Texas v. New Mexico – Oral Argument – October 10, 1955 (Part 1)

Media for Texas v. New Mexico

Audio Transcription for Oral Argument – October 10, 1955 (Part 2) in Texas v. New Mexico

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Earl Warren:

Original Number 9, from the calendar, Texas versus — State of Texas versus State of New Mexico et al.

(Inaudible)

Earl Warren:

Yes.

Mr. Wilson.

Fred E. Wilson:

May it please the Court.

This is the case of Texas versus the State of New Mexico on Middle Rio Grande Conservancy District which is pending in this Court.

And the matter is before the Court at this time upon the exceptions to the report of the special master filed herein on October 14th — in January, 1955.

In order to understand the exact issue before the Court, it’s necessary to briefly refer to what has transpired heretofore in this case from the standpoint of procedure in the pleadings.

The original complaint of Texas was filed and the defendants, the State of New Mexico, and the Middle Rio Grande Conservancy District, in response to the order to show cause objected to the filing of the complaint for various reasons among them being that the complaint showed and the relief sought showed that the United States and the Elephant Butte Irrigation District were indispensable parties.

Now, after that, the State of New Mexico and the Middle District answered and later the Court appointed a master, Honorable John Raeburn Green.

And kept the question of indispensability of parties open, and referred that question to the special master with directions that he have a hearing and take evidence if necessary and report back to this Court his conclusions and recommendations as to the indispensability of the parties as alleged in the pleadings.

The master conducted a hearing in response to that order at Santa Fe, New Mexico in April, 1953.

And a report of the — those hearings, together with his recommendations and conclusions, were on the file to this Court.

I believe that those hearings embraced four large volumes.

Subsequent to that time, and after the master filed his first report which was in 1954, both parties, that is, the plaintiff and the defendant, filed exceptions to his first report.

The defendants, the State of New Mexico and the Middle District accepted only to that part of the master’s report that concluded and recommended that the United States was not an indispensable party on account of many reasons we urged.

And the Texas plaintiff accepted to that part of his report which recommended the case be dismissed on account of the indispensability of the United States limited to a question of the effect it would have on the rights for the Pueblo Indians.

Those exceptions have not yet been ruled upon by the Court, but the Court referred — but in that first report of the master, he suggested that the State of Texas be permitted to amend it to the prayer of its complaint further if it saw fit.

And Texas then filed a motion in this Court to amend the prayer of its complaint so as to change the language and to find the relief to which she thought she was entitled.

And that this Court referred that matter back to the master, on Honorable John Raeburn Green, where directions that he determine whether the motions should be granted.

And if granted, would it cure the defect of parties which he had found to exist?

The master held a hearing in St. Louis on this last reference and filed his second report herein which concludes as follows.

“I’m of the opinion that the plaintiff’s motion for leave to amend the prayer of its complaint should be granted and that if granted, it would cure for the time being, at least, any defect of parties herein.”

Now, it’s to that last report that the exceptions of the State of New Mexico and the defendant, Middle Rio Grande Conservancy District are directed.

I call the Court’s attention to the fact that pursuant to the order made in this Court, sometime I believe in January of this year, acknowledging receipt of the last report of the master and stating that the parties would have 60 days in which to file exceptions if any.

We filed our exceptions within the 60-day period and a brief in support of them.

Up until this time, the State of Texas has not responded to our exceptions in our file to the brief in connection with it.

William J. Brennan, Jr.:

Is there any brief form the United States as amicus?

On this —

Fred E. Wilson:

The United States not on this particular point.

Fred E. Wilson:

The United States —

William J. Brennan, Jr.:

There was an old one I —

Fred E. Wilson:

— filed and amicus brief heretofore.

But the master suggested that it might be desirable that the solicitor be called upon to file another one in view to this last report but none has been filed so far that as I know.

So, the real —

Earl Warren:

Is that request vested with the Solicitor General?

Fred E. Wilson:

I think not.

I think it was just in the master’s report where he made the following suggestions but it was not communicated insofar as I know to the Solicitor.

Felix Frankfurter:

Did you assume that the United States aimed to show a part of the consequences?

Fred E. Wilson:

I think so — what — at this stage of the proceeding, that case has been pending here for — since 1951.

The United Stated has had ample opportunity to intervene if it so desires and the previous brief filed by the Solicitor took the very part of even definite position that the United States is indispensable on account of the — the treaty obligations of the United States with the Republic of Mexico and on account of the — the effect he thought it would have on the rights of the Pueblo Indians.

And he mentioned other interests of the United States but did not develop in detail as to how he thought those interests would be affected.

Felix Frankfurter:

But presumably, the amended complaint for Texas, any interest of the United States in taking United States out of the case is a big difference?

Fred E. Wilson:

That may have been the purpose of the amendment —

Felix Frankfurter:

Yes.

Fred E. Wilson:

— to the prayer as opposed by Texas but we don’t agree that it did take the United States out of the (Voice Overlap) —

Felix Frankfurter:

I’m not suggesting that that is so.

But that interest — that’s the interpretation of this master of the case.

Fred E. Wilson:

Now, our exceptions go to the point that the proposed amendment of the prayer, although the language is somewhat different, does not, in any sense, was changed.

The situation as it existed when the master made his first report.

And his first report was that on account of the effect it would have on the rights of the Pueblo Indians that the United States was indispensable under the test the master applied and that is that it would have an injurious effect upon the Indians and would also leave the case in such a situation as to be incompatible with equity and good conscience.

Thereby —

William J. Brennan, Jr.:

That was prior to the amendment.

Fred E. Wilson:

I beg your pardon?

William J. Brennan, Jr.:

Prior to the amendment.

Fred E. Wilson:

That was prior to this amendment that the master made that recommendation applying —

William J. Brennan, Jr.:

I — I really thought that the — as to whether or not the defendant —

Fred E. Wilson:

Wether it changes the situation.

William J. Brennan, Jr.:

It changes the situation.

Fred E. Wilson:

And we contend that it doesn’t, that substantially the interest will be the — the indispensability of the United States still remain.

Fred E. Wilson:

And that the case should proceed even under the amended prayer without the presence of the United States.

William J. Brennan, Jr.:

(Inaudible)

Fred E. Wilson:

As I understand, the United States has been silent since this amendment was proposed.

William J. Brennan, Jr.:

No, I understood that too but how do they take it over under a contrary that obtained —

Fred E. Wilson:

That’s true.

— well, thank you.

Fred E. Wilson:

And that’s the one point I wanted to argue here before I get on to the issues of indispensability, because in our exceptions, we reiterate and reaffirmed the exceptions we made to the former report where the master considered, he divide them up into 14 separate interest that we mentioned as showing indispensability of the United States in addition to the rights of the Indian.

And he found that none of those interests is sufficient to make the United States indispensable.

And we — we — we reaffirmed or reiterate our claim that that is still before the Court and the Court still should consider, regardless of the rights of the Indians which we think is ample and determine whether or not the United State is indispensable for any other reason.

Of course, if you determine that they are indispensable on account of rights of the Indians is not necessary to consider the others because if the United States is indispensable for any reason, this case should be dismissed and not to proceed.

But we do specifically call the Court’s attention to the last report of the master in reference to a matter that transpired in St. Louis when he had this motion of Texas to amend the prayer before him.

At that time, we contended that since the previous hearings, there had been some things transpired which made it clearer that the United States is indispensable on account of its contract with the Middle Rio Grande Conservancy District in reference to the — of the El Vado Reservoir and the works of the Middle Rio Grande Conservancy District.

In 1950, the Congress authorized what is known as the Middle Rio Grande project which was a confined — a combined project to be carried out by the Bureau of Reclamation and the Corps of Engineers.

It was about a $79 million project.

And the –the Bureau — the Bureau of Reclamation ought to do certain things, that is they were to rehabilitate the works of the district including El Vado Reservoir, they were to channelize the river down below, I’ll refer to this matter in a moment, if I may, they were to channelize the river so as to get rid of the waste of water that had been occasioned by nature, by degradation of the river and the consumption — non-beneficial consumptive use of water by plants.

And the Bureau’s part of that project was to rehabilitate the Navajo Reservoir and Dam and to rehabilitate all the works of the district.

And the original contract that the Bureau or Reclamation made with the Middle Rio Grande Conservancy District under the Reclamation Act provided that the District agrees that it will convey title to the works of the Middle Rio Grande Conservancy District at such time as a request is made by the contracting officer who is the representative of the Secretary of Interior.

Now, in our previous hearings on this matter, we’ve argued that by virtue of that contract alone, where the United States required the district to convey the title that that showed a sufficient interest in the United States and the works of the district including Navajo Dam and Reservoir to show that any injunction that might be granted regulating the release of water form or the storage of water in that reservoir would effect an interest to the United States.

But the hearing, the master and counsel for Texas took the position that this contract is contingent.

It is an — the title hasn’t been transferred yet and it may never be because Congress may never make any appropriations to carry out the project.

We didn’t think that was a sufficient excuse but that’s the way the matter was left.So subsequent to that time, the United States has, as shown by the supplemental report of the hearing and before the master in St.Louis, executed a — an instrument that is called an easement to all of the works of the district which I contend transfers the title to this reservoir up here and while — to the United States.

And we claim that now, since the last hearing in St. Louis or at that time I mean, we offered this instrument and evidence.

We offered another instrument and evidence that was in operation and maintenance contract between the district and the United States and the master overruled our offer for — and first, Texas objected to it on the ground that it didn’t go far enough but when we went into the whole thing, they had no objection.

But the master overruled our offer on the ground that it was beyond the scope of the reference to him over this one question.

That is — should the motion be granted and if granted, would it cure the defect of the parties in the case.

But anyway, as we — the master permitted the two instances to be filed and commented on them in his report and they are now before the court.

And we contend that those two instruments show definitely that the title to this reservoir that’s involved which the injunction would operate against is in the United States, its property of the United States.

And further, the operation maintenance contract which we put — in a — as in appendix to our exceptions in the brief, it appears on page 35 of our last exceptions in the brief.

William J. Brennan, Jr.:

Is there any dispute, Mr. Wilson, between the parties as to the meaning or effect of this instrument?

Fred E. Wilson:

There might be.

Fred E. Wilson:

I haven’t heard from — or the counsel protects this since it has been filed and Mr. Edwards may not agree with us on the interpretation of this contract.

But if there is a difference that in my opinion is just another reason why the United States is indispensable.

If the attorneys and these parties can’t agree upon the interpretation of the contract the United States made, certainly, the United States ought to be there to put their own interpretation upon the contract.

But this one that I referred to on page 37, you will find the second paragraph of that operation and maintenance agreement.

Hugo L. Black:

(Inaudible)

Fred E. Wilson:

Paragraph 5 of a — a contract that was entered into between the United States and the Middle Rio Grande Conservancy District on September 24th, 1951.

And I decide to read only paragraph 5 which appears on page 37 of our brief.

It says, “As required to permit the rehabilitation and betterment of the works to proceed without undue interruption during the period of operation and maintenance by the United States as provided in Article 4 of this amendatory contract.

All project of water, including water for Indian lands now served by the District facilities as set forth in Article 34, the basic contract, and available from El Vado Dam and Reservoir shall be released by the district in accordance with a such instructions received from the contracting officer.

Now, the contracting officers define in all of these contracts as the Secretary of Interior, he represents the Secretary.

So, finally, it is that — it has reached this point where any water released from that reservoir must be released under orders of the Secretary of Interior.

And we say that an injunction requiring the district to operate in a certain way, to store water or release water is subject to that right of the Secretary of Interior to tell him how to do it.

And therefore, we feel that the injunction prayed for by Texas under any conception of her rights would be ineffective and ineffectual because it would depend upon the will of a person who’s not a party to the contract.

William O. Douglas:

How was that named (Inaudible)

Fred E. Wilson:

I beg your pardon?

William O. Douglas:

(Inaudible)

Fred E. Wilson:

Well, before this, or course the — there is a contract between the United States and district relative to the Indians, the United States entered in a contract with the district when it began the construction of this reservoir and all the other works of the district agreeing to pay a proportional part of the cost.

And in arriving at the amount of cost that should be paid by the Government, the United States agreed to pay something in excess of a million dollars toward the cost of El Vado Reservoir and the other works of the district on account of the benefit they tell it would be to the Indian Pueblos.

So, from that time on, water that’s stored, if I may refer to them — I —

Earl Warren:

Yes you may.

Fred E. Wilson:

The reservoir involved here that we call El Vado is up there.

I don’t know whether you can see, if not, it’s in the middle of the dot.

You see, that’s on the tributary of the Rio Grande known as the Chama and that reservoir has a capacity of about little less than 200,000 acre feet.

It was originally constructed by the Middle Rio Grande Conservancy District at the expense of that District so that water could be stored and — from this tributary, the Chama and — in here — in the irrigation season, if there was not sufficient water in the mainstem of the river, it would be released to irrigate lands within the District, Indian lands as well as non-Indian lands.

Now, that — it was operated then or sometime by the — the District and there was no determination.

Nobody knew just how much water should be applied upon the Indian land but it was done by — by agreement and negotiation by getting along.

The Indians asserted that they had rights to store — to the use of stored water up here as well as rights to mainstem water.

And up until the suit was instituted, it was all arranged by agreement, not always with absolute peace, harmony but at least they got along.

Now, on the question of the Indians, this map — I’m referring to 14 (c) as well as (Inaudible)

It is a map of the Rio Grande Basin in New Mexico and Texas above Fort Quitman.

Fred E. Wilson:

These black lines are the outer delineation of the basin itself.

And the — the Rio Grande rises up in the Southwestern Colorado, flows through to San Luis Valley but was not shown on here and when it gets — went down to the New Mexico or Colorado Line at Lobatos Station as the main illustration station there, that’s where the water is measured that comes into New Mexico.

The river continues on down by the Taos, an Indian Reservation, by Espańola.

This is Santa Fe comes run down through Albuquerque and come down to the El Paso and to Fort Quitman.

We usually regard the Rio Grande as two references that is on its source to Fort Quitman, Texas.

And from thereon, it flows into the gulf and we regard that as the lower Rio Grande which is not involved in the suit.

Now, the — the mainstem of the river, as I say, goes down this way and the green part, you see, on there is irrigated land.

Now, the map shows the Indian Reservations in pink, I doubt that you can see it but here’s the Taos.

That shows a — an area there in pink which is the Taos Indian Reservation.

They get their water from the tributaries of the Rio Grande and come down the river further, we come to — to Santa Ana, a small reservation right on the banks of the river and to Nambe, they’re all outside of the Middle District.

Now, and when you get to the — the Middle District is not shown very clearly on this map but this arrow here points to the northern boundary of the Middle Rio Grande Conservancy District and this area here to the southern boundary.

And that area on — on the Rio Grande is the Middle Rio Grande Conservancy District.

Now, within that area, there are six Indian Pueblos who used the works of the district in order to apply water to their land.

Now, those — those Indian Pueblos by name, is Cochiti which is the (Inaudible)

The pink here shows that they have a — a reservation.

And the — come on down from Cochiti, there’s Santo Domingo, a rather large Pueblo with — by an area of reservation land was to court the members that the titles to this land is in the Pueblo Indians and the United States as their guardian has some interest in it, of course.

The question published titles in the United States for the Indians is not important here.

Then coming on down from Santo Domingo, we have the San Felipe Indians, north of Bernalillo.

And, the Sandia, another reservation right on the river between Albuquerque and Santa Fe.

And Isleta, one of the large Pueblos down south of Albuquerque has a large area on both sides of the river and that is the southern most Pueblo within the district.

There are other districts like — there are reservations like Laguna and Acoma which get water from tributaries of the Rio Grande but are not within the Middle District.

And the Jemez is another reservation that gets the water from tributaries and this Jemez River or — is one upon which the United States is now erecting a flood control reservoir which is then completed.

The United States is about to build another reservoir or Chamita up here on the Chama for flood control purposes.

We contend that those interests of the United States make it necessary that should be a party because those reservoirs think the operators of this flood control reservoirs if — has Texas said.

All reservoirs must be operated as required by the Middle Rio Grande — by — by the Rio Grande Compact because that compact would not permit the release of water for flood control purposes when there’s less than 400,000 acre feet in project storage in Elephant Butte or when in January of any year there’s less than 600,000.

The Compact does — doesn’t contemplate or say anything about flood control.

Harold Burton:

Mr. Wilson, what would you say would be the effect of this amended complaint here upon those particular Pueblos, it lifts them out of it, as I understand, or try to lift them out of it, doesn’t it?

So the — your contest is without regard to them.

Fred E. Wilson:

Yes.

Harold Burton:

What is your statement on that?

Fred E. Wilson:

Originally, Texas in her complaint and in our argument, took the position that El Vado would be operated and to inform they were in an injunction or without regard to the rights of the Indians because they have no storage rights at all in El Vado.

Texas then took the position that the only right that the Indians have is to take water out of the mainstem of the river and then only for 8000 and some other acres of land.

That’s all the rights Texas conceded at that time to Indians.

But as the case progressed, and she made three efforts to change the language refer one for beginning of the hearings, another for end of the hearings, and this motion to amend which is now before the court.

And that the motion to amend took her to the other extreme and she knew that the Court — if the Court had to determine whether the Indians have storage rights or what is the extent of the Indian rights in quantity of water that the United States weren’t bound to be there.

So, in order to avoid that consequence, Texas says, now that give us an injunction as to the operation of El Vado in controlling their release and storage of water in it and say that it’s without restriction as to Indian lands.

Any injunction that’s rendered in this Court shall not have — be any restriction upon the rights of the Indians to use stored water or mainstem water.

Now my —

Harold Burton:

Now, can’t that be — can’t be done by as a practical matter?

Fred E. Wilson:

My conception to that is, Your Honor, that in any case where you raised a question of indispensability, the plaintiff can come in and say, “Well, that party of course in indispensable but that just don’t litigate about his rights at all.

That’s what leave them out the picture.”

Felix Frankfurter:

Well, that might be so, unless his right affects your right.

Fred E. Wilson:

Well —

Felix Frankfurter:

That’s why all of the plaintiff has a good deal of leeway in shaping what he is suing for.

Fred E. Wilson:

Yes.

I think the plaintiff has some leeway but I don’t agree if the plaintiffs in this case can look forward and determine whether or not this relief would have any effect upon the Indians or not.

Felix Frankfurter:

That — that depends — that — that is so only through your affections by the withdrawal of any claims against the Indians.

Fred E. Wilson:

Well, we are — we —

Felix Frankfurter:

Are you here protecting the Indians?

Are you here protecting something that affects you by reason of the facts that the Indians were left out?

Fred E. Wilson:

We are protecting the — the State of New Mexico on the District from any injunction that will require a water master to release water to us for our lands and — well that master will have no idea how much of any water could — could put on the Indian land.

Felix Frankfurter:

Well, then your point is that by this freedom, you let the Indians have what they want as it were your water rights are intensified.

Fred E. Wilson:

That’s right.

In other words, they say that the latter part of the equity rule that we talked about, i will leave the case in such a condition as to be inconsistent with equity in good conscience.

Hugo L. Black:

(Inaudible)

Fred E. Wilson:

No.

Hugo L. Black:

That — that at this point, we’re investing ourselves, are we not, in complexity whether the Indian rights — I’m giving them whatever rights that they have in all of the stations.

Fred E. Wilson:

But we don’t know their rights are.

Hugo L. Black:

(Inaudible)

Fred E. Wilson:

We think that the United States is indispensable when any master opponent by this Court undertakes to do what this decree says.

Fred E. Wilson:

It says, “Release water, major water, release and allocate it to all the lands in the Middle Valley including Indian lands in certain priorities.”

But the master wouldn’t know how much water should release to the Indian lands.

Hugo L. Black:

It should subject to the exception to the Indian lands.

Fred E. Wilson:

Oh, he doesn’t know what they are.

They’re never been determined.

This record is full of the proposition that the Indian rights — the extent of them has never been defended.

Harold Burton:

Well, isn’t there a maximum of some 20,000 acres involved here that they use as a gauge?

Fred E. Wilson:

There is 20,000 acres comes in by virtue of the contract between the United States and the Middle District.

When the district was getting ready to build El — El Vado and all the works, the United States made a survey and determined that 8000 acres of all land would be benefited by the works of the District.

And an additional 11,000 acres would also be benefited by the works of the District.

And therefore, that was the basis upon which United States contributed a million dollars to the workers.

But, there was nothing in that contract, there was nothing in the statute that authorized that contract that enabled anybody to know that quality of water that the Indians require on their lands.

And I contend that nobody couldn’t have master a reservoir or an irrigation — set of works and facilities and release it to this man and that man until their rights have been determined to a quantity of water.

If a master follows this decree, before the decree, it should be released, water here, it comes on down to courts appeal.

There is an Indians debts that takes all of it.

There are white people who they want attention too.

Nobody has ever determined whether the Indians require one acre foot, two acre feet, five acre feet, or 10 acre feet of diversion per year.

And I don’t know if irrigations is — or no regulation or reservoir that can be operated by an agent of this Court until this Court has told him the quantity of water that all the water users are required to — are entitled to.

Felix Frankfurter:

What determines in your view, the basis — on what basis is the amount of water that the Indians may have had to be determined on your view?

How is anybody — from your point of view, how’s anybody to determine what water goes to the Indians?

Fred E. Wilson:

Well, the Indians and the other users all over were there together must come in to a court.

Felix Frankfurter:

There is a pull of the order out of which everybody has uncertain performance.

Fred E. Wilson:

That’s right.

Felix Frankfurter:

Now, who determines what the starting point — what’s the basis, whatever it’s called, I’m terribly — their interest about these matters I can see it in behalf of that.

There’s a certain quantity of water that has to be divided around.

Fred E. Wilson:

Right.

Felix Frankfurter:

Now, who determines first what that quantity of water is to be, if it’s to be divided?

Fred E. Wilson:

Well, nobody can determine unless it’s by agreement.

Felix Frankfurter:

Well, isn’t the Compact indicates the basis on this divisions to be made?

Fred E. Wilson:

Contact — Compact doesn’t say a thing about the relative rights of the parties in the three areas —

Felix Frankfurter:

How much had been coming to New Mexico that is not — how is that determined?

Fred E. Wilson:

All right.

The Compact, Your Honor, regulates the Rio Grande unless they’re really showed on the map.

It requires the State of Colorado to permit before to cross the New Mexico State line a certain amount, I say certain, it’s certain in this extent.

The contact does inform depending on certain relationships of tributary as that in Colorado.

And when they are compiled with their farmer why its possible to measure the quantity of water that Colorado must let come in to New Mexico.

But when it comes to New Mexico and Texas —

Felix Frankfurter:

Well, that’s very interrupting, Mr. Wilson.

You got a formula by which the amount of water which varies from time to time is to come in to New Mexico.

That’s the starting point.

Fred E. Wilson:

As far as Colorado is concerned.

Felix Frankfurter:

Yes.

Fred E. Wilson:

And that’s to measure that space more.

Felix Frankfurter:

So you’ve got that as the — the — that which is the (Inaudible) worked if we use a bad figure.

That’s defined to be divided, am I right?

Fred E. Wilson:

You could use that as a possible division between Colorado and New Mexico.

Felix Frankfurter:

All right.

Can we stop there?

Fred E. Wilson:

But I’m — I’m making a point that that’s not true as far as Texas is concerned.

The compact doesn’t do that same thing, insofar as Texas and New Mexico are concerned.

The compact provides that it sets up years after that on the map.

That’s not above the “to the reservation in the Middle District”.

The engineers in making this formula that appears in the compact, thought they have discovered a relationship in any amount of water that goes in the Rio Grande as in Otowi and the amount at the same time that would reach San Marcial, here.

Now, San Marcial is up above Elephant Butte Reservoir (Inaudible) reservoirs down here.

Now, that relationship, the farmers set out in the compact and it says in effect when there is a certain quantity of water took at the — that relationship with the farmers would acquire a certain amount to pass San Marcial.

Now, that’s based on what the engineers conceived to be the way of the river performed for 40 years in the party.

And they assume it would continue to perform that way in the future.

So, the New Mexico obligates and that is to deliver into the Rio Grande River at San Marcial that quantity of water set up in a farm.

Now, below San Marcial, if the Court please, is the Elephant Butte Reservoirs and the Elephant Butte Irrigation District in New Mexico which irrigates about 85,000 acres of land and gets its water from Elephant Butte.

The Texas boundary is down here, probably 150 miles, from San Marcial and Texas gets her water from the Elephant Butte Reservoir by contract with the United States.

Fred E. Wilson:

And I say that the compact cannot be construed as an allocation of water between Texas and New Mexico as it was in the member in the — in the Hinderlider case on the La Plata.

Felix Frankfurter:

But at this point are — are difficult.

There are problems as between New Mexico and the Indian rights that’s what you’re arguing in there.

Fred E. Wilson:

That’s right.

Felix Frankfurter:

But as to that, you — you have to divide the water that comes into New Mexico on the basis of the formula in the compact, is that right?

Fred E. Wilson:

Well, we — we have to — well, suppose, and prior with the compact and — when there’s so much water at Otowi, we’re supposed to see to it that so much water reaches San Marcial.

Now, in order to — to comply with that, we take the position and it’s an issue in this case that the compact never intended that if the — the amount set up and the farmer did not reach San Marcial that that created a relationship of debt or credit between Texas and New Mexico because that farmer requires that it’d be computed every calendar year — at the end of the calendar year.

And then it provides that when there is a spill in Elephant Butte, credits intended to wipe it out.

So, our position is that the few intent of the Compact was not to require New Mexico under in all circumstances to see that a certain quantity of water reached San Marcial but that present rights were to be protected.

The record shows that when this formula were set up by the engineers, it was suppose to protect present rights and it recognized that the United States was not bound by anything that was in it.

So, we say that the Indian rights and the present uses at the time the Compact was negotiated in 1929, if you want to talk about debts and credits, the base should be deflected from the amount of water that goes to San Marcial.

Otherwise, New Mexico in the middle area there is charged, for not only with the water she uses on land but with non-beneficial uses, an Indian use.

And we submit that that was not the intent of the Compact and that would be an issue in the case that’s got to be determined.

I don’t want to exceed my time.

William J. Brennan, Jr.:

But Mr. Attorney General, is there — there’s some provision in the contract that called our attention in the provision on page 37 of your brief.

Now, that’s the amendatory contract.

Fred E. Wilson:

That’s the amended contract.

William J. Brennan, Jr.:

And in here, in the old contract, was there a provision that the plaintiff between New Mexico and Arizona between Texas and New — New Mexico and Texas?

Fred E. Wilson:

No.

There’s nothing mentioned about that in any of the contracts of United States.

(Inaudible)

Fred E. Wilson:

There is a — a statute that you may be thinking about when the — this Middle Rio Grande Project would authorized that is to build those flood control reservoirs or rehabilitate the district.

There was a — a provision in that statute which said that the projects should be operated in conformity with the Rio Grande Compact.

But we submit that the United States ought to be here to be interpret those statutes and those contracts as she may.

And that her rights will be affected if a decree of this kind is rendered.

Hugo L. Black:

Even though with the intent of the —

Fred E. Wilson:

That’s right.

Hugo L. Black:

(Inaudible)

Fred E. Wilson:

That’s right.

We don’t believe that you can dispense well an indispensable party by just saying we won’t litigate about his rights at all because that party will be litigating with you and we can’t possibly perform this injunction without being subjected to another suit by the United States and the Indians.

Fred E. Wilson:

Now, those rights are determined.

Thank you, Your Honor.

Could I ask one question before you sit down Mr. Wilson?

I’d understood that the proposed decree would operate in such a way that if a dispute arose as to the amount of Indian water, the Secretary of Interior would give the figure and that could be the figure, is that the way that contract the —

Fred E. Wilson:

No.

— the proposed to be —

Fred E. Wilson:

I was talking about the decree of the Court, there’s nothing in the contract about how the — how much land, how much water shall be put on in — in land or anybody else’s land.

No.

But doesn’t that leave that to the Secretary of the Interior to speak for the Indians?

Fred E. Wilson:

It left to the Secretary of Interior and by virtue of a statute on a contract to determine the priorities of — two classes of Indian lands.

That is the — the — the Secretary of Interior put in the contract that since the Indians have been irrigating 8000 acres of land from time immemorial that they shouldn’t be charged that that land shouldn’t be charged of any expenses of operating the district but that as to 20 — 11,000 acres of additional land that that should be charged to the Indians so that does establish a priority and priority with the right to use water but it don’t say how much.

And this decree that Texas seeks the — her second statement, she put in there language that would enable the irrigation engineer in New Mexico to determine the amount of water that should be given to the Indians.

The master said that doesn’t obviate the necessity of the presence of the United States because it’s obvious that if you can’t let the area irrigation engineer determine the quantity or amount of water, and anyway it would be unfair to the defendants.

That was the masters first conclusion.

And the — the new amendment, however, leaves out the word “amount” and says the water shouldn’t just be without restriction and that would enable the water master to — he wouldn’t know how much water to deliver to the Indians and how much to deliver to their neighbors.

And it would start a controversy that will be worse than this one.

Can you determine how much the Indians get now?

Fred E. Wilson:

Well, they are part of the Conservancy District and they have a representation in — it’s in the meeting into that board and it’s worked out by agreement.

The Secretary does —

Fred E. Wilson:

No.

The Secretary doesn’t —

(Voice Overlap)

Fred E. Wilson:

— determine any amount.

There’s nobody who can determine the amount per acre feet that the Indians are titled to — or this has never been determined.

It’s open.

And until that is determined, I insist that no decree can be entered in this case.

Felix Frankfurter:

When you say it’s open, did you do — get some formula?

Fred E. Wilson:

Yes.

Felix Frankfurter:

How could you determine that?

Fred E. Wilson:

Well, they have their —

Felix Frankfurter:

(Inaudible)

Fred E. Wilson:

Well, it’s — all we might say it’s a free for all.

The water closed down the mainstem.

Their diversion dams are built here.

Felix Frankfurter:

You’d said, many water has gone around —

Fred E. Wilson:

If there’s plenty of water, there’s no trouble.

Felix Frankfurter:

No.

Is that — is that all to this situation?

Fred E. Wilson:

No.

That’s never — that is when the compact was negotiated why — in 1941, there often be a spill.

Everything was lovely for several years.

But this draft started, Your Honor, and it’s — in a scarcity of water, you’ve got to know how much each one is entitled.

Felix Frankfurter:

Suppose there is no scarcity.

Fred E. Wilson:

But when there is no scarcity, why is there no trouble.

Felix Frankfurter:

But , when there’s scarcity.

Fred E. Wilson:

When there is a scarcity?

Felix Frankfurter:

Perhaps not.

Fred E. Wilson:

Well, the Indians —

Felix Frankfurter:

Well last question was how do we — who determined what the Indians get?

What’s the answer?

Fred E. Wilson:

Well, the answer is that the Indians appealed to the Conservancy District and tell them what their needs are that they haven’t had any water since June and they’ll need some in August and it’s worked up by mutual agreement without regard to legal rights.

Tom C. Clark:

Well now, does the government own the Conservancy District — the Federal Government.

Fred E. Wilson:

We claim that the Federal Government has acquired title to all the works of the district including El Vado Reservoir.

Tom C. Clark:

So, whatever the Federal Government said as to how much the Indians were entitled to would be controlling if we asked of it?

Fred E. Wilson:

It wouldn’t if this Court is going to take charge of it and issue an injunction.

The — this Court will tell the master how to operate El Vado and that’s what we’re saying, the United States ought to be here if this Court is going to make an injunctive order telling the district must stay in New Mexico on how to operate.

Subject — subject directed to the Secretary of Interior as to how the water (Inaudible)

Fred E. Wilson:

Oh, that would put the — the (Inaudible) Indians in New Mexico at the mercy of the Secretary of Interior and he not bound by this case.

Hugo L. Black:

(Inaudible)

Fred E. Wilson:

Not now, no.

Fred E. Wilson:

We can assert our rights now, and be fair and try to divide it properly in days of scarcity.

Hugo L. Black:

(Inaudible)

Fred E. Wilson:

Well, what — we take this position, we don’t know what the Indians rights are.

New Mexico says the Indians claim these rights.

Hugo L. Black:

But whatever rights they have, were they (Inaudible)

Fred E. Wilson:

Under the Constitution of the New Mexico which doesn’t apply to the Indians and all the doctrine appropriation.

Certainly, the first in time is prior and it’s historically true that the Indians have been irrigating that land there for 300 years.

And to that extent, they are part.

But what the result would be we if got to litigate their legal rights.

If this case goes on, that’s what’s going to have to happen.

And in my opinion, it’s not in the interest of the Indians to have that happen.

Felix Frankfurter:

Before you sit down Mr. Wilson, I’d like to ask you a question but I am not at all sure that it’s proper question for me to ask.

You — the Government show I think I understand that — well, you can’t say whether you could make therein a problem here, that Texas — Texas has a problem which is ought to be settled the summary, or would you say obviously, he had no payment for.

Fred E. Wilson:

I’ll answer that —

I’ll try to understand.

Fred E. Wilson:

I’ll try to answer that this way, Your Honor, that Texas seeks to have this Court adjudicate on the meaning and interpretation of the Compact upon which she bases certain rights.

Now, then, the question as I understand it is — is that a question of such burning importance as to make it necessary for a court to adjudicate.

Felix Frankfurter:

That wasn’t my question.

I was very careful not to misunderstand.

Well, that’s what it is.

In fact you can use determination by the Court, whether Texas has come to ignore the merely and abstract interest in finding out what a contract — a Compact mean.

That’s really true when you have an economic problem which — if you were in Texas, you would recognize the problem.

I’m not suggesting now how it should be settled, because that’s my next — namely, assuming there is a problem there that isn’t privilege and assuming there is a problem, a serious problem that you indicate namely, indispensability of the United States having a problem.

How is that kind of a concept that’s — I’m not talking about leaving it.

How is that kind of a conflict of interest if she didn’t state which from your point of view can’t be settled by this Court, how this could be adjusted?

Fred E. Wilson:

Well, now, I’ll answer that as briefly as I can.

It would be settled by negotiation and cooperation just as the original compact of negotiation.

This Court has said many times and admonished the states that it wouldn’t be much better for them to make a compact, that they could appeal (Inaudible)

Felix Frankfurter:

I thought you wouldn’t appeal when you suggest that it’s easy.

Fred E. Wilson:

But I say that you’ve got to be friendly and cooperative if you make a compact.

Fred E. Wilson:

Then when you make a compact, you still got to be friendly and cooperative in order to make that compact work.

Well, I thought that could (Inaudible)

Fred E. Wilson:

If it is that that is — if Texas prevails, the compact has got to be interpreted and we don’t interpret it the same way.

Felix Frankfurter:

But if United States can come into this litigation, the problem we’re now considering wouldn’t be easy, is that right?

Fred E. Wilson:

If the United States were a part of this case, it could litigated.

Felix Frankfurter:

So, that it then would have an — a deficient (Inaudible)

Fred E. Wilson:

And in decree the Court in there would have some finality and some effect.

Felix Frankfurter:

What you’re saying is, in essence, you correct me if I’m wrong.

What you’re saying is that it can’t be adjudicated by this Court because of the uncertainty that was left (Inaudible)

Fred E. Wilson:

I think that’s correct.

Felix Frankfurter:

That’s your position in (Inaudible)

Fred E. Wilson:

That’s right.

Felix Frankfurter:

Is that right?

Fred E. Wilson:

Yes.

Hugo L. Black:

(Inaudible)

Fred E. Wilson:

Well, I don’t know it’s just what part of the problems to be solved, Your Honor.

Hugo L. Black:

(Inaudible)

Fred E. Wilson:

Well, her rights might be settled theoretically.

Hugo L. Black:

They — they have — that can’t to be solve.

The plaintiff can’t tell what — what are you starting with (Inaudible) —

Fred E. Wilson:

That’s right.

Hugo L. Black:

— because I don’t know what the Indian (Inaudible)

Fred E. Wilson:

That’s right.

And we suggested in our original briefs that the — there is a remedy, not in this Court, but there is a remedy on Public Law 495 passed by the second Congress —

Hugo L. Black:

(Inaudible)

Fred E. Wilson:

Second session.

Hugo L. Black:

Where is that in your brief?

Fred E. Wilson:

It was mentioned in our original brief on indispensability of parties and it’s mentioned in our reply brief as Public Law 495 at second congress session.

We suggested that while Texas couldn’t sue under that in this Court, the improvement district down there in Texas required the way, is the only interest Texas has in the whole basin irrigate 65,000 acre feet of water.

That district or any citizen of Texas in the State of Texas could file a suit in the New Mexico state courts or in the federal courts in New Mexico to adjudicate water rights on that system.

Fred E. Wilson:

And this public law says that in such a case, the United States consents to be sued and they could be settled that way.

Hugo L. Black:

Is that the third (Inaudible)

Fred E. Wilson:

It’s required here in our — in our reply brief here on page 20.

Hugo L. Black:

What page in the brief?

Fred E. Wilson:

This is the reply brief of the defendants on the question of indispensability of parties and I don’t have the date when it was filed.

It was filed probably two years ago.

And before I close, I’d like to call the Court’s attention to the — in support of the argument I was making about the title of El Vado being in the United States.

Now, the United States having control of the operation and maintenance, that is the release of water, we referred in our briefs to the case of Becker.

That is the Truth or Consequences versus Becker decided by the Tenth Circuit.

Anyway, it’s cited in our brief, that case of Truth or Consequences against Becker and the El Paso Improvement District No. 1 comprising (Inaudible) County.

Both of those cases hold that where the United States is operating a reservoir which it has title that the United States is then an indispensable party that the Court will not then issue an injunction against a mere agent.

Your position on that score is (Inaudible) stronger isn’t it that on the Indian point.

Isn’t your —

Fred E. Wilson:

I believe in both of them.

Well, isn’t your position on this latter point, in El Vado the control point?

Fred E. Wilson:

I think (Voice Overlap) —

That whatever the decree by virtue of this contract, the United States is in a position by refusing to allow withdrawal of water to completely afford the decree.

Fred E. Wilson:

That’s right.

That’s the novelty.

Fred E. Wilson:

And I think that’s absolutely conclusive.

Earl Warren:

Mr. Edwards?

Eugene T. Edwards:

May it please the Court.

I was somewhat surprised that the statement made by Judge Wilson that his idea of a solution of this case should be that the State should enter into an agreement or enter into a compact.

The disagreement between Texas and New Mexico over water rights arose good many years ago and resulted in litigation in this Court whereby Texas sought to secure a decree allocating the waters of the Rio Grande.

However, while hearings were being held before a special master, the two States did get together and did work out a compact and then did some of the Compact and that is a Compact which is before this Court here today which Texas says that New Mexico will flee and deliberately violate it.

What good does it do to make a compact if you can’t get the other State to live up to it?

Now, it’s a matter of record here just what did transpire with reference to a precipitation of this case.

Just a few months before the prayer and the suit was filed, the New — the Middle Rio Grande Conservancy District, on May 26th, 1951, actually got together and passed a resolution which reads as follows, whereas the terms of the Rio Grande Compact having been discussed and the members of the board being familiar therewith and whereas the board recognizes the responsibility of the State Engineer under the Rio Grande Compact but because of the shortage of water and dire necessity of the people of the Middle Rio Grande Conservancy District.

Now, therefore, be it resolved that the policy of the board is to take care of the need of the farmers to the Middle Rio Grande Conservancy District insofar as it’s possible with the limited supply of water available.

That is the boldest statement I think that has ever come to my attention of a deliberate notice that the party was going to violate a contract willfully and knowingly.

Eugene T. Edwards:

Now, that is — is why we’re here in Court now is to try to enforce the provisions of this Rio Grande Compact of 1938.

That Compact in its provisions, particularly Articles 6, 7 and 8 provided that the State of New Mexico should not increase its debits of water which was — had a limit of 200,000 acre feet on there until it had been reduced below that amount and that — that they shouldn’t increase storage in reservoirs a built after 1929 whenever there was less than 400,000 acre feet of usable water and project storage, and that when requested by the Rio Grande Compact Commissioner for Texas in January of each year that they would release water from project storage at the greatest rate practicable, whenever there was, at the beginning of any year, a quantity of water less than 600,000 acre feet and that New Mexico should release that stored water at such a rate as would keep the amount in project storage up to 600,000 acre feet at the end of April.

Now, as this Court is well aware, it is the only tribunal before which the State of Texas may obtain readdress.

Judge Wilson has cited that Act that was passed by Congress in 1952 authorizing suits against the United States for the allocation or division of waters of the river or river system or for the administration of that water but it does not authorize one state to sue another state in any Court.

There is no authority for that except the Acts of Congress and the Constitution which test that in this tribunal here now.

Now, in considering the question of whether the amended prayer of Texas should be granted.

I think it’s necessary to go back and look at the background which is rather complicated.

In this connection, concerning the briefs, as Mr. Wilson has mentioned, he said the Texas had filed no briefs in the case.

I would like to call the Courts attention that there have been 21 printed documents filed here to this date exclusive of the record which consist of some 1300 pages, and that New Mexico, in the beginning, advanced 16 reasons as to why they were indispensable parties in this case.

The brief that was filed by Texas convinced the special master that New Mexico was wrong on 15 and a half of them, and decided on one half of those points that is the Indians within the Middle Rio Grande Conservancy District as being an adequate reason for holding the United States to be an indispensable party.

He, therefore, recommended a dismissal of the case unless Texas amended the prayer in order to avoid that question or unless the United States intervened.

Frankly, Texas didn’t agree with the Special Master on that point.

We thought that the prayer we had originally was adequate.

It is never been our conception that the right of a party to stay in Court depended on his ability exactly to ask for the exact relief to which he was entitled.

In other words, if we asked for a little more than he was entitled to or if he asked for a little less than he was entitled to, it shouldn’t be a reason for his not being able to stay in Court.

It — it’s always been our understanding that a party’s entitled to their belief that the facts give him and 54 (c) of the Federal Rules of Civil Practice and Procedure provides that every judgment that’s rendered shall award to the applicant the relief to which he is entitled under the facts without the necessity of that being set forth specifically in his prayer and not only that but we had a prayer for general relief to begin with and still have it.

Now, the question presented to the Court at this time is whether or not the amendment to the prayer should be permitted and whether, if permitted, it eliminates the question of indispensability of the Indians within the confines or exterior boundaries of the Middle Rio Grande Conservancy District.

And as I say, I believe that in order to give a proper consideration to that particular question, it is necessary to go into the facts and consider the Indian rights as related to other occurrences which have taken place on them to the present time.

Now, as Judge Wilson has said, it is quite true that the Indians were such — awaited along the banks of the Rio Grande for many hundreds of years.

I believe it’s stipulated that they had been there 900 years.

They were there anyway when the conquistador has came up from Mexico and touched the Rio Grande little below El Paso and worked on at the river and finally in the Colorado.

They found the Mexicans there has been irrigating their lands by crude methods and by means of direct diversion from the Rio Grande.

It was the Indians that thought the conquistador as how to irrigate and not the other way around.

The Indians have known how to do it for a long, long time and they still know.

Now, that being true, the Indians had unquestionably, a prior right and a superior right to Texas and everybody else as far as their appropriations of water from the Rio Grande at that time were concerned.

That brings up the question of what is a priority.

Now, under — under present statutes in many of the western states, that is fixed by the acts of the legislature as — as a method or means by which a — a landowner boarding on the river can secure water rights.

He can file his application asking for the right to appropriate 1000 acre feet per year for so many acres of land.

Well, in that case, then of course, there’s no question about the amount that that — the — the applicant is entitled to receive.

And when he has received that amount, he’s not entitled to receive anymore, that ends it.

Eugene T. Edwards:

But in the Indian situation here, you have something entirely different.

Their historical right was not regulated by a statute but on the facts in the case and on their usages which have been recognized by the United States and New Mexico and everybody else.

As giving them a full and complete right to the use of the natural flow of the river to the extent that it is reasonably necessary for the land or water and whether it’s one acre foot, or two acre feet, or 10 acre feet, doesn’t make any difference.

Those Indians have a right to the natural flow of the river for whatever amount may be necessary to satisfactorily and sufficiently irrigate their lands.

And as far as Texas is concerned, there’s no question about that.

Felix Frankfurter:

(Inaudible)

Eugene T. Edwards:

As I’ve stated, Your Honor, I think that would be subject to litigation if this were a filing under a state statute authorizing the applicant to appropriate a definite stated quantity of water.

But my position is that the Indians, having a prehistoric right to the natural flow of the Rio Grande, continue to have that right because it was not — there was nothing to take it away from them.

Felix Frankfurter:

I followed your argument this is a part of your statement.

I wonder whether that abstract statement never would give rise to an actual difference of opinion as to what is a natural flow and whether it applies to all these, does it not?

Eugene T. Edwards:

Well, I’ll — I’ll answer your question piece meal if — if I can.

Felix Frankfurter:

Go — go ahead.

Eugene T. Edwards:

What is the natural flow is the flow of the river unaided by impounded water.

In other words, it’s — it’s the stream as it has flowed from time immemorial until now, until it’s dried up down about for equipment.

But I mean, a — a direct diversion is — is simply the taking of natural flow of the river, what’s in the river by gravity out of the bed of the river and into a — and let’s take your irrigation ditch where it flows by a gravity to land —

Felix Frankfurter:

But your argument is, as I followed it, because you can state these rights in abstract legal terms there couldn’t possibly be any real — no — no real controversy would ever arise, is that it?

Eugene T. Edwards:

I wouldn’t say that no controversy could ever arise, but what I was trying —

Felix Frankfurter:

Would arise.

Eugene T. Edwards:

— with — or would arise.

I was trying to lead up to the present situation wherein I say that the Indians can be protected in their rights without the necessity of measuring the water.

That’s — that is the point to which I was endeavoring to arrive and there are a number of other considerations, I think, to be called to the attention of the Court before I reach that point.

And I was about to mention at this point, the federal filings of 1906 and 1908 in New Mexico.

Now, that was before the — the territory of New Mexico became a state.

It — did not become a State until the year 1912.

The Reclamation Act, as the Court knows, of course, was passed in 1902.

The Act of June the 17th, 1902, authorizing the Secretary of the Interior to undertake these various large reclamation projects in the area — areas of our country.

And the territory of New Mexico, the — the territorial assembly passed special laws which had relation only to the United States and were not a part of New Mexico’s general water code.

Those laws provided that whenever the proper officers of the United States applied to the State Engineer for the diversion of water that thereafter, that that water should not be subject to appropriation by anybody else.

That was the Act of 1906.

Under that Act, the United States for the benefit of the Rio Grande Federal Irrigation Project filed an application with the State Engineer of New Mexico seeking to appropriate 730,000 acre feet of water per year for the use of the project, and as a source with which to supply Mexico under the treaty of the May 21st, 1906, which is ordinarily known as the (Inaudible) Treaty.

Eugene T. Edwards:

In 1908, under a subsequent territorial enactment which also was limited strictly to the United States, the United States filed a supplemental application whereby it sought to appropriate all of the then unappropriated water of the Rio Grande and it’s tributaries.

Now, Section 8 of the Reclamation Act provides that where water rights have been less secured for the purpose of irrigating federal reclamation projects that those rights are appurtenant to the land which made the project feasible.

So, our position is that it seems absolutely clear, as a matter of law, that the filings of 1906 and 1908 were necessarily superior to any other filings under the State of New Mexico which took place thereafter.

Now, in that connection, also, it is well to bear in mind that the Enabling Act of 1910 passed by Congress authorizing the admission of the State of New Mexico in the statehood provided that the United States reserved the right of carrying out the federal irrigation project.

And that section also was incorporated in to the Constitution of New Mexico in 1912.

So, there, we have the — the federal authority for the establishment of those rights in the Rio Grande Project.

Now, in that connection, that project is rather unique in the United States.

As far as I‘m aware, it’s the only federal reclamation project, certainly the only one of any size which is located in two different states.

The — the unit of the Rio Grande Federal Reclamation Project located in New Mexico is known as the Elephant Butte Irrigation District consisting about 90,000 acres.

The unit in Texas, is El Paso of County Water Improvement District No. 1 which irrigates about 70,000 acres and the Government has a warrant in that contract with the (Inaudible) County District of about 18,000 acres.

So, when New Mexico came in to the Union in 1912, the water rights were thoroughly fixed and established as far as the Federal Rio Grande Reclamation Project and the Texas part of it was concerned.

Now, at that point or a little later, the Congress of the United States passed an Act of March the 13th 1928, authorizing the Secretary of the Interior to make a contract with the Middle Rio Grande Conservancy District looking toward the improvement and the betterment of Indian lands.

And in that Act of Congress, it was specified that the amount of present acreage of the Indian Pueblos within the Middle Rio Grande Conservancy District was 8346 acres which should have prior rights.

And that in the agreement with the district, the Secretary of the Interior should provide concerning the additional Indian acreage that they should stand on the same footing and have a parity with other like lands of the district.

So there, we have an Act of Congress which gave priority to a tentative 8346 acres of land and the equality to an additional, approximately 15,000, as they estimated it at that time.

Now, pursuant to that authority, the Secretary of the Interior made a contract of December the 14th, 1928, which is in the record whereby, it was agreed that the Middle Rio Grande Conservancy District should place improvements in this area including the construction of impounding reservoirs and that the Indians should have certain rights under that and recited the Act of Congress and recited 8346 acres as having priority with the right to the Secretary to change that figure and with some — some 15,000, as were recited there, having an equality with the other like lands of the district.

Now, that contract provided that as far as the 8800– as the 8346 acres of land were concerned, there was to be no charge for the construction of impounding reservoirs, El Vado being one of them.

The El Vado being constructed from 1933 to 1935.

But, that such charges as were made, were made in behalf of the newly reclaimed Indian lands.

So, under that contract, no charge whatever was made to the 8346 acres.

Now, the 8346 acres could, under no theory secure storage rights in El Vado because they didn’t pay a dime for it.

And furthermore, whatever rights that any of them got under that contract of December the 14th, 1928, it had to be under the State of New Mexico.

In other words, there was an application made for the construction of El Vado.

And as I’ve said, it was completed between 1933 and 1935.

So, the Indian rights, as well as all of the other rights came under and through the State of New Mexico which could rise and could rise no higher than the rights of State of New Mexico.

Now, the State of New Mexico couldn’t grant rights and couldn’t take rights itself that were superior or — to the — the rights that had been secured by the United States in 1906 and 1908 by the federal filings for the benefit of the record of the — the federal Rio Grande Reclamation District at that time.

Then, differences having — having arisen there came the contract of 1929 which had the temporary compact.

And in that connection, I call the Court’s attention to the fact that in Article 9 of the temporary compact, there is exactly the same language with reference to the Indian rights as is in the present, permanent contract.

Now, difficulties arose over the carrying out of the temporary compact of 1929.

Texas came in to this Court in 1935 alleging that New Mexico had violated the temporary compact of 1929 and asked that certain provisions of that contract be enforced.

Eugene T. Edwards:

It also asked for an adjudication of her rights under the ordinary irrigation laws of the United States and — and as enforced in the western states of this country.

Now, that case involved the question that we have here now as to the indispensability of the United States.

It was a suit by the same State of Texas against the same State of New Mexico and the same Middle Rio Grande Conservancy District in which were the same six Indian Pueblos that are there now.

The Court overruled that motion in that case and the present compact was later executed.

Now, after that took place, New Mexico must have concluded or considered that that language in Article 9 of the temporary compact which was carried forward into Article 16 of the present compact was workable or she would never had signed the compact, because she’d already been through this question of indispensability of the United based on that same — on that same language in the 1929 temporary compact.

Now, after that took place, there was another contract made between the Secretary of the Interior and the Middle Rio Grande Conservancy District involving these Indian rights.

That was a contract of September 4th, 1936, where it was provided that — that lands which had been bought by the United States for Indian use after 1928, the date of the Act of Congress specifying 8346 acres of prior right land and the rest of the parity land should be considered by the Secretary in the determination of the final acreage.

And later, there was a contract of April the 8th, 1938, whereby, the — the language in — in it with reference to this point was the same except the sentence was added classing the lands bought by the United States as being newly-reclaimed lands.

So, when we reached determination of that contract, we find that the Secretary of the Interior, under authority of the Act of Congress, has made the determination as to what Indian acreage it is that has prior rights and to what Indian acreage it is that has rights to stand on the same basis as farther like lands of the Middle Rio Grande Conservancy District.

On April the 8th, 1938, the Secretary pursuant to the authority given to him in the Act of February 1928, made that determination and published it in the federal register.

At that point, that the compact was entered into between Colorado, New Mexico, and Texas, it being the compact of 1938.

Now, our position is with reference to that compact, of course, under the Doctrine of the Hinderlider case that it necessarily bound all of the water uses in New Mexico by the terms of that compact.

And the compact provides with reference to the waters of the Rio Grande that a certain percentage of water originating in Colorado should be allocated to Colorado with the rest going down into New Mexico and that New Mexico should be entitled to receive a certain percentage of the waters of the Rio Grande originating in New Mexico plus that quantity which came down from Colorado, and that the remainder, if there was any, should pass on down to the State of Texas.

Article 4 of the compact has a scale of measurement there determining the amount of water that New Mexico is under obligation to deliver to Texas.

And that depends on the amount of water passing the upper gaging station at Otowi as related to the lower station down at San Marcial.

Whenever, the flow at Otowi is less than 100,000 acre feet, New Mexico is under no obligation under the compact to deliver even so much as a teacup full of water at San Marcial, the lower gaging station.

But if 200,000 acre feet passes the gaging station at Otowi, then according to the terms of the compact, 65,000 acre feet is to be delivered at San Marcial.

In other words, that’s 32.5%.

And there is a sliding scale on that so where — where under if the condition never existed, where I say is 900,000 acre feet were gaged at Otowi, then the State of New Mexico would be under obligation to deliver in the Elephant Butte Reservoir 742,000 acre feet or 74 and two tenths percent of the whole.

Now, our position is that that obligation is just as valid and just as binding as the promissory note to pay a certain amount of money at a stated time.

And it is not due to the — to the draft, it is due Texas says because of conditions which the State of New Mexico has brought about herself and by the allowance of the accumulation of non-beneficial vegetation in the river by failing to keep the weeds cleaned out of the ditches, their — their canals and drains have built up to where the water level of the area has been raised into small plants and evaporation has taken place and large quantities of water which should have been delivered to Texas have been withheld by New Mexico or dissipated or allowed to escape so that they never went into Elephant Butte Reservoir.

And in that connection, I would like to call to the Court’s attention the testimony of the engineer advisor to the Commissioner for the State of Texas to the effect that New Mexico could remedy this condition by reducing per water consumption 10%.

And he stated that that could be done by the elimination of non-beneficial uses without affecting the Indian lands at all or without affecting anybody’s land, if they would go in there and expend some money in cleaning out these ditches and — and elevating their water table.

The same condition existed 20 years ago prior to the 1929 contract when they had a — a graded river badge, they had a — a graded canals and ditches, and they did go in there and they remedy their situation.

Now, the record in this case shows that they had $300,000 which was available for that purpose and $300,000 will certainly get lots of weeds and vegetation out of the irrigation canals.

The result of the building up of these various circumstances and occasions is, as we see it, that 88,047 acres of the Indian land undoubtedly has prior rights.

Now, as to what has been done in the way of delivering water to the Indians is this, the Middle Rio Grande Conservancy District has allowed all of its canals and laterals to run bank-full.

And they’ve said to the Indians, “Here it is, help yourself.”

The record shows that that has been their procedure for more than — for who else — yes, for approximately 30 years.

The Middle Rio Grande Conservancy District was organized in 1925, and doing all of that time since it’s organization through good years and bad years, and every other kind of years, they have allowed that water to run through their canals, bank-full and they have allowed the Indians and non-Indians and everybody else to help themselves without any question of measurement of water or how much you’re entitled to, take all you want, there it is.

Eugene T. Edwards:

Now, that being the — the situation in — yes, and in connection with that too, the record shows that in 1938, about the time and negotiations for the new compact to the permanent compact were taking place between New Mexico and Texas.

They pulled every gauge they had, offer their canals and the record shows that prior to that time, they did have them.

They had — according to the testimony of their engineer, they had gauges on all of their main canals on all of their laterals and ditches.

But there’s no explanation of why that about the time this compact was signed, they pulled everyone of them off there.

And there’s no explanation of what they did with the records.

And now, they come in and say, we don’t know how much to give the Indians, although, the record shows it for several years, prior to 1938, they’ve been measuring that water.

Earl Warren:

Mr. Edwards, this argument that you’re making in a decree is before our Court?

Eugene T. Edwards:

I would like to say this in — in connection with — with the briefs.

Our authorities are presented to the Court in the plaintiff’s brief in reply to the brief of the defendants on the question of indispensability of parties and in the plaintiff’s objections to the report of the special master respecting indispensability of the parties.

Now, as I’ve stated, there have been 21 printed documents filed here and then Texas saw no reason for repeating and — and reciting to the Court the cases which had been set forth in these two briefs.

So —

Earl Warren:

So would you find — we will find all of your arguments today that — in these two briefs.

Eugene T. Edwards:

I don’t know that you’ll find all of my arguments, but all our — our authorities are in the briefs and in substance, the — the arguments are — are in the brief.

Of course, I have added some and there’s been some variation to it naturally in — in the course of an oral discussion, there would be.

Well, Mr. —

Eugene T. Edwards:

And it did present it in exactly the same way, but I have presented it in this way here now in order to call to the Courts attention what I considered to be the salient features leading up to the situation whereby we say that it cannot be detrimental to New Mexico to grant their relief as we have asked for it here now.

Earl Warren:

But my point is, I could get your full argument from the briefs that are (Voice Overlap)

Eugene T. Edwards:

No sir.

I think not.

Not — not, no sir.

Not the full argument, because of what I’m getting ready to say now is not in the briefs.

Earl Warren:

Well, don’t you think we would have been held — I — I would have been held much more if I would have —

Eugene T. Edwards:

The — the —

Earl Warren:

— some permanent record by the brief —

Eugene T. Edwards:

That’s — that’s true.

Earl Warren:

— of your position?

Eugene T. Edwards:

The — the substance of it, Your Honor, is in there.

The — the substance of all of it is in there and the authorities are all in there.

But —

Harold Burton:

Well, Mr. Edwards —

Eugene T. Edwards:

— in going through the record —

Harold Burton:

Mr. Edwads —

Eugene T. Edwards:

Pardon?

Harold Burton:

They can’t be anything in there with regard that agreement of January 4th, 1955 that in the Appendix 1 of — of the Mexico attorney.

Eugene T. Edwards:

No, Your Honor.

Harold Burton:

There’s no answer to that anywhere.

Eugene T. Edwards:

Yes.

There — there’s an answer to it in this way.

The contract of — of September the 24th, 1951, was set out in the — in the reply brief or return, set out in one of the documents filed in by the defendants.

And now, it’s a good place as any to discuss that.

They come in and say that the United States is an indispensable party because of that contract of September the 24th, 1951, its Exhibit B —

Harold Burton:

That’s right.

Eugene T. Edwards:

— to the defendants return to the rule of sure course — I — I believe it is, yes, that’s it.

They said it because of that contract, United States, has secured an interest.

Now, that’s the contract whereby the Middle Rio Grande Conservancy District has agreed to turnover its works to the United States and — and the United States will make certain improvements, and after they’d paid for, there’ll be reconvened to the district and all that sort of things.

Now, in that connection, several years ago, before this matter came up whereby the Middle Rio Grande Conservancy District desired to turn this over to the United States, the matter was called to the attention of the States of Colorado, New Mexico, and Texas.

And Texas became very much concerned about it, being apprehensive that if any such arrangement were made that it would be detrimental to the rights of Texas under the Rio Grande Compact.

And for that reason, as it’s shown by the letter of governor in view for gesture in the record, Texas vigorously protested, unless, there was a qualification to this authorization whereby New Mexico — whereby, the — the operation of the New Mexico facilities would be limited to a compliance with the Rio Grande — with the Rio Grande Compact.

And in pursuance of that objection and protest that was made by the State of Texas, the Congress of the United States when they authorized this arrangement with the Middle Rio Grande Conservancy District put in the Act that it was conditioned on the operation of the project facilities of the Middle Rio Grande Project being in conformity with the Rio Grande Compact as administered by the Rio Grande Compact Commission.

So, under that Act of Congress, the United States nor the Bureau of Reclamation, nor any of these officers or agents can open a gate, can turn a wheel, or can operate a valve, unless it be in conformity with the Rio Grande Compact.

Harold Burton:

Well, is that your answer to Justice Harlan’s question that the United States was now in a position to interfere with any decree that is made here?

Eugene T. Edwards:

Yes sir.

That’s — that’s — I think a full answer, because the — the right of the United States to possession or to operation, or to do anything else is conditional upon its compliance with the Rio Grande Compact as administered by the Rio Grande Compact Commission, and that’s in — that’s in our brief, that’s — that’s cited, the — the —

(Inaudible)

Eugene T. Edwards:

Pardon me?

(Inaudible)

With that is that while one hates to assume that the United States isn’t going to play ball in good faith, nevertheless, what is your answer to the proposition that if you win right down the line in this case, get the decree that you wish.

And the United States, and for some reason decides that it will not release the amount of water which it will — it will be required to do under these contracts as you have given.

How could the decree of this Court come to bear and on the United States to require to do so?

Eugene T. Edwards:

I would say this, that if a water master is appointed as we have prayed for in this litigation, it would be the water master that was controlling the situation.

Eugene T. Edwards:

He would have controlled by authority of this Court.

The Bureau of Reclamation has no authority at all except he’s authorized by Act of Congress which is that they shall stay within the Rio Grande — the terms of the Rio Grande Compact.

Now, getting back to your question about whether — whether the Bureau of Reclamation would be unfair?

Yes.

We — we don’t contend that the Bureau of Reclamation would deliberately go out and undertake to operate the Middle Rio Grande Conservancy Project in a method that was in violation of the Compact.

But, somebody has got to tell the officer or agent of the Bureau of Reclamation when he releases water, how much water is needed?

And that’s the Commissioner for New Mexico.

In other words, the way these — these federal projects are — are operated, Your Honor, is that of course, the — the Bureau of Reclamation officials are acting under their general instructions from the Secretary of the Interior.

They issued their instruction to their subordinates, and finally, it trickles on down to the man who’s over there that operates the switch, that operates the electric motor, that operates the gates and opens the gates and lets out the water.

Well, now, he doesn’t know how long to keep the gate open and how long to — to release water unless he’s told.

Now, the — the Commissioners who are in charge of the — of the Rio Grande Compact has their — their meetings and they confer on the situation and how much water is needed and how much will be released.

And the Bureau of Reclamation in conjunction with the — the Commissioners and the Water Improvement Districts will know that — that on such and such a day, so much water ought to be released.

Now, the — the gate tender or the Bureau of Reclamation or the Secretary of the Interior, if you want to call him, because after all he’s doing, he’s not going tosay to the land owner, set out and take this water because it’s good for you at this time.

They don’t do that.

That — that has to be worked out as to — as to when the water is needed.

So, whereas you have a provision here whereby, the United States will come in and — and do this operation for the Middle Rio Grande Conservancy District, yet the Congress, as a result of the protest by Texas has limited the right of the United States to do anything other than operate it in conformity with the Rio Grande Compact.

Tom C. Clark:

Where did that appear?

Eugene T. Edwards:

Pardon me?

Tom C. Clark:

Where did that instruction from Congress appear?

Eugene T. Edwards:

Just a minute, I will refer you to it.

That is 62 Statute 1171 which is quoted in the plaintiff’s brief, in reply to the defendant’s brief on indispensability.

On page 28, and it reads this way, a — a part of it.

“Construction of the spillway gate structure at Chamita Dam shall be deferred so long as New Mexico shall have accrued debits as defined by the Rio Grande Compact and until New Mexico shall consistently accrue credits pursuant to the Rio Grande Compact.”

And it further provides in subsection (b), “At all times when New Mexico shall have accrued debits as defined by the Rio Grand Compact all reservoirs constructed as a part of the project shall be operated solely for flood control except as otherwise required by the Rio Grande Compact, and at all times projects works shall be operated in conformity with the Rio Grande Compact as it is administered by the Rio Grande Compact Commission.”

That is the limit, the measure, and the extent of the authority of the Bureau of Reclamation to do anything with any of the facilities of the Middle Rio Grande Conservancy District.

Felix Frankfurter:

But that brief — but that brief proposes that the terms of the Rio Grande Compact merely call for (Inaudible) on the mechanical determination.

It is a document and so on — on ambiguity as to give rights to known question of construction.

Eugene T. Edwards:

I think the gist of it is in the last clause of the last sentence which I read.

In conformity with the Rio Grande Compact, as it is administered by the Rio Grande Compact Commission, not somebody up in Washington or of some field headquarters or something, but as — but as it has been administered by the Rio Grande Compact Commission.

That’s what the Commission was created for by the compact.

Felix Frankfurter:

But there may be a different, if the Rio Grande Compact is a document that doesn’t have permit of honest different rule opinion of construction.

And I suspect it’s the most unique document in the history of Grande.

Eugene T. Edwards:

Oh, I — I doubt if any document ever was drawn that — that somebody couldn’t say they didn’t understand if they wanted to —

Felix Frankfurter:

I don’t mean — I don’t mean if they said what is honest, but I mean honest difference of opinion.

Eugene T. Edwards:

Oh, that — that might be — that might be true.

But when they say that it’s to be administered in conformity with the Rio Grande Compact as administered by the Rio Grande Compact Commission, that — that seems plain and clear.

I don’t see any —

Felix Frankfurter:

(Inaudible)

Eugene T. Edwards:

Pardon?

Felix Frankfurter:

(Inaudible)

Eugene T. Edwards:

There is the State Engineer of the State of New — of the State of Colorado, who ex officio is the Rio Grande Compact Commissioner for Colorado.

There is the State Engineer of New Mexico, who is ex officio, the Rio Grande Compact Commissioner for the State of New Mexico.

There is a third member, who is the Commissioner for the State of Texas, who is appointed by the Governor of the State of Texas because Texas has no State Engineer.

With reference to water matters, they have a highway department and a highway engineer but they do not have a state water engineer as to the other states.

So, those three men, up to the present time have administered the Rio Grande Compact.

Felix Frankfurter:

What I’m suggesting that the Secretary of the Interior can make representation, that board of decree and throughout that decree may be important without question as to who’s right and who’s wrong until that is under control.

Eugene T. Edwards:

Well, I think this is —

Felix Frankfurter:

That reminds me in the same — I can frustrate in her contentions.

Eugene T. Edwards:

I don’t think there’s much occasion for frustration there Your Honor in these that the Rio Grande Compact Commissioners have administered the Rio Grande Compact ever since it was entered into in 1938.

Felix Frankfurter:

Have this issue been before the —

Eugene T. Edwards:

This — this issue has not the question of indispensability —

Felix Frankfurter:

But why — why you may not want to ask why it so because that board and have been determined that those are your clear rights legally, automatically going to the compact.

Eugene T. Edwards:

That wouldn’t do any good because the Middle Rio Grande Conservancy District has said in their resolution in substance, “We don’t care anything about the compact, we’re going to take that water and give it to our people.

“ And that’s what they had done according to the allegations of Texas.

Felix Frankfurter:

But you said they couldn’t do it.

Eugene T. Edwards:

I said who can do it.

Felix Frankfurter:

You said, these couldn’t be done because on paper you’ve got a requirement just before which is the reference as the usage of the water.

And I suggest that the civil authority, might do something that the same kind of (Inaudible) in New Mexico that you say it did should detain consequence of right jury.

Eugene T. Edwards:

Well, that’s — that’s one of the very reasons for being before this Court is to have the Court —

Felix Frankfurter:

That’s the decision of this Court.

Felix Frankfurter:

That’s the point.

Eugene T. Edwards:

The United States is not, but the United States can’t do anything according to our theory, except in conformity with this Act of Congress which limits them to the — the compact as administered by the Compact Commissioners.

Felix Frankfurter:

I’m not saying they may not have your view of the law for requirements to be done.

Eugene T. Edwards:

They — they may not have our view of the law, but we’ve got the Act of Congress and that’s all we’ve done [Laughs] and we think that that’s what — we think that’s what’s controlling.

Earl Warren:

(Inaudible)