United States v. District Court in and for the County of Eagle

PETITIONER:United States
RESPONDENT:District Court in and for the County of Eagle
LOCATION:United States District Court for the District of Columbia

DOCKET NO.: 87
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 520 (1971)
ARGUED: Mar 02, 1971
DECIDED: Mar 24, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – March 02, 1971 in United States v. District Court in and for the County of Eagle

Warren E. Burger:

— in United States against District Court of Eagle County, Colorado.

Mr. Kiechel, you may proceed whenever you’re ready.

Walter Kiechel, Jr.:

Mr. Chief Justice and may it please the Court.

This case comes from the Supreme Court of Colorado and presents two questions important to the proper administration and conservation of the water resources of Colorado and nationally.

First, whether Congress by enacting so called McCarran Amendment codified at 43, United States Codes 666 intended to consent to a suit against the United States for adjudication of its water rights in one of 70 water districts of the State of Colorado.

And secondly, whether in the absence of any expressly stated intent to subject ?reserved rights of the United States? to state court adjudication.

such intent can be implied.

I plan to discuss preliminary and briefly the nature of water adjudications of the west and specifically that proceeding here involved in Colorado then address the threshold question of the application or the rule in this Court’s opinion in Dugan v. Rank in 372 U.S. holding that the consent applied only to general adjudications then discussed the legislative history of the consent statute and lastly, the nature and extent of reserve water rights and the ability of the state courts of Colorado to adjudicate them.

Historically, water rights were judicially determined in the western states by flat Title action initiated by one or more water users.

The other claimants to water rights on the stream system were joined.

Each party affirmatively presented its claim and contested the claims of others.

This proceeding resulted in a determination by quantity and priority of the rights of the parties inter se say that has developed in most to the western states, statutory modification of this procedure or by the state engineer or some other official initiates the proceeding and presents the evidence in the first instance, but it instance remains the same.

A determination by the Court of the rights of all the parties on the Supreme System inter se say.

This proceeding was initiated in 1967 in the Water District 37 which at that time was one of 70 water districts of the State of Colorado.

These districts were established on water shed lines.

Water District 37, being the water shed of the Eagle River, the Eagle River being a tributary of the Colorado River.

This was a supplemental proceeding, there being a number of adjudications in Water District 37 over the years.

First one, over eight years ago and the last one as recently as in 1966, the year before the instant proceeding was initiated.

Now, a significant attribute of a supplemental proceeding under Colorado law is that the earliest priority decreed in such an adjudication must be later than the last priory date decreed in the preceding adjudication.

Or stated otherwise, all rights awarded in a new supplemental proceeding such as one before the Court are necessarily junior by operation of Colorado law to those decreed in previous adjudications.

This supplemental proceeding was initiated by the Colorado River Water Conservation District which adds before adjudication a decree of certain of its claimed water rights.

Other claimants appeared and the Conservation District sought to join the United States as a partner.

The United States moved to have itself dismissed, asserting among other things that this was not the type of proceeding that the Congress has consented.

The motion was denied by the District Court of Colorado for Eagle County and the United States sought a writ from the Supreme Court of Colorado to prohibit the District Court from asserting jurisdiction over it.

The Supreme Court of Colorado determined that the motion to dismiss was properly denied and rendered an extensive opinion in which have held first that Congress had intended to include the water adjudication procedure of Colorado among the suits to which it had consented.

Secondly, the Colorado Supreme Court held that notwithstanding this Court’s interpretation of the consent statute in Dugan v. Rank that the statute permits joinder of the United States in a supplemental proceeding involving only a tributary water shed.

With respect to Reserved Water Rights of the United States, the Colorado Supreme Court strongly suggested that the United States had no water rights in Colorado except those arising under state law.

The Court said that the decisions of this Court, including Arizona v. California in 373, U.S. were not determinative.

Indeed, the Colorado Supreme Court said that the only decision that might be determinative of this question was one of its own and that if the Colorado Supreme Court determined that the United States has reserved rights in Colorado streams then that decision would or that determination would require the overruling of its previous decision.

And in that previous decision upon which the Colorado Supreme Court relies and it refers to in the course of its opinion, the Colorado Supreme Court had said that by admitting Colorado into the Union with a provision in its Constitution declaring on appropriated waters within the state to be the property of and subject to appropriation by the people of the state, that the United States lost any right to assert water rights in Colorado except those required by appropriation subject to a state law.

Walter Kiechel, Jr.:

And in its ultimate holding here for review, the Colorado Supreme Court held that whatever water rights the United States has, such rights, including reserved rights, can be recognized and adequately adjudicated by the Colorado District Court.

The court did not take to decide whether or not the United States entered in not ? rights?

Walter Kiechel, Jr.:

That is correct he did not.

And is that question necessary to reach in this case?

Walter Kiechel, Jr.:

Yes Your Honor if the — with respect to the congressional intent of the application of the consent statute, it is necessary to decide whether those rights were included within the waiver of the sovereign immunity that Congress enacted in the McCarran Amendment.

As a matter of construction of the McCarran Amendment?

Walter Kiechel, Jr.:

Yes, Your Honor and —

William O. Douglas:

Some of these water rights are rights of appropriation, are they not?

Walter Kiechel, Jr.:

Yes Mr. Justice Douglas that’s quite correct.

William O. Douglas:

United States is an appropriator?

Walter Kiechel, Jr.:

It is indeed.

William O. Douglas:

Roughly what percentage every —

Walter Kiechel, Jr.:

I wouldn’t know the percentage.

The record of the case shows that many of the water rights of the United States arise on national forest and those are claimed as reserved rights.

Others are appropriative rights by other agencies of the federal government.

I suppose that the great majority of the water rights claimed by the United States in Water District 37 are reserved rights.

William O. Douglas:

But insofar as the statute is concerned (a) (2) would seem to explicitly cover rights obtaining by appropriation, wouldn’t it?

Walter Kiechel, Jr.:

Yes indeed.

That is our position that the statute was intended to cover the rights acquired under state law, that was the specification of the terms of the statute.

William O. Douglas:

But I understand that you’re saying that even so the state court has no jurisdiction?

Walter Kiechel, Jr.:

We say that because with respect to rights acquired under state law, this is not a general adjudication in the terms of this Court’s rule in Dugan v. Rank.

In that case, Your Honor please, it involved part of the San Joaquin River of California and there the Court of Appeals for the Ninth Circuit had dismissed the United States as a party, United States having been joined there under the authority of the consent statute, 43 U.S. 666.

William O. Douglas:

And that’s just a matter of who is necessary party?

Walter Kiechel, Jr.:

No sir, it’s — the matter of the scope of the proceeding to which Congress consented that United States be joined.

The Ninth Circuit had said, I’m quoting from this Court’s opinion 372, U.S. on 618, 617 pardon me, ?This Court stated that we go directly to the question of joinder of the United States as a party.

We agree with the Court of Appeals on this issue, and therefore, do not consider the contention at length.?

Now, the Court of Appeals had said that the type of suit Congress had in mind was a quasi public proceeding, known as a general adjudication of a stream system, one and which the rights of all claimants on a stream system has between themselves are ascertained and officially stated.

And —

Byron R. White:

What’s wrong with this particular proceeding under that view?

Walter Kiechel, Jr.:

It is —

Byron R. White:

Do you think it is because it concerns only the Eagle River?

Walter Kiechel, Jr.:

In part Your Honor; it’s neither a river system or a general adjudication geographically nor is it a general adjudication with respect to having all parties before the Court.

Byron R. White:

Let’s assume that the Eagle River was a river system, but you don’t think it is.

Walter Kiechel, Jr.:

Not within the contemplation of the consent statute.

Byron R. White:

Yes, but even with respect to the Eagle River, do you think this is not a general adjudication?

Walter Kiechel, Jr.:

No, Your Honor Mr. Justice White that the reason that I say it is not a general adjudication is that not all of the parties are before the Court having rights.

Further more, the Colorado law which bars the assertion and decree does not just bar the assertion, but it bars the decree of any earlier rights.

That is the rights earlier than the supplemental proceeding precludes a general adjudication.

It prevents a party joined in the supplemental proceeding in 1967 from asserting its priory of 1905 as many of the rights of the United States are in this case.

Byron R. White:

Let’s just put aside reserved rights.

Let’s just talk about United States’ appropriative rights in the Eagle River.

Walter Kiechel, Jr.:

Yes, Your Honor.

Byron R. White:

Would you still take the same position?

Walter Kiechel, Jr.:

The Supreme Court of Colorado says that their lower courts held the plenary power to accommodate the award of earlier priorities as to asserted in a supplemental procedure.

Byron R. White:

In appropriative rights?

Walter Kiechel, Jr.:

Well, they said as to both —

Byron R. White:

Well, just put aside —

Walter Kiechel, Jr.:

— but your question is addressed to appropriative rights and I am responding to it so that if the Supreme Court of Colorado is correct, but they gave no specific construction or direction to the lower court, they just said that, that the lower court can accommodate somehow and modify or re-write this provision of the Colorado law which says no priority earlier than the supplemental proceeding.

Then, if Water District 37 were a river system in the terms of the statute then the state acquired rights or the rights acquired under state law could be adjudicated in my opinion assuming that all parties who had rights were joined, all parties on that river system and this is not the nature of this procedure Mr. Justice White.

I think that outside of the Colorado conservation district, there is one of the interveners a Zinc Company and several other claimants, but certainly it’s far from having before the Water District Court — the court of Eagle County, all of the water claimants of the Eagle system.

Byron R. White:

Well, that pretty well makes a shambles out of the whole statute, doesn’t it in terms of consent?

Can you imagine one that — where at the outside you could guarantee that every single party known the man can’t quite possibly be there?

If they miss one —

Walter Kiechel, Jr.:

That is, yes I can imagine Mr. Justice White.

That is the traditional adjudication, that is the way in which water rights of the west have been historically determined to have all the parties before it.

I say that that was the type of adjudication, the proceeding to which Congress — that Congress had in mind and this is very clear from the senate report which is referred to in the Court’s opinion in Dugan v. Rank.

The senate report 755, which was the report by which the Senate Judiciary Committee reported favorably to McCarran Bill and that report shows unmistakably that it was this general adjudication in which all parties were present and that was the type that the Congress had in mind in their consent.

Byron R. White:

But you’re going also to argue that I suppose that this isn’t a general adjudication because the Eagle River is just a tributary?

Walter Kiechel, Jr.:

I do argue it Your Honor.

Byron R. White:

So to qualify under the statute, you have to have the entire Colorado River system?

Walter Kiechel, Jr.:

I say that —

Byron R. White:

Within the —

Walter Kiechel, Jr.:

— to quality under the statute in this Court’s rule in Dugan v. Rank, you would have to have all of the tributaries and the mainstream of the Colorado river —

Byron R. White:

And the all people —

Walter Kiechel, Jr.:

— in the state of Colorado.

Byron R. White:

— or and all of people in the eastern slope were taking it out to Colorado?

Walter Kiechel, Jr.:

If they are claimants to water rights on the Colorado River, yes.

Byron R. White:

Specially, if somebody is claiming at earlier date that to have all them too?

Walter Kiechel, Jr.:

If they are claiming rights to use water of the Colorado River or its tributaries in the state of Colorado, yes.

I believe that, that is within this Court’s decision in Dugan v. Rank.

William O. Douglas:

There wouldn’t be a courtroom large enough to hold the lawyers?

Walter Kiechel, Jr.:

Well, Mr. Justice Douglas water rights adjudications are by nature are prolonged, cumbersome and multi-party.

This is nothing new.

The Congress had this certainly in mind when they enacted consent statute.

Byron R. White:

But when some state comes along and attempts to perhaps modernize the statutes and its adjudications to make some sense out of them.

Don’t you think Congress’ consent is to end, it’s consent for one single type of adjudication and that’s it?

Walter Kiechel, Jr.:

Well, when you use the word ?one single type,? I would agree that it is the general type, the historic type of determination judicially of water rights to which Congress was consenting.

Byron R. White:

Well, you don’t suggest that present Colorado system is unconstitutional, do you?

Walter Kiechel, Jr.:

I’m not making any argument ti that effect, no sir.

But I was answering your question as to the congressional intent and I think that not only the senate report, the discussion on the floor, all of those things with respect to the legislative history of the McCarran Amendment show that Congress had in mind the traditional type of water adjudication, have in mind state a right acquired under state law.

Byron R. White:

Well, if the United States claiming water under state law appropriative rights and wants to assert those rights, you nevertheless say that the United States can just sit back and use the water and until and unless it wants to go into a court and establish those rights there is nothing anybody can do about it?

Walter Kiechel, Jr.:

I say, if Your Honor please, that if United States has to be joined in an adjudication under the consent statute that the requisites, the perquisites of that jointer must be satisfied by those who are —

Byron R. White:

Well, I know but how about my question — how about my question, does that really mean that United States may —

Walter Kiechel, Jr.:

No, Mr. Justice White, I don’t think there’s any defiance by the United States.

Byron R. White:

I’m not suggesting defiance.

I’m just saying that until unless you want to go to Court that you can just use the water?

Walter Kiechel, Jr.:

Well, if we’re talking about rights under state law still and I would suggest that those Congress had in mind could adjudicated in a state court.

Byron R. White:

Well, yes but what are (Voice Overlaps) —

Walter Kiechel, Jr.:

I responded to your earlier question by saying that if the Colorado — if the Eagle River were a river system and if the Colorado District Court could accommodate this bar gate that I saw no reason why United States couldn’t be joined and be required to assert its rights acquired by appropriation under state law and be subject to the decree of the Court in the State of Colorado.

Byron R. White:

Meanwhile, the United States can just use the water that it’s appropriated without anything more until and unless that Colorado brings — institutes a proceeding qualifying, under your view statute of the United States as —

Walter Kiechel, Jr.:

Well, I’m not sure that — there is no lack of water adjudications passed and being in process in the state of Colorado that the water — Colorado conversation district sought to bring the United States in this case.

So that it is a matter at the instance of the plaintiff or the petitioner to join the United States and if in the absence of jointer or in the absence of satisfaction of the requirements of the statute United States is not a party to these proceedings then, —

Byron R. White:

Does the United States know what its claims are, its appropriate claims are under state law?

I suppose it does, doesn’t it?

Walter Kiechel, Jr.:

Yes, there are many and they have been assembled and I believe that (Voice Overlaps) —

Byron R. White:

Do you have any idea what reserved rights you’re claiming?

Walter Kiechel, Jr.:

Yes, Your Honor.

This is set forth in the record in the case and the record shows that —

Byron R. White:

Well, does reserved claims mean whatever you may need in the future?

Walter Kiechel, Jr.:

The reserved right doctrine says that the quantum of the right is that amount of water necessary to fulfill the purposes of the reservation, Arizona v. California.

Byron R. White:

Yes and that would be as far you could go in quantifying your reserved right to claim?

Walter Kiechel, Jr.:

Oh!

No Mr. Justice White.

They can quantified.

There is no — I’m not saying that they can’t be quantified.

The record shows on page 7.

Byron R. White:

Well, that’s alright.

Walter Kiechel, Jr.:

I have the reference to the record.

I will supply —

Byron R. White:

That’s alright, but —

Walter Kiechel, Jr.:

It shows that the rights as I said in earlier answer to Mr. Justice Douglas that most of the rights to be asserted in Water District 37 are reserved rights on national forest, but with respect to your question as to whether they can be quantified, they can be quantified.

Byron R. White:

But when does the United States — if you win this case, when would the — how would the United States plan to establish their reserved right just by — would you bring some proceeding to (Voice Overlaps) —

Walter Kiechel, Jr.:

They are established.

No, there would be no contemplation of establishment.

They are by operation of the doctrine and the rule of law established by the creation of the reservation, but as far as the quantification, considerable effort has been done to an inventory and catalog of those rights and they are determined by amount and location.

Byron R. White:

But that would just be by administrative action, you wouldn’t ever anticipates subjecting or submitting those quantifications to a court, if you could help them?

Walter Kiechel, Jr.:

Not as party defendant joined under 43 U.S.C., 666 because we think there is no authority to do so.

Byron R. White:

Well, I understand that.

Bit you would never anticipate either yourself taking these claims to court (Voice Overlaps) —

Walter Kiechel, Jr.:

There have been instances in which those rights have been asserted affirmatively by the United States as plaintiff.

Byron R. White:

But in Colorado specially, in this district specifically you would have no plans to participate a judicial proceeding to clarify the amount of your reserved right?

Walter Kiechel, Jr.:

Well, when you say no plans that there is this considerable activity of inventorying the rights.

The Department of Justice may assert proposals to the Public Land Law Review Commission with respect to a means by which these rights can be more early way identified and quantified.

Byron R. White:

Administrative?

Walter Kiechel, Jr.:

No, the proposals of Department of Justice which are reflected in the Public Land Law Review Commission report shows that an administrative determination which would be subject to judicial review, but it’s not within this consent statute.

I would want to make one qualification of an earlier question which I do not change that they can be quantified, but there is always a certain open endness or flexibility to a reserved right because of the nature of it.

Inherently in that right is the need or the requirement to meet the ultimate — to meet the purposes, to fulfill the purposes of the reservation and that by definition includes a certain flexibility and the right.

Warren E. Burger:

Mr. Kiechel, perhaps you cited and I missed it, but let me ask you.

Since, the passage of the McCarran Amendment, has the government ever been in the posture it’s now in in this case in a state court —

Walter Kiechel, Jr.:

Yes, Your Honor.

Warren E. Burger:

— where you participated and not raised jurisdictional objections?

Walter Kiechel, Jr.:

Well, we are participating, have participated in a number of water adjudication proceedings.

In some and perhaps all, we have raised certain jurisdictional defenses, but they have been — the problems in those instances in other states I might say have been overcome and the United States has adjudicated and presented for adjudication its rights pursuant to this statute in other proceedings.

Why do yourself (Inaudible)?

Walter Kiechel, Jr.:

Can we?

How could you?

Walter Kiechel, Jr.:

We cannot, that is quite correct.

But Chief Justice has asked the question, have you submitted to the (Inaudible)

Walter Kiechel, Jr.:

Well, there have been determination well as we have as I indicated earlier as plaintiff in some the Fallbrook case in Southern California and United States was plaintiff there but in response to your question Mr. Chief Justice, there have been determinations by the state court —

Warren E. Burger:

With your consent?

Walter Kiechel, Jr.:

Over our objection —

Warren E. Burger:

Over objection.

Walter Kiechel, Jr.:

— that it was a river system and that — and in case there was not this problem of adjudicating going back and given a true priority to our rights acquired under state law.

In fact, I think one of the amicus briefs, the State of Washington brief presents its litigation program, number of cases that it has brought under — in that state and which the United States has been joined pursuant to the statute and they include one of the decrees which shows that the state court recognized the reserved right and decreed in certain quantity with the provision or proviso that if at a later time there should be additional need for additional water to fulfill the purposes of reservation, this was within the contemplation of the decree.

Byron R. White:

But that in your position — from your standpoint that was beyond the jurisdiction of the state court?

Walter Kiechel, Jr.:

We took no appeal from that decision of the lower Washington court.

Byron R. White:

I know but your view is that that decree — that court is without jurisdiction to adjudicate your reserved rights?

Walter Kiechel, Jr.:

Reserved rights were not involved in that case.

Byron R. White:

Oh, I thought you said that the Court did take — did recognize your reserved rights?

Walter Kiechel, Jr.:

Yeah, you’re quite right.

Walter Kiechel, Jr.:

I’m sorry (Voice Overlaps) —

Byron R. White:

Well, under your position here that court had no jurisdiction to reach reserved rights even if you consent it because you have no power to consent.

Walter Kiechel, Jr.:

That is correct.

Byron R. White:

Uh-huh.

William O. Douglas:

Washington state adjudications didn’t entail the entire Columbia River system?

Walter Kiechel, Jr.:

No, indeed sir.

They did entail what was determined to be a river system, the Chehalis Creek River System, but there was not as followed in that case, in that state of the bar date of the priority and I might say Mr. Justice White in all candor I think that the United States and I want admit that they have asserted reserved rights in state court adjudications because this Court has not spoken on this matter and it was still — until that determination is made that in abundance of caution as an advocate does, those rights are asserted notwithstanding our position here and I might say in further answer to your question that we are very concerned about the state — the Supreme Court of Colorado which go at the existence of reserved rights in the state of Colorado.

And we are asking this Court to declare, reaffirm the reserved by doctrine with specific application to the state of Colorado.

Byron R. White:

Now we’re required to (Inaudible) be helpful.

All we have to say yes there were reserved rights and (Inaudible)

Walter Kiechel, Jr.:

Well, if Your Honor please the Supreme Court of —

Byron R. White:

The issue — the issue here (Inaudible)

Walter Kiechel, Jr.:

Well, we have asserted.

Byron R. White:

(Inaudible) specifically to the case?

Walter Kiechel, Jr.:

If we have asserted and made known those reserved rights, they are before the Court.

Those are rights which we will assert in Water District 37, if we are required to proceed.

Byron R. White:

Well, I know but (Inaudible) is that reserved right is out of the case?

Walter Kiechel, Jr.:

That’s correct, Your Honor.

Byron R. White:

And worry about the (Inaudible)

Walter Kiechel, Jr.:

I don’t know how easily, but it could be done as a part of plaintiff yes Your Honor.

The legislative history of the act is common to both of these cases and I will treat it in the later case if my time has expired.

Warren E. Burger:

Very well Mr. Kiechel.

Mr. Balcomb.

Kenneth Balcomb:

Mr. Chief Justice and may it please the Court.

My client, the Colorado River Water Conservation District is an state organization by statute obligated to protect the waters of the Colorado River for the State of Colorado — that is the waters for the Colorado River and its tributaries within the state and it was in this pursuit of this goal that I as counsel for the district in the adjudication proceedings and in Water District number 37 caused the United States of America to be served.

Because as is indicated they not only have substantial what I would call rights acquired under state law, but substantial rights that they denominate as reserved rights.

Now, this Water District number 37 encompasses the entire Eagle River and its tributaries and it’s a rather substantial stream though you might say small by comparison to Colorado as a whole, nonetheless is a compact adjudication and administration unit.

It is incidentally included within the area that is involved in the second case number 812, the division 5 case by reason of subsequent Colorado law amendments.

Hugo L. Black:

I wonder it would be — (Inaudible) if you can state at least in the amount of capsule form what you conceive to be the issue?

Kenneth Balcomb:

I view the main and principle issue in this case Your Honor to be whether or not the state courts in state adjudicating — adjudicatory procedures have jurisdiction over the United States if they comply with the service requirements of the McCarran Amendment.

Hugo L. Black:

Question of jurisdiction?

Kenneth Balcomb:

Yes sir, which we deem was granted by the McCarran Amendment over the United States upon compliance with that Act as to whether you have to break this out and I do not believe you do until a distinction between the classes of rights to the United States says it claims.

We do not believe it to be necessary because once you’re over the jurisdictional problem, it looks like to me it was intent of the Act to catch all rights.

Otherwise, there was no point in joining the United States at all.

They only have to bring in part of their bucket of water, the balance of the bucket water still being hidden the whole purpose to McCarran Amendment is lost I believe.

Hugo L. Black:

Your claim rests on the McCarran Amendment?

Kenneth Balcomb:

Claim with jurisdiction does, yes sir.

I would like to touch kind of briefly in at least partial response to some of the questions asked by Mr. Justice White on just exactly what an adjudication is under the Colorado law and if I correctly understand the laws of the other involved states primarily the 17 western arid and semi-arid states, Colorado has a really somewhat difference system of the balance or had at least under the 1943 Act and that was purely judicial, without any involvement of a state officer.

But nonetheless it was a state sponsored or what the Pacific Live Stock case decided by this Court said was a quasi judicial proceeding sponsored with the public, quasi public.

At the time that the McCarran Amendment was passed, I would say, though I don’t know this precisely, that of the 70 water districts referred to by counsel, probably all but two or three had already had not won the original proceeding but possibly a half a dozen others or more denominated supplementary adjudications.

And I just do not believe it can be possible that the Congress intended in passing this law, knowing full well at all of the states as it recognized, that long head this type of system intended to waste its times by passing an amendment which would not allow the enjoinment of the United States because the proceeding is very denominated as in this case supplemental.

Now, the subject matter of an adjudication proceeding is not people, it is the river itself that raises the water and it is a kind of an action in rem and it is a continuing action because its purpose is to establish, in the order priority, the rights of those persons and entities claiming the right to use water out of the particular stream involved.

So though you use supplementary when you start an action similar to the one that was started in Eagle County as involved here, nonetheless, it means it was in addition to a continuation of the original proceedings commenced in that county great many years before and serves as the method and the means of not only quantifying the water right, but putting it on the water rights ladder in its proper order.

And that is all, if I correctly read the Pacific Live Stock case that any western water adjudication proceeding does, it’s established under the appropriation doctrine.

It attempts to establish a comprehensive, expeditious, economical scheme to provide for the fixing of water rights and their distribution and determines who is first who is last.

It provides all the way through it, for at least if not initially, and a final appeal to the Court to establish all these rights.

Now, questions have been asked of counsel for the United States regarding whether or not United States is —

Byron R. White:

Was there a general adjudication prior to this proceeding on Eagle River or Water District 37?

Kenneth Balcomb:

Yes sir, there was.

Byron R. White:

When was it?

Kenneth Balcomb:

I drafted the petition I should know, but my guess would be as early as 1885 and there were probably 10 or 12 supplementals after that.

Byron R. White:

I see and has the United States been a party to any of those?

Kenneth Balcomb:

Not in Water District 37 to my knowledge Your Honor.

Byron R. White:

Although it had appropriative rights surely before this supplemental proceeding?

Kenneth Balcomb:

Yes it did, but I doubt that they go back prior to the 1900.

Byron R. White:

But they were — why wouldn’t they have been enjoined in some of the supplementals?

Kenneth Balcomb:

Some of the supplemental proceedings that were after the passage of the McCarran Amendment, well it wasn’t until as we view, at least as I–

William J. Brennan, Jr.:

In your way —

Kenneth Balcomb:

Sir?

William J. Brennan, Jr.:

You said 10 or 12 supplementals in this proceeding since 1885?

Kenneth Balcomb:

Yes or more, I’m not even sure of that.

William J. Brennan, Jr.:

Why was not the United States joined in any event?

Kenneth Balcomb:

Till 1952 they could not rejoin because they had not raised sovereign immunity.

Byron R. White:

And how about after 1952?

Kenneth Balcomb:

I don’t believe the people of the — most of the western states that were initiating and starting this kind of a proceeding were particularly concerned about this so called reserved right problem until this Court it’s decision —

Byron R. White:

Well, how about — how about appropriative rights?

Apparently, there have been never been any adjudication of the appropriative rights of the United States in Water District 37?

Kenneth Balcomb:

That is correct Your Honor.

Byron R. White:

Well, that’s — there have been some adjudications since 1952 in the state courts, why wasn’t the United States joined in those proceedings?

Kenneth Balcomb:

Well, under the Colorado system, primarily the — in person or the applicant who opens the adjudication proceeding might not even be conscious of the McCarran Amendment or have any concern about the rights of the federal government.

It is the people more interested in protecting the overall state rights who after Arizona versus California relies that the government in Colorado could, if she pursued her approach that was used in Arizona versus California and dry up the river.

It was just as simple as that and so they began then to be concerned and worry about whether or not the United States could be brought in.

Byron R. White:

I take it that in a supplemental proceeding after 1952 brought some person to establish his right which I take it is what happened?

Kenneth Balcomb:

Yes sir.

Byron R. White:

If people — other people — people who weren’t served are not bound or not?

Kenneth Balcomb:

Yes, they are bound.

They have a limitation statute that compel that to be binding.

Byron R. White:

And — but if you win this case would the United States be bound by all of the supplemental adjudications since 1952?

Kenneth Balcomb:

I would say, if Your Honor is asking me to make a strict guess out of that, I would say no.

I might observe that —

Byron R. White:

Well why not?

Kenneth Balcomb:

This problem is raised by the United States itself and not by anyone else and citing the previous Arizona versus California case to Supreme Court of Colorado, they said we have never been a part in the action.

The Supreme Court of Colorado says you can’t — the United States says you can’t bind us until we have been properly a party and therefore the prior proceedings cannot cut off the right of the United States.

And as I understand the discussion of this problem by Mr. Justice Groves of the Colorado Supreme Court, he was reciting in effect the position of the parties.

He only really made one decision for the court and that was that Colorado Courts are capable of adjudicating the water rights of the United States just like anybody else.

He didn’t reach the question of whether or not they could andante prior decrees, but indicated they probably could.

A variety of questions he mentioned in passing, but he did not necessarily reach them.

Now, I would like to if I could touch very briefly upon some of the cases in which in one way or the another, the United States is been involved, effecting the water rights on particular streams in particular states and whether or not they took this attitude that they are now taking in this case.

If I correctly understand the Washington brief and I believe that I do, Page 10 of the Washington brief in in In Re Chehalis Creek, Okanogan County is cited and it is the case to which counsel referred that it is just one of nine streams in which the State of Washington has caused United States to be joined and their names would indicate to me that they are certainly no larger or more prominent than the Eagle River, in Re Bonaparte Creek, in Harvey Creek creek, in Re Magic Creek and this got a matter and in only one of those did United States raised the question of whether or not a river system was involved, raised this before United States District Court for the Eastern District of Washington and apparently lost the matter on remand.

The other case mentioned by counsel involves Utah, there have been several there.

Kenneth Balcomb:

The most principal case involving this particular section was the In Re Green River case decided by Judge Chilson.

The question there was whether or not the United States Federal District Court had jurisdiction to conduct the adjudication for the benefit of the United States rather than this question of a stream system being involved.

Now, we have kind of I believe exhaustively briefed this problem with regard to what the statute intended to cover at the time of its passage.

We think it very clear as has been indicated by answers to questions here that it was intended to be allowed if the United States had one appropriative right on a stream to join United States in the action.

Certainly as a minimum, this is what the McCarran Amendment was intended to reach.

Harry A. Blackmun:

Mr. Balcomb, I don’t believe I heard either counsel as yet speak specifically of the language of the McCarran Amendment and I have in mind a language reading water rights by appropriation under state law by purchase, by exchange or otherwise.

I’m interested on those words or otherwise unless you tell me that they are have no significance whatsoever?

Kenneth Balcomb:

I believe at the time Your Honor that this particular Act was passed, this question about, I mean, utilization of the word ?reserved? in the connection of the water rights was not in too common parlance, not even by the government itself.

It had be come up only as an implied reservation in connection with Indian reservations and was not considered to be particularly serious.

I do think that it was the intention of the Congress in passing McCarran Amendment and utilizing it or otherwise was to avoid a long listing, it can cover such things as condemnation or right as subject and certainly was not intended by use of that word to exclude reserved rights, because I believe it intended to catch everything.

Harry A. Blackmun:

So that you do feel the words or otherwise have significance in the present context?

Kenneth Balcomb:

Yes sir and they certainly did at the time in the mind of the Department of Interior witnesses who testified as well as the Department of Justice who testified and pointed out that this language that you’re using is a general waiver and if we are brought into the Court, we’ll have to prove up on all of our rights, our Indian rights, our military rights, things of this nature and they then did not call them reserved rights, they were specific by naming those rights.

And I think that the letters from justice and from Interior Department show very clearly that they were concerned that the waiver was too broad and in both letters made the suggestion that the waiver should be confined to state appropriated rights and as the committee report 755 notes, they considered this and rejected it, considering that the —

Was there any particular efforts though that gave rise to amendment to the passage (Inaudible)

Kenneth Balcomb:

As I understand the legislative history Your Honor, it was a combination of apparently of circumstances, an inability in Senator McCarran’s home state to properly administer a little stream called the Queen River which had some 75 rights adjudicated out of it, three of them of which the government had purchased.

There was the two pending cases in the United States District Court.

One of them which is not yet in judgment, concerning the Truckee and the Carson Rivers and the rights of the Indian for the recollection project there which apparently had involved there.

There was the Fallbrook cases that counsel for the government mentioned that were bothering then Senator Nixon and Senator Nolan.

There was a variety of these kind of things, even the Colorado senators mentioned the problem that existing in connection with the Blue River which was then pending in United States District Court for the District of Colorado.

Potter Stewart:

The opposition to the legislation came from the executive branch of justice department and the Department of Interior and it also came in the Congress through such people as Congressman Rooney, what would explain that sort of —

Kenneth Balcomb:

I think his warning you might say, the Congress — the step that they were about to take, exemplifies their thought that it covered all water rights was not related to expense items which were in the government or anything like that.

It was considered by the people who sponsored the absolutely necessary to bring certainty into the field of water rights in the west.

Potter Stewart:

But the opposition in Congress came from those who were concerned about the expense that might be cost to the justice department?

Kenneth Balcomb:

That’s correct.

Potter Stewart:

Is that it?

Kenneth Balcomb:

You’d have to have a district attorney in every county in western United States.

I might say — it has been suggested of course, well, why doesn’t this Court give the justice department and the other federal agencies time to make a list and put it somewhere?

Well, in 1952, this was part of the legislation in rejecting and they have, 18 years since then, the time this suit was really going and they haven’t made a list yet until they were brought into court.

But when they were brought in the court as the appendix indicates, they were able to detail in particularity their uses, not only appropriative but also reserved uses within the area of the Eagle River.

I wanted to touch, if I might, briefly upon some 11 to 12, 13 cases, at least that we have been able to find as reported decisions that relate to or refer to this particular Section 666.

Kenneth Balcomb:

Counsel has mentioned the only one I believe it is been this Court for a direct decision on it, there were two count cases at the time, that’s in Dugan versus Rank.

And I would like to call the Court’s attention to the fact that every time this Court or the Circuit Court for the Ninth Circuit or for practical matter any other court has held that 666 did not confer jurisdiction, that it was not a quasi public suit that was involved.

It was request for declaratory relief, injunction, sometimes denominated a class action and court said in every circumstance that is not what’s involved because it is not the quasi public proceeding called a general adjudication in western states.

And the only case the really reaches this point is the very first one on the list and that’s the In Re Green River case that Judge Christensen decided in Utah.

And he thoroughly discusses the legislative history, finds that it was intended that United States be joined, does not concern himself with the difference in kinds of rights, but merely said, go back to the state court, they have the machinery.

I’ve noted that sometimes the adjudications in Utah, they go on for years and there is thousands of people involved and the federal court just doesn’t have time to take care of this.

This got to go back to the state courts that has appropriate machinery.

I’d like to touch on another point and it is this attitude of the government today and the attitude as changed over the years of various times that brings I think monumental confusion for the other departments of the government.

They don’t know what to do.

The four sets of regulations concerning what they ought to do change time and again.

It ends up that if United States is not held into this action.

There is only one kind of right that must be barred according the state law and that would be your reclamation rights by reason of Section 8.

I think that the principle problem is not whether or not a reserve right exists, but if it does in fact exist when — what occasion, when it was reserved —

Byron R. White:

What is the derivation of the reserved right?

Kenneth Balcomb:

What is the derivation?

I believe it can commence with Witters (ph) and progress there to various Indian reservation matters until finally culminating in Arizona versus California.

Byron R. White:

Colorado Supreme Court has said there isn’t such thing as reserved right, isn’t it or not?

Kenneth Balcomb:

No sir, I don’t so read the opinion.

Byron R. White:

You don’t?

Kenneth Balcomb:

No sir.

Byron R. White:

You don’t so read the prior opinion?

Kenneth Balcomb:

The Eagle County case below?

No sir, I do not.

In fact, I think the Mr. Justice Groves refused to reach the question.

Byron R. White:

Yes, but how about a prior case in the Colorado Supreme Court to which your colleague here referred to?

Kenneth Balcomb:

Stockman versus Leddy, as reaching the reserved right question?

That reached the date to appropriation question I believe Your Honor.

Reserved right question to my knowledge is not been reached in Colorado.

Byron R. White:

And your idea would be that the reserved right question is whether every thing else should be submitted in the proceeding like is now before the Court and that it should go up through the state courts and you agree that’s a federal question, don’t you?

Kenneth Balcomb:

That whether or not there’s a reserved right?

Byron R. White:

Yes.

Kenneth Balcomb:

Yes sir, I do.

Byron R. White:

And subject to review here?

Kenneth Balcomb:

Subject to review here and that’s the right of the government if the Colorado Courts as they’re afraid will not follow the law, but I submit that I suggest that the Colorado Courts will follow the law, both federal and state law, without hesitation.

William J. Brennan, Jr.:

Isn’t it your submission that the determination of reserved rights to the extent any federal court that can do and I gather under your submission it would be only this Court on review of the Colorado Supreme Court, isn’t it, and if so, an adjudication of a reserved right issue?

Kenneth Balcomb:

That’s the way I view the statute, yes Your Honor.

Byron R. White:

Did your pleadings in this case or take the position or have your clients take the position that United States has no reserved rights?

Kenneth Balcomb:

If I as opening proceeding I have not, no, sir.

In fact, as I would give recognition to them, I’ll only inquire as to what is the quantity and what is the date.

Byron R. White:

Do you think they’re subject to date, do you think they’re subject to the Colorado appropriation law?

Kenneth Balcomb:

Yes sir.

I don’t think there’s any difference just because you denominated reservation between bad and the word ?appropriation.?

Byron R. White:

So you don’t think there’s really any reserved right then, any different from appropriative uses?

Kenneth Balcomb:

That’s correct.

I think that United States would be entitled to the extent of a can show what’s right to whatever date it was that they said this water is ours.

Byron R. White:

It might be subordinate to some other rights, is that it?

Kenneth Balcomb:

Might be subordinate to some that came into existence, ahead of those rights of United States (Voice Overlaps) to the other.

Byron R. White:

You just say United States either has appropriative rights under Colorado law or does it and the reserved rights you know many other rights?

Kenneth Balcomb:

What I’m trying to say Your Honor is that I recognize United States does have appropriate rights under state law and likewise has appropriative rights under federal law, they chose to call it reserved rights under the federal law.

Those are all implied, they have to be found, those letter.

William O. Douglas:

Do you agree or disagree with the adjudication in Arizona versus Colorado, the so called reserved rights?

Kenneth Balcomb:

Do I agree with it?

William O. Douglas:

Yes.

Kenneth Balcomb:

I don’t know a thing about the fact system quantity but I certainly agree with the theory that was —

William O. Douglas:

That’s what I mean.

Kenneth Balcomb:

Yes sir I do.

I don’t think I have very much choice in that regard in any [Attempt to Laughter] event.

William O. Douglas:

Well, I mean is it the principle that you think would generally apply to this litigation?

Kenneth Balcomb:

I think —

William O. Douglas:

The findings of the master that the setting aside of the Indian reservation carried with it by implication, the right to use water because otherwise you wouldn’t have a viable reservation.

Kenneth Balcomb:

We agree with that whole heartedly Your Honor, we think that is correct.

William O. Douglas:

Again I gather you answered me earlier that it may be even as to those rights, they are superior rights?

Kenneth Balcomb:

Unquestionably, if the Indian reservation will say or the forest was withdrawn in 1900 and there were a variety water rights acquired prior thereto they would be a likewise entitled to their priority date, that is the appropriation system.

Byron R. White:

And you say reserved rights can override that?

Kenneth Balcomb:

It can’t go back when they came into existence Your Honor.

That’s what I say.

Byron R. White:

But the government’s claim is to the contrary?

Kenneth Balcomb:

I don’t believe so.

No, I don’t mean the —

Byron R. White:

You don’t think so?

Kenneth Balcomb:

No, because the government’s claim in 1905 here not 1877.

William O. Douglas:

The appropriation right couldn’t override any reserved right.

I mean the government sets aside and then the appropriators come in, sets aside a federal entrapment that river of course.

Kenneth Balcomb:

I agree with the position the government takes that they’re entitled to show their date and go back to it, unquestionably and to the extent that this takes out other appropriate rights, I guess that’s just one of the ways the game is play but that’s the purpose of the system.

Byron R. White:

Well, but do you say that when a government sets aside a national forest or something else or a new Indian reservation that its appropriative right is limited by what it actually is using then or can the right expand as the need expands in the future?

Kenneth Balcomb:

I think I can answer the question this way Your Honor is that about 1897, I believe that the Organic Act setup the forests and largely, they were timber reserves and there were specifically for the purpose of timber.

Now, I would say in that original withdraw, this was the purpose for which the water was drawn and whatever the United States could show it needed for this purpose it’s be entitled to reserve.

Byron R. White:

And that’s it?

Kenneth Balcomb:

Yes sir.

In 1960, I believe it was the act concerning multiple use of federal land went in when they dumped all these other things and on top of it as a purpose for the forest.

And it might be the court would — a court would hold that as to some of these rights that the United States claims they would have to come and clear up to 1960.

Byron R. White:

So the reserved right you are booked with — have no open end?

Kenneth Balcomb:

No what Your Honor?

Byron R. White:

No open end — wouldn’t be open end to cover future need except to the extent was water available?

Kenneth Balcomb:

I can’t certainly understand that some of them would be so de minimis that there would no point wasting time, but the government is in a better position to say then we what’s that going to be, that’s the problem.

William O. Douglas:

Nobody knows what these reserved rights are?

Kenneth Balcomb:

I think they do Your Honor, they were perfectly able to list in the Eagle County.

William O. Douglas:

I don’t, but in terms of cubic feet per seconds.

Kenneth Balcomb:

They were able to that there also, they spoke of their general reserved rights and then spoke of these things that they were going to claim specifically which as I view it, is a double claim (Voice Overlaps) —

William O. Douglas:

But they were been adjudicated, have they?

Kenneth Balcomb:

Sir?

William O. Douglas:

They have never been adjudicated?

Kenneth Balcomb:

They have not offered them for adjudication and that’s all we ask them to do and all we ask this Court to do is to direct them to do so.

Hugo L. Black:

Is to do what?

Kenneth Balcomb:

Direct the government to offer its claims for adjudication and as is indicated if the Colorado Courts, the Utah Courts, the Washington Courts go straight as Court is doing here is to straighten that problem out.

But I don’t think it’s fair to assume that state courts are not going to follow federal law when they are specifically enjoined to follow.

Warren E. Burger:

And even if they don’t I suppose there are ways of dealing with that trouble, aren’t there?

Kenneth Balcomb:

Yes sir, there is.

As matter as I view its appearance what is right and what is wrong.

Is it wrong to allow the government standout here with this open ended mortgage or is it right to make them bring that open ended mortgage into court and declare their rights, I should say equitable way to proceed as I view.

I might mention, my time is about to expire, that there is a — I would have an opportunity of course after Mr. Kiechel speaks concerning A-12, but there is an amazing similarity between these cases and I think that the result probably should be the same.

Thank you.

Warren E. Burger:

Thank you Mr. Balcomb.

87 is submitted.