurter:

    Not beyond the — the allocated amount.

    Charles A. Bane:

    Well, there is —

    Felix Frankfurter:

    In other words, they could — they could — I don’t think there’s a potential supply not yet use by Chicago which could be drawn from it, is that it?

    Charles A. Bane:

    Well there’s a potential supply on the lake of course.

    Actually there has been no allocation to Chicago —

    Felix Frankfurter:

    Of limiting —

    Charles A. Bane:

    — of an amount for domestic pumpage the limitation as Your Honor knows of course is in terms of the direct diversion down — down the canal.

    The — the commission just to take another minute to — to outline the steps which they have taken in order to get themselves get — get itself ready to serve these communities, the commission set about after it — it entered into these contracts set about getting all the permits that were necessary and did get a permit from United States Corps of Engineers and the Department of Public Works of Illinois, the State Sanitary Water Board, the Village of Glen Cove all that permits which the complaint alleges were needed.

    The commission also adopted an ordinance for the issuance and sale of more than $18 million principal amount of water revenue bonds and contracted to sell such bonds to a group of investment bankers.

    But before the bonds could be sold and their delivery consummated, the State of Michigan, in the early part of October 1958, through its Attorney General, directed a letter to the commission a copy which is included in our motion for leave to file, which stated that unless the commission desisted from its intention of diverting water from the Great Lakes basin, the State of Michigan intended to institute such proceedings as might be necessary to protect what it called its interest, “For the halting of the your propose abstraction of water from the Great Lakes.”

    Felix Frankfurter:

    Sorry, what’s the date of that?

    Charles A. Bane:

    It was early October 9, 1958, Your Honor.

    Felix Frankfurter:

    That was after Michigan try to take up this thing by way of negotiation with the old governor, is that right?

    Charles A. Bane:

    Well, it was after the dispatch of letters through the governor.

    Felix Frankfurter:

    Offered negotiation.

    Charles A. Bane:

    Yes, sir.

    Felix Frankfurter:

    Is that an unfair technique?

    Charles A. Bane:

    I think it was — I think that’s not unfair.

    It was an offer of negotiation and actually there were negotiations, Your Honor, after the letters were received.

    Trips were made by representatives of the Attorney General’s office in Illinois to Lansing and to Detroit and an attempt to sit down to work the matter out.

    But as you can gather from our presence here, it has not been worked out.

    We — the commission received not only a letter from Michigan, but also received one shortly after the Michigan letter from Ohio through its Attorney General and then also from Pennsylvania, through its Deputy Attorney General.

    And there were indications at a point in these conferences that were taking place that the other states which Illinois has joined in this action, Minnesota, New York, and Wisconsin would take similar action.

    I wouldn’t mislead the Court, however and there had not been formal letters of protest against this commission’s action by those latter — those latter three states.

    But there were the formal letters of protest by the three States of Michigan, Wisconsin — Michigan —

    Felix Frankfurter:

    Chicago —

    Charles A. Bane:

    Ohio and Pennsylvania.

    And as a result of that, the investment bankers determined that they were unable to proceed and the result is that this project of the Elmhurst Commission has now been effectively stopped as a result of the letters and the threats of — of these other three regulated states.

    And that is the point which we stand now.

    There was a period during which we attempt to negotiate as I indicated to Mr. Justice Frankfurter of that having falling through it seem to us that we have no alternative except to seek relief through an original action in this Court and we accordingly filed our motion for leave.

    Now at the outset, I’d like to outline three basis on which Illinois believes that it has set forth a cause of action in its complaint anyone of which we believe is — is persuasive in determining Illinois’ rights in this — in this respect.

    The approach which this Court has been taking on problems of allocation of water has been that of what is known as the doctrine of equitable apportionment which has been applied by this Court in proceedings involving states whether those states are western states following internally the doctrine of prior appropriation or whether those states are middle western and eastern states which generally follow the doctrine of riparian rights.

    In either case, without regard to what type of state you may be dealing with so far as local internal water rights determination are concern, this Court has approached the problem as being one of equitable apportionment.

    Charles A. Bane:

    The Solicitor General in his brief amicus filed here has been in agreement that that has been the approach of this Court and the decisions clearly show the point the two most important ones that this Court knows being Connecticut against Massachusetts having to do with the diversion of the waters of the swift Delaware into the Boston area and New Jersey against New York having to do with the diversion of Delaware waters into the Hudson River watershed for New York City.

    The cases that have come before this Court under the doctrine of equitable apportionment have in some case has been hard cases.

    And New Jersey against New York with such a case, there was great need on the New York side and yet there also was a prospect of substantial and serious harm downstream to the sovereign states of the rights of the sovereign States of Pennsylvania and New Jersey.

    And the result was that this Court’s decree in that case was protective of those downstream rights by imposing certain restrictions upon New York in a way of requiring certain measures to be taken for the maintenance of flow and low water periods and the like so as to minimize the harm downstream, balance that with the benefits to be achieved by the taking by New York thereby achieving a true division in accordance with equitable apportionment.

    That’s the type of hard case we say which this Court has had.

    This case we think is no such hard case.

    Primarily, because the doctrine of equitable apportionment really doesn’t have to be brought into play unless you’ve prove damage.

    It’s when you have damages on the one side that you have to line up that disadvantages the harm on that side as against the benefits on the other and having line those up, then the Court has to reach its conclusions as to where it thinks the equitable apportionment of the line.

    But here, there is no damage this taking of 25 to 30 cubic feet per second from the lake producing an imperceptible effect on the lake is going to produce no damage of any kind to the other Great Lakes States.

    And consequently, we maintain that the doctrine of equitable apportionment really has no place here, because there isn’t anything which you have to line up in the way of detriment to the other states against these benefits and this urgent need of our communities for this water which we’re proposing to take.

    But even if you did consider that the doctrine was — was to be applicable, it is clear and you have established in Connecticut against Massachusetts that the taking of water for the purposes for which we are proposing to take it is the highest possible use to which water can be devoted.

    Taking of water for drinking and domestic purposes, this Court said, is the highest possible use.

    And that being so, if you take on the one hand the fact that we are taking water for the highest possible use and we have an urgent need for it, that it would certainly seem clear to us that the doctrine of equitable reapportionment would require that you approve the allocation of this amount of water.

    That —

    William O. Douglas:

    Since I’ve been on the Court, I — I remember various decrees that have been submitted which have approved entered sanctioning the various kinds of sewage disposal plans directly from the — this district and presumably, decreasing the need for the amount of water that was originally allocated for sewage disposal in the 1930 decree.

    I don’t know.

    I’m just wondering why these 15 cubic feet you are now on isn’t taken out of the 100 and — out of the 1500 that was originally assigned for sewage disposal.

    Charles A. Bane:

    Well sir, there’s no way in which we could take advantage of that water itself.

    I mean, I — I appreciate that you’re probably referring to a general taking from the lake.Of course, the 1500 cubic feet is being diverted directly down the Chicago River and sanitary canal.

    That has — that — that we couldn’t get at.

    There just no — there is just no way in which it would be any physical facilities, and of course that — that becomes a — that becomes a part of the Illinois waterway into which the Sanitary District is just discharging its effluent.

    William O. Douglas:

    I — I think it would be easier to get that when it might be to get a decree from this Court increasing that —

    Charles A. Bane:

    Well sir —

    William O. Douglas:

    I don’t know why — why Illinois — have you — have you — has Illinois examined that, explored that phase of it?

    Charles A. Bane:

    Well the engineers Your Honor explored every possible alternative.

    And the alternatives really, I think, as I indicate it to Justice Brennan are to go to Chicago directly for — for water in which case, you’re still going for Lake Michigan water or to go directly to the lake itself which is what these communities did.

    Actually the — just to give a little of the circumstance, the — the happenstance that there was a — a rather long line of — of Chicago and Northwestern Railroad available for transmission line was a very happy circumstance here.

    It made it simple to cut across country with a transmission lane, I say across country actually, these are build up areas to cut across with the transmission lane so that — that would have been — that proved to be or the engineers concluded that that was the — the sensible way really in which to do this.

    Hugo L. Black:

    Well, would you have to ask for anymore water?

    Charles A. Bane:

    Sir.

    Hugo L. Black:

    Would you have to ask for anymore water, Chicago would have furnished it.

    Charles A. Bane:

    Well, sir if we — if Chicago were to furnish it, I think it would — I think it would simply add on.

    Hugo L. Black:

    I’m not — I — I mean though would it be necessary to add a more — an allowance of more water in order for Chicago to supply these communities?

    Charles A. Bane:

    Well, Chicago in turn, I think would take a little more from the lake.

    Hugo L. Black:

    I understand it would take more, but is it not allowed to take more under the apportionment now?

    Charles A. Bane:

    I think that — I think the answer to that Your Honor depends on whether these Southern Great Lake States would then protest to Chicago for that imperceptible, small, low amount of additional taking that Chicago would take.

    Felix Frankfurter:

    Would cover it, would — would Chicago have to obtain permission or which it be — be within her unkept resources?

    Charles A. Bane:

    I think it depends on how you would interpret your 1930 decree.

    Felix Frankfurter:

    That — that is my question Mr. Bane.

    Charles A. Bane:

    You — you have entered a decree with respect to Chicago actually of course it runs to the State of Illinois and its employees and agents in which you have said that Illinois is to be allowed to take for that direct diversion purposes beginning in 1938, 1500 cubic feet in addition to domestic pumpage.

    It would certainly seem to be a recognition of Chicago’s rights to take for domestic pumpage.

    Actually, we maintain that that decree in Wisconsin against Illinois constitutes a precedent for a taking for domestic pumpage purposes without limitation.

    And the language of the decree is broad enough, Your Honor, so that it’s not really confined simply to that taking for that particular purpose.

    And it — and therefore be argued that there is a general right established by that decree in Illinois to take water for domestic pumpage.

    Hugo L. Black:

    Then — then — then why this proceeding?

    Charles A. Bane:

    Sir?

    Hugo L. Black:

    Then why in this proceeding?

    Why it shows that under the 1930 decree?

    Charles A. Bane:

    Well we are face of course here, with these threats which we have received from the other Great Lakes States.

    William J. Brennan, Jr.:

    But you could justify it as I understood your argument, do I get it correctly?

    That you could justify what you’re now taking under the 1930 decree?

    Now, if you just said that Illinois could?

    Charles A. Bane:

    Yes.

    We — we don’t really claim that the 1930 decree is res judicata or determinative.

    We — we really take the position I think that that’s a precedent in favor of this kind of taking.

    If we had tried to raise this question in the 1930 decree and of course we — we appreciate that at the port of the decree, there is a general reservation whereby the decree can be reopened.

    But if Illinois had attempted in that proceeding to raise this question, we’d be in a kind of an anomalous position I think, attempting to raise there something which we claim really has — has already been established as a precedent.

    Felix Frankfurter:

    Let me ask you this question if I may, Mr. Bane.

    Suppose these communities which I understand are — are self-contained, legally self-contained communities, are they?

    Charles A. Bane:

    That’s correct sir.

    Felix Frankfurter:

    And not part of the municipality of that for the State of Chicago?

    Charles A. Bane:

    That is correct sir.

    Felix Frankfurter:

    Suppose five years ago, these communities had in fact been annexed to Chicago and had become part of the municipality of Chicago, would — that would have been possible.

    Charles A. Bane:

    Yes, sir.

    Felix Frankfurter:

    Then you wouldn’t have taken this mode of getting relief for those communities and their water needs would you?

    Charles A. Bane:

    No.

    We wouldn’t have adopted this method.

    Felix Frankfurter:

    What — what would you have done?

    Charles A. Bane:

    We probably would have assumed unless there had been protest.

    Incidentally when I say that these communities could have become a part of Chicago, something would have to be done about the intervening areas as well, Your Honor, because there has to be contiguousness for annexation.

    But, assuming that all of that has been taken care of, we would — I –I assume that these communities then would have — would have made their arrangements when their wells began to run dry for a taking of Chicago water.

    But I think it’s entirely possible that these Great Lakes State —

    Felix Frankfurter:

    Would that protest to the same nature?

    Charles A. Bane:

    Would have protested in exactly the same way, Yes, sir, because it’s Lake Michigan water that we’re talking about no matter how you — how you take it.

    Earl Warren:

    Is there any protest when these other communities that are just to the east of these communities got their water for a similar purpose?

    Charles A. Bane:

    So far as we know, Your Honor, there has been no protest.

    No.

    Earl Warren:

    And they came from Chicago water?

    Charles A. Bane:

    That they are being served with Chicago water which is Lake Michigan — Michigan.

    Earl Warren:

    They are not — they are not in the geographical limits?

    Charles A. Bane:

    No, sir, they are not.

    I think, generally speaking, when we — when there is — when the — when statistics are presented with respect to the amount of water that’s being taken for domestic pumpage purposes and these statistics are of course in Numbers 2, 3 and 4 which are — which is before your — before the Court on a petition by the — of the Great Lakes States for reopening.

    The 1700 cubic feet per second which is taken as Chicago’s taking is of course — it — it does include the amounts which Chicago takes for supply to these other communities.

    So that I think that there’s a general recognition that Chicago is doing that for the other communities and account is taken in the figures of how much — of — of what is supplied to the other communities.

    Hugo L. Black:

    But they do take it out of the 1700 feet?

    Charles A. Bane:

    That is — it is included within the 1700.

    Yes, sir.

    Hugo L. Black:

    Well, then —

    Charles A. Bane:

    That’s my —

    Hugo L. Black:

    — Mr. Bane, within the 1700 or within that which is described as the domestic uses for or are they the same thing?

    Charles A. Bane:

    It’s with — it’s the same thing, Your Honor, yes.

    But, statistics are often presented as to what it is that Chicago is taking for domestic purposes.

    William J. Brennan, Jr.:

    Well, but I don’t —

    Charles A. Bane:

    And usually —

    William J. Brennan, Jr.:

    — quite understand.

    It’s just this.

    If the servicing by Chicago and these other communities to which west — east of these three is within the description of for domestic uses under the 1930 decree, why can’t the same basis be use to justify the taking of the service of these three communities?

    Charles A. Bane:

    Well, we are trying to use the same basis, Your Honor.

    What — what we’re — what we’re trying to do however is not to get ourselves — not to get this proceeding into that proceeding.

    And actually —

    William J. Brennan, Jr.:

    Except that this use would be equally domestic uses.

    Charles A. Bane:

    Exactly.

    William J. Brennan, Jr.:

    If those of the —

    Charles A. Bane:

    Of course, sir.

    Of course.

    William J. Brennan, Jr.:

    — communities to the east of (Inaudible)

    Charles A. Bane:

    That’s correct, sir.

    Felix Frankfurter:

    But not —

    Charles A. Bane:

    We maintain that.

    But we may —

    Felix Frankfurter:

    But not for Chicago.

    Charles A. Bane:

    Sir?

    Felix Frankfurter:

    But these uses are not for Chicago.

    Charles A. Bane:

    These are not for Chicago’s use, sir.

    Felix Frankfurter:

    That’s (Voice Overlap)

    Charles A. Bane:

    No sir.

    No, sir.

    They are not.

    William J. Brennan, Jr.:

    But any of the other communities to the east of these three are they?

    Are they for Chicago uses?

    Charles A. Bane:

    Well, they are separate municipalities but they are supplied by Chicago.

    William J. Brennan, Jr.:

    I know but within the decree, are they — are they Chicago uses?

    Charles A. Bane:

    So, it has been assumed evidently and there’s been no protest.

    William J. Brennan, Jr.:

    Well, would there be any reason what then — why these three, in servicing these three communities, would not also be Chicago uses?

    Charles A. Bane:

    If — if these three communities made an arrangement for taking water from Chicago, we assume that then — then that would be embodied within the terms of domestic pumpage as authorized for Chicago.

    Yes, sir.

    Earl Warren:

    Well, — well would it then come out of the 1700 second feet or not?

    Charles A. Bane:

    Your Honor, I may have misled you.

    The 1700 cubic feet hasn’t been established as a limitation.

    That’s just a statistic which gets mentioned as to the amount which Chicago is taking for domestic pumpage purposes.

    There is no limitation established anywhere on what Chicago takes for domestic pumpage.

    Felix Frankfurter:

    Domestic — what it takes for domestic purpose is a function of its need.

    Charles A. Bane:

    That is correct sir.

    Charles E. Whittaker:

    In fact what is limited upon the service by the decree to limits of Chicago?

    Charles A. Bane:

    The decree does not limit it to Chicago, no.

    Paragraphs one, two and three of the decree run to the State of Illinois.

    What they do is establish the amount which shall be taken by direct diversion and establishes a certain amount Your Honor for the — for the first beginning years after the day of the decree, then another amount, and then it gets down to the 1500 cubic feet for direct diversion.

    That’s water that’s being diffused to flush out the water waste in effect.

    But in each case, the decree says that that amount which is authorized is in addition to domestic pumpage.

    Charles E. Whittaker:

    Well, I couldn’t.

    This domestic pumpage is the — is that in your recording, domestic pumpage was then of the City of Chicago or the needs of Illinois?

    Charles A. Bane:

    Well, we maintain — that is the needs of Illinois, Your Honor, yes.

    And that’s why we say that the decree in Wisconsin against Illinois which is the title of the — this proceeding in which the decree was entered, we say that that decree does in fact constitute a precedent and a recognition by this Court that Illinois is entitled to take from Lake Michigan water for domestic purposes.

    Felix Frankfurter:

    Mr. Bane, may I put a question that, we’ve been circling around at this (Inaudible)

    Charles A. Bane:

    Yes, sir.

    Felix Frankfurter:

    — and I can put it briefly and you can — I know you’ll be able to answer briefly, as I understand it, you said you agree that the domestic taking is not defined by cubic feet but is a function of the needs of Chicago.

    Charles A. Bane:

    That is correct, sir.

    We believe —

    Felix Frankfurter:

    Despite that or within that right of Chicago, she may service communities that are not actually part of the Chicago municipality.

    He does, doesn’t he?

    Charles A. Bane:

    Yes, sir.

    Felix Frankfurter:

    Now what I want to know is this.

    Why — what is the reason, is this legal or engineering for some other combination that she doesn’t service these three communities the way she service others and draw underwater which is entitled to draw for domestic purposes?

    Charles A. Bane:

    Well, it’s primarily an engineering matter, Your Honor.

    But of course, you understand that the need doesn’t for these communities until a couple of years ago when it began to develop that the wells were inadequate.

    Felix Frankfurter:

    Well, the —

    Charles A. Bane:

    If that —

    Felix Frankfurter:

    — power to supply doesn’t — in the question of had no chronological limitation, does it?

    Charles A. Bane:

    The power to supply does not know.

    But actually, when the problem came to be considered, it was — it was not Chicago that came to consider it, it was these three communities.

    Felix Frankfurter:

    You mean they acted on their own?

    Charles A. Bane:

    They had the problem.

    Yes, sir.

    Felix Frankfurter:

    They had the problem, but you’re here on behalf of the State of Illinois and they can only speak to you —

    Charles A. Bane:

    That is correct.

    Felix Frankfurter:

    And say —

    Charles A. Bane:

    That is correct, sir.

    Felix Frankfurter:

    Therefore, could you — could you not determine the mode by which their needs were to be satisfied.

    Charles A. Bane:

    We could have done so.

    But we — on our statute books, we had authorized community such as this to form a water commission if they wanted to, to go to a common source of supply.

    That authorization of course didn’t refer to Lake Michigan.

    It’s a — it’s a statute that operates throughout the State.

    Felix Frankfurter:

    What you’re saying is that there were alternative — political, I mean it’s not an ambiguous one.

    There was an alternative mode of dealing with this problem and you chose and Illinois to let these communities pull their political interest in the form of Commission and you come here as of right under your view to ask for this addition of diversion under the decree?

    Charles A. Bane:

    Yes, sir.

    Felix Frankfurter:

    That’s your position.

    Charles A. Bane:

    That is our position.

    I will only have to it if I may, that these communities discovered when they — when they set about to face the problem, they discovered that there was no source of water available for them except Lake Michigan and not other sources.

    Now, they did have an alternative of turning to Chicago or going directly and decided that they would go directly.

    Felix Frankfurter:

    Are you saying that the determination of these problems is irrelevant whether the water will come eventually come from through Chicago or independently to these communities?

    Charles A. Bane:

    That is our position, sir.

    Yes, sir.

    Hugo L. Black:

    Why you’re saying — why you consider this as a small amount compared to this (Inaudible) why is it enough that other cities would form some kind of groups to get for them, all around in Chicago.

    And why — how candidates be properly taken of without considering the whole thing of how that water can be divided, if it is to be divided.

    Charles A. Bane:

    Well, Your Honor, Illinois takes the position here that nothing that’s being proposed here raises any great tremendous problem which is going —

    Hugo L. Black:

    But it’s small, but then that is [Laughs] relatively speaking —

    Charles A. Bane:

    Yes, sir.

    Hugo L. Black:

    Pretty — pretty large.

    And a few like this would — you could say each one of them is small.

    Charles A. Bane:

    We — we couldn’t help but agree, that if there were — if there were indications or probabilities that numerous other communities in Illinois were going to becoming or taking advantage of these authorizing statutes and do the same type of thing that these communities are proposing here.

    We couldn’t help but agree that that might create a problem that had to be — that had to be studied.

    Hugo L. Black:

    Well, how can we know they’re not?

    How is it possible to know that the water problem is becoming a great problem?

    Charles A. Bane:

    Yes, sir.

    Of course it is.

    Hugo L. Black:

    Do not become —

    Charles A. Bane:

    Of course, it is.

    Hugo L. Black:

    It’s not merely there.

    How can we know, but that there are — there’s — and how can we probably dispose of this when the other States are interested without having the full matter in a way considered?

    Charles A. Bane:

    Well, Your Honor —

    Hugo L. Black:

    (Voice Overlap) making for a special order which would be for a year.

    And of course, if they got it for a year and they got deprived to establish in everything, then you’d have the — the benefits of possession.

    And it would be very difficult to take it away from the people who need it.

    In the other states, they’re complaining now that before this is done, they should all be heard.

    Charles A. Bane:

    But, Your Honor, there’s just isn’t any indication that any communities other than these are — are concerned with this type of problem.

    Hugo L. Black:

    Not except that to — it’s the way human nature works.

    Charles A. Bane:

    And —

    Earl Warren:

    Suppose in the other — in the other lakes — the other states want to do the same thing, when does it get to a point where — where the water must be distributed?

    I suppose, if you have a right to take it out for Illinois in one or two or three instances by probably all these other states would have the same right, wouldn’t they?

    Charles A. Bane:

    Yes, sir.

    Charles A. Bane:

    But, Your Honor, there are certain physical limitations that are going to —

    Earl Warren:

    Yes.

    Charles A. Bane:

    — prevent municipalities from turning to the great — turning to the Great Lakes.

    They have other resources just as our communities west of Chicago go to — turn to the Fox River which is about 40 to 50 miles inland from the lake.

    Communities aren’t going to engage in the great tremendous investments that are required to go to the lake unless that is absolutely the only alternative that they have, and that is the case here.

    There wouldn’t have been this expenditure of $18 million or a proposal to expend that amount, unless it was determined that there just wasn’t any source of water except Lake Michigan.

    But may it please the Court, there is one matter on which I would’ve like to have commented.

    It has to do with the position which the Great Lakes States have taken with respect to the requirement that we return our effluent, but Illinois is anxious to reserve a little time for rebuttal.

    And therefore, if the Court please, I wonder if I might just state and — and reiterate without being repetitive, that this is an urgent need for these communities that Illinois is — is in good faith here when it is arguing that these wells in these communities are proven to be inadequate and that we have 90,000 people in the northern part of our State whose sanitary and drinking water needs are imperil and who are imperil with everyday that — that passes even the beginning — even when this project has begun.

    It is going to take about two years for it to be completed.

    And during that period, these communities are going to be at the risk of some adverse developments with respect to its — to their wells which may greatly imperil the safety and welfare of the community.

    It’s for that reason that we have urged upon this Court and we are sorry to bother you but we have urged upon this — this Court by various motions of the immediacy of our need and the urgency of the situation here.

    We would like to stress it.

    We think we’ve demonstrated in the briefs that we do have these rights that we are not causing damage that under the doctrines which this Court has announced that we are entitled to take.

    We would like to reserve, Your Honor, and the Attorney General of Illinois would be most appreciative if the Court would permit Mr. Wines to conduct the rebuttal for the State when the time comes.

    Earl Warren:

    We’ll do that.

    Could I ask you one question?

    Charles A. Bane:

    Yes, sir.

    (Inaudible) made the remark, as understood it.

    There’s a time that you wanted to keep this proceeding separate from the 1930 decree?

    Charles A. Bane:

    Yes, sir.

    What do you mean by that?

    Charles A. Bane:

    By that, I meant that we would — we would not like to see the Court consolidate this proceeding with Numbers 2, 3 and 4.

    Why?

    Charles A. Bane:

    Primarily, on the basis of this matter of urgency, we, of course, don’t know what the Court is going to do with Number 2, 3 and — Numbers 2, 3 and 4 on the petition for reopening.

    It — we — we believe that there are issues there involving sanitation and navigation and the problems of direct diversion which however they are worked out, are not the problems of this proceeding.

    And so though, it’s the State of Illinois that’s involved in each case, no, it’s Lake Michigan water that’s involved in each case, we think that the circumstances justifying the taking are so completely different in each case that we believe this ought to be kept separate.

    Felix Frankfurter:

    Do you think the Court can decide your case on — on the — on your complaint and the answer.In other words, on the proceeding you turn loosely and the argument before it that adjudicates the issue on those that without law.

    Charles A. Bane:

    You mean determine that — determine it once and for all, Your Honor, as if we have made a motion for summary judgment?

    Felix Frankfurter:

    Yes.

    Charles A. Bane:

    I — I don’t have any doubt that the Great Lakes States would want to and ought to be afforded an opportunity to answer.

    But once we have granted motion for leave, we wouldn’t and —

    Felix Frankfurter:

    Assume that the motion is granted to that, it is allowed to be filed, assume in your answer, will that raise any legal questions for adjudication by this Court?

    Charles A. Bane:

    We believe so.

    Felix Frankfurter:

    (Voice Overlap)

    Charles A. Bane:

    We believe so.

    Only legal questions that the questions of fact would be clear and in fact, we believe the Court could act then if they were pending before —

    Felix Frankfurter:

    Why do you say that —

    Charles A. Bane:

    On a motion for —

    Felix Frankfurter:

    — would be clear as to the amount, it has to the urgency, as to the —

    Charles A. Bane:

    The nonavailability of other sources.

    Felix Frankfurter:

    — nonavailability of that.

    Charles A. Bane:

    Yes, sir.

    Felix Frankfurter:

    If it goes to all that, it goes a — determinable have to answers what to be in on the pleadings of in this general term.

    Charles A. Bane:

    Yes, sir, because we just don’t believe that those — that those can be quarreled with, those allegations.

    William O. Douglas:

    Except your problem of why not do it all through Chicago.

    That would have been still not be answered as a matter of law, would it?

    Charles A. Bane:

    Well, Your Honor, I don’t know if the Court ought answer that.

    And — and actually, it — it doesn’t go to the root —

    Felix Frankfurter:

    But personally (Voice Overlap) —

    Charles A. Bane:

    — it doesn’t go to the root of the problem

    Felix Frankfurter:

    Do you think whether — you said the Court should not answer it.

    Is it because it is — it’s not a relevant issue?

    Charles A. Bane:

    I think it’s because it’s what this Court called — well, in Philadelphia tried to get into the New York against New Jersey situation, this Court deniably for Philadelphia to intervene and said it wasn’t going to be concerned with intramural problems.

    I think that was the adjective that was used.

    And I think that, what — what you have to be concerned with is whether we establish a right or can establish a right to take from the lake.

    But the question whether — whether Illinois can take from the lake for these communities under their circumstances, but whether they should take from the lake by way of Chicago or by going up directly to Glen Cove, north of Chicago, that is certainly not an issue which this Court ought to be called upon to determine.

    William O. Douglas:

    I wouldn’t — I would think enough just for myself that we’d have to pass that first before we get to — to your request.

    Charles A. Bane:

    Sir —

    William O. Douglas:

    Because we’re dealing here with those a lot of things with water supply problem with a lot of different straws in it all sucking from that supply and if what’s being presently taken inevitably reapportion can handle your problem, that might be the fairest way in doing it.

    Charles A. Bane:

    But sir, in facing to that question, it doesn’t seem to me that you have to face the question of whether these communities should take through Chicago or take otherwise.

    You do face the question of whether these communities, Illinois on behalf of these communities should be permitted to go to the lake or whether they should do it through Chicago or not seems to me to be an intramural matter.

    Felix Frankfurter:

    May this — may this not be something different than intramural matter.This Commission, is that an independent agency?

    Charles A. Bane:

    Well, it’s an instrumentality of the State —

    Felix Frankfurter:

    Yes.

    Charles A. Bane:

    — Your Honor.

    Felix Frankfurter:

    You keep them as active and self-contained if it makes its own determination of what the need is, how much to take, when to take, enough differences of supervision of Chicago, isn’t it?

    Charles A. Bane:

    No, sir.

    Certainly not.

    Felix Frankfurter:

    Therefore, if they have — if Chicago would have to service these communities, it would be Chicago determining what the need of those communities are, isn’t not?

    Charles A. Bane:

    Yes, sir.

    Felix Frankfurter:

    Therefore, it might not make a difference that is the commission of the three cities that’s determining but rather the City of Chicago.

    Charles A. Bane:

    That might make a difference.

    And of course from their point of view the — that’s the desirable alternative.

    Earl Warren:

    Mr. Adams.

    Paul L. Adams:

    Mr. Chief Justice, may it please the Court.

    Complainant has quoted in its brief the words of Justice Holmes, “A river is more than an amenity, it is a treasure.

    It offers a necessity of life that must be rationed among those who have power over it.”

    We believe the words of the justice might properly be paraphrased for application to our present problem as follows.

    The Great Lakes are more than an amenity.

    They are a national, yes, even an international treasure.

    They offer a necessity of life that must be conserved among those who have power over them.

    We propose to show that the actions of Michigan throughout and its position today is not one of adamant denial to another state of the use of this great resource, but rather there any use shall be reasonable and in keeping with the utmost possible preservation of the resource for co-users whether they’d be sister states or a friendly foreign power.

    To this and may I review briefly the history of this present controversy?

    On December 19th, 1957, Governor Williams of Michigan wrote Governor Stratton of Illinois expressing his concern and seeking information over what appeared to be a new diversion of water from the Great Lakes.

    His letter enclosed a copy of a letter of the Attorney General of a State of Michigan expressing the opinion that the contemplated diversion would be a violation of the decree of the Supreme Court dated April 21, 1930.

    No reply was ever received to this letter.

    Again, on March 11, Governor Williams wrote Governor Stratton to reiterate his concern over any diversion from the Great Lakes basin.

    No reply was received to this letter.

    On October the 9th, 1958, the Governor of the Sovereign State of Michigan, having twice failed to receive a response of the Governor of Illinois, an information having come to me of the organization of a water commission that proposed to serve the domestic and industrial needs of three inland, non-riparian villages.

    Paul L. Adams:

    I did write the letter a copy of which is a pendant to complainant’s motion for a leave to file a complaint.

    Again, on behalf of the State of Michigan, I objected to the apparent attempt not to use but to divert the waters of the Great Lakes from the Great Lakes basin to the Mississippi watershed.

    Now, may I say that in attempting to deal with this controversy, the State of Michigan has found itself faced with an enigma or perhaps I should say, with a case of schizophrenia for we have attempted to deal with the State of Illinois and we found ourselves ignored, forced to turn our attention to the Water Commission.

    And if we attempted to deal with the Water Commission, then we found ourselves sued by the State of Illinois.

    We the defendants feel that we are faced with alternative situations, each of which presents its own legal problems and issues.

    If we are dealing with a suit brought in reality by the Water Commission, then the issues as we view then becomes as follows.

    The State of Illinois is not the real party and interest.

    The complainant — the complaint does not present a justiciable controversy between states.

    No actual controversy or case exists.

    Developed complaint shows neither juridical right nor injury.

    The Federal Declaratory Act is not applicable.

    Well a co-counsel for Wisconsin, New York and Pennsylvania will address their attention to these issues.

    If we are dealing with a suit brought in truth by the State of Illinois, then we believe the following issues become pertinent.

    Before entertaining jurisdiction of this Court as a precondition require that a good faith effort be made by the States themselves to settle their dispute.

    Require that the complainant’s state make a clearer prima facie showing that the relief it seeks is truly to meet a present crisis in domestic usage.

    Felix Frankfurter:

    Mr. Attorney General.

    Mr. Banes, I understood him to say that there were efforts made and they approved the subordinates were unsuccessfully.

    Paul L. Adams:

    I would like to review those if I may, Mr. Justice Frankfurter.

    Second point that the complainant state make a clearer prima facie showing that the relief it seeks is truly to meet a present crisis and domestic usage not for industrial development or future domestic needs or in lieu of some other, well perhaps more expensive method of providing water.

    Secondly, that if the Court does entertain jurisdiction, then it should take cognizance of the whole controversy between the respective parties as it fits a suit between quasi sovereign.

    And thirdly, that if this Court takes jurisdiction, it should direct its attention and concern to the preservation of the Great Lakes basin rather than to a division or apportionment of this great national and international treasure.

    One, before entertaining jurisdiction, the Court should require that a good faith effort be made by the States themselves to settle their dispute.

    On March the 6th, 1959, I suggested a conference to discuss problems of diversion at the suggestion of a Solicitor General of the United States.

    On March 16th, 1959, the then Attorney General of Illinois, Attorney General Castle, replied to me that, and I quote, “Illinois is entitled to take the domestic pumpage from the lakes without returning any part thereof to Lake Michigan.”

    And that this was the position of the State of Illinois that well is perfectly willing to confer this was the position that the State would maintain.

    I realized that the complainant claims good faith that I submit that this type of position or to cite another example that an offer to negotiate on the basis that the only negotiation would be the withdrawal of the objections of the complainant states is not good faith negotiation or an attempt between the States to settle these issues.

    And I submit to the Court that under the contract clause or the Federal Constitution, under principles of international law, full disclosure, negotiation, inquiry, mediation, conciliation and other peaceful means are the course that should be adopted first before the jurisdiction of this high tribunal is invoked.

    The Court should cause the complainant to make a clearer prima facie showing that the relief it seeks is to meet a present crisis in domestic usage, not for industrial development or future domestic needs or in lieu of some other perhaps more expensive method of providing water.

    This Water Commission proposes to serve, and this is from their own motion, the City of Elmhurst, the villages of Villa Park, Lombard, Addison, Bensenville, Elk Grove and industrial users, pages 9 and 10 of the complainant’s motion.

    I submit to the Court that the affidavit of Ralph A. Smith will not stand careful analysis and scrutiny.

    Paul L. Adams:

    He states, “During recent years, the increasing consumption of water in domestic and industrial users is beginning to exceed the water supply available through underground sources.”

    Page 5, motion to advance.

    And Joseph F. Collin, the other affiant, uses the same identical language in the body of his affidavit.

    And both of these men say and summing out and I’m trying to justify this action the following.

    Due to the increase need for water, they do not say, “Water for what?”

    They merely say, “Due to the increase need for water.”

    A real danger exists that the well supplies may diminish within the next few years to the point where a serious shortage will exist.

    I submit that these affidavits do not provide a proper foundation for action by this Court.

    Know well that their faced assertion of the complainant that there is no other source of water supply in the area except Lake Michigan.

    But this plains and parks rivers cannot be explained the way by saying, and again I quote, “They do not have sufficient flow or wholesomeness of quality of water to serve these communities.”

    On the second point, if the Court does take jurisdiction, it should take cognizance of the whole controversy.

    We agree with the Solicitor General, that a State has a real interest, quasi sovereign in character in all the earth, water and air within its domain.

    And if the present suit were bought to determine all the relative rights of the State of Illinois in the waters of Lake Michigan, we would take no exception to the Solicitor General’s position.

    In a suit between quasi sovereigns, all rights should be adjudicated in a single or in consolidated action.

    We agreed that this controversy might well be likened to a boundary dispute.

    But we insist, look at the whole boundary.

    Do not attempt to settle the dispute an inch at a time.

    And as a final point which admittedly goes to the merits of the controversy but which is discussed in the Solicitor General’s brief in terms of equitable apportionment, we contend that the prime — that the prime concern of the Court and of all the lakes states should be the preservation not the division of the waters of the Great Lakes.

    We contend that is not possible for this Court equitably or in any other way to apportion the waters of the Great Lakes as between Illinois and Canada.

    We contend that the right of navigation is a paramount national right that would be affected if Illinois is permitted to divert unilaterally even 30 CFS.

    This is a measurable diversion.

    It amounts to three one hundredths of an inch.

    This is in terms of the need of only 90,000 people.3

    3 and one-third times, three one hundredths of an inch equals one inch.

    One inch equals 1,500,000 tons of shipping annually.

    Certainly, the needs and use of an early 40,000,000 people in the Great Lakes area demand the most careful preservation of this national resource.

    It is not enough to assert that some solution to the overall problem will be found by impounding excess water during wet years when the lake cycle is high.

    And thereby, provide additional water during drought years.

    Such a solution is being and has in the past been sought by the U.S. Corps of Engineers but it has not yet been achieved.

    In the meantime, the only proper and sensible rule is once of reasonable use of as little diminution as possible of return to the — to this treasure, to this common pool of that which is taken from it.

    Paul L. Adams:

    This has been the policy of all the lake states except Illinois.

    If this Court sanctions taking by unilateral action, the result can be either endless litigation on a peace meal basis or constant repeated injury to the Great Lakes States, to the paramount navigational interest of the United States and to the rights of Canada.

    Earl Warren:

    Mr. Reynolds.

    John W. Reynolds:

    If it pleases the Court.

    I would like address myself in State of Wisconsin to only four points.

    Points being that another action is pending the damage that has done to the Great Lakes States, declaratory judgment question and that no damage is done in State of Illinois.

    Before I go into that, I would like to answer Justice Black’s question about whether or not this problem was peculiar to the Chicago area.

    Mr. Justice, it is not peculiar to that area.

    We have a problem of my hometown in Green Bay.

    We ran out of water up there and we went to Lake Michigan, we took the water, we purified the effluent, we put it back in Lake Michigan.

    We put it back in Green Bay.

    And the same problem was faced in Sheboygan, Wisconsin, Fond du Lac, Wisconsin, Milwaukee, Wisconsin.

    This problem is not unique to Chicago.

    Hugo L. Black:

    Do you — do you say the same problem faces on this get board of, they are already getting water.

    John W. Reynolds:

    They’re getting water, but they’re returning the effluent to the basin.

    Hugo L. Black:

    Well does it — are there other places that are not getting it back that it likely to be?

    John W. Reynolds:

    The — General Adams stated, “It’s in the policy of all the Great Lakes States that when the cities take waters, water out of the Great Lakes, that the affluent is returned to the Great Lakes.

    Hugo L. Black:

    As I understand that, what the question I was asking you was a little different, was this.

    They say that while their — this particular problem, this need for water is area — area has become, that is not a widespread problem?

    John W. Reynolds:

    Well, I — my point was it’s widespread north of Chicago and Wisconsin, the City of Fond du Lac, which is located on Lake Winnebago at the present time is having a major political fight over whether or not they should build a pipeline to Lake Michigan, or should they take the water out of Lake Winnebago, which is a small shallow lake.

    Hugo L. Black:

    I hope so the population up there is growing, right?

    John W. Reynolds:

    It’s growing, yes.

    Hugo L. Black:

    Some other places that we can —

    John W. Reynolds:

    I think that in the — the fact of another action is pending.

    William O. Douglas:

    But does — does Milwaukee take water from —

    John W. Reynolds:

    Milwaukee takes the water from Lake Michigan.

    It purifies it and returns to Lake Michigan.

    William O. Douglas:

    And I understand as I read the briefs of Wisconsin and Michigan, they wouldn’t object to Illinois doing that in this (Voice Overlap) —

    John W. Reynolds:

    We have no objection at all to Illinois taking the water, using the water and returning it to the Great Lakes basin.

    And later on, I’m going to discuss how that affects our — the issue of damages.

    John W. Reynolds:

    We believe that the issue is not the right of the State of Illinois to divert water.

    The issue is whether or not they should be compelled to return the water to the Great Lakes basin.

    If the — if issue is merely for the right you can take water, then there is no issue in this case because we say they have the right to use it.

    Our point is that when they do use it, they have to return it to the Great Lakes.

    Felix Frankfurter:

    Does that apply didn’t you say they have the right to use it, that you recognized a need of these three communities?

    John W. Reynolds:

    Their need is the same as the city — the need of the City of Milwaukee, the need of Cleveland, Ohio.

    They all take water out of the Great Lakes.

    Felix Frankfurter:

    Well, then you — did you recognize their needs?

    John W. Reynolds:

    We coarsely recognized their need.

    Felix Frankfurter:

    So that would not be a contested question on which evidence should have to be taken and submitted by you in behalf of Wisconsin?

    John W. Reynolds:

    If they have any water.

    Felix Frankfurter:

    Yes.

    John W. Reynolds:

    I — I personally, I would believe that there — the natural wells are going dry.

    We face that problem in the Green Bay.

    Felix Frankfurter:

    Well, that’s —

    John W. Reynolds:

    I know they want that.

    Felix Frankfurter:

    — that’s problem Congress has concerted out.

    John W. Reynolds:

    Well, I don’t want to —

    Felix Frankfurter:

    The issue of need.

    I don’t mean how it needs something.

    But the issue of need, you say, you recognized.

    John W. Reynolds:

    Well, I’m willing to believe them, but I would like to ask if we have the opportunity to cross-examine their engineers.

    Felix Frankfurter:

    All right.

    John W. Reynolds:

    I don’t want to say the issue is out.

    Felix Frankfurter:

    All right.

    Very well.

    You answered that.

    So this —

    John W. Reynolds:

    The — the taking of the water — the diverting, excuse me, the diverting of the water from the Great Lakes, even a small amount, does irrefutable harm to all the Great Lakes States because it establishes a precedent.

    If you permit these three communities to do this, you’re establishing the precedent that any community that lives within a pipeline distance of lake — of the Great Lakes, that they shall have the matter of right, the authority to take water out of the Great Lakes and dump it into another watershed and run it down.

    John W. Reynolds:

    The City of Cleveland is close to the watershed of the Ohio River.

    The City of Milwaukee, Wisconsin is close to the watershed divide, very close, just on the Waukesha County, and they have toyed with the possibility.

    Now, the fact is the State of Wisconsin and the other Great Lakes States, we have insisted that our communities build modern sewage and expensive disposal plants in the City of Sturgeon Bay.

    And gentleman at a case, dealing with a courthouse up there, they are surrounded by water and yet they have a sewage disposal plant before they dump their water into the lake.

    William J. Brennan, Jr.:

    Milwaukee make (Inaudible) money out there, don’t they, by selling the (Inaudible).

    John W. Reynolds:

    Well, the — I don’t know if they make a profit at it, but they certainly do sell it.

    They have a very modern plant.

    It — if we permit these cities to do what they ask, we’re placing a tremendous burden on — on the sister states, how can we compel our industry, our cities to go to the expense when Chicago — when the Chicago industry doesn’t have to go to this expense?

    The second fact is that allowing them to divert water out of the sewage, out of the Great Lakes has the effect of — if they all do it, of literally destroying the Saint Lawrence Seaway.

    We talked — we’ve heard a lot about five inch, five eights of an inch or an inch.

    One inch on the Great Lakes from the top is, of course, one inch from the bottom.

    The vessels on the Great Lakes are loaded by inches.

    On a large vessel, one inch equals 180 tons of — of carrying capacity per trip.

    A mollified a number of trips and you get the — what the law says.

    These vessels literally, scrape their — their bottoms as they go through some of these channels in the Great Lakes.

    And so, if you allow Chicago in the major action which will — to take water made after 10,000 cubic feet to — if they’re going to expand.

    If they’re allowed to that and every other community is allowed to do it, you’d lower the level of the lake two or three feet.

    And we believe that by establishing this precedent, if we’re going to — and to permit any city that’s within pipeline distance to run to the lake and take the water and dump it down on other watershed, it would materially injure the Saint Lawrence Seaway.

    Earl Warren:

    Where does Chicago effluent to go, it goes into the Illinois River?

    John W. Reynolds:

    The Chicago effluent was in the Chicago drainage canal.

    See, originally around 1900, they turned the Chicago River around.

    Earl Warren:

    Yes.

    John W. Reynolds:

    The drainage canal down to the Des Plaines River into the Illinois River and it goes — and then of course into the Mississippi.

    And that’s why they need this under the 1930 decree, the extra 1000 cubic feet to literally flush their — this open sewer out.

    And Wisconsin and the other Great Lakes States have always insisted from the very beginning that the — their sister states and sister communities have the duty to purify their effluent.

    We do not believe that in this present — excuse me, Your Honor.

    Earl Warren:

    No.

    No (Inaudible)

    John W. Reynolds:

    We do not believe that in this present action that the State of Illinois is actually hurt as it brought out in questions, this water department can get the water from the City of Chicago.

    The simple fact is they could sell their bonds if the State of Illinois would put the full faith and credit of the State behind this water commission.

    John W. Reynolds:

    And that we have made no threats to the construction of the water works.

    In fact, Wisconsin hasn’t even sent a letter.

    But we certainly would insist that any additional diversion from the lake will be prohibited.

    And that any water that’s taken out of the lake be returned to lake as — after it is purified.

    Thank you very much.

    Earl Warren:

    Mr. Shepp.

    Richard H. Shepp:

    Mr. Chief Justice and may it please the Court.

    I would like just to bring the Court back to review the complaint at this stage of the proceeding of course we’re considering whether Illinois shall be given leave to sue the rest of us on the basis of the complaint, to this is — before this Court.

    It’s our position, it’s my position at least that I’m sure it’s the position of the rest of my colleagues that the complaint does not invoke the parens patriae doctrine in — in the present writing of the complaint.

    If this lawsuit is either a class action or a private lawsuit which has never been within the — never been taken within the jurisdiction of this type of action between sovereign states.

    To look at the complaint itself, it — it — the factual obligations involved the water needs of 90,000 people, the formation of a commission, the commission being a public corporation going into the business of hiring engineers of engaging in contracts for the acquisition of its rights of way for its properties and entering into contracts for the sale of its water and for the contracts of the sale of it bonds.

    Threats the allegation say by the Attorney General, however made the delivery of the bonds impossible.

    We contend it’s my position at any rate that that is the principle grievance of this particular complaint.

    The — the failure of the inability of Illinois of the commission to sell its bonds.

    The remaining allegations of the complaint make it clear that this is an action primarily for the commission for the sole benefit of this public corporation and not for the State of Illinois.

    I refer for instance to the complaint.

    In paragraph 12, the complaint reads, “The commission here involved there’s only the power to acquire a supply of water.

    It has no function or power to dispose of the sewage effluent.

    Only parts of the communities to be observed by the commission are within the Metropolitan Sanitary District of Chicago.

    But like that district, they all dispose of their sewage effluent into the Mississippi watershed.

    Then the complaint goes on further to say in paragraph 13 on page 13, the question of return of sewage effluent by that area is involved in the other proceedings in — in original actions two, three and four for which are the most impending before this Court.

    The right of the commission, the complaint states to withdraw water from the lake for domestic purposes as proposed by it should be declared without consideration of any demand by the defendants that the sewage effluent resulting from — therefrom, that is from their own water it’s directions should be returned to the lakes.

    Now, it seems to me that the only reading of that complaint where — where the scope of it involves from any angle there’s a limited size of area involved.

    A small quantity of water the bond problem of the commission and a request to limit the action to this action here to a ruling that the commission has the right to withdraw water without respect to the whole picture the reasonable uses involved that Illinois would be concerned with.

    It — it only points to the conclusion that the — that the complaint is not a proper parens patriae situation.

    Hugo L. Black:

    What — what in your judgment could be the proper thing to do, and then you think that is true?

    Richard H. Shepp:

    The —

    Hugo L. Black:

    Are you saying the complaints should be dismissed on the (Inaudible) of the cases to be consolidated to the others to place on the property?

    Richard H. Shepp:

    It’s our position, Your Honor, that the proper remedy for the State of Illinois to raise the whole rather than the piece — piecemeal litigation is to go back to the original actions Number 2, 3 and 4.

    They are not without remedy, if they do, we have grievance.

    Richard H. Shepp:

    That’s my (Inaudible)

    Earl Warren:

    We’ll recess now, until tomorrow noon.