Brief of Calif Defendants in Support of their Motion — Arizona v. California

Supreme Court brief1955

Ask Donna

What actually matters in this document.

Text

TRRARY-

vee 5 ‘

= RT. US

? e

IN THE

| “ Supreme Court of the Chrifed States 5

Pe (3 bd t's ’ | en.

4 o

2h 6 Ree Cbppe Ha

STAT OF ARIZONA.: Con “i?

° i

SLATE OF CALIFORN] . PAID VIERDE. IRRIGA

J1ON DISTRICT, IMPERIAL ERRIGATLION: DIS-

LRICT, COACHELLA VALLEY COUNTY WATER

‘ DISTRICT. METROPOLITAN WATER DISTRICT

OF SQGUTHERN CALIFORNIA. -CITY OF LOS

> ’ *®

ANGELES, CALIFORNIA,.CITY. OF SAN DIEGO.

sCALTRORNIA. ‘AN .

AND. COUNTY “OF SAX DIEGO.

’ CALIFORNIA. Defend at

UNITED STATES OF AMERICA, /

. ~~

STATE OF NEVADA, /1:

Brief of the California Defendants in Support of Their

. Motion: to Join, as Parties, the States of Colorado,

New Mexico, Utah, and Wyoming

® . q * “

EDMUND §:. BROWN JAMES fl. TOWARD

Ifhforney Cpeneral of thy P General Coninsel:

Mate wt Calitornia, . eh

HOM State Buihhig.” : » “CHARLES COOPER tb

san francisco, (al rode * Assista General ¢

"NORTHEUTE- ELY. > oe |

4 DONALD M. KEITH .

, »3> i ool rE -payey 3 [2 felt Pag Cet ni i f aw ef,

ROBBER i. MeC ARTY, . ’ . ; ; ‘

swe } f ify; pre tas tse i / . ty rpeege : z >

or ye y nee alg ere. ALAN PATTEM ..

1200 ‘Tower Pict tgs, Ae | ED EN Te” NAMB

Wiskinwtan +), 1) ER: Ly; : ¥

. PRENTISS MOORE, RAMA OP DOTRERTY,

; Sra St Peet,

Las Ans les 14, Califfrnia,

, California, | a {arneis for dD f, ntant,*

: : - the Metropolitan Water

GILBERT FL NELSON, District of Souther

paige Attorney General,

Calitorniat 4

(CHARLES CORKER |

’ thes A ont

Axsost ant Aftorney (ieee ral, . tS Wrest

"7 South Hal Street

“hos Angeles 13

~ » “Isp heap

IRVING LAFFE, :

Dep uty Aftoruey Garneral, (; nae MORE TILLMAN, ‘

315 South Broadway, Se hief Assistant City Afforney

Los Ange Jes 13, California, ‘ie for Water and Power,

CHARLES FP. WHEATLEY. JoOuN uo waATHEWwS

JK., . ie Deputy! City Attorneu, i

Of Counsel, lh oli 207 South Broadway. 2\

1200 JFower Braiding, Bee Lia Anweles 42 Calituimin’ se

W ashington 4, D.C ‘Attorness for Daleadent.

Attorne YS for De fondant. bs ys

The City of Los Angeles

State of Califor nla ; : ; California ‘

JFRANCPS E. JENNEY, ages

= ag d. F..Dv PAUL,

fo8 South Spring Street, Cit, f Attorney

Los Angeles 13, California, a

Attorney fer Defendant, - “SHE LL £ RY I HIGGINS

“Palo Verde Irrigation 4 fant ' it far .

/ ( NNEN “YY Afierneu, 7

Districts Cate Civie Center. . : ®

HARRY. W. HORTON. = t, San Diego,

‘

Chit Counsel,

RK. 1. KNOX, AR, 1031 Rowan Building,

~Ia Reh Key 2 Dratding, ee Angeles I, Califormia,

El Centro, California, | _Attoficus tor’ Defe

A trorne "Ws for f fondant, ; ges Che Citi of

dimtperia! Irrvgation (nittorpia:

District: fate we f gy 4%

California,

T: B. COSGROVE, *

nla n a

Nan Piro, a!

: : JAMES’ DON KELLER, .

{1 EARL REDWINE, _ District Attorney; ai “i

SHTO Sth, Street, ; ; nmirt Flistase y : . 5

° Niverside,.California, | ‘epee San Diego, (edit oernia,

Attarne y for Pde ts

. melant, Atforne yy for Deéefen dant,

Coachella Valleou Couwnta Caunty af Nan

ii aie r: Piste rot

{ F bus ‘fii,

‘ f ; mney California, \

' ri

® : . %

@ md + rae < . ae

CONTENTS: é 7 :

ne Sie ee io. ae

\ Bravewent or JURMBICTION .. 6.2... obec

Renes, Treaties, Psrenstarre Compacts AND SRAPUTES:

NGL Sis he er a E20 DO ee Sree ar eee

STATEMENT OF THE QUESTION PResENTED Q& o-oo... 4

Are the States of Colorado, “New Mexico, A tah,

and Wyoming necessary parties? 02.0 .0..00.. ae

STATEMENT OF THE .CASE 2... 2. oes. .: SS Se Tra ae 4

l. The recap te CO Shea 2 yy >. 4

2.The rehet praved by\the parties iy Melee eon y

bad

‘Arizona ee Nae Re AG th US lage le 8S See a ea eee S . ee

CR St me Sb ee SRiieay ae

Nevada :

® ’

“s Mere RUORt MUNROE a oa rd. apa ee pag

, The Colorade Rives Compact stabs is Ow

“Pertinent provisions of the, Compaet |

4. Arizona's repection at the Compact. eae. ne bo

Ratifieation-hy (ther States of Six State Com

CSI ods fee sch oy Pea Foe te ee tas A

4% The Bolder Crimkon LP rerjeat elet ie por aaa

AbMernative Gonsent fo Seven State ‘or Siy

-. State Compact by Congress’. ...............: 44

- 6. The Statutory Compact benween the United

States and California , Ryde cuca aes a |

The quantities invelved oo... . Sepa 7 6

Califormas-aceeptanee oo... PO in < %

. e . “

Proclamation of Sin State Ccoripaat aud Lim

tatran Ae? hy ihe Promoent...u. 2 Ses. Is

othe ris of the fesulting Statutory Compact Ts

. e

it A ontents (on tinued 5 ¢

brigee

7. The Boulder-CGanvon P rprpoet | ‘omtYacts: statn :

tory provi: wind ae er Sante Pedic srs by Se Le

The Sewen Ph arty Avréetient .... . ‘ a J)

The Contracts’. ..-.. ss SS (tee Cher pete Se

8. Litization AS Se eS Ee ets Rene Wok eesces 2.

> Y, Arrzena’s ratification of the S« ven State. Com :

hs pat: Se ess dak wicks eee Siege ctye ee

‘ Wy Tlie Mexican Water Treaty... 000.7. ce ae

Heb pper Colorado River Basin@’ompact......... 24

e e

be. Issues’ in the*present case oo... ewe. ae

ORY CF ARGC MERE ic. Bo iy coin us ek RoR tn a

ARGUMENT _ . eee"... : meee aes Seg or eR EG WER RN By te ae

- 4 7 j » o 4

Il Aun Apsext Parrins Mest Bre dorsen Were

‘Titkin Presence Is Nickssatiy: por a PULL aANp

ioeEECTIVE SETTLEMENT OF THE CONTROVERSY 2.2.0 ob

A. The Rules ate ‘art and the Federal Rules at

Civil: Proeediire ........-. See AS a eN — wth

“ BL. The testoof necessary’ partiag 2.0/0... ee a

C.-The further test of iijdispensabMty 2.0.00 29

Wy Smee the absent partes are- within’ the

7a aah Court's jurisdiction, the question ts whether, |

thes are ‘ifeessary not whether they are -

“indispensable”: eke ECE as Lite oe ee :

K. The absent States are necessary parties ,... -, 30

TL. Tre For R ‘Srares. or ( ‘ongrapo, New Mexica,

Uran ann Wyoming Are Necessxny dewey 3 TO

Tris Actios/Brcaugs Pury Ane Parrins ro THe

Coronapo River ¢ ‘odtpac r THE MEANING AND IF

» rgecr- or Winew Ane ix Conrgoversy ix Tris

Cask, AND No Dec REE CONSTRU me Thar ANGrer 4

“Ment Cax- Be Ke tuuy Fprrerry yh Worercief Yess

Nor Derenwine Them Riess AND OBLASATIONS

as Weut as THosk of THE Present Parties 2... 00 351

7 x e

" .: . a e

The States @f the Upper Division amg. at

‘fected hy the question of Whether the appor-

tionmernt made to the Lower Basin by Arti-

cle gli nd gs aide rigid with the carenant of

the States‘of the Upper. Division in Article

Td) net to deplete the flow at. Lee Fofry

below-a total of 75.000.000 aere fect - An eae an

period of tew consecutive vears, or whether

the “riehts which m: iv paw exist? “to ses on

the Gila River and other Lower Basin tribu-

tartes shall be charced against the Pcie ;

Basin’s apportionment under Article TIE (a)

The Stales of the U pper Division are at,

feeted Dy the question of whether the p pro-

viston of Article VITE that ‘*present yer

fected rights are unimpaired hy this: Cdm-

pact’ means pene wie as to quality as:

ewell as quantity - |

The “pper Basin is afte eled hy the contro.

versyv over the rate rpre ‘tation af the eXNTES

sion “Shenefitial e¢ mnsuinntive: We tee

The sone Rakin is affected by the question!

of whether be netichal eonsttptive uses of

“salvaged water’. ie. water salvaged by

the aetivities of riggus. which would be ost in

a state of nature. Shall he charged under the

( ‘olorado: River Compact -:.... 2.0... Bases

The Upper Basin is affeeted by the question

of Whether ihe Compact teri pe f aanim

smeans ‘Seach vear*’, or an avenge over some

unstated, period of YOOIB see ee CePA IN

. Contents Continued ae

nae wise ; .

~ Ke ; : S ; gh | Page

oi ms ~a : . SO ae,

Beth the rights of theabsent States, as areas

in part within the Upper Basin, and the obir

‘ations of those States, asthe four ** States

of the Lepper. Division’, are cent rolled Ly the

lanetare oat the Colors ado River Compact

Which deterinities the riehts and obdig ations”

‘OT SCs PORERL MANNE oo oc Si ak 31

Stipes

bd .

The Upper’ Sasin is “wifte ted dw ‘the que Stion :

i. ae whether, a

d hows rights 1 lay be aequired

in-either Basifto the use of ‘rs surplus

4 to) those” specifi

I11¢b) of the Con

H. The Upper Basin is\affee tod. hy thes que Stion

of whether the inereage of, tse. permantted to

the Lower Basin by Anicle TEC) is an ap-

portionment in, perpetiiity as against’ the

Upper. Basin, or whether Nie Lower Basin’s

right to’ that million acre-fedt, as against the

Upper. Basin, is de ‘pende nt upon Appropria-

tion and use ..... Sphpiep peti. nee puke ais

vaAct,". Pe ey ge Oe a ee ae

T. The U pper Basin is affected by \ 1e issue of

the accounting for reservoir ‘evaporation

MONE OS soe “4 . s

of/whether rights of Indians,.and uses under

these and other federat claims of rights, ave

chargeable against the apportionments: mad&

by the Colorado ‘River Compact, or are ex- \

eluded therefrom by Article VIP ..........

K. Language in the Colorado River C ompre + Y

appli¢able to” both Basins must he given the.

‘same interpretation as to hotht and the de-

cree in this case-interpreting such langnage

as to the Lower Basin must, to be effective,

‘operate throughont the Upper Basin as well.

was the. Lower. This requires that thetfour

“absent parties to the Compact he made par-

ale Sb SO NOR ooo an ho oes Lake Ns %

cde in Articlis Hi (a) and

J. The Upper Basin is affected by the quystion .

New Mexicd™a yp ran Are Necessary Pafries -

ro) Tus Action Because Trey Are States

Wiicd Ark in Parr Wrratn tie Lower Basen,

TS ADDITION rotrne Re ASQNS Wore Maker Taem

NECESSARY Parries as States or rue Upper Divi

SION AND OF rir Fyrer Basix NE Re ane ae mee .

‘A: Nek Mexico: " tah, Arizona... California and

- . / e . :

Nevad& have undivided interests. under the

} 43 |

. : : Be

: », Contents Contimned . Y

° ef ae * ‘ . 1’; ir :

of . Fe : . care

es ( ‘olor: ado Rive re ¢ otipact Ino the S*eorimon

Purl” of water available to Mie Lower Basin | 54

SRB. The. Ineaning and effec, of. the. Colorado

po lee -River Compact and the Boulder Canyon

ete se Project Act are an Controversy in Tespen cts

: Which syie cifically: affeet New Mexieo dnd

Utah as States whieh are in part withinethe

‘Lower Basin ..:.... eg

The meaning amd effect of the Statutory

Soe aoe between the United States “and

California, evidenced h¥ phe Boulder Canyon

Project Act and the @alifornia Limitation

» &

s Pe .

Act, are in controversy: in respects which:

Wpeciiently affect New Mexieo and Utah as

States which are vin part within the Lower

| Se ear ena Sah betes

Arizona is net authorized ter speak mn. or

conemit Né Ww MeNico or U tah —

ed Riel we bone ee wf

—————

Sen:

I. The controversy as to the! fensonig and obliga

tions of +t Lower Sasim cannot be effee-

< tively resolved in the presdace of only three,

- & and the absence of two. of the five States

sharing these rights and obNeations 22.0...

IV.gfie Four Assent States Ane SECESSARY. Par.

e Tero Teas: Action is THrem Canverry As Trirp

PARTY BENEric LARS OF TILE STATE

BeTWHEN THE Uxirep Srares any Canirorxry

\ Evtpexcen BY rae Botipe R, Canvey Proaeer

\ Act AND THE Catirorsia Lisirarios Net

iN '_—- -

‘ The eontiniied eXIstence of the’ Statutory

“¢ ompaet Qs A NeCESSArY aeconspa inte nt toca

\ SIX State. ( ‘olorado River © ompaet may not

\hevdete rinined | me the abseuee of all parties to

the contract ony Or ere Se Pie ees -

«.

“to Agizona’ xs suit beeause all joint be nefiet

artes Qf contr get oniust he Joined: In An 2Cf

tron bv anv. one: at them to determine the

“ah ob: Iga ions of the promisor ae

TORY. C OMPACT

B. Tiestoar absent Statessare mevikary® parties

“AG

a mee

ica. . tee _. , Contents Continued

: y, e :

‘ ’ _ Page

9, ee Ca ABSENT NSrates Are Necessary Par

(| 0s Peps TO THE ADIUDICATION OF THE CLAIMS OF FE:

' Unrrep Sratres ro tHe Warers of THE CoLorapo

4 , . ee - .

Riven Sratem ......... stews tgs pee a PM

The claims which the United States asserts

‘fas against-the parties to this cause, to the

use of waters, of the Colorado River and its

tributaries?” are equally claims as against all

the States of the Colorado River Basin Seen |

- 3B. The elaims w hich the United States ‘asserts

~“% - involve questions. of law common to all the.

States of the Colorado Alive |) eee 63

C. Certain of the dims of the. United. States,

if sustained and held tobe outside of the

ae ‘Compact, may render the ‘olorado «River

Compact incapable of operation ....... Rien OF

D.T he claims of the U hited States to the waters

of the Colorado River Svstem cannpt be ef:

fectively adjudicated in the absence of four.’

ae “States which lave rights am obligations —

| : with respect-to the waters of that system .. 64

= —

a Vv I. Ce ONCLU see Daybed ek wa ee 7 pak A See a eer 66

“TAB Ki oF C ASES si AUTHORITIES S CITED

ars d

2 aes | 7" * UASES ie

Arizona vy. California, et al’. 983 U.S, 423 (1931).

" | 22, 23, 33, 34, 46, 51, 65

Arizdna vy, € ‘alifornia, et af.,.292 U.S. 341 (1934) . .22, 51, 65

Arizona v: California, ¢t al., 298 US. woo tives) 6 lw, *

paar’: i "29; 30,51, 53, 65.

Arizona v. California, et al. 2344 Ua, Sed i9ee) ....., 4

. Arizona v. California, et al.s 98 1,. ed, (Addeanee TOT

_ NE 6 os obs we nwa She cael bee ese a is oh ies ‘wee D

Barney v. Daltiniore .G Wall. Dx0) (U Hp. TESS) . . :29, 58

igi, ito v. Southern Pactfie Co, 1aT US. 239 E189: * ee

30, 91, 53

‘ Cather v/Ocvan Accident & Guaranty Corp. F..

| : SK 511 (D. Neb. 1990) eee a ‘28

= L ; io

Contents Continned SAO SRN ae vii

ae . ne ee Nike Pagit

( ‘Ginmomeulth Prust of Pitts burah y. Nath 206.08

te 40908) 2. ay 29050

*~ Bdaell vt Felder, S4 Bed. bo (. she he 1S). hs eed ace

Faru v. Tesson, 1. Black 309 (UoS21862)... 0000.06... 60

Bndd wv. True Comics, 89 F. Supp. wh iS.D. WY. 1950) 3

2 franz v. Buler, 1 Pad sad csth Cir, 19% 2H). errt. de-

nied, 273 U.S. 756 PRRRT). oc... a ae en:

ahs Fregnon v.. Ax Sheath r Pen Co., 209 F. 2d 627 (Sth

ee ae” ee ee ay eee rte {Ria hope e eee ere,

. Gauss v. Kirk, 198 F: 24:83. (D.C. Cir: 1952) 20’... 23. 4c:

e Greeny. Biddle s Wheat. 1 (U,S.-1823) COPA

- Gregory nv. Stetson, a0 US, OTD (3800). | =... 20. 49

Times. Schmehl, POT Red. Go. (2d (ir. nig Sat 5 ease Held,

Tyke pe nde ut W irele ss Te le ara ph (‘a, . Radio (" ofp. ral

s° America, 269 U.S. 459(1926).<.......6.06....%.. a

Kleinschmidt v. Kle tnsebmidt Labor ratgrie - Ine. SOF,

, Supp. 869 (NZD. -FH. 1950). cot Danie erat ag

»s Lawrence vo Sun Oi} Co... 166 F. od 466 ( i}, * ir. 1948) aa:

Mallow vo Hinde 12 Wheat. 193 (U.S.-1827)- ........~. .30, 49

McArthur v. Scott, 113 U.S. 240 (1885) _... os. ety

MeAnlayyv. Moody. (85 F bie 144 (CC. Ore. 1911) -......° “60

Me ‘tropolis Theatre (0, Bearkliaise nm 10 F- Oy 4s]

(7th Cir, 148), cert: ee nied. 336 U. S. 945 (1949)

ee ed eee ee

* Minnesota ve Northern Ss enrities (o.. 184 TS. iei7

National C tas Bank _ Harbin BE lectrie Joint Stock Co.

28 PF. 2d 468 (Mth Ae SE ee aa GO

National Licerice Coy. N DRB.. oo U. BAO (1940). 40

»Nebras havi W womand, 295 TS. 40 (1985 . Rgereiene aca G5 -

Nebraska Y,, Ww MOmane, POG Ui Ss. 2 ’ (1995 nde we hin ak he

Nebraska Vv. Wyomma and ¢ ‘olorado. 395 TLS, 58.

TER oe Se ona. TOC

New Mexico v. Lane, 243 U.S. 52 (1917) ©. 0 cs. 88

Niles- Bement-Pand Co. vy. dl FO" Moulders Vnjon. O84

pis Bee Gi. APR. acer Reamer Geena, |

Northern Tadiana~R. P. Michiann ¢ Central RR. 15

How. 282-(€.S. 1sa4) eae NERD he ae

Rail iC OM PANU, Orr, TS W aye 471 {C.S. 1873). ... 28,52

Ro. sv. Feras Co.. 23 F. 2% toe & { 2] Cir, 1927), cert. «

denied 277 U Ss OST (47928) . . Ree ay, Bo

Russe Ivy. Clark's ree utorsNT C reine Oo TT S71812), DS >

e® «2

Shicdds \

vin

Cowl ‘ ~ Stat it J ~

_ Barrow,

‘ ‘onitents Cont intied

17 Thow. 1

Bank: a] Vew

mack,

“York e

Rees

| ave

. PSD)

28, 29, 30, 49.59,464

Trust Co, 296

bees ieee oe cls 57

nate ps Stati Sv. Washington Pastititte uf Techwology.

be oe oo Xd Circ 3908 Pe. . 28

intent Oil ( _:: ve Gulf Refining €o,, 195. i ed, 454 (¢ ath ,

ANE TORN oe ee CS A ee PR SO Ea . 40

Ward v. Desivers, 203 -F, 2% 79 (D.C. bey) Ee a

West v. Raydall, 2g | ved, Cas. 718, Xo. Ve 4l4 (CC “RT,

: Is 4) as Aa ature Aras ere a Lea ae ene owe ete Goa Ss ck +h

Wi Arena . . PP adehe aml. . 1 \WV ah nO} ’ (U. S74) rs iy ay

Me Wound Fe ‘olorado, part 9 l SS. 410 es) ; one ae «fe 44

Seng “Garrett, 149 F'2d 223 (Sth. Cir. i a a

Dawid \, Pras WAT BF, 2d 147 (oth oCir, 1950), cert. °°.

demeds 339. US, 948 . 2.3... 05. ee a a ae

CONSTITUTION AND Theattes

" Censtitnt jenny of the. U aitcd States, Aeticle 111, Seetjon

cide, Sb See SUNG tate Fil re rail tell os A SAP ee amk er penragt ye ciay O 2, 4, 28

The \Pexienn W: ater Treaty, US. Pees atv Bink No. EE

SEC BOIS TIGE t er 420

2. Vg ARS CLL Ge Ue - Sr MINiSame Nanay ae A ee nrc eat. ae

Me BIE a Were art cee eal ee N24, Mi

RR ye ee Sah Serer ote 482

Ixversrare Compacts ann Srareres

The (Colorade River Cogonet, IH. Doe, vli, SOth Cane.

es OG |) ene gree ae RPE FSO

Pe ERO ls eo erect ok Cee as at ne

FT ae OS Ia RR IMs noah bone elie Sa chant oi ge a F ‘a

Ret We ye te et eee sae Ny

ET a ee ok hoes Gee a ae Oh,

Art. If) > By oe ee ee 10, 32. 54\

OC a EEO rors ee ae heer pene “13, Th, de

. Art. TIT (a): 4. 10 114, I. 1,. lo, 18,19

ree Za Seaby Ciby Shady Ooty By BO: OD,

in AT. de 48, We is. $7254, a0. '

AIT. SECO Hl ores oe hee 3h ‘ iv, i 12. Wi, deh.

| ; Deny 23,33, 36, 38,41, 42, 45.

“ .%., $5, 4 47. 55. 56. 61

. ‘

Se (1949) ° eenin ieee Lee teed ee! tee 4, 24

OPN NOT: Te oe 47

Art, si TENGEN rete DN Ln Aes Oe I

} one ee a eS Corie 6.

bs he Boulder Canvon Preject Act, 43 Stat. 1 1928) .3, 14

PCR Aa Se eames ie MMs > sai Tet 20

See. d(ay ooo... Sirwe aes 15, 17, 18, 19, 24, 36; 49. 45

ty MANES | eines Be bhatt, aes ee 19

gs 2 RST eee SE NT ea coe obi gee 19, 21

DE RP hari rca ay Le ae Socata cas ween 20, 21, 35

Sat 7 ADRS AUED ane tl thE UALS 5 SE ce 15, 18

SETS. ag Se) eS eS as Ree irre na = 6

en RM ER es chs LS A ON A iced 4 CAE Ne ee eta 16

See, I5(e) Pee teh aut OMe eae ee ee 16

Sein US Ui te ae aT Oe RI Ga SRR 1}

Presidential Rs lamation of Tune 25, 1929. 46 Stat.

PS cee We te ee! NS Eas ihc i eet ae ae |. oa

Oa Mat, UMNO MA ex a sie da toe! ee

Calif. Stats. 1929, Ch. 15, p. 37 ....... <P ee to 17

Calif. Stats. 1926, ( he. 16, i Pens ee 17

NP ise, T,. Ariz. 1944, yy). = a 97-428 “eat y ONT ae oN a) ep ee pra 29

ae oes ts

Art.

7 e ao a $2.64

eR igs tao hk et ee Si

a os CE SR eae if. ‘ehy don 01, 45,46

Oe 7 ape aaa igs Sepemato ohare 11, 12, 31, 45

AER. dS I Botner eva a Oe Baie ApS 5 ee a 2, 31, 48

Ree. Sys ys bee oon oO

Art. 2 Ge Dias arr ee FP ees Pos 18, 150 1678 -

o=<

ITl(c) :

tente ( ‘ont inned

BY bi a fg ie

. 1, 23,

a dl, 471

The Upper ¢ olorado River Bas sin C ompact, 63 St: at. 31

Revised ‘Rules of {

Rule

. Fe de: vy] Pith ms at ¢ Wwil P rocedure:

States,

Mule 19 Sen ee ae eee

Rule Wii as :

Pe SP ois.

Rule 19(e)

Rule

Supr

ULFS

eme Court

oft

the

. we o's. 6 @ & 6 62 & So

United

Y. 26

Reh

Je,

‘) sp)?

. ~~

» Or wy

ie)

) oF

=, of

x Contents Continues : >.

Pac

Wranimnas, Rerorrs, ‘Doc UMENTS

Hearmnas. befor ae Sabhe ammithes oni leieation aie

Reclamation al tha Commattec reh P adil Lands On

HAR, 2325, 81st Cong. lst Seds, (1949). 0 24, 37, 39.

Tir Hoover Dam Docusexrs; H. Doc, TIT, soth’ Cons.

] Sess, (2985)

lI. R. Rev. Now! 270, “S1s3 Cory. Ist Ness. (1949)

Reeord, Urrer Cotorapo River Basis Cop + Coma

SION 3 NEGOTIATIONS OF Urrrr C OR APO River PyASEN

Compacr, Proceedings of July 8, Is ty

U.S. Burra or RecLamatiox, Cofor ADO Riv & NStonaci

Prosker.axnp Parric IPATING Proseers, Uprerk Cono-

apo River Basix (1950). He Doe. No. 364. 88d

Cong., 2d Hess: (1954) y

"PREATISES |.

4 Corbin, Contratrs, See. 940 (1951) Re toa eit

Oo Moore, FEpen«an Practice. Pa TOS c Oo ec, IMS). Pa

RESTATEMENT. ConTrhe ac ts, Nee, 129. Comment a (1O32) }

Nglis

Supreme Prey of the United States

No { {) iu °- £

STATE OF ARIZONA, Complaaiaut

“~~ . 2 ° : ~~,

: ve.

est ATE OF CAL HORTA: PALO VERDE GRETA

”

TION TySrih T. IMPERIAL PRRIGATION DES-

TRICT. COACHELLA VALLEY COUNTY WATERS

IMSTRICT, METROPOLLETAN WATER DISTRICT

OF SOUTHERN ee ALTBORNTA, CTY Qk Los

“ANGELES, CALEBORNEAL CITY OF SAN DEEGO,

CALIFORNIA, ANDO COUNTY OF SAN*+ DIEGO:

GALTFORNIAS Defendants,

UNITED STATES OF AMERICA, Literecie

STATE OF NEVADA J

. ; , . —~ ‘

Brief of the California Defendants in. Support of Their

Motion to Join, as Parties, the States of Colorado.

New Mexico, Utah, and Wyoming .

ve STATEMENT OF. JURISDICTI ON

baie ir} (ieado. Mi | 1

i 2 Wbi | ty thy Lites! COOK Teo cit? : ere its

> ’ ! a ;

» meres ! 1) ut «

a‘ \ ‘ is 4 q 4) °

a %

over the parties under Article TEL, Section 2. Clause 2,

~ . i] .

the Constitution of the United States.

RULES. TREATIES, INTERSTATE COMPACTS AND —

STATUTES {INVOLVED

° Rules

Rule 9 of “the Re vised | Heute soon the Supreme Court pre

vide a L part:

“A The form of pleadings and motions in ortetia’

actions nhall be governeel, so far as may be, by thi

~ Federal Rales of Civil Pcnndute: and in-otber. re-

» oSpoets: ‘those rules, where their application is appro

priate, maybe taken as a [guide to. procedure in

ariginal actions in’ this court,

F al - -

~«

VWisjoinder and nonjoinder ef parties, _ Mis jotndes r

of parties Is not ground for dismissal of gan action

Any claim agaibst a party miev be severed and. pro

eoeded with sepa rately.’

Bes ‘ Y

Rale t of the e eders al Bule ‘x of Civil Proe ~odure pray tds

Ne ve ssaru loinete gee f f party S, a) wos, SSaris jail

der, Subject to the Provisions of Rale 25 and of sr!

‘division (b) of this rule, persons having a joint int

ist shall be rade partic ~ oad he “jornedd on the srry

hae side sig plaritetls or alete ‘hed: wits.. When oa Person. Whe

shrouted yong asa 1 iu} rity tt refuses to deo Sa). fpeee TEEN

tthe a defendant or. in Proper eases, wn incodaretaal

pehaarnetadh

“ibh) hme hoot failure fa jain | When Hersons ww!

ares yal inielispee TRE har, but who ah Bad hit tir bie partic

corrtipiletes re elt is Tay bee cae cori boty: nF i}erse sie.

parties, dave not been made partios pach: are subaeet

“fo the jurisdiction of the eourt as to both serviee oF

progess and venue and jean be made parties wWithe

ule 2loof the ederal Ruies of Civil Procedure provides:

Parties may he droppe i oradded hv order of the court

on-motion of any party or of jtS'own initiative at ay V

stage of the aetion and on such terms as are just.

Copan werwneen, one

~—*

2 : . . . a

| depriving the court ef jurisdiction of the partios be:

| Ser it, the Court shall order them: summoned to appear

| tn the action. Phe court incits disere Tron maw proceed. -

| ‘inthe action withotwt making such persons parties, if

its Jurisdiction aver Hem as toe iis ro service of proc.

is OSs or Venue Cin lie HC red only ‘thes ir. Cons nto oor

3 volusitans appearance orf, though oer are sah jet to

S jurisdiction, their joinder wonld de prive the court

of durisdiction of the panties before its bur’ the jude.

nent rendered. therein does not affect the risclits ar

liabilities of iibsent persons,

“— g ;

“KAe). Sam? — Name S Of one itted Poreaonws ajied reasons

‘for nan-joinder tobe pleaded. Incany pleading in

» whieh ry tsoasked, the plender. shall set forth thes.

names, known to Bim. of persous who ooud¢ht toe he

an a complete reef is to che accorded: between

those already partres, but Who are not Joined, and shall

state, why the ‘y are. Dict atl

Compact, Statutes, Treaty —

The-Colorada River C ompact CH. Doge FIT, SOth Cone,

2d ‘Sess., }). An (1948)). The full fext appears’in Ap-

pendix No. 1 to the Answer of ‘the Calfformia Defendants

Arizona's Bilt ér Contplaint. “Phe provisions of that

Compact primarily invelyed are quoted in the ‘Statemen’

of the Case, es ; S'

Thy Rawtd, , Canyon: Proje ef Vet (Aet. af Dee. 21: 182s,

1 Stat. loc y. The full text of this stanite Op pears an

Appendix: Nol 2 to thas Answer af the © alitornia }). heard

ts to Arizona’, Billoef Complaint. The ‘provisions

’ ‘

Statute primuvyrtiv: invelved are-qaoted in the -Sfate-

ent of the Case 7. ;

vv ' | . : i. “Sy ‘ ‘ ‘ Z ‘ ve 463 *

fhe Calilorma Liamilation etct (Cat, estates, 2409, Ch, 16,

| } os), oe Pal texto thhert statute appears 1h Appetidix

10, - 3.10 eAnswer of the California Defendants to

; ‘ : oe ye a .

* Arizona’s bill-ot Conipdaingt,

i e Presid: nbial Pry lame thiom aft’ Sine 25,7929 (4A0TStat..

‘ \ . .

“3000.° The full text ot this proclamation appears in "Ap.

tbe ’

pendix No. 4 to the Answer of the inlifornia ‘Defenday

to, Arizona’s Bill of Gommplaint, : |

The Metican Water Treatu (US, Treaty Ser. No. 94, -

- .

ov Stat Phy Ci: UH. Doe, 717, 80th Cong. 2d Ses.

p. ASSI (1M948)) CT he full text of this T reaty 3 a ppereys

A pepe rE No: Boot the Nnswer (in Vetunieg ol 4

Appendixes), ee Re Wier

If): / fe pre rt moraey Rives r Basin (lompuict iNet of Ay

(), Toeyet, Oo) Stout >] ) Trios fhe St; staes ot Arizonity ‘ ‘olor, tito,

New Vented) [ trad ya WW vomitre, The Yul text of tha

Compact i printed iy \poreeniei x No. 26 of the Answ

A Volume JI othe Sone ali nes), SF

STATEMENT OF THE QUESTION PRESENTED

The question’ presented div this motion is:

Are the Stites of Colorado, New Mexico: Utah’ and-

Hecessary. parties to this action?

Wycuin

TALEMENT OF THE CASE .

ED aie 1. The Record to Date .

hk / 2

Ble State of Arizonal’ invoking the original jurisdic 1a

of this @onrt partaant, to the provisions of Article, it

-“Seetion 3: inti the’ ( ‘oustitution ot the Unite “l State

(

filed a ruotion feo

WSL) seeking eertain equitable relief against the Stun:

California and seven public agenetos of ¢ ‘alifornia., Ar

Zonas mation for leave ‘to file Was Grantest on January 1

ee & aliternin bd, Hilauts answered the deel!

complaint averring, atmetiyv other thin iittg four aftirmatiy:

defenses ttiled May VW P95). Arizona replied (Jihs

Anwust 2871055) ined Cfliperiia raade rejotuder (fibedd Or

tober 7, 153). ; A

“Om December [1 1052. the United States of America

tiled a anetiofti to intervene, whieh was granted (844 Us

899) Jun. 1 TMon) Subsequeytly. the Umited States thie

& , . .

leave to file a bill of conmplaint in Ais’.

7 .

°. = ‘ .

Fy PS

oe + .

, $545 ct , . : i Fee : ail - ,

perictam th interventroorny CP dserpebaeey S, 19509 wineh was.

SWaeereend iy Yi (etic ik Prva 2% ee cited the ¢ ual

” . :

rita Defernedans Apiral o. 140544

i . es a

‘? Phe tp hore? b4 Iyie Th a@y! gts ra bbs * ‘| fragt ; Treat peers

¢ PL aerdes rage! Theo? 1 5 { BAG? Pia \r Faazidh ?

eet detniurvedd (thle Pebriuarsy oy Ped hoonted the Californian

Meteo pister tits -rrpaaeds i Wai? heal Ay ; hobs an eaW IPE

:* reciting of Ni Vitedia ~ frites, ta ry hey fay ( esjiet

; apres ] } oho ty fied ¢" / Paat} e! ‘hs | ‘ H Naive rie

My20), 1954), Arizona made answe) (tiled Judy D4. 4054).

By Order, entered June 1. 1954 ¢Aricone V. Calforuis,

So. vad, ( Nalvtiries bP. ath), ody. thas Court pepe te

- : | ,

Georgy T. Heviseht, nnquere, oOf-s hieauwe, Hiiireais its Special

Master fn this Case,

ereseng riolpagy tas jeotty a= Necessary parties the Stites ot

Colordacde, New Mexico, { tah atid Woavomine (dy, the same

. , ; y |

fitornia Defendangs filed aanotion for leave to

$i,

3 N

ean arieidded answer to Neivonna’s bill of cormpliattet waned

al Wi ainendatory dnswer, Om Aneust Po 194.

- .@) “ . Ser ;

Zena fled ats re ~potise to the motion of the 4 alibaorues

“Oy . . 5 <

efenelants to jogm the fewettanied Slates

4 .

2. The Relief. Prayed by the At Se

T ; oe °

ils Stile complaint fhe Nta i) Vrivoy iThiestiv

é .

. } ® 9 ? 4 ad ,

Her Things, that ats fithe to) the’ aunual bea

Wnptve Jing: DP LNG Mee neresteet af the Ty Ti

% atl eos ;

we . % th: * . } »* }

orga [? Vel Savstegn ailevget] toNviave beer Up spre tice |

the Pocavwent Rasin bee the + ioe o Rta er « Covet tagdast. yriel

4 — . ae 6° .

etitistal ast SEM MU acre H 4. MMM acre fiat

“Article Hhdtad, and

Here feet of uses rete Pred to

its tise of whieh was apfpos

‘of the additieng! boos

Nvtiele Pidibs af the (reset) he fopeser earfiriysad

quieted iis iawritist There [eefenedants. sibeet to certian

elits in New Mexico amd Utah. and that the Pofendants

‘cenjomed from asserting any claims to ‘he Gentrars

; tos. Fs ; .-

s a | A ‘

Spree.

+. .

bs 65 a. eres

that the tithe of California’ to thie anne) henetiess

sumptive use of waters of the Coloraky River

apportioned by the Colorade River Wominiaet. to,

Basin be forever fixed and liniited at 44000007 were for

that. ’s tor surplus wate rs | :

MiP portioned hy

River Compact, the” Caourt ‘ Frog th: it Whe UW

is a further Ap portioniient af such. wateys te Pie Paws

Basin the st: te of California be entit had to Gtie-bPa Lt arr

‘the Ntate of Arizona to thie: remitinaler less one TW!

fifth ts Nevis lis mid 3 eS the titidle f} hed rights of Utah tay,

W Mexico: final a choeres dey entere ud estaldishing that 1},

benetieial CONSUIDTEVE tse tof Water apportioned hy the

Colorade River Compact btw Nien read in ternys OP rise

Mince depletion Of the Virgin Now ay} the Mian stream: uy

that losses at \ Vater from rese rE woirs lowated| On the me

sftrenigy ity the nals Prars<jry byes charred achiinst Nrizen

b and Clalit orhin L proportion hey theepp line anf Waiter. ston

In such reservoirs. To further tlie. clans, Artzonat see

Cortuly interpretations . of Mie cy olor the River “Momtieas

and the Boulder Canyon r reject, Act, relied WW. oe

tracts @ne documents, ¢ -

\ CALIFORNIA UC? Sas ae

Jnotheir answer the Californta Defendants deny th

. 1} ‘eM. “ ‘2 . : : -

Bagi jaa aiecations fy? hye Stite al Arizona. and asasce,

. 4 | sy? od }

Qinotio wither thipiues, tee atiirmiative Mebenses that the pf

4 4 ie ER Sree, 4 61 : piles, ;

rendants Have Slice mroht ta He Penelhepwal CONSUL ive aps

’ % 4 . ‘

sat SP ’ ‘ ¢ » * <4 , ‘ - at ‘ i

, *®. Fk ‘ ? pre at at i re ry trie Serge ,

. “ . ;

he < ‘ > ? ° j . = ?

River SVSTOML Unies Three 4 OMOorvicda . River | Orsi barbert, !

. 5 : ' . ‘ + ‘ . » ee we . «2 1 ‘

Doudader CeatiVery Praject: Nit. aNStatutary Con act pelwe

- s ’ . 5 s

the United States and Cahtornin, asd the water sto,

ghd delivers CONES af thre United States eX Cited petit

Shai thereto: thisat Avizonu “IS esternipied nite Prrereign

Presny asserting thie iite copee ca Thats art ther laws nid thir

Mlents asserted in her hill at COTM iaint : rel that fhe Ph:

Pendants’ have appropriative rights to the henefieind co

Sumptive odse of not fess than 3.362.000 acre-feet ool

bd =

nd ‘

* . P = |

e - ci ]

Colorado River System Waters per annum as fasainst all

other parties. |

; - ie ak ‘8

A ee Ney iba. , a “,°

“ “ .

The State at Nevada, j I! i pfition of intervention, seeks

Ta Gad dert tith? te: S100 were fer tpt andy af the: hetietiensd

CONSTI Hixe Uses apportioned to the Lower Basin hiv

_ ticle lifia) ad the ¢ ‘olorade River ( OTD to reserve

Sey) future als gre nent the Sippy of the Use anf] 000.000

aere, feet: refe ‘rred = Artie le HI (hy) at i Color: ado

Kiver Compaet aki to dtssure to Nevada the ultimate beng

‘tiedal COUSUMpLIVeE: Use of HO Tess than 900,000 acre-feet

e . :

per annum, from all classes of Ww ater,

Puts: CNerep St SS eS a

Alive United Stark of America, in its petition. of Inter-

Venton, iisserts Claims as avast the ‘parties. to ‘this

cause’? of rights ty the-tse Of Whiter in the Colorado River

and ats trih mtaris s:for the mis INUNTIN fe oa] demands of all

Proweets ni the Lower Diisin to their full capacity fo?

HIVersigh, carrying and ‘torage: to fulfill its, obligations

rising from itsinternational treatios Or CONVEMIONS: «tes.

hull) all Of its) contracts tor deliver water and electric.

POoWers te » fritid] the oli: vitions emanating from, Its st; Is,

is Trustee for the Indians ried ndian tribes ty PTetect ifs

LCPPeEcte a fish vidil \ ale Hi ti 5 tavern} control anil Tei Wigation::.

ry;

: ‘ i

Nd for Tse of the Nathional Park Servies, Bureau of Land

Mews Lrerers, ave Forost Service, The United States fur- ‘

ther alleges Myat these eliims cof Arizona and California

“ON COE the qtantitver dag ? ity) bart forthe Lowdér

asin of the Coloruels River | the Colorade River (*or)-

oe S 7 os

wey satiel “a 4 Salaptiogn sot a Ves Cont poversy “het ween th ’

‘ oy ‘ ae | SESS EELS. + FG ; Ruteaageby H * *qe ‘

ne . .

Pints, . * ma ther fore Ind ringe Upon the tere sts oof the

‘nite States to ih detrirhenr The. United a chhims

se Basin for

acre Mt anal iA, (HMG

a The. amouiige of

* ° . eee .

telits TO. nneaisy diversions In the Poy

ini at uses in the aniount of 164721

hand wihdlife projec

re Poo for fh

the of ther Poder Claims are not stat

: ye

The issues whie h involve the States of Colorado, New

Mexico, Utah and Wyoming, in this controversy arise pr

marily from the Colorado River Con$iact, whic h their wos §

resentatives and these of Arizona, California, and Nevid

‘ signed-on November 24,-1922. subject to ratification by th

legislatures afall seven States and the consent of Cong:

ot and from the, Bouldéw Canyon Project Nets whieir erinte:

“the. consent of Congress thereto upon certain conditions,

-< whieh have thignselves become the subject or controversy,

‘ : : ’ ‘ f

: eee ' 3. The Colorado River Compact _ Poa

‘The agreement signed at Santa: Fe in November 192.

was the resultant of two, forces: One Was? the Lowe:

Basin’s imperative necessity for the construction of

”

¢. ‘ereat storage dam, a drive. rooted in the need for flood

* and silt protection for the Palo Verde Valley and Lmperi:

Valley, (the latter Iving 300. feet below sea level) bane,

projects in Arizona along the lowpr river; the needtor

stored water to replace natural flow which was being fike:

’ “away from sehior appropriatoys in California by * junior

“ap jpropriatofs’ i I other parts o@ the: Basin: and the nee:

are - for an All-Amer idan Canal fo replace the canal. thes serv

a” >. ing the Imperial Valley via a route through Mexican ter:

: tory. The counter-force was the d&and of Colarade

New Mexico, Utah aU gRN voting for protection against th:

ae law of appropriation, The ( ompact was ‘négotiated in the

- ** light of wie then cmenag decision of Wyong v. Colorads.

6 2oo USA 419 (1922), which applied the doctrine of ** firs

on finic, first in tight” regardless of State Times, . Ty

four upper Stes knew that irrigators in Arizona and

Califérnia, in.the period YS77-T910, had already appropr!

ated aud were new wsing all the natural flew of the rivts

and that the junior appropriations im¢the Upyper Basu.

were Apendent upon the construction of stor; nee AVOLES,

ll Aither in theiy basi or “aye low. (Califgrnia’s S answer

: - ’ i

° Arizona’ssecomplaint, pepe »)

B. Nou:

tiv

old

This definition, includes the+Gila River Svestem in rie?

zona as well as the « odit other major tributary syste tes.

which, all together, coustitutte the Cobwado River System,

Eke ‘Compact did@hot xpportion water of ‘the Color: a

River Syke ee the signatory States. lustead, it

sin to the U pper for aedvilescen@ in the, rs truction:

Hoover Dam, vt e |

. i : YY >. x ~ wx : ‘ °

Prictinenr Provisions Op Tie Compact

The Colorado River Compact deals, net anerely with Me

Iain stresim of the Colorado River, but wifh the Colorade

Hefver System’; whith at defints, in Article PP (a):

~The Colorado: River System means that portion of.

the Colorado, River ayd its tributaries within the

United ‘States of America’. 7° 7 us ; ey eee

: : LENS

: »

"AS Arizona's Complaint correct hy on J (par, Vit).

portioned sah meonehetal COnSTUL PL Ve usesol stated quan-

titfes of wi ater y the Upper Basin. and. the Lower: Basin

resp@tively. +

° = e . a

It did more, however, = ; » ey Beoater ere

The Compact re COONIZES rights to the benetic ‘jal COUSUID

}

Oise of : ewiiter in terms of Basins yo! Sra asin withs

Fespeet to the delivery of water, interms of * Divisions"

visions” andl * ‘Basins’? are defied as follows in AT

lle Ph: . \

: Xe) The tertn, *States* ofthe: Upper Division’

nicuns the States of Colfrns lo, Ne W Mexico, Veah ad

\Wvoming. . # nee es 2 ie ,

Sd) The tern “States -of the Lower Division’

niedns the States of Arizona, California and Nevada,

f ; < rin, ve ates. f

of f

ose) The tam ‘Upper Basin’ — those: eS.

fo the Ntates of Abizousy ¢ “olavy’ “ado, Mesies, T'tsrh:

pied Wvoming within anid, from. whie he Wi st haturally.

dri ain tte the = ‘colorado’ River Sy ster: above Lee

. . . 4

8 . ms al ‘

s . -

: ‘

- : jet by ae

ee | ee |

The Compact. iti short, was the price peud by the | —

eae xt

- | - | ge : ae re

Ferry, and also all parts ‘of said States located without

the drainage area of the Colorrado River System awhic!:

are now pr shall: here: Rc apen beneficially served by

waters diverted from the Aystem above Lee Perry.

—- “(g) Lhe term ‘Lower Basin? means those parts of

the Stetes-of Arizona, California, Nevada, New Mexico

endNCbatrowithin and from -avhich waters naturally

drain into the Colorado. River Sv ktem below--Lee

> erry, and also all parts of said States located without >

he drainage area of the ¢ ‘olorado River System which }

~ - are now or shall hereafter be bene ficially served. bs.

waters diverted, fram the System: Delow Leo Perry.’

. »

\ ,

The tour Sti ates ifmed in the present moti ths ge Ol

‘stitute the ‘States of® the- Upper ‘soem : “But the

“Upper Basin”’ ineindes portions’ o these Sti ites rend dl

part of Arizona, : Le

Two of the absent States, v iah ay x1 New Moho hin

areas (and rights) within the Lower B: ISIN, together wit:

Arizona, California, and Nevada; but omy the three last

named.are **States df the’ Lower Division’’.. br

"Phe rights of both -U pper and Lower Basins are stated

in Arti les ITif(a) and y Eb) :. Si : aa,

“

(a) There i~iere by appor rlicned froin the Colorade

Aor System it pempetuity: to the Upper Basin and

»the Lower bas respectively the exeinsive beneficial

consumptive use of 7,000,000 acre-feet of water pre

annuin, which steall include all water necessary for

the supply of any rights whieh may jiow exist.

, m3

(ban addition to the apportipfiivent in paragraypi

ps ). the Lower . Bast: is herebw@given the right “to

» by one millon acre-fe fet per annum." ‘

nee ee | ee \

These rights are stated tie terms AM ‘fuse’’, not in terns”

of -flow- of the st ream ; in terms of demand, not in terms of

supply. They apply te the waters of thre Colorado River

; 4 are bee ¢ & 3°

Syste including the waters of ali of its tributaries, ust

“merely the waters of the main streatn,

° fs -

_« \ iy e 1} j ;

e \ . ° .

The term, “bene ofie ial consun@tive use’ iss not. defined.

‘he obligations of the two Dirisions are statf@d-in Ar- *

ticles IIe), HI(d) ang HI(e} : Bere sit . i ‘.

e.°

2 (@) Tf, asa miakiter wt Site ration: nal CORN tty, “the

{ United States. of America shall hereatter recognize in.

+ the United States of, Mexico any right to the use of

¢ any waters of the ( ‘olor ado Rive reNyste in. such waters

shall be supplied first\from the waters which are sur 7

plus over and? ahove tlie ageregate of the quantities. |

specified in paragraphs. (a) and (lb): aud if sach sur Race e

‘plus shal prove insufficient for this purpose. then. the -

burden of ee shall be equaliy borne diy

the Upper Basin and the dower Basin, and whenevei

necessary the Sti ime ofthe Upper Divisson shall de

Awer at Lee Ferry. ater to supply one-half oft the

deficieney so recorned | nh addition to thet prov ide di in

ge agraph (d). ‘

(dl) The States of the Upper Division will. noi

cause the flow of the river at Lee F erry to be depleted

helow an aggregate. of 75,000,000, acre-feet for any

period of ten consecutive years reck coned it continuing :

J progressive seyjes beginning with, the first da iv oof

“October next ssneceeding’ the’ fatifieation cof this

Compact. a : °

‘fe) The. Statés of the Upper Diviston stall not

. , Dy » » e Py

withhold water, and theaates of the Lower, Division

shall wot require the delive Ty “of water, whieh cannot .

reasonably be applied to: domestic and agricultural,

USeS, ”? ; : =

“Unlike the sti Mement of nights im Article TPP(a) ard.

HI(b), these obligations are stated in cterms.of water, not.

Qse of watersin ternis of supp, not in te rhs af de mist

Th aw we +1, “i 1 ep ee ee : . °

aaity E< la - te i it? How til OTE plete, bee i erey ott the, ‘haiti

stream, unlike Artiefes Hf(a) and T11(b), which Coal With

Uses. throughout the ¢ ‘olor: ido River Syste TM, on theetritn

taries as well ascon the main stream. — |

The Compact does not?purpert-to deal with the use of

all of the waters available in the System, but provides in

Articles TIT (f) and Il(c):

P "

- . - 7

—_

koe Further equitable apportionn en ' of the hen

feint uses of the waters ef the Colorado River ein

Hniapportioned hy paragm@plis (ad, (hy and (Ce) iat

be meade cai the nmuing provided in paragraph (24

any taneatter October first, 1963, if and when cities:

Basin shal have reached its total beneficial: consump.

EVE: Use as set out in paragraphs (a). ard o-

7% A . e

(oe) In the event of a desire for a further apyror.

. tionment as*provided in paragraph (f) any two sien

tory States, acting through their- Governors, may. iy

“Joint notice of suck desire to-the Governors of thi

other stonatory States and to The’ President of th

United: States of America, and it shall he the duty of

thee Governors al the signatory hea and oof “T!

re sident of the Ap nited State ~ Amerien forthwuit}

focappoint Keprese mit} res, a duty it ‘shall

divide and apportion equitably — between the “Uy

Basin and Lower Basin the beneficiad ase of the unap

portioned water of the ee ae

tioned in-paragraph (f), subject ‘the losristativen

ratification of the signatory, havea The Congres

of the Vnited States of- “Anue rica.

‘ . y 7

These. provisions are Permissive, ‘not nuindatory., The

nay or may not he smother Rina in the future, and

one is negotiated? the arti’ nav Or mav- nol conform: tt

this, pattern,

Thronghont the Colorado River Sxsteni certain protec

tive uxqvanyns apply; Sates im 'Articles VIT and VII:

hee ° , i. > . |

: @s ABT ue VIL

‘Nothing Wn he ns shal] he construed ss

* affecting the obligations df the Uwited States of

Aimeriea to Indian tribes.”

@y ear | -Articir ¥I1T

ye? reset bertected riehts tos the beneficial use ot

whters af the Colorado River System are unimpaired

“sda th is cotupact, Wirenever storage | capacity, O}

5,000,000 vere feet shall have been provide i! on the

nisin Colorado, River Within or tor the beneit lof the

| ‘UH YTesS of the United Stutes, are ‘

ay ax oe, Katnisale Rejection of the Compac

kdwer Basing then claims of such rights, if aniv, bv.

ska mie tors or tsers of Water in, the. Lower Basin

igtinst appropriators of users of water in the U pper.

Hsin shall attach to-and be satistied fYom water that

Jtaay be stored not in contliet with Article TLL

« ** AH other rights to beneficial use of waters ef: the

Colorado River System-shallibecsatistied solely trétn

the we ater apportiqned to thit Basih in Whycdh they are

sitisite.’ core ie ! : %

Article. Xi eaciiine: that the Compact shall be dine

and obiigatory when it shalk have been approved by the

We Legislatures of each of the ‘signatory States gnd by the

-_~

The equilibrium supposedly established in) November:

Wee hetween the Mewer States and the WC pper, between

the Present paMies to thisesait and the four absemM-States,

collapsed in less than three months, The legislature of

Arizona rejected the ( ‘ompacts CXaswer to, Arizona’s

complaint, par, TS) The Jegislatures of the Sther ‘six

States wae eae ,

The needs for, flood protection-water and electric power.

in the Lower Basin. cortimned to imerease, Tf 1923. Leos:

Anveles commenced surveys on the Colorado River aque-

diet and in 1924 filed appropriations on the waters of the-

Colorado River. (Answer to Arizona's -¢omplaint,: par.

- od ° ’ f .

$5. taeb Exhibit A thereto) Pas Rai :

Pale as . 4 sa : >

Rarieie. ATION BY THE ee Rn STATES OF A SUX-STATE COMPACT:

: ae 7OP5- 1429, on oe ae

Between L025. and 1929, the Legislatures ‘of California,

Colorado, Nevada, New Mexico, Utah and Wivoming,

abandoning hope of Arizona’s ratifieation, enacted legisia-

tion, proposed iy Colorado, reciprocally waiving the pro-

VISions of Artie le XI ot { -the proposed: Colorado River.

Compact (whieh made. the Compaet effective when: ap-

. ' . .

. 4

. a ‘ one ;

‘ Pe, ’,

° ;

: ‘

proved by the Legishitures of seven states), and: en: wt

that the.Compact sfould become effective, whem six Etat :

=f should have ratified it and the ‘Congress should have giver

een gH submitted for the consent of Congres:

. hewn - ° ° . @. . E

in that fornt—tAuswer to Arizonn’s complamt, par. 19)

'5.. The Boulder Canyon Project Act |

(Act of Dec. 21, 1928, 45 Stat. #057)

On eceubee 21, 1928, the President approved the |

Project Aet.)) (Appendix No, 2)-- This

statute, insofar as the preseng controversy is concerned,

Boulder Canyon

(1) auth rorized constructian ofea’ dam (iow known ae

Hoover Dan 2) and power plant in Black Canyon or Boulde

Canyon in the Colorado River, on the “Arizona Nevad.

boundary, and the All-American Canal to carry water into

the Imperial and Coachella Valleys in California, adgace:

to the Mexican border, (2

Yo the Colorado River Compact on certain conditions, «nor

particularly deseribed helow, (3) subjected the rights ai!

-operations ok the United States to the Compact, (4);

directed that. no person should have the use of, store:

waters except. pursuant to contracts with the Seeretary

of the Interior, and anthorized him to-make such contracts.

and (5) specified the purposes for Which Ahe. dam and 1

yeservoirs should be ase ul...

: a: : Shes

dee ALTERNATIVE CONSENT TO SEVEN-STATE OR

. c : ae es y

) granted the consent of Congress,

Srx-sTATE Coxwpacr By CoNGRESS in

we . 4 ¢ ne, -

= The Rrojeet Aet superimposed new features in granting

the consent of Congress io the ¢ ‘onupact. Lt Qri anted tha

consent to the Compact eithersas a seven- sfate agreement,

or, in the alternative, as a six-state compact, eouditioned,

in the latter event only, upon the enactment by Californi

of a statute in specified fefms. Power was designated

the President to proclaim, after the expiration ‘of -s1s

months, the effec tnation and exintdice of either the seven

¢ ‘

state compact or the alternative six-state compact, but not

héth. The janguage of the statute in this respéct reads:

See-4(a). (Par. 1): ‘*This Act shall not take effect

** * uniess po until (1) the States of Arizona, Cali-

fornia, Colorado, -Nevada, New Mexico, Utah, and

Wyoming shall have ratified the Colofado River com-

pact, mentioned in section 13. hereof, arid the President

by public proclamation shall have so declared, or (2) if

' suid States fail ta ratify the said? compact within six

months from the date of the passage of this Act then,

until six of said States, inchiding the State of ¢ ‘alifor-.

-- mia, shall bisa said compact and shall consent to waive

the provisfons of the first paragraph of Article XI ‘of

said compact, which makes the same binding and-ebhig—

-atery only when approved-by each.of the seven States

~ignatory thereto, and shall have approved said com-.

pact without ¢onditions, save that-of such six-State

approval, and the President by publie proclamation

shall have so declared, and, further, until the State of ,

California, by act of its legish: ture, shall agree ir-

revocably and. unconditionally with the United States

and. for the benefit of the States of Arizona, { ‘olorado,

Nevada, New Mexico, Utah,-and Wyoming, as an ex-

press covénant and in consideration of the passage of

this Act, that’ the aggregate annual consumptive use

(diversions less returns to the river) of water of and

from the Colorado River for use-in the State of. Cagl-

ifornia, including all uses under contracts made under.

the provisions of this Act and all wate? necessary for

the supply of any rights which may now, exist, shall

not’ exeeed four million four hundred thousand, acre-

fect of the waters apRortioned to the lower basin States

by patagraph (a) of Article IIT of the, Colorado. River

compact, plus not uf6re than one-half of any excess

or surplus waters unapportioned hy said compact,

such Uses always to: be spb nipet. to the. terms: of said

compact.” ek . \

7 j . * . bed . é . .

lesen 2.0f this section authorized a compact among

Arizona, California and Nevada, but it was not con-

summated, ) .

; 1G eo

. “See. 13 {a). ‘The ¢ ‘olor: ado River compact signed

goer at Santa Fe, New Mexico, November 24, "oe mie ae

here hy approved by the Congress of the nied Stittes,

and the provisions ofthe first paragraph oftetiche 1

“ of the said Coloradd River compact, making said

compact binding and obligatof when it shatl have

‘heen approved hy the lewishature of each of the signa

tory: States, are hereby waived, and this approval shall

become effective when the State of California and at

least five of the other States mentioned, shall have:

approved. or may heredfter approve: siitd compact. a-

aforesaid and shall conse nt to such waiver, as herein

provided,”*

sections 15 (b, ee d) of. the Act subjected the United

States and all those. clpnIng under A to the Colorado

River ¢ ci | ‘ os

6. The Statutory Compact Between the United States

and California

Ey , ee ee

‘

“THE Qteandities INVOLVED nc aS

“The further re striction with whieh the ‘alifornia leris-

Jatute was thus confronted was a serjous\one, California,

in the present agtion, alleges that’ as of the date ef Signi

the Compact (Nov. 24, 1922) her vadid appropriations eX-

ceeded 6,000,000 acre-feet per auniurn, ‘and Mat ‘present

pertected rights’? of projects then constructed and In-Oper:

ation in California required the heneficial consumptive use

of more than 4,500,000 acre-feet per cannum (Answer 40

Arizona’s Complaint, par. 4), which had inereased to —

» 4,950,000 acre-feet at the effective date of the Projeet Ae!

(June 20, 1920; Answer to Axizora’s Complaint, par. 28).

T he limits ition proposed by Congress was 4400000 acre

feet perrannum of the waters apportioned by Aftiele LIEG

plus not to exeeed *Sone-half of the excess or surplus waters

unapportioned by the Colorado River Compaet’’. Tt omit.

ted reference to the .1,000,000 acre-feet referred to in:

Article I1(b), and the legislative history @f the Projee

-Aét made it clear that Congress did not intend to exclude

lé

California from participation in that ‘tinerease. of use’

but considered this quantity as part of the ‘texeess or

surgjus Waters ‘unapportioned bythe Conipact*, availabh

“for use im California’. The-term “consumptive: use’

Was gdetined ay “diversions” Tess returns: to the river.

The minimum réquirements. for beneficial consumptive

use Of thes Palo Verde ‘Valley, in which irrigation had

heen carried on since 1877, of the All American Canal

areas Whose appropriative rights dated from. 1803, and of

the proposed Colorado River Aqueduct to thevcoastal plain,

were known to ageregate about 5,4. 00000 acré-tect per

annum, Thee limitation, if nceepted, would require the

abandonment of plans for California’s other meritorious

projects, “(Answer to, Arizona’s Complaint, par. 28, 37.)

Such a limitation had to be agreed to as the additional ’

price for authorization :of the dam and *canal if Arizona

continued to refuse’. to ratify the Seven-State Compaet,

but not if Arizona ratified.

vided for both continge neles, . ‘

‘

_CALLFORNIA'S ACCEPTANCE

The Legislature of California ratified the propose “l( ‘olo-

rado River © ompaet pe as a seve i ARite contpact air

a six-State compact, Calif. Stats, 19%9, Ch. 4, p. 1; Stats.

1929, Ch. 15, p. 37; see Stats. 1929, Ch. 16, p. 38.) In a

separate statute’ the ( California L egisiature, in response to

the first par: agraph of Section 4(a) of the Boulder Catiyvon

Project Act, on Mareh 4, 1929, enseted a statute (Stats,

| 1929-€El -T6. p. 38; ee as the California

Limitation Act, Appendix 3) to heeome effective only upon

the ratification of the Colorado’ River Compact by six

St ites, and its non-ratification .by the sere sth State (Art.

Mona) within six moths from, Deceniber : oh 1928, and proc.

lamation of the latter eyent by the Pre sidont.

-California’s legislature pro-

[=>

ee 18

PROCLAMATION OF THE S1ix-STaTe CoMPACT AND

~ Limitation Acr By THE ‘PRESIDENT.

On June 25, 1929 the President of the United States pro-

claimed thatz(a) seven ‘States had not, ratified the Colorado

River Compact within six months from the date of the ap

proval of the Boulder. Canyon Project et, but that (b) six

states (including ¢ C ‘alifornia) had ratified the conipact and

consented to waive the provisions of Article XI thereof re-

‘compact, and (d) all preseribed conditions: having bees

June 25, 1929, the Boutder Canyon Project “Act and. the

» oe

quiring seven- state approval, us . in Section

(a) of the Boulder Canyon Project Act; (c) that ¢ tali¥ornia

had met the requirements set:out in the first paragraph of

- Section 4 (a) of the Boulder Canyon Project Act necessary’.

o renade é act effective o six-state a Pro rt of ihe

to render that act effective on six-stat val of th

fulfilled, bead Soulder Canyon Wroject Act was effectiv:

June 25; 1929. (Appendix 4; 46 Stat. 3000.)

THE TERMS OF THE ResuLTING STATUTORY CRMPACT

California alleges (Answer-to Arizona’s ( ‘omplaint, par.

27) and Arizona denies (Reply to California’s Answer,

‘

r. 27, 99), that upon the President’s proclamation Ol

California Limitation Act. thus: established, by reciprocal

legislation, a Statutory Compact . bétween ‘the United

States and California which, on the one hand, restricted

California’s uses to the limits .therein stated, but on th

‘other -hand authérized the United States:-to contract “

presently deliver, and the defendants to receive, water from

storage sufficient to make possible th bene ficial. consump

tive use of the full quantitres stated in the Statutory Com

pact. Clifornia says that these comprise the agyregate

annual beneficial consumptive use of not to exceed:

(1) Four million four hundred thousand acre-fee'

of the waters ‘apportioned to the Lewer Basin by Ar

tiele IIT (a) of the Colorado River Compact, plus

& 2) One-half of' afl exeess or surplus waters not

apportioned ‘by Article IIl(a) of the Colorado River"

Compact, including in’ said EXCESS OF surplus ‘the

» waters referred fo in Artiele 11 (8) of? s “aig Compact.

As alee noted, the absent States, together with

Arizona and Nevada, are named as beneficiaries of this:

Statutory Compact.

7: Si Boulder Canyon Project Contracts:

Statutory Provisions

Section 4 ( 7 of thé Boulder Canyon Project Act required

the Secretary of the Intgrior, before constructing Hoover

‘Dam and the All. Amerie: an ¢ ‘anal, to obtain contrac ts w hiet

-would assure. revenues to repay their cost.

Section 5 of the Project Act atthorized’ the Secretary

of the Inte ‘rior to contract for the storage. and delivery of -

water, and for the disposition of eleetric energy, in the

following terms:

TT hi at the eviokass oft Hin Inteyior is he reby author-:

ized, under such general regulations as he may pre-

> seribe, to contract for the sterage—of Water In said

reservoir and for the delivery thereof at such points

on the river and on said canal as may be agreed upon

for irrigation and domestic uses, and generation of

electrical energy * * * upon charges that will provide

‘yevenue which, in additiow.to other revenne aecruing

under the rec: mation law and under this AXect, will m

lits judgment cover all expenses of operation a sad. main--

tenance imeurred by the United States on account of

Works constructed ander this Act and the q payments

tocthe United States urtder subdivision. (b) of Seetion

4. Contracts respecting, water for ir rigation and

_domestie uses shall be for-permanent servive and shall:

conform to paragraph’ (a) of «Section 4 of this: Act.

No person shall have or be: entitled to have the tse

for any purpose of the water stored as aforesaid

except by contract, made as herein stated.’" ,

A f pe DD = |

| 0) |

Section 6, Paragraph .1, governing the use of Hoover

Dam cand reservoir, prov ided in part as, follows :

° “That the dam and reservoir provided for by section

Ts herepf shall-be used: First, for .river” regu: ition,

Intproveme nt of navigation, and flood control: secon d.

for irrigation and domestic uses and Satisfaction of

present perfected rights in pursuatice of a ing Vill

of said Colorado River compact; and third, for power

. * * Sa

”

California’ s “present perfected righte’ *, ax- previously

. stated, are alleged to be 4,954,000 ae re feet as of- Junes25

1929. (Answer to Arizona’s Pomplaint,:par. 28)

Tur SEVEN Parry AGREEMENT

[n 1931, at the instance ot.the Secretary of the Interior.

“the State of California recommended an apportionmey

among California public agencies of such waters as oe

be available ander. the Coloradé River Compact’ and the

Statutory Compact (Answer, par. 32; Appendix 10), The

total was held within 5,400,000) acre-feet (5,362,000) per

annum, which es nted_the Anaditim requirene nts ol

_—-+4he-Pato- Verde V “alley, All American Carial and Metro-

asia areas or the coastal plain, A number of meritorl

ous California projects were thereby exclufled, in cotse-

quence of the Limitatién Act. The Seeretary-ot the bi

terior approved the allocation and promulgated it in

regulations’ ( Appendix 8). The seven public agencies_

recognized. therein are the sey : ants of

_ State ef Cattormia in this action.

og.

Tite CONTRACTS

Contracts were made‘in 1930 and 1931, hetween the United

States. and the California ‘defendants (tabulated: in paras

graphs 34 ard 35 of their Answer to-Arizona’s Complaint,

and. printed a as ap pendixes to that Ayswer), assuring the -

U nited St ites the revenues required: hy Section 4 of the |

it 5}

‘

g ‘ se Sree

a . .

2 : S ai °

. bad

Project’ Act, and, providing for the delivery, “from storage

to he provided 4 ww [Rover Dam, pursuant to Seetions 5

and 6 of the Projeet Act, of the qui antities required to make

possible the beneticial consumptive use_in | ‘aljfornia of rot

to exceed 4,202, O00 acre-feet per annum. Hoove r Dam and

the All-American Canal were constructed by the United

States. The Colorado River Aqueduct. was built by the

Metropolitan Water Disttiet. (See Petition of Titerven-

tioi'oef the United States, Appendix 1-4)- The California

defendants allege. that altogether thew have undertaker

firm obligations to the United States. or have themselves

built works to utilize the water covered ive their contracts,

at A cost exceeding five hundred million dollars: (Answer

) Anizona’ s Complaint, par. 1) These projects are sunt-

Neh ie paragraph 2 of California,’s Answer to Ari-

zona’s Complaint, and in Exhibits A, By and © to. that

Answer. It is through these projects that. the seven ¢0-

defendants, signatories to the Sevea P arty Agreetiieit, ate -

‘

served, | soe —— .

The United Stiftes subsequently entered into contracts in

“Td? and 144 with. Nevada (Aj pendix ViA, VIB, to the

Petition of Intervention of the United States) for the

-delivery of not to exceed oOO.G00 acre-feet per annum, and.

in 1944 with “Arizona (Exhibit (' to Arizona‘s. Bill -of

Complaint) for the delivery of the quantities requiréd te

-nake pessible the beneficial consumptive use Of not to

excegd 2,800,000, acre-feet per annum of Colorado River’

System. water, of . Siege :

8. Litigation

The equilibrium between the.present parties and the four

absent Stabes—established in 1922 . bv Ssignatnre oft the

Se VOR- state compact, : de strove al by Arizoria’s re je C tigon of

that compact in 1925, reesti tblished in 1929 by the Six-State

Compact and the ¢ ‘alifornia Limitation Aet— wavered again

ine 1930, Arizona was no better satrsfied with the new-

compact than with the old, and hypo dhree successive

actions in this Court. te upset itan, 1980, 1934, and 1935.

in afl of them she Jomed ali of the = ‘rosix States as

defendants. é ; S

On October 13, 1930, Arizona instituted an action (Ari-

zona XN. California, et al., 283 U.S. 423: (1931)), toe enjom

the construction of the Hoover Dam and -All: American

Canal, to deel are the Boulder Aanyon Project Act uncon.

stitutional, and to inv: alidate: the Colorad6 River ’C ompact. :

On. motion of the defendants the bill of. complaint was”

. dismissed; | ?

“On February 14,.1! 34, “Arizona moved for jeave to file-a

bill to ‘perpelnate the testimony of the a of the

Color ado River ‘Compact: . (Arizona vy. California, .« teal.

292 U.S. 341° (193 = The Court denied the motion for

leave to file. Sees eat ae

In October, -1935, Arizona filed amotion for leave to

file a Bill of Complaint “against the States parties to the

Six-State Colorado. River Compact praying an equitable

apportionment, which motion was denied. G driz Oni ¥.

California, et al., 298 U.S. 558 (1936).)

The present action, eehsequently, is the fourth in which

‘the Court, has beén ‘asked hy. Arizona ‘to ‘pass upon thi

meaning of the Colarado River Compact and the, Boulder

“Canyon Project Act. It is the first in which’ Arizona has

seen fit not to. Join the States other than ( ‘alifornia.

3. “Arizona’ s Ratification of the Seven "Beate haiaineeiite 1844

EF ifteen years after enactment. of thie Project . Act

‘and the California Limitation Act, on February 24, 1944,

the Legislature of Arizona’enacted a statute entitled ** An

Act ratifying the Colorado lurer Compact; ahd declaring

am emergeney.”’ (Sess. L. Ariz. 1944, pp. 427-428.) |

That legislation was. accompanic ‘d and followed by asser

-tions by Arizona of interpretations of the Colorado Rive:

Compact, reversing those which she had stated to’ this.

Court in-the preceding eases. If is these’ new, interpreta-

tions that she seeks to enforce in this suit. gay

In brief, they have the effect of fransforming: Article

Ul¢a) of the Colorado River Compact, from an apportion-

ment of the uses of ‘the w raters of the entire Colorado River f

4 : ‘ _e

gf 8 : . J ee . :

System to anwpportionment of the virgin flow of the main

stream only. This would he’ accomplished primarily by

(1) excluding the uges on the Gila River System trom

the operation of Article [IT (a) and physically identifying——~

“them ds an apportionment of the.waters specified in-Afticle

“HA(b) 3. (2) identifying the uses.ap portioned to the Lower:

Basin by Article: LIL(a) with: the! waters delivered under.

Article I1(d) at Lee Ferry, by thé States of the Upper

Division, and (3)_ reducing the debit for Ariz: ona’s uses

_ by more than’ 1,000,000 acre-feet through: the" ‘technique

of Measuring the COnSUMptiVe USES, partic ularly. on- the.

Gila, not at the places where the water is consumed,. but

by the estimated depletion which. ese uses would cause

in the virgin flow of thé main strean.' T here area number

-of, other important ‘issues, but Arizoni’s’ ease insofar as

the: Upper Basin States are concerned, is oxse ntially based

upon this conversion of the ColdPado River. Compact from

a System-wide agreement. to a maiai<tream agreement, —

. coupled with a demial by.. Arizona of-the right of any State

to acquire appropriative rights dn unapportioned water,

except as. the nesult or a new compact, to be made cafter

October 1, 1963 ; that rg say,, with | Arizona’ Ss consent.

(The deeree Arizona seeks here’ wenld pres sumah ly control

the negotiators of that compact: complaint, prayer, par.

4,p.30) |

10. The iii Water Treaty .

‘@«

— On February 3, 1944 the U nited St: ites executed a-treaty

with Mexico relating to the waters of the Rio Grande,

Colorado, and Tijuana Rivets. On April 18, 1945, the

Senate of the U nited States consented the ‘reto, with reser

vations, and the same was ratified, effective as of Nedaitele

8, 1945 (Treaty Series 994; Appendix 29 to California’s

Answer). The performance of this treaty, as to the Colo-

‘Compare with’ the contemporary inte rpretation of ‘the: Colorado

River Compact asserted by Arizona in Arizona v. California, ef al.,

283 US. 423- (1931); Appendix 28 to California 's Answer to the

present case. : os ; ’

rado River System, will require. the guaranteed delivery,

“fromoany and all-sources,”’ of 1,000,000) acre-feet 67.

water per annuum at the Me xiecan boundary, subje et to.

. ‘reduction i in the eve nt of *textraordinary: dronght or serious

accident to the irrig ratlou systenn in the United States’

in the ‘‘same proportion as consumptive uses in.the United

_States are reduged.”’ (Art, 10) The treaty. (Art. 1¢))).

def fined ‘consumptiv e-use?? sin terns consistent with the

Act (See. 43). Peg Spee Parte |

s royect

il. Upper Gplorado, River Basin Compact:

By the Act of April 6, 1949, (63 ‘St. it 31) the Congress

eranted its consent toa compart ( Appendix 30) amone

Arizona, Colorado, New Nit ‘xico, Utah and Wyoming appor-

tioning the water avathible to the U pper Basin ander ties.

_. Colorado River Compact, defined as the compact. pro-

}

claimed: effeetive. by the President June,-25, 1929. -) The

legislative raport accompanying that ‘le vislation stipul ate

that the United States, by giving such consent, dees net

thereby commit itself to any: interpretation therein ex-

pressed? or implied with. respect to the Color: ado River

Conspact (I. Re a 270, on. VHT 22), 81st Cong, Ist Ness.

‘i ae 12. ea in Vee Pecans Case

The issues. in the present case, as California sees them,

~) are stated in a ‘Summary of the Controversy ’’, which ts

annexed as Exhibit A. 40 the present motfon.

The issues are. Be rioiin, MS AVizoni c prayers were

granted, California’s: rights would be reduced to the bene-

ficial consumptive use of 5,800,000 asre-feet per. ain,

measured by eonsumption at phace “of use, or 3 000,000

acre-feet measured im terms of “depletion. of the virgin

flow. of the main stream’? (present, Motion, Exhibit A,

. 8). his is a great-deal less than the: rights which |

California owned and could sup ply from natural flow prior

_to the: construction of Hoover Dam. ee

. ? ¥

The. respects in which these issues. involve the abse nt.

Statés and necessitate their. presence in_ this ere are’

st: ated in the followi ing ars gument.

SUMMARY OF ARGUMENT

The’ prese nee in this cise of the four absent ; parties to

the ¢ ‘olorado. River Compact Is necessary to -an-‘eifective

conclusion of the ¢ ‘olorado River controversy,

No effective «decree determining the rights to the use

of water in the Lower B: slr can be made unless it be first.

‘ascertained what quantities are legally available fe the

Lower Basin. "This requires a determination of the obliga.

tions of the States of the Upper Division to deliver water

at Lee erry, as welt as their rights to nse water aS areas

within the v pper’ Basin, since the waters upon which the

"decree will operate in the Lower Basin heve, as their

Hrincipal souree, the waters arriving at Lee Ferry. |

. The same language of the Colorado River Compact which

controls rights ahd obligations in‘ the. Lower Basin’ eon:

trols those in the Upper Basin, and the Upper Basin States

are conseque ‘ntly affected by a decree construing that

disputed Iunguage, .— Basa ee

Wr W Mexico nt U1 ak’ have a dual’ interest, on. the one

hi i as States of the Upper Division and U pper Basin, and

on the other hand as States entitled to a portion, as ye

undetermined, of the wate ‘rs available to the Lower Basin

asa whole. An Effective division of the waters’ avaikuble

tn bloc to tive States-earinot be made in the absce®e of’

two.of them... ~ © %- - “haa :

Arizona claims rights as-a third- party be enefivi ary of the

Statutory © ompaet between the United St: Atos ‘ane Cal:

ifornia evidenced by the Boulder Canyon Project Act and

the California Limitation Act. 4 ‘olorade, Nevada, New

Mexico; Utah and Wyoming are. co-benefi¢iaries, This

Stat story ( ‘ommpact cane into existence. only as an aceom-

- paniment, required ‘by Congress, to a Six-State/C ompact,

in consequence of Arizona’ s refusal tor ratify, a Seven-State:

A . ene

. . _—

: 4

. a. —_ .

“the Six-State Compact are al] neeess:

Compact. The six.gtates ratified the Compact (1925-1929)

under. cerain -well, understood interpretations. Arizona

purported to ratify the. Seven-State Compact fifteen years

thereafter, upon mew interpettationga, The Six parties ‘to

Ane parties to a deter

“niination of whether their agreement has, thus ‘heen’ sup-

- planted bY a Seven-State agreement, amd, if so,, what its

interpretation shall -be, and) whether sepagivareenies Com.

pact betweeh the United States and California remains in

‘force. If it does remain.in foree, all of. the eo-heneficiaries

are necessary parties to a decree construing the ar rights

“thereunder. = \

The United States asserts claims to the w aters of ‘the

Colorado River System which are: independent of; and

adverse to, not only the rights of the present parties, bat.o!

all of the States.of the Célérado River Basin.” Most promi:

nent of thése js a large claim to the use’of water made on

behalf of Indians. AH of the parties. to the Colorado River

Compact” are “necessary parties tov a determination of |

whethe ‘y this Indian ciaim and othey federal claims to the

beneficial cofsugnptive use of ‘eat are: outside of the’

Colorado River. Compact and superior to the rights gov- -

erned by that Compact ,, OF .W hether the federal uses are

chargeal Ne to the Basin, and to the State, in which’ they :

oecar, and a determination of the effect of these claims on

the rights of ‘the States tow niet they are adve Tee,

Crear ae ARGUMENT pee ce

ALL ABSENT PARTIES MUST BE JOINED WHERE THEIR PRES- .

7 ENCE IS NECESSARY FOR A FULL AND EFFECTIVE SET-

TLEMENT OF, THE CONTROVERSY:

hk. The Rules of Court and the Federal Rules of Civil Procedure:

Under Rule 9 of the new Revisgg. Rules of the Supreme

Comrt, effective July 1, 1954, the form of pleadiigs aud :

Peewity in original actions ‘shall be governed, so sc as

may be, Hy the Federal Rules of Civil Procedure, and “

“other respects those rules, where their application is ap-

‘

- ~~ © ° ; 4 is

if He ry ad p “ee «

4&n . . ae ; -

ordftriate; may be take nas j guide to procedure in érigi-.

need actions in.this Court: ea

~ On July 1), 1954, the -¢ Califergith Dp fe Pe ate filed a one

tion ta join, as parties® to- the Jpresent ce ntroversy, the

“States: of Colorado, New Mexico, Utad and Wyoming. pur-

~-snant to fhe procedure. set forth in Ryle 21 of thé Federal

Rules ef Civil Procedure, which provides:

Ae eee ;

“Mis, joinde rand nonjoind roof parties... Parties

-may, he dropped or added by forder of the vonrt on.

motion of any party or of its own initiative at any

sti ge of the ¢ action and on rn suyh terms as are just... 2”

. $ ke

; The requirements for compulsory joinde reof p: ities un-.

der the’ Federal Rules of Civil- Procedure are stated |

Rule 19, which provides: ¢

“Necessary joinder of parties.—-—(a) Necessary ioimder.~

iar. Subject to the provisions. of Rule = cand of subdivision

- (b) of thistrule. persons haying a joint interest shall

he made parties and be. joined - com the same side as.

plaintiffs or defend: ints. When a person who should”

: join as.a plaintiff refuses-to do so, he may che sinde, a

defenfant or, ih proper CASES, an in voluntary plaintift.

-“(b) Effect. of failpre fn join. “When persons who are

. not indispensable. ‘but who ought ‘to be parties if eofn-

plete relief is to be accorded between those already

parties, have-not been made parties, ard aye subject

to the jubisdiction of the court as to both service of

* process and venue and*ean he inade parties without,

deprivjng the cqurt of jurisdiction of the parties be fore |

it, the court shail order the ‘m summoned to appear iw

the action. The court in its disegetion may proceed

in the action withont making such persons parties, if its

jurisdiction over them as to either-service of process

or venue éan be acquired only by theit conserit or/volun-

tary’ appeafance or if, though they are subject te its

"jurisdiction, their joinder would depfive. the court.

- of jurisdiction of the parties before it; but the judg-—

ment rendered therem does not affect the rights or

vein erie of absent persons.’

peel ee

* wa

Rale [8 has bepn construed merely to codify the existing

federal law of necessafyand, or‘indkspensable parties under

federal praeticé prior to the adoption of the Federal Rules

AKCivil Procedure. Metropolis Theatre. Co.v. Barkhausen,:

i7UuN? 4 a 481, 485 (7th Cir. 1048), cert, de nied, 336 U. s.

O45 (1Y49) 2 Young. v. Garrett, 149 F.2d 223,,228 (8th -Crr.

1fey) : Pited States y a ‘ashinatan Tnstit. fy? a} Technol

OGY, 13S I\2d 25, 26 (: sd C ir, 19435): Cather . Ocean Acer *

dent & Guaranty Comp., 94 FL Sugip: 511, 514 (D. Neb. 1940) :

Field v. True Comics, 89 FB. Supp. 611, 613 (S.D.N-Y. 1990);

> Moore, EDERAL PRAcTIC KE, Par. 19.05 (2d ed. 1948).

» This’ ‘court in cases of original jurisdiction under Article:

A Section 2,-¢lahse 2 sa the Constitution has framed its. ’

proceedings on the qnestion of parties in accordance with

a developing body of federal precedents ‘and held’ these

precedents’ binding even where’ their application defeated

the’ original Jurisdiction. California v. Southern Pacifi:

(Co., 1b7 UL Sy 229 (1895); Minnesota v. Northern Securi--

ties Co., 1S4 (7 S. 199 (1902); Ni uw Mexico v: Lane, 243

TY. B82 (1917).

- 9

B. The iest of “necessary” parties.

Cited by the courf in California Vv. Southern: Paoiks ( D.,

supra, as authority. for eases of original jurisdiction, was

the leading ease of Shields ‘Vv. lars 17 How. 130 (U.

Tso}. It de fined “necessary parties” as:

“Persons having an Satehen in the condeorarey, and

~ who aneht to be made parties, in order that the Court

_may act on that rule which requires it to’ decide on,

and finally determine the entire controversy, and do

complete justiee, by adjusting all the rights involved

Sin at.’ These persons re commonly termed necessary

or hu ee ee

This ube Ais to necessary parties. has ‘been followed in

‘Subsequent decisions by the court, Railroad Company

Orr, IS Wall. 471 CU. SO1S873), MeArthur v. Scott, 118

oS : at

s ; v; : ; : ’ es sel

340.4 1885), Gregory ve Stetson, 433 U. S.A79 (T8900), Com-

monwe@lth Trust of Pittsburgh vo Suiith, 266 UL Si the

(1924), aud appears: to have been incorporated in the defi-

nition of necessary parties foundein, subdivision (b) of

‘Rule, 19 of the Federal Rules of Civil Procedure as those:

“who are not-indjspensable, but who ought to he par-

ties if complete re ‘het ix to bis accorded between those

~ already partic ine <3

AW. here absent parties ‘are found to: be necessary, they’

must be joined’ to the suit when they are subject to the

jurisdiction Of the cout ais to hoth setviee of process and

Vere and can be madé des without depriving the court

of jurisdiction of the parties. before it. Federal Rules -of

Civil Procedure, ap TS Cb). See Williams v. Bankhead,

1) Walk, 63, (U. AST4) Bey newer. Baltimore, 6 Wall.

“280) AU: BR. eae

AS " C. The further test of “indispensability”.

if iqtiediotion over those qualifying ag necessary parties

cannot be obtained, or if the | joinder of such parties would

a de ‘stroy. the court's’ jurisdiction over the parties ‘hefore it,

the court ipnst then make the’ fuyther determination of

—whether they are so “iIndispensahle” as to require dis-

Igssal of the suit. The Shields case defined an indispens-

atile party as: | RE :

“Persons who not only have an interest in the contro:

VOUSY, butean inte) ‘est. of Sich a nature that a final

decree cannot. be-made without either aff cting’ that

ifiterest, or leaving the coytroversy- ih such ai condi-

_tion that its final determination may be. wholiy tnee -

sistent with equity and good conscience.” (p, 13 iyo

This rule as te indispensable parties has been uniformly

followed as. the eniding test Bi s-Bement-Pond Co. -v.

lron Moulder Union, 254 U.S. 77 (1920); Miniesota vy,

Northern Securities Ca., 184 U: S..199 (1902); Barney v.

Baltimore, 6, Wall. 280 (U.S. 1868); Northern Indiana

Bad

ere ae We ce

RR. v. Michigan Central RR. 15 How. 238 (U.S. 1854):

Mallow wv. Hinde, 12> Wheat. 2938 (U. S.° 1827). Whore

absent. parties are found to be indispensable this Court

has uniformly held-that -no.adjudication éan be’ made -and

~ ‘the action must be dismissed. Shields v. Barrow, 17 Hew.

130 (U.S. 1855) 5, California vwouthern Pac ifie Co., V7

U. 8S. 229. (1899) ; Arizona vy. California, 298 U.S. 54s

(1936).-

D. Since fhe absent parties are within the court's jurisdictiorf, the’

‘question is whether they are “necessary”, not whether |

they are _indispensable". ; ee ek

‘The four absent State. of Colorado, New Mexico, Utah.

and Wyoming will be affected so directly and materially

by a resolution of the issues raised in the pleadings among

the present parties to the controversy, for the reasons here-

after shown, that they would qualify as indispensable

parties if such a determination were required.’ However,

since the four States hre subject to the jurisdiction of: this

court both as to service of process wand venue, and their

-joinder wiil not deprive the court of its eriginal jurisdie-

tiofi ov de Besse parties, a determination of indispensability

is hi quired at r the federal law of compulséry joinder.

The-absent States must, be joined as long as: they qualify

as “necessary” parties. Accordingly, the only question.

-that need be decided on this motion is whéther the States

of Colorado, New Mexico, Utah. and Wyoming dre neces-

sary parties to this litigation. °

/ > ¥

E The ae States are necessary parties.

Colorado, New .Mexico, Utah and Wyoming must be

joined as meeessary- parties if “complgte relief” is to be

accorded ‘between those presently parties to the contro:

versy, They must also “be joined as’ necessary partie:

because their rights are at issue in this suit and should no!

be determined in their absence. The issues which mate-

rially and directly: affect ah absent States so as to. require

"ae

| ee / ee

their joirder are identified and summarized in the follow-—

Ing pages... ;

“iO

THE FOUR STATES OF COLORADO, NEW MEXICO, UTAH AND

WYOMING ARE NECESSARY PARTIES TO THIS. ACTION

- BECAUSE THEY ARE PARTIES TO THE COLORADO'RIVER

COMPACT: THE MEANING AND EFFECT OF WHICH ARE

IN CONTROVERSY IN. THIS CASE, AND NQDECREE CON-

STRUING THAT AGREEMENT CAN BE FULLY EFFECTIVE

WHICH DOES NOT DETERMINE THEIR ‘RIGHTS AND OB-

LIGATIONS AS’ WELL AS THOSE OF THE PRESENT: PAR-

TIES.

_A. Both the rights of the absent States, as areas in part within

the Upper Basin, and the obligations of those States, as

‘the: four ‘States of the Upper Division.” are controlled by

the language of the Colorado River Compact which deter-

- mines the rights and obligations of the present parties.

The obligations of the States of the Upper Division are

stated in Articles LI1I(e), Hi(d) and I](e). The greater

portion’ of the waters.in controversy in the Lower Basin

reach that Basin through the operation of those Articles.

The rights of the Upper Basin, like those of the Lower

Basin, are stated in Artieles I[1l(a), Tf(e), UTef) and

(gy. The quantities reaching the Lower Basin are

directly affected by the ¢ qui tities which. the U oper Basin

may have a right to usé, | ets

The obligations and the rights of all the States are

affected by Article ss Vif and VIII. :

The rights and. obligations of the absent States are

‘defined. in the same terms, and in some eases in the same

sentence, as the rights and obligations which‘are in dis-

pute among the present narties, as is developed below.

B. The States of the Upper Division are affected by ‘the question.

of whether the apportionment made to the Lower -Basin*?

by Article IUl(a) is identified with the covenant of the ©

‘States of the Upper Division in Article If/{d) not to deplete ~

the flow at Lee Ferry below a total of 75:000,000 acre-feet.

in each period of ten\ consecutive years, or whether ihe °

“rights which may. now exist” to uses on the Gila River

and other Lower Basin tributaries shall be charged against

the Lower Basin’s apportionment under Article III(a).

This question depends upon the resolution of two ethers:

(a) Are the uses of the waters of the Gila River System’

and other Lower Basin tributaries chargeable at all to

the apportionment made by Article IIT(a). to the Lower

Basin? : vee

(b) If uses on the tributaries are chargeable under

A rticle III (a), what is their magnitude?

These two questions were primarily responsible for Ari-

zonas retusal to ratify the Compact for twenty-two years,

and they go to.the heart. of the present controversy.

The contending views are as follows:

Califorma asserts that the waters ofthe Gila River

Séstemare part of the G@lorado River System as defined,

by Article I[(a) and of the-Lower Basin as defined sby

Actiele Il(g¢), (California’s Answer-to Arizona’s Complaint,

par. 7, p. 9); that uses “under “rights which may now |

-exrst” to. the waters of the Gila River System are charge-

able under Article III(a) of: the Compact to the Lower.

Basin ant dto Arizonus (ie. » par. "2. Dp. 11.12): and t

yt cniah

1,12); and ae stat ae

uses amount to not s than 2,000,000 acre-feet per annum

‘(id., par. 8, ‘p. 12).

Arizona asserts that the ‘apportionment nrade by Article

I1l(a) to the Lower Basin is of the use of Waters present

in the main stredm and measured at Lee Ferry (Reply to

California’s Answer, par. 8. p. 16). and “thac the 75,000,- -

000 necre-feet specified in Article TIT{d) ‘bears: a direct

quantitative relationship to the 7,900,000 acre-feet per

year apportioned to tlie Lower Ba sin by Article LI(a)”

7. ®

(Reply to California’s Answer, par. 11, p. 18)’. She alleges

that the first million acre-feet of uses on the Gila (measured |

by her depletion method) are chargeable under Artich-

HiI(b), not Tl(a) Gd... par. 8, p. 17), ond that only the

eXCESS, which she now Savs is 170,000 acre-feet, Ts charge-

able under T1I(a). (Ud). : ae |

The net effect of Arizona’s contentions is to read. the

wila River System out of the Compact insofar as Article

IIIa) is concerned. (Arizona also reads the Gila ‘out ‘of

-the Colorado River System insofar as the Mexican burden

is concerned: Reply to California's Answer, par. LO. p. 17.)

The effect of this issue upon the obligations of the four

1 Arizona’s present position on this point reverses, that which |

she presented to this Court in Arizona v. California, et-al:, 283

U.S. 423.(1931), in which her eounsel said. (Brief of fSomplainant

in Opposition to Motions to Dismiss the Bill of Conrplaint, p. 32;

Appendix 28 to California’s Answer to Arizona’s Complaint in

theyinstant suit, pp. 397, 398 ) : ne Neo

“The provision in pa iragraph (ds) Article TIT rig the Upper

Basin States will not cause the yey of. the. river to be depleted

below 75,000,000 acre-feet over. ten-vear te ag has, as the

Colorado brief, page 44, correctly states. no hearing on the amount

af the apportionment.to the Lower Basin. This 75,060,000) acre-

feet is not apportioned to the Lawer Basin. It may not be ap-

propriated in tae Lewer Basin. _Ouly. wso-anach, of=it-rray he

appropriated as together with existing and fututre appropriations .

of, water in or from tributaries #ntering the river below’ Lee

Perry will total 7,500,000. acre-feet per year. The. 75,000,000

aety-feet includes all surplus waters which under paragraph (¢)

inst’ first» bear any tess burden, whieh may not be appro-’

> ‘ ~~» .

mriated, grid whk hy are subj ‘t to appertiongnent niter des. It is

fundamental to an under'st sietisi of the Compact th: it the annnal

beneficial gonsumptive use in perpetuity of 7,500,000" acre-feet

of water apportioned’ by it to the Lower Basin ineludes all bene-

fictal consumptive, use iy perpetuitye which may be made from

the whole ‘river system, and is not mere!’ an vapportionment of

such uses in main stream water flowing at’ Lee Ferry: - The

agreement not to deplete the flow at Lee Ferry. below the specified °

amount does not mean, and cannot under the plain words of the

Compact be construed to mean, that the guaranteed flow is ap-

“portioned to:the Lower Basiz-or may be. appropriated there. | As

to this, at least, there can be no shadow. of doubt.’

> “ “ z e

in a ten-year period at Lee Ferry must include: at least

absent States under Articles I]](e) and. II1(a), as States

of the Upper Division, is as follows:

If the usé@ of Arizona on the tributaries are ch: argeable

at all to the Lower Basin’s apportionment “under Article

[II(a), it follows that, even if they’ aré measured under

Arizona’s theory at only approximately 1,000,000 “aere-

feet, the 75,01 19,000 acre-feet received by the Lower Basin

10,000,000 acre-feet of waters other than those the use of

which is apportioned to the Lower Basin by Article IT(aJ,

because manifestly the Lower Basin cannpt claim this ten

million acre-fe et twice under Artiele III(a), onee on the

tributaries and a second, time at Lee Ferry. The States

of the Upper Division, in the ealeulation of their obliga-

tion ander Article III (c), are thus directly affected by the

question of whether 6r not the uses on the Gila River and

other Lower Basin tributaries are accountable under Ar-*

-ticle Danes quite aside from the question. of how such,

uses are measured. , 3 ;

That béing so, the States of the Upper Division are al-

fected by the magnitude assigned to the usés on the L oF

Basin tributaries Californtaasserts that such uses gmount.

te at least two million acre-feet per annum on the Gila

River Syster min; Arizona: says they are less than 1,200,000,"

This represents a difference of another 8,000,000 to 10.--

000,000 acre-feet. in 10 years in: the classification of the.

uses of ‘the waters arriving: ‘at Lee Ferry.

?Compare this contention, glso, with Arizona’s assertions in

Arizona Vv. California, ef al.,~883 U.S. 423 (1931), partieularly

par. XTV of the bill of. soompi (reprinted in ‘Appendix 2>

to California's answer, p. 389):

. ©€3) Said compact defines the term ‘Colorado River Sys:

tem’ so as to inelude therein the Gila River and its tributaries. |

of which thenotal flow, aggregating 3,000,000 acre-feet of .

‘water annually, was appropriated and put -to beneficial use

prior to June 25, 1929."

—e

The dispute over, the magnitude of the tises on the

Gila is part of the more ge eral dispute as te how bene-

ficial apiaretate dei uses shall be measured, (H1-D, ipra).

“a The States of the Upper Division are affected” by the nection

of w ether. the provision of Article VTII that ‘present per-

fected_tights are unimpaired’ by this Compact” means un-

impaired as to quality as well as. ee:

The parties’ contentions are as follows: .

California alleges (Answer to Arizona’s ( ‘omplaint, par.

‘TS, p. 17), that the protection of this language extends -te

quality as well as quantity; Arigona says that the provi-:

sion relates only to. quantity (Reply to California’s An-

swer, par. 15, p. 20). - «

Nach State alleges the existence of, large “present per-

fected rights.” California alleges that, as of: June«20,

1920, her rights of that category exceeded 4,950,000 aere-—

feet*per annum, (Answer to Arizona's Complaint, par. 28,

p. 29), me asured ‘by diversions Jess return flow. Arizona

admits - that California had eonstrneted ‘projects: as of

ine 25,1929 whieh required. a “net main stream deple-

tion of about 2,902,000 aere-feet of water per annum”

(Reply to California’s® Answer, par. 28, p, 26). Arizona

alleges that in 1922, 73,000 acres were irrigated in that

State from the mainstream of the Colorado River. aus

par. 4, p. 14).

That there. were large ‘ ‘nceasak perfected riphts” to the

use of main stream water in the Low er Basin is attested

‘Article VIIT of the’ Compact and ‘Section 6 of the

alee ‘anyon Project Act, directing that the dam and

reservoir be used, among/othe r purposes, for .the protec-

tion of such. rights. Go ime | Bote es

The effect of this issue upon the abse nt States Is as

iollows: ‘

It is a “question of .faet; to be ‘developed a t the trial,

what-effect the increased utilization of water in the Upper

Basin will have upon the concentration ¥ salts in the

“sins,

residue reaching Lee Ferry, ae present concentration

equals somewhat less fan one ton of saltS per acre-foot

of water. What the effeet will be, due té. increased uses

of water in the Upper Basin, and whether. transmanntail

diversions will have a greater effect on the: quality at ‘Lee

Ferry than in-basin’ consumptive uses, are matters to be.

determined. Tow much increase in salinity the projeets in

the Lower Basin, with “perfected rights” cam stand With-

out affecting the vield and. types of crops which have bec Me

grown are other factors to be considered.

>The absent States are thus affeeted by the questions of ,

whether Article. VITT protects “present perfected rights” .

with respect to.quality as well as quantity, what agi -

tule of such rights in the Lowen nisin if: hy ‘be, and ‘the

eifect that the covenant’ ‘that such “present perfected rights

shall remain unimpaired. by the ¢ ‘oloradi 0 River Compact”

may have upon the rights and, obligations of the absent

States. Past res

D: The rights of the Upper co im are affected by the controversy _

- over the interpretation’ of the expression “beneficial con-

sumptive use” .

The expression: “beneficial consumptive use” occurs 10,

‘Articles ah) and lil(b).. Its meaning affeets both ba-

Four definitions of this expression have been advanced:

California says (par. 8 of Answer to Ari@na’s Com-

piaint) that the. méaning of this term in the Compact is the

same as that defined in section 4(@) of the Boulder Canyo on.

Project, Act: ,

“

aueregate annual consumptive use (div ersions

less returns to the river) of water of and from the

¢ ‘olorado eee a 3

ae?

which, California says, is aimplified in the Me: XAC an Water

Treaty Article 1()) as follows: a *

“ ‘Consumptive: use’ means the use of water by evapo-

ration, plant transpiration or other: manner whereby

the water is consumed and does not return te its source

of. supply. In general it is me&ured by the amount.of

water diverted Jess the part there of which returns to

the stream.” (See Appendix 2.)

t ss

Cali fornia, says that this was the me aning of that te rm as

used throughout the Compact (.Xnswer tor Arizona's Com-

plaint, par. 8, p. 12.)

Arizona says (( omplaint, par, NX) that’

~ a ee ficial consumptive use Is measured in terms

of main stream ‘depletion, that is,-.thet quantity of

——wifer which constitutes thre deplation. of the stream

by the activities of .man. tres

Nevada says (Petition of Tntervention, par. XVIIT) in

‘substance, that the rule of “diversion Jess. return’ flow”

applies generally subject: to an exception in favor of the ©.

“main stream depletion theory” on gertain tributaries, - >

The four absent States of Colorado, New Mexico, Ufah

and Wyoming, together with Arizona, have provisionally.

agreed ‘Tithe ‘Upper .Celor ado River Basin Compact (85

Stat. 31 Appendix 30): -

“ArticLe VI

““The Commission shall determine the quantity of the

consumptive use of water, which use is apportioned

_by Article TIL hereof, for the. Upper Basin and fer

“each State of the:U pper, Basin by the - inflow-out flow’

method in terms of the inan- -made depletion of the —

virgin flow at Lee Ferry, uniess the Commission, by

unanimous action, Sal? aden ai different method. of

determination. wey

. . °

> .

; ise ks ae . -

‘See Report of the House Committee on Pablie get No. 270,

on Hi R. 2325; Stst Cong. Ist Sess. (1949), an act granting the

consent of Congress to the U pper ( iolered River “hats Corpact

(63 Stat 8b): Jt is recognized that the Upper Colorade River

Basin fompaet ix binding only upon

‘ natery thereto and does not impair any ‘rights of any State not

signatory the reto, and that the U pper Colorado River Basin Com-

the States which are sigt

wit

38.

The “spread” of figures produced by these various tneth-

‘ods is of the ordér of two million acre-feet per annum, as

to the entire Basin, and three to five’ liuudred thousand:

acre-feet as to the Upper ‘Basin. | ee

The four absent States are’ affe cted by this issue in the

calculation of their own rights to use water under-Article .

[11(a). The formula which they have provisionally ‘adopted

in Article VI of the Upper Colorado River Basin Com-

pact does yot bind the States of the Lower Basin or the

United States. They are also affected by this issue in

the calculation of their obligations as “States of the Upper

Division“under. Articles I]F(e) and III(d), supra, because

these obligations are affected by jthe quantities of use of

“surplus” waters above the quantities specified in Articles

HI(a) and I1I()), both in the Lower Basin and the Upper

Basin, which must be yielded before the added obligation

of the States of the Upper Division under Article I1I(c}

comes into foree. The quantities in fact beneficially con--

sumed, measured at the place of use, are: greater than the:

resulting depletion ef the Virgin. flow of the main stream...

This is particularlyetrue in. the Lower Basin. The magni- °

tude of the uses chargeabie to the Lower, Basin is con-

sequently greater, if calculated in terms of actual eonsump:

tion at the places of use, than if calculated in terms of

resulting depletion of the virgin flow of the main stream. ‘

paet is subject, in all jereetic to the provisions pene limitations

contained in the Colorado River Compact. It is further reeognized

that Congress, by -Ziving its consent to the Upper Colorado River

Basin Compact, dcés not =e J United States to-any interpre-

tation of the Colorado. River~Tompact expressed in, or implied

from. the Upper Colorado River Basin Compact, and expresses »

neither agreement nor disagreement with any such interpretation.” .

* As to the figures 8 app! lieable to the Lower Basin, see ** Summary

of the Controversy”’’: Exhibit A to the Answer of the California

Defendants to thg Petition of Intervention of the United States.

and to the present motion. - As to the figures respecting the Upper

asin, see Record, UPPER COLOR wee? RIVE R se ASENg ‘M-

“PACT; Proceedings of Juby &, 1948, p. 5s. | m,

EN: ; 4 F :

We do not think that four sets. of dooks should ‘be kept”

on uses'in the Colorado River Basin, one under the Golo-

rado.River compact, one under the Boulder C anyon Proj-

ect Act, one .under the Upper Basin compact, and) one

under the Treaty. (We think one rule applies,“and. that

the treaty, in Article 1, fairly states Jit.

There are other serious questions involved in the inter-.

pretation of the expression “beneficial consumptive use/’

For example, if water is stored in a’ reservoir and later.

released and used, shall the charge for. that use be. Made

in the year-‘in which the water: was stored (on the Aheory

that the nse, in ‘tie*sense of “depletion” of: the’ river’s

How,. took place ‘n that year), er made in thé year of

release and.actua! consumption? The four absent Statgs

maintain the former inte rpretation (Hearings; House Com- —

mittee on Public Lands, H.R: 2325, 8ist Cong., Ist Sess.,

(1949), pp.-57-58, question 6(h); Appendix’ 31 to Califor-

nia’s Answer, Vol. If). California asserts the 1atter eon-

struction. The difference is ipfportant, because water ‘is

added to storage in pléntiful-years and is withdrawn in

" years of short supply, and the identification of the “use”

with the one vear or the other-se ‘riously. affects the deter-

‘mination of the qpantities of “surplus” W waters used, °”

The term “beneficia? consumptive use,” applied by ‘the

Compact in common to beth Basins, must be given’ a

uniform mem danamcar and re in both. —

E The e Upper. Basin is affected by the ‘ila of whether bene-

ficial consumptive uses of “salvaged water”, i.e., water

salvaged by the’ activities of man, which would ‘be lost

in a state of nature, shall be charged under the Colorado "—

River Compact.

This question is not iisouanetiy controlled ‘i the ques

tion of whether@consumptive use shall be calculated in\

terms of actual use at place of -use or calculated in terms —

of main stream depletion of ‘virgin flow, The question

here is whether any charge at all shall be made, under

' éither theory, for the use ‘of, water salvaged by man which.

‘4

= : : \

Poe yas se rs

¢ a 2

would have és ‘n lost to thee Colorado River S» stem. in a

state of nature. Arizona cites, as an example, the Gila

River, which, she says was a “losing stream” in a state of

nature. (Complaint, par. XXII, p. 2h.) Other. examples

occur on the main stream, on Which there were large evapo-

ration fosses from such areas as thé Palo Verde Valley,

3 .

Parker Valley and Yuma Valley in ‘a state of nature, bit

where, such w ate is now conserved and used; so also

with respeet to the flood waters on the tributaries and the

main stream. which gicaped in a state of nature but were

salvaged by the construction of storage dams, such as

Roosevelt Dam. on the Gila Svstem and Hoover Bam on

the main stream.

The present parties have advanced three contentions:

‘the absent States may- advance. others.

Arizona contends that’ “water salvaged: by man -is not

chargeable as a he neficial consumptive use” (@5mplaint,

par. XNJI, p. 26), although, she’ charges ‘California with

the use of flood waters salvaged .by storage behind Hoover

Dam, which otherwise wasted to the Gulf, of California.

California contends that “no beneficial consumptive 1 uses

at places of use are excepted or exempt from said method of

-measureme nt, W hether of natural flow or of water salvaged

by storage or otherwisein any dap of the basin.” (Answéer’

‘to: Arizona’s Complaint, par. 8, p..12).

Nevada contends that the use of waters ‘salvaged. on

certain tributariés is not. chargeable ‘Petition of Intervén- .

tion of Nevada, par. UXVITT, p. 20), either under the deple-

tion theory (p. 20) or the diversion-less-rettirn- flow theors.

This issue involves the absent States in. two:ways:

As this question involyes the interpretation of ‘“hene-

ficial consumptive use, an expression ‘common. to both

basins, the determination.of the accounting forthe use of

waters salvaged by man must “apply uniformly to hoth ©

basins. : 4

The question of wie the uf of aos water shall f

be charged undér the Compac/f in either ba}in, affects the

total of the uses chargeable ih the entire Colorado, River”

¢ - .

t 1 ah

2. Ret we hae, een

Basin under paragraphs (a) and (h) of Article ITI, pet

- therefore affects the amount of “surplus over and above the

uggregate of =the quantities specified in paragraphs (a)

sand (b)” of Article. TH, available ‘to‘support the Mexican”

Tréaty burden before. the States of the Upper Division

are required to increase: their deliveries under. Article III

(¢) st Lee Ferry. : | : a

} Fr, The: iss Basin is , affected by the, question of whether the

Compact term “per annum” means “each year”, or an

average ‘over some unstated period of years.

Both Articles fITfa) arid [IT (ts) refer to.quantities in

terms of uses “per annum.’ The problem is whether the

apportionment madé by Artieledi.(a) to the Upper Basin

reserves to that Basin, against-apprépriations mm the Lower

Basin, the. right to a maximum of 7,500,000 acre-feet Inany

given year, or a right te*an anual averagé of that quan-

tity over some long pe ‘riod of time. The latter is more

advantageous to the Upper Basin and disadvantageous to.

the Lower. “Very large amounts of water are gaffected by

‘this question. uN Bao eg Ree y

The contentions of the States areas follows:

_ The four absent States have asserted aright to use, as-

water apportioned by Article Ha), aggregate quantities

which, averaged over a 32-year! /period, would equal 7 00

. O00 acre-feet per annum, notwithstanding that the annugl

uses which make up this ‘B22year total would exeeed 7,-

500,000 aerezfeet per annum in 17 of the 32 vears, and

that such excess use wot wld amount to as much as 2 million

‘acre-feet ‘in individual years.’ | iene Beers

Bane & The right to ecaleulate the apportionment on an avérage

basis was asserted by the negatiators of the V pper Colorado River

|” Basin: Compact, without translating their assertion into figures,

in the hearings of the House Committee on Publie Lands on ILR:

2325 ét al., 81st Cong., Ist Sess.; (1949), p. of. — (Answer to

(uestion No. 3.) . {

(nh) The regult of this contention, in figures, appears“ih “ Coto-

rado Ris er Storage. ‘Project and Parti@ipating Projects, Upper

ad e

Z ‘TIT(b).

*Project Act i+ ‘‘aggregate annual consumptive use”’

4 specified quantities *

42... 4 :

. 4 °o

‘California's contention is that the quantities specified in

Articles IlI(a) and ITI(b) relate to.the aggregate. annual

uses in ‘each calendar year: considering: each year Sépa-

‘The result is that if the Upper Basin uses more

itely.

fons 7,500,000 acre-feet in a given. year, it is using water

‘ above that apportioned to it by ® Article III(a), and if the.

~Lower-Basin uses more than 8,500,600. acre-feet im any

given. year it is using water in excess of that apportioned

‘by Article I1I(a) and. surplus to that ‘permitted by Article

The fight to use that ‘excess or surplus is noi

founded on the apportionment, made by Article LI (a), but

upon appropriation of sue +h excess or surpdus w aters (using. |

_the word ‘ ‘appropriation’ ‘heré, as elsewhere | in t hrieg.

to inelude the aeqnisition. of rights liy contr act with the.

United States to the use of waters stored by the U nited

States)» ‘California construes ‘ ‘per annum,” “like “per hour”

ina speed limit, and denies the right Of either Basin to

“apportioned” in perpetuity, a quantitY -in excess”

¢,900,000 ‘acre-feet inva given vear merely because thi it

- Basin, m some other: year, tised less than that quantity. 2

Se ne

“tse, as:-

~Colarado Rixyer ice : UU. SS. Bureau of Riskaniation. December

1950; H. Doe. 364, 83d Cong., 2d Sess.;_ (1954),-p. 152: (Table

‘captioned Titeregindtion of active-storage requirement to per”

mit full utilization of apportioned consumptive use”’): , Column

2 of that Table; captioned ‘Ultimate ‘use of upper basin appor-

tionment,’, shows. uses by proposed Upper Basin .projects ‘of more

‘than 7,500: 000 acre-feet jn each of the 17 years corresfondihg to

the historieal years 1914, 1916, 1917, 1918,'1920, 1921, 1922, 1925,

_—_ #927, 1928, 1929, 1930,-1932, 1988, $941; and 1942, ranging.

. from an excess’ of 90,000 acre-feet ine a-year like 1930 to an,excess .

of 2,030,000 acre-feet in a- year like 1917. ‘The aggregate use in

these 17 years, in exeéss of 7,500,000 acre-feet. per annuy,

15,680,000 acre-feet, and the couse excess for each of pe 7 ;

“years. is 2920 000 acre-feet. The average exeess for the- hole

32-year, period is 490, 000 “aere-feet per annum.

.? The ‘expression used in Section 4(a)-of the Boulder Canyon

The weer

that Act refer ‘to delivery at

This: is. true with .respect to

contracts in’ California (Ap-

ela a we

contracts made - under t

‘each vear”’

_ the Governnient’ s water delivery

delivery

‘Arizona apparently agre(s with this in principle, but

-contends.that, as a paretical matter, measurement of uses

must be “

(Reply ‘to Califoriifa’s Answer, par. 8, p. 17.)

if California is econrect, the absent States are relying,

iff the planning, of their projects, on a misinterpretation of.

the Compact which, with respeet to this point alone, would.

unlawfully add several hundred thousand acre-feet, per,

wunum to their supply, and ‘correspondingly diminish the

ne sipply to. which the Lower Basin is law fally entitled.

The expression, “per ayinum” must: be given a uniform

%& ‘interpretation in‘beth of the Basins to which the one ex-

pression. refers. site att ie

A) eee ake rf ee

G. The Upper Basin is atfected by the ‘question oi whether, and

show, rights tnay be acquired in either Basin to the use.

averaged,” and that the issue has not yet arisen,

of waters surplus -to those specified in ‘Articles iis) ana :

Ea Il(b) of the Compact, |;

Two Widely’ confliting views on this question have iieen” :

: stated: . mi * ee 7

=? . - ,

California asserts that pursuant ‘to its Sti atutory € om

pact with the United States rights may be presently yi:

quired in such surplus waters, by appropriation, Smelud-.

« ing contracts with the U nited States whe fe such waters

have been stored by the’U nited'States,.and that this. right

likewise « ckist s under the Compact ‘and npplies: in the

Upper. Basin States, ‘subject to the Ages of earlier ap-

propriations and earlier — acts ‘in the Lower Badin.

(Answer tg Ari: zona’s Complaint, Se 2¢, p. 28; par. 13,

p. 16.) ea a, ate: i. t : Rhng

eto (Complaint, par. XI, p, 47: Prayer, par.‘ 4, p.

2 _-—_--— a whines son yeeecememepanennemnet 4 é y

pendixes 11: 13, 16° 19, 21; 23 to ‘<a Answer at the ¢ ‘alifornia,

Défendants to.Arizona’ s Bill of ¢ ‘omplaint Arizona Exhibit C.

to Arizona’s Bill of ¢ ‘omplaint ye and Ne wera ‘pre ndixes VECA),

VI(B) to Petition of Inte ‘rvention of the Unifed States). The.”

guaranteed delivery te Mexico is 1, 500000 acre-feet.“* annually”,

‘ta year’, (Mexican Water Tre eats Art. 10: Appendix 29, Vol. IT). .

}- . 3

, v : “8 : ‘ : i

ee : or : ~ “4 é

‘ Fy }

% Reply to California’s Auswer, par. 13, pp, 18-19) as-.

‘

@ , wi a4

seris that yo Mghts maybe acquired in such surplus waters

execpt as the result of. a new,compact to be made after

October 1, 1965. - nate ae. ;

a issue alfecds the abse nt States in several ways:

“the ¢ ompact should. be beld, as California. contends,

te a yr tion to the Upper Basin the beneficial consumptive

ase af only 7,900,000 acre-feet in each calendar year, and

hot a long-term average of that amount, the right of the

Upper Basin to the hene ‘ficial consumptive use of ‘more

than 7.900,000 acre-feet in any .one calendar year. is de-

pendent apo the establishment oT a right thereto by ap-

seealinn and use, not by appoxtionment under , Article

Iliaii But Arizona (Complaint, par. XI; Reply’ to Cali-

formia’s Answer, par.’d7) and Nevada (Petition. of Inter-

vention, par. XX) deny the existence of any present right

te acquire 1 rights in unapportioned Waters, A question ot

fact exists as fo whether all such surplus waters which

the Upper Basin might atfemptobetpe hi have already been

appropriated or contracted for in’ the “ower Basin or

dedicated to Mexico by treaty.” (See California’ s Answer

to Arizona's, Complaint, par. 46,°p. 52. par. 47, p. 90:

Answer to Nevada's Petition of Jutervention, par. 5, p. 9;

Aiiswer to ‘Petition of Intervention of the United States,

ae 117, pp. LO-5T.) .

— Caltfornia contends that the C sauna was intended when

re In 1922 to- insulate the. Upper Basin against the

iw’ of appropriation, appled regardless of State lines

(ivemima vy. Colorado, 209 0. Se 418 (1922)) onky to the

exte 7 of a permanent ri xzht to make beneficial consump-

tive nseeot 7.000000 acre feet per annum, All other waters

must come down the river, unless appropriated for bene-

ficial consumptive use In the Upper Basin in campetition

with the Jawer, for they are either subject to the appor-

fionment siade te the. Lower Basin by. Article TI] (at,

te the Lower Basin’s‘right to inerease its use by 1,000,000

acre-feet por annury, or to the dedicé ation Gf 4,500,000 aecre-

feet a year made by the Mexivan Water Treaty to Mexice,

° .

or to appropriations longs since: made in the Lower Basin

of all other waters in excess of those apportioned. -by

Article IiT(a) |

. a . > ° . > ; }

oH, The Upper Basin is affected by the question of whether the

increase of use permitted to the Lower Basin by Article

III(b) is an apportionment in perpetuity as against the

Upper Basin, or whéther the Lower Basin’s right to that

million acre-feet, as against the Upper Basin, is depend-

ent upon beeictilaas aan 3 and use.

The conte ntions adv: nepes to dhte are as follows:

California alleges that the danguage of Article WI)

dogs not constitute an appertionment to the Lower Basin,

which’ remains good in pereptuitylagainst the Upper Basin

refardless of non-use, as does theJapportionment, made in

Article F(a}, but that the “Hifht to increase its use”

given the Lower Basin becomes oe only te the ex-

tent that appropriations, including contracts ‘with the

United Sfaites for the use-of water stored by. thes United

“Statesy-are made; that only upon making such appropria-

tions,and not until then, does the tight become vested in

users in the Lower Basin (Answer té Arizona's Complaint,

par. 9p. 15); and that the first million acre-feet so com-

mitted in-excess of 7,900,000 in any year, throughout the

Lower Basin, is coveted by this permission. It follows

That if such rights have not been exercised by the time the

Upper Basin beéotnes entitled under Articles ¢ ALIQY) and

Hiis) to demand a further apportionment, the wncom-

mitted portion of this million. acre-feet becomes available

tor further: apportioninent upon’ demand of the Upper

Basin, as a part of thé waters unap portione ‘d by the Colo-

rado River Compact 4% 4 Se . #(a) of the Boulder Canyon

Project Aet). . ” j “

} Arizona now. alleges that fhe use of the acre-feet re-

ferred to in Article IIT¢b) is apportioned by the Com-

pact in perpetuity to the Lower Basin, but is identified with

the waters of the Gila River, which are physically avail-

losses on laike Mead.

cable: only to Arizona and Néw Mexico! (Reply to Califor-

nia’s Answer, par. 9, p. 17).

- Nevada asserts that increases of use dinsabht the

Lower Basin are accountable under Article III(b) and

-are available. to all-five States in that Basin upon an

agreement among such States (Petition of Intervention,

par. VIII, p. 13), but that Article I[I(b) constitutes an ap-

portionment by the Compact to the Lower Basin (ad., par.

X, pp. 14-15). |

The issue affects the Upper Basin’ with respect to the

‘quantities of water which will be available for reappor-

tionment under Article III(f). If the uses referred. to in

Article III(b) -are “apportioned,” that million’ acre-feet

will not be subject to reapportionment in favor of the

Upper Basin, even if unused. . But if the Lower Basin’:

right thereto is dependent upon dppropriation, not appor-

tionment, the portion unappfopriated will be subject to

reapportionment, like other surplus waters unapportioned

. by the Compact.

1. The absent States are atfected by the issue of the accountipg

‘ for reservoir evaporation losses.

There are a number of contentions on this issue.

- Arizona contends (Reply to California’s-Answer,. p. 50):

“Losses of water in and from reservoirs located in the

‘Lewer Basin on the main stream of the Colorado River

shall be charged against the apportionment to Arizona

and California: respectively in the cath proportion as -

the corsumptive use of water delivered from storage

in such Reservoirs in the Stats against which the’

charge is made currently.bears td the total consunip-

tive use in the Lower Basin of water delivered from

storage in suc ‘h Reservoir.” ;

This would exclude Nevada from any charge for reservoll

ree oe

‘Compare with Arizona's contentions in Arizena v. Califarnu,

- et al., 223°ULS. 425 (1981). Appendix 28 to California's Answer,

p. 398, 399. :

a deen 47 ;

OT itertis contends that the limifation imposed by the’

Sti tutory Compact is stated in quantities * ‘for use in Cali-

fornia.’ and”

“Said Statutory Compact does not provide for the

reduction .of said quantities in cons equence of reser-

Vor, evaporation or other losses occurring: prior to

delivery of said waters at thespoints of diversion. in .

— California.”” CAnswer to Arizona's Bill of Complaint,

".. par. 27(f), pp. 27-28.) . Ee

Nevada ;contends that ens

“oyapertion losses of water from. storage reservoirs

on the main stream of the Colorado River in the Lower

Basin are first chargeable out of exces¥.or surplus’ |

water =~ that such evaporation tosses are not charge-

> able against Article T]I(a) or “HIE(b) waters unless

and until all such available eXCCES OF surplus. ‘water.is

exhausted in anv give n year.” ‘(Petition of Interven-

" . tlon,. par, XY HIT, a

The four absent States apparently contend, that all reser-

voir fosses in the Upper Basin, whether on the main.

-streamn or tributaries; are chargeable against the uses ap-

portioned by Article Tf(a) of the. Colorado River, Com-

pact. (Upper Colorado River Basin Compact,. Art. V;

Appe ndix 30.). -. oe

it is net known wh: it position the nited States will take

as to the accounting for reservoir evaporation losses at-

tributable to federal claims to water, ¢.¢...tor the service

of Indian rights, performance of the Mexican Water Treaty, -

navigation, flood control, power ge neration, ete. a

The quantities of ‘reservoir ‘evap@ration losses involved

are of the order of two million acre-feet per annum, some-"

what more than one-half being in the. Lower Basin. .As

this question arises’in connectiow with the definition: df

“beneficial consumptive use” in Article TI1(a) and TH(b),

dnd affects obligations under Articles ILI(e) angl 1IT{d),

itis an ISSUG common to both Basins.

is.

J. Thé as Basin is ufieted = the question of whether rights

of Indians, qnd uses under these and other federal claims

_of rights, are chargeable against the apportionments made

by the Colorado River- Compact. or are excluded there- . :

from by Article VIL.

This question, which coneerns the absent States as much

“as. the States new parties to this suit is discussed, infra,

in connection with the necessity of ‘the presence of thes

oStates as parties tu thd. adjudication of th feder: al claims 4

to the waters of the Colorado River System. |

K. Language in the Colorado River Compact applicable to both

Basins must be given the same interpretation as to both,

and the degree in this case interpreting such language as

to the Lowey Basin must, to be effective, operate through-

ou! the Uppér Basin-as well as the Lower... This requires

that the four absent parties to the Compact be made

parties to this action.

The Color: ado River C omp act, like whe, 4 interst tate cor

pects, is a contract between states. Green v, Biddh

Wheat, 1 (U.S. 1828). Parties to the compact are ee

by joint obligations, and have ‘rights as joint obligees.

The settlement of the controversy between the present

parties to the Suit, Arizona, California, Nevada. and. the

United States, can only be made by a decree determining

provisions of the Colorado River Compact definitive of

Lower Basin rights. and obligations which by the same

language “must conversely be definitive of rights: in the

U pper Basin and obligations of the Upper Division States.

If the Upper Basin States of Colorado, New Mexico, Utph

and W voming, as. parties to the ( ‘olorado River ( ‘ompael

are not made parties to the suit, no settlement of Lower

Basin rights can be final ancbeffective. Under the appli-

cable law they must be joined. x. |

{1) NiGNATORTES TO THE: COMPACT MUST BE JOINED.

The absent States.are necessary parties ™erely as sig

-natories tothe Colorado River Compact now in controversy.

Following the general tests for necessary or indispen--

-_&

‘

9 .

able parties set forth in the leading case of Shields v. Bar-

row, TT Hhow, 180 (U, So1855) the courts have given them

specific appheation to situations where contract rights of

absent parties are involved in the controversy before the

court. The Shields case itself determined that in a suit

to rescind a contract, all parties to the contr: act are indis-

peusable to the suit, as the rights of an abseit party to the

instrument could - not hee adjudic: ated in’ his absence.

Similarly, a general rule that all ane to the contract

ties has been followed where the question was uot one ‘of

the very existence of the Contract, as in the Shields reseis

sjon- case, but one of mterpretation of respective rights and

obligations nnder the contract in -Issue, Nile s-Bemente

Pond Co, V5 Trop Moulders Union, 254 és. iwi (1920);

“Crreqgory Le Stefson, = 2 op S. 579 (1890) ;- Cf. Mallow v.

Hinde, 2 Wheat: 193 (U.S. 1827). oS ae

In National. Licériee Gu. ve NULRIB., 309 UV. S. B50 ( 1940)

the court stated the rule and its reason:

“Ordinarily where the rights involved in litigation

arise upon a contraet, courts refuse to adjudicate the

rights of some of the parties to the’ contract if the

others are not before.it.,... Such a judgment. or de-

\ cree would be. futile if rendered, since the contract

rights asserted by those present ip the litigation could

neither be defined, aided nor enforeed by a decree whic h

did not bind-those not present, (p: 363). 7

Ave a see Gauss v. Kirk, V98 F.2d 83; 84 6D. CL Cir. 1952),

’

; UNDER rik Compact MUST BE JOINED,

are more than mere parties to a contract in dispuie, ‘as

ited with the wvighits of the Lower Basin St: Cs wi id COM

relled by the same language so ‘that any de termination of

ee Basin rights pursuant to the Compact would Cons

> ° 8

5 ;

in issue must be joined as. necessary ‘or indispensable par-

() Parrres HAVING INTERDEPENDENT RIGHTS AND OB LIGATIONS

The States of Colorado, New Mexico, Utah and Wyoming

their rights under the Colorado River Compact are jointly,

aimee

“, . ot : .

versely deterniine rights in the a pper Basin. Moreover,

the obligations of the absent States as States of the Upper

Division, ATC «sO interdependent with ‘the rights of ‘the

Lower Basin States that the Miterests of one group cannot

he defined and adjudicated without ‘affecting the interests,

of the other, ‘ : e. ° Ny oe ;

Tn ‘S ommone ealth Trust ‘of Pittsburgh v. Smith. 266 U.S

15? (1924) the State of Idaho entered into a eontract wit)

an irrigation eo! npany whereby the’ company was to build

irrigation works and provide the requisite water supply to

séttlers, s&lling to eac he se ‘ttle ‘yr water rights all on the’same

plane of equal priority, not in r exeess Of the available water

supply. The éompaary—in turn "entered into contract w Rh.

settlers of reclaimed lend to sell.water rights to a common

_Water supply. All conjracts between the company and the

settlers were of the.same tenor, but eachavas separate an a

distinet. * In an aetion by the hok ler of the company. con-

tracts against only two of the settlers for. nonpayment un-

der their contracts, the Court held that all were necessary

parties, saying:

“The “bill sets forth the. controversy respecting the’

water supply and does so for the purpose, of having it

determined.: The controversy-is not peealiar to the

“eontracts sued on put reaches and affects all that are.

outstanding. The contraets, while several in form,

are interdependent in substance and operation. All |

are effectively tied together by the contract between

the State and the company in ‘virtue of which they

‘were made jand by what théy purport to do,

aae t

whie hits

to entitle their holdérs to participate on equal terms

in the usé of& commen supply of: water and to invest.

them With proportionate interests in the works by

which the agi is col¥ected and conducted to the places

ot use.” (p. 159). a

Then the lewer court: judge \ was guoted with approv al as

follows:

“In a very substantial sense all the settlers are parties

to one genéral contract, in the subject matter of which

ae.

all are | tnbocte ted and by virtue of which’ all have rights.

so interdependent, whetlier they be regareled as joint

or several, that the‘interest of one cannot be defned’

: and adjudieated without affecting the interests of? the

other.” ; .

ety: s

The courts have-uniformly required the joinder of absent

persons subjeet to the courts’ jurisdiction having a com-.

munity of interest with me litigation at bar. Independent

Wireless Te Le vara ph Co. . Radio ¢ Corp. of jAmerica,.269-. ts

UL S..459 (1926)-> Metropolis Theatre Co-v. Barkhausen,

170 F, 9d 481. (7th Cir. 1948), cert. de er 3: 36 U.S. 945

(1949); Franz v. Buder, 11 F. 2d B54 (Sth Cirs 1926), cert.

denied 273 Ye 7H6 (1927); West v. Randall, 29 ed. Cas.

719,No. 17,424. (C.C.R.I. 1820).

(3) APP. PARTIES HAVING INTERESTS IN CoLorapo River

SYSTEM WATERS MUST BE JOINED,

The subject matter-of the controversy—ie., the use of

‘the water of the Colorado River System—would make, all -

of the States of the Colorado Riyer Basin necessary par-

ties to the suit, even if the rights -asserted bore no rela-

tionship to a Compact in which the rights of the States.are

_interdepende ntly stated. Arizona recognized this tact in

er previous suits in this Court in which she named all of

the other ‘Colorado River Basin States as’ de fendants.

-Arizong y. California; €otorade, Nevada, New Mexico,

_ - “7> ee 3 ‘ . .

Utah, Wyomina, and Wilbur, Secretary. of the Interior,

283. U.S, 423 (1931).; Arazona ve California, Colorae, Ne-

rada. New Mexico, l ay Wruoming . and Lekes, Secretary

; of the Interior, 292.U..S. B41 (4934). Arizota v. C alifornan,

Colarado, Nevada, ee Mexico, Vtah and Wyoming, 298

VS. 558 (1936). The legal principles are well recognized.

In California v. Nouthern Pacific Co., V7 U.S. 229 (1895)

_——*

the Court held absent parties to be indispensable (and.

“consequently ousted the court of original jurisdiction)

eventhough they were involved in‘real estate transactions

distinetly separate from the litigated trans actions. Hiow-

technically would net be binding on the

- ever, re Huse the validity of all the transactions tug

on ‘eominon questions of law, the Lo owrt felt that’sn v dew

issued wold be hollow im the absence of all the parties |

the other transactions. After conceding thate the dees

ot mt par thes ~ as

res judicata, the Court said: ;

Jit is impossible to ignore the inquiry whether th

interests of parties not before the court would he

allected amd the-eantraversy so left open te futare ie

gation as would be inconsistent, with equity and 00

CONSCIENCE. | (p., 250). Oh aay

Ssimilafly-i 1 Minnesota v. Northern: Securities Co. Wt

UV. 8.499 (1902) the Court héld that in order to judge the

rights of the Northern Securities Company to exereis

control over two parallel and competing railroads in Min-

nesota; the rights of the two absent railroads were neces

‘sarily involved, making them indispensable parties. — Ip

the present suit an adjudication of- rights of the Lowe

Basin States to Colorado River. System water .would nee

essarily control the remaining rights of the [pper Bast:

States to System waters,’ uate |

In Railroad C ompany V. Orr, 18 Wall, 471 AU, S) R73)

certain bondholders brought suit for an accortiting and

foreclosure of the mortgaged property. All of the bend:

holders named in the indenture agreement were ‘not joined .

as parties. The court noted from the bill that the mortgaged

property was probably inadequate to pay all of the bin

claims purporting to he secured by it, and held the absent

bondholders: necessary parties to the suit, stating: =

os pe rsous who have any materi: r interest in th

subject of the tigation should be joined as S parties oo

“It is the interest of every dondholder .to diminish the

debt of every. other bondholder. Insofar as he suc:

ceeds in doing that, he adds to his-own security. Flach:

holdér, therefore, should be present, both that he may.

defend his own claims and that he may attack the

other claims should: there--be just occasion for it.

oe 474, 475).

table share in the unappropriated wat

-however, that this contention could not be

abe? : 4

These principles. concerning parties have been applied to:

te Colorado Rivér. In Arizona v. California ef all, 24s

CS, Bae (1950) Arizona joined ull of the States of the

Colorado: River Basin, but not the Lauted States. in a stiut

veeking to quiet title to right~ Lo Tie permanent use of a

certain portion of the Waters of the Colorado River. It

"was argued by, Arizona that under the applicable Taw, the

rivhts of the Unite “id States were Wot involved as they were

subject, ‘and secondary,-té the right of Arizona tocan equi-

The Court held,

juelicially deter-

mined ina proceeding to which the Unitdd States was not

a party, and in which it could not be heard.. The Court

went. further to ‘state: i

“Although no decree rendered in its absence ean bind

or affect the United States, that fact is net am induce-

ment for this Court to decide the tiehts of, the states

which are before it by a decree which, because af the

absence of the United States, eauld have no finality.

California ve Southern Pacific Co., 1o7 U.S. 229, 251,

2907: Minnesota v. Northern Securities Co.. 184°U.

bO9, 235, 245-247; Juternational. Postal Supply Coe v.

Bruce, 194 U. S. 601, 606 ; Texas Vv. Interstate Commerce

Cominission, 258 U.S. 158, 163”. (pp. 571-572):

4 pon the same prince isles the absent States of. Colorado,

New Mexico, Utah and W voming ape necessary parties to

the present suit. i

NEW MEXICO AND UTAH ARE NECESSARY | PARTIES TO THIS

- ACTION.BECAUSE THEY ARE STATES WHICH ARE IN

PART. WITHIN THE LOWER BASIN. IN ADDITION TO THE

“REASONS WHICH MAKE THEM NECESSARY PARTIES: AS

STATES OF THE UPPER DIVISION AND OF THE UPPER

BASIN. — Es a |

| A. New Mexico, Utah, Arizona, ,

divided interests under the

the “common fund” of wate available to the Lower

Basin.

? f\ The Colorada. River Compact defines the Lower Basin )

ts terms which\inelnde portions of New Mexico and Utak,

as well as portions of Arizona, Califérnia and Nev: ada

(Article IT(g).) . : f

The ¢ line ado River C ompact mi ikeNno gllocation among

the five States of the uses of water available to the Lower

Basin as a whole, and ‘they have not agreed upon an allo-

cation. (The relation of the Statutory Compact between

the United Siates nd California to this. question is dis

cussed later in this brief.)

The rights ef Arizona, ¢ Californin’ and Nevada. eannot

he determified without coneurrently determining the rights

of New- ‘Mexico and ‘Utah in the. “common fund” of water

available under the Colorado River Conipact to five States

of the Lower Basin. (Califernia’s Answer to Arizona's

( Complaint, par. 61, p. 64; par. 63, p. 66.) 7

B. The meaning and effect of the Colorado River Cogpact and the

Boulder Canyon Project Act are in controversy in respects

which specifically affect New Mexico and Utah as States

. which are in part within the Lower Basin. : |

1). There is controversy as to whether the “rights which.

mayanow exist’ to the use of the water’ of the Virgin River

_in Neyada and.Utah, andthe Little Colorado River in

‘New Mexico and Arizfna {streams which enter the main

stream below Lee Ferry) are accountable under, and pro-

tected by, Article III (a) of the Compact. California as-

serts the affirmative. -(Answer to Arizong’s Complaint;

par. & p. 12.) Arizona says that-all uses under Article

ILI(a) ‘are to be taken-from water flowing’ at Lee Ferry,

(Reply to Califérnia’s Answer, pars, p. 16.)_

(2) Thére is controversy as to whether the “rights which

may now exist” tothe use of the waters of the Gilawiver

System in New Mexico are accountable under, and pro-

tected by, Artie Tl] (a): of the Comipact. California as-

seras that they are: Arizona says they are’ not, -but are

covered by Article TIT (h). _(Repiy to California's Answer,

par. 8. .9 » pp. 146, Iv. ) : |

. < :

(3) TH@re is controversy as to whether Nevada's share

in any @lass of water -has been detCBnined. - Nevada \as-

certs that they have not (Petition, par. NED s. arizona

that they have (Answer to Nevada's Petition, pan 12).

(4) There is controversy as to whether ‘rights to the

% ' xg

“increase of use” under Article TI11(b) may be acquired by

appropriation “(ing@mdinig contracts with the United States

With respect to Water stored by it), as California contends |

(Answer to Arizona’s: Complaint, par. 9, p. 15), or. only

by agreement among the five States in the Lower Basin;

as Nevada contends (Petition of Intervention, par. VILL,

pp. 15, 14; par. NVITI,3p. 19).

« (9) There is eontrove ‘Tsy as to whether the aati or .

the Mexican Water Treaty @)), ‘the Ltwer Basin, in case

“surphis’* ahoye the aecregate of the anantities weighed:

Artieles I1T(a) and I]T(b) is not sufficient. to meet it,

falls- first, on the uses covered gby Article TI}(b) as Cali- ~

fornia contends (Atiswer to Arizona's Complaint, par._10,

p14); or on the fos covered by Article TI] (a),as Arizona

contends (Reply to California's a Ei par. 10, p. 18).

{6) 'Bhere is controversy as to whether the term “henefi-

cial.consumptive use” shall be given a different meaning

on the tributary systenis, ineluding the Virgin and Gila |

Rivers, than ‘on the main stream. ® The affymative is as-.

ees ns : \ i

serted by Arizona -(Complaint, par.. XXII, p: 2b) and

Nevada (Petition of Intervention; par. NVI, p.. 20

the negative jy California (Answer to Aifizona'’s Con-

plaint, par. 8, p..12).— — , : |

3\ ;

C. The meaning. and effect of the Statutory Compact “benivees |

the United States and California, evidenced by the Boul:

der Canyon Project Act and the California Limitation Act,

are in controversy in respects which specifically attect

New Mexico and Utah as States ‘which are in part within

< the Lower Basin.

: : ; oR ie ‘

(1) There is controversy ‘as sta whe vey Waliforhia is

‘excluded by the termis of the Statutory Compaet from pur:

ticipation in the increase of use pé rmnitted to the Ldwer

Basin by Article IfE(b) of the C ompact, Arizona asserts.

the atiirmative (Complaint, par. XX, p. 25). | The: nega-

tive is lsserted by California. ( Answer e Arizona’s Gom-

plaint, par. 27, -p. 20), and Nevada (Petition of Interven- .

aie, pars XVITI, p. 20), Pe ee a

ag =

There is‘controvers® as to thes the right. ‘of the

La Basin to‘the increase of use permitted by Article

Tllib) rek ates to all water of the Colorado River Sy stem in

the Lower Basin as is asserted by California { Answer to

Arizona’s Complaint, age p. oe par. 63, }. 66) and

Nevada (Petition of Intervention, par. “XIV, po 18; par.

XVII, p. 20), or whethers this fight is limited to. the

waters of the Gila River and is available only to Arizona

and New Mexico, as Arizona contends, excluding not only. -

California but Nevada and Utah. ~(Reply to Califorma’s-

Answer; pars 4, ay og use

’ | :

(3) There i is contraversy as to the ayal ability of “sur

plus” waters for use in the Lower Basin under the State

tory. Compact , and. the’ rights of the five States ‘to make

use ofvit. |

' 8

HF a <

D. Arizona. is not cruthorized to speak for or commit t New Mexico

or Utah. :

Arizonits’ purported recognifion cot the bighits ot New

Mexico and Utah (Complaint, Prayer. p. 30), based Upon

Arizong’s Interpretation of the Compact, does. not bind

“those States, (See also Nevada's Petition of Intervention,

par. NITT(b), p. 16). -New Me ‘X1CO and Ut: . Inay or may-

not agree with ‘Arizona's interpréations of ‘the Compact

. and of their rights thereunder, and in any eVent those

rights must be determmed either by/decree of. this Court, er

inferstate’ compact. Arizona’s asserted willingness to ne-—

cotiate an agreement With these two Sti ues has not mate-

nalized. ‘Tn ‘any compact with the, in the past.’ 22 years.”

G. The niidiiinions as to the rights/ and ihcesiiaians of the Lower

> Basin cannot be effectively resolved in the presence of

only three, and the ,ahsence of two. of, the five States

sharing those rights and obligations. . :

The States of. New. Mexico and Utah, as pa eh

Ni part within the Lower Basin, participate in‘ tefeter-

amined amounts in the mht to bene ficial con am/ptive use.

, OF \ Seommon fund’? of water available for, use in the

hee Basin under under the’ Colorado River Compact.

As such :their interests pequire thei ‘ir joinder as necessary

par ples foran ¢ fective settle ment of the presnt.e ontrove r sy!

A case-in point is Williams v. Baiikhead, 19 Wall. 963.

(U.S. 18743. There a specific fund of money was in dis-

“pute. An absent. party: who clajmed an interest in the

Tand was: held indispe msable to the"aetion by the court.

on the basis that any decree disposing of the fund would 7

directly pee ‘interest therein. - Similarly in along

Ntutes v. Bank if New 5 3 ark &. Tryst Companu, 296 U.

463. (1936), in volving specific atin the court stated :-

nae . there are nume rous persons, dite claims in

relation to these funds are in the course of adjudica-

tion: .. 2 they are entitled \to be heard and they are

2 indispensable parties to any proceeding for the dis-

position of the property invelved.” ‘(p. 480)

9 ys

The absent States of New Mexico and Utah are entitled

~ to-be heawl on their undefined rights to the common fund ‘ff

of. Lower Basin water, and conversely if they -are not

joined, .a’ determination. among ‘the ptesent paryie s of

1A er esis rights. would be subject’.to later diXruptiy.

_invany- subsequent litigation by them. - As stated by the

court in Barney v. Baltimore, 6 ‘Wall. IR() (U. S. 1868) in

holding absent co-heirssindispens: ible to an action for par?

fition brought by one of the: heirs: ahs

"IPs deste is made, whie h is intended to bind ‘a il,

“it is, manifestly unjust to do this when thew are not

i parties te‘the suit, and hi ve ho opportunity to he

herd, “But as the deeree cannot bind them, the vour

eannot for that very: yeqson afford the rehéf asked,

:to the other. parties, ’ ), (p7 7285) :

; -@ /

| See'also Russell v. Clark's E recutors, 7 Cranch: 69 (U.S

1812 : Fran? v. Biler, 11 F. 2d 854 (sth Cir. 1926), cert. -

dented 27° UU a. TH6.-(1927); Young v. Powell, 179 Fy 2d

147 (Oth Cir. 1950), cert, denied gov U.S. 948. ; 4

Accordingly, the States-of Ufah wsyd ‘New Mexico-must

he. joined af parties to the suit to give complete relief to

the present parties with resect " to the water available to .

re er Ba isin. ‘

‘Iv

THE FOUR ABSENT. STATES .ARE NECESSARY PARTIES TO °

THIS ACTION IN THEIR. CAPACITY AS. THIRD PARTY BENE-

_ FICIARIES OF THE STATUTORY .COMPACT BETWEEN THE

UNITED. STATES AND CALIFORNIA EVIDENCED ‘BY THE

BOULDER CANYON PROJECT ACT AND THE CALIF ORNIA.

-.LIMITATION ACT. - .

A. The continued existence of the Statutory Compact-as a | reces:

sary accompaniment to a Six-State Colorado River Com-

: pact may not be determined inthe absence of all parties. .

2 = the contract: =»

‘ he-atlegation by “Arizona that she riified the C ‘olorgd®

River Conmipact in 1044, thus creating a Seven-State Com-~,

pact, is in issue. - This raises the question of whether the’

‘

Sti iMitory é open between “the United States and. Cah,

fornia, wherdin California. agreed. to ce rain imitations

“upon her usés- for the henegt of Colorado, “Nye Mexivey

Utah and, Wyoming (as well as the _ present parties of +

Nevada’and Arizona}. remuaine “ed ine feet aut Arizona should

lie held) to “have effectively ratified the ‘Conipact. ° This

‘onestion can only be decided if all the parti¢s to the’Six- |:

State ips oe ‘are joined to'the suit’ Slueldsew. Barraw, =

PN How. 130 {U. S. 1855) ; Northern. Indiana R. Roviciéhy-

qan Central RM., ag 4 bigot (U.S. 1854); ‘ “ard Vv.

“Dedvers, : 203 FE; 2d 72 (D.C, , 1953). Me fro polis Theatre

Ca Wi Barkhausen, 170' F. zt 481 (ith, Cir. 1948), cert. .

denied, 336 U S. 945 (1949) ; Lawrence v. Sun Oil Co. 166". -

Pr. le 466 (oth $ ir. 1948) ; WV. mneent Qil Ce. ve Gulf BR: fining >

af” u, > 198 Fed. 4; 34 "(; oth (' i. 191: 2): Kicinschinidt e: Ad 11- of!

schividt Laboratorie s, Inc... 89 F. Supp. 869 CN, 1D, Tl. JOS): . pnt

> Roos \ De: ras ('o., 23 I’, 2d 171, 172 (2d: Cir "1927 ty oe f

cert, de nied, 127 U. S. 587 (1928). In Shicuds a sf

tint case in which, this Court formulated the adie eli

hitigns of necessary and, indispe nsable partloss it was _

held that all parties “to a contract are indispe fixable Par |

_ action for the rescission of that contract. * si

8, The on shinenit States are necessary parties to Arizona's suit

because all joint beneficiaries of a cogtract must be. —_

* — in-an action by any: one of them to determine the .

’ obligations oi the promiser.

ety

‘California made a single promise-in the ( ‘alifornia Limi- 7

‘ation Aer, pursuant to the Bouiday Canyon: Project Act,

for mie joint benefit of all.six of the other’ States in the

Colgrado River Basin, The Vnired States is th otiver

Pringipal to that agreement. Tdie present. controversy

wuONg Arizona, California, Nevada and the United States a

raiseS $ssues.of ifiterpretatjon ; Ptecting the right’ of the.

tour absent beneficiaries—-Colorado, New: Mexico, “Utah ee

“nd Wyondng. All six joint benettciaries must he patties 9 «

‘o-the aetion if tins issues. are to be resolved.” rey

= G ;

¢ ° ; oe .

nN ‘ S . a ih

Me if}

: Ir ix weld established that in ari action by a joint Obligee

‘against. the obligor, all joint obligees are necessary parties .

patid also wire indispersable’ when indispensability is i

issne, Farnni ve Tesson, 1 Black 309 ( U.S IS62) ; Breimon

VW. A, Sheaffer Pen Co., 209 F. 24.627 (8th Cir, 1954);

gn Fk e468: (th Cir. 19283: Roos ve Teéras Ca.. 23 F. 26

‘71 (2a Cir. 192¢), cert. denied, yyy ae 38 S. 587° (192s):

dhimnies v. Schivehl Bie > ¢ Pol ge (3d (in. 119); Kida HY.

Felder, S4 Fed. -69 (Sth Cir 107): Ui fcAulay ve Moody,

isd Fed. 144 (0. €. Ore. 1911). The rule is designed 10

protect the obligor from possible: harassment and, multi ;

plicity of suits upomw his single promise or duty. Any de-

termination of Calfornia’s rights and obligations winder

to later disruption in a subsequent suit by any one of th

absent. beneficiaries — Colorado, New “Mexico, Utah «1

Wyoming. ;

“While third-party beneficiaries technically are not prom-

isees, where they hold joint rightS they must be treated

like yjomnt obligees for the pufpose of compulsory joinder.

} CORBIN, CONTRACTS, | See. 940 (1951); RESTATEMENT, (ON.

fyers, See. 120, Comment a (1932), ra mad 5 ee"

The absent States of Colorado, New Mexico, Utah: and:

"Wooming ane necessary parties to-any action to interpret .

or enforce the: Statutory Compact. between the United

States ane. ( ‘alifornia.’ ie a ;,

THE, FOUR ABSENT STATES ARE NECESSARY PARTIES TO

THE ADJUDICATION OF THE CLAIMS OF THE UNITED

STATES TO THE WATERS OF THE COLORADO RIVER

SYSTEM.

A. The claims which’ the United. States asserts *‘as giana the

parties to this cause, to the use of waters of thé Colorado

River and its tributaries” are equally claims as against»

all the States of the Colorado River Basin. «

The following chaims asserted by the United States ‘tas

against fhe .parties to this, cause’’ affect the four absent

State Ss

(1) To supply all projects in the Lower Basin (Petition

of Intervention of the United States, par. "AAA, p. 29) ;

but if is admitted that the requirements of these projects

exceed the quantity. of water available to that Basin under

Articles Ida) and TIL(b) of the Compact (Petition, par.

: NXNITI, PD. 33,).. ‘This involves, therefore, an adjudication ;

at the right of the Uyited States in the Lower Basin: as

against the Upper, to store and contract for the deliven

ay de easpgae: of water surpdus cto’ the quantities specified

‘Qhose articles, TT he Government’s contrfets require,

for therr performance, nearly 8,000,000 aere-fect per nna

from the ‘main. stveam- alone (Petition, ‘par. XV, p. 14;

i. XVIIT, p. 17; par. XIX, p. 17), beside the uses on.

he Gila (par. NXIV, p. 22) and the ‘diversion tights”

OP LT47,250 acre-feet Ps rannum for Indians (par. XXVII,

\ppendix IA). The Government asserts that all Its COn-

vacts are valid (Petition, par. NAXI(a), p. 27).

‘ ri’ oo sey . . ’ . . ’

Me) Mo Fulfill obligations carising from = international

“ates and conventions. (Petition of Intervention par,

WX. » 2). This involves:

(a) The obligations of the Nints ~ of the T-

vision under Article ELECe) and PbGd) of the Colorade

River Compact, and ) .

-—

-——

—

“*

—-

<b) The effect on Compact rights and obligation:

of the.so-ealled ‘‘eseape clause’? of Article 10 of the

Mexican Water Treaty, which allows reduction in the

annual guaranteed delivery to Mexico, in the event of

extraordinary drought, in the same proportion as COL:

sttmptive uses in the United States are reduced, ‘‘con-

sumptive uses’? being’ defined in Article 1 of the

Treaty. | |

(3) To fulfill the Government’ s obligations to Indians

and Indian tribes (Petition, Par. XXX, p. 25). This

involves + ieee

. (a) The magnitude and priority of these’ claims

The United States is understood to reserve the right

under paragraphs XXVII (p. 23) and XXXVII (p. 39}

of its Petition of Intervention to assert that Indian

rights are: prior and superior to those of all other

claimants to the waters of the Colorado River System

(b) The question. of .whethet ‘or not uses under

Indian rights are chargeable to the Basin and the

State in which they ocewr. The United States is under

stood to reserve the right, undér the language o

paragraphs XVII (p. 23) and NXXVIT (p. 38) ot

its Petition of Infervention, to assert that. Indian uses

Compact, but. constitute uses outside of (as well as

superior fo) the quantities of uses referred to in the

Compact. Arizona’s position upon this point is an

“bignous (Reply to ¢ ‘alifornia’s Answer, par. 14, p. 19).

All other States in the Basin assertyin effeet, that

Indian uses .and other federal uses are chargeable:

under the Compact to the Basin and State in which

they oceur. (California, Answer.to Arizona’s Con

plaint, par. 14, p. 16; Nevada, Petition of Intervention.

par. XV, p. IS: Upper Colorado River Basin C ompact

(63 Stat. 31, Meee 30, Art. V 18 Bie eae

a 3

Spee, 20

States may be to release water for USE bySIndians i in’

the Lower Basin, and

(dl) What rights the United States may have to

withhold water in reservoirs in the Upper Basin for

use. by Indians in both Basti. :

4) To protect 1 ‘interests in fish and? wildlife, flood

control and iN (Petition, par. oni yp. 25.) 'Fhis

involves :

(a) The impounding and release of water from

reservoirs in both Basins, and not merely reservoirs

hoydering or within Arizona, Nevada and California,

and ; Gee | |

(bh) The question of accounting under the Compact.

(5) For use of the National Park Service,. Bureau of

Land Management, and Forest Service: but if the United

States has claims ‘tas against the parties of this cause”

for these funetions, it has similar alaims to all the waters

af the Colorado ‘River System,

B. the claims which the“United Stgtes iasiele involve questions ‘*

of law common to all the States of the Colorddo River

Basin.’

These inelude:

\ . < . ‘ . = Behe Ras -

(1) The power’ of the United States to impound and dis- :

Hose of water imdependenthy of rights* derived) from the

States: ;

~) The extent of its obligations under treaties and con-

racts, and the impaet thereof apon-: rights. of domestic

‘ater users: ‘

(3) Tlow its claiins to the usesof water shall be meas-

reed : ;

(4) The extent to which its rights and obligations «

controlled by the Colorado River Compact

(5) The extént to which its claims thay be exercised

futuro in derogation of intervening rights and uses, |

e ¢ . a’

C. Certain of the claims of’ the United States, if gustainel

and held to be outside. of the Compact, may render

the Colorado River Compact incapable of operation.

(1) If the uses of Indians throughout the 4 ‘olorado Rive:

Basin are not chargeable against beneficial cons sunptive

vses under the Colorado River Compact, and are Leld ‘

be prior and superior am right to the uses which are charg:

able there may not he sufficient water in the entire Cole

rado River System to service those’ claitfis and the Mer:

can Water Treaty, and td sustain the uses + contemplated

the ¢ ‘ompact ;* 4

(2) Se also with the. undefined claims for use’ by th

Bureau ot Land Manage ment and the Forest Serviee, whic’

together, adm inister, substantially all of the. publie land

in the Colorado River Basin. f

D. The claims of the United States to the waters of the Colorado §

River System cannot be effectively adjudicated in th:

absence of four States which have rights and obligations

with respect to the waters of that System.

| The claims of the United States are asserted ‘indepen

ently of the Colorado River Compact. If they ‘are su»

tained to the use of Colorado River System’ w: aters, the

interests of the absent States in the System waters’ wi

be materially affected, for rights would be decreed ne

only to the Lower Basin's Compact share of watér; b¢

“to the additional amoums requested by the Federal (oy

ernment, which could come only from the whole Rive!’

System. Under the doet rine of the Shields case (17 Hov.

130 (U.S: 1854)) the absent States would hence quali,

‘as indispensable parties.

: 6.) ;

The fact that when claims to Colorado River, pi

water are asserted ‘independently of the Colorado River

Compact, ‘all parties having an interest in the Systein

waters must be joined, was recognized. by Arizona in the

irst three exses of Arizona v. California where the States

of Colorado, New Mexico, Nevada, Utah. ‘and Wyoming

were joined as defendants with ¢ ‘alifarnia. 283. U. &S, 423

(1931) ; 292 U.+S. 341 (1934) ; 298 U. 8. 458-19: 6).

In Nebraska v. Wyoming, 295-U. S. £6 (1985), Wyoming

moved to dismiss Nebraska’s, Bill of Complaint on the

cround, among others, that the State of Colorado was an

indispensable party to: Nebraska's suit for an equitable

apportionment against Wyoming of the North Platte River.

No interstate compact or statutory compact existed Qn

thee Noyth Platte River and the only allegation ‘in the

Bill of ‘Complaint touching Colorado was that. the river

in question had fts souree in Color: ado. ‘The court, . looking |

to the Bill of Complaint, held that Colorado wa not an

indisperisabke party merely beeause of the allegation that.

the Nerth Platte River ayises in that State. and drains, a

nsiderable area therein; more than that allegation of fact

‘would be 'n necessary. The court said further, however:

“We need: not determine whethei Colloxado would be a

proper party, or whether at a later stage of tke caus

pleadings or proofs may disclos se a necessity to. bring

her into the suit.

A Master was appointed. 296 U.S. 542 (1955). Subse-

quentiy Wyoming fied an Amended and Supplemental

Answer alleging the State of Colorado to be a neces-

sary and-indispensable party. The allegations were that

thirty per cent of the waters in controversy originated in.

Colorado, that Colorado and its citizens threatened the

‘liversion of a large quantity of water, that defendant

would, be subject to further litigation if Colorado were

ot made a party, and that a fair‘allocation of water could

hot be made upon ty basis without atthe same time de-

_ termining the rights~of Colorado. (Amended and Sup-

plemental Answer, paragraph Twentieth, filed Nov. 30,

cae Aa

dered that Colorado be made a party. 1296 U.S. 553 af Is

- The tinal decree adjudicated ‘the rights of all three States’

and the U nited States, which had intervened, even thoug!

Colorado had taken the position she mnie he dismissed,

Nebraska \. We yoming and C olorado,: boa U. ¥ S? 589 (1945 )},

The claims of the United States m the present case, lik

the claims ef Nebraska in Ve braska v. Wyoming and Col:

rado, asserted in both cases. independently of any Con:

pact, cannot be, adjudicated piecemeal against the “lowe

States in the absence of the upper States.

yl.

w : 5: VI

ui CONCLUSION.

The: States of ( ‘olor'ado, Sie Mexico; Utah and W voming

_ are necessiry parties in. the pending case’ of Arizona ¥

California ct ae and must be joined-asssuch for ‘a full ay

effective settlement of -the controversy in that cas

They are necessary because they are parties to the ‘Colo-

rado River, Compact, because they; together: with Arizoné

and Nevada, are beneficiaries of the Statutory rear

between the United States and California évidenced hy th

Zonlder Canyon Project Aét.and the California ‘Limite

tion Act, and beeause the claims of. the: Untited | State

affect all of ‘the waters of the ¢ ‘gloriido River System. New

~Mexieo and Utah are necessary parties for the addition’

reason that they have interests in thplower Basin in con

mon with Arizona, California and Nev vada.

“For all these reasons the motion jp join these.four State

‘as parties should be granted. °

Gees , Respeetfully submitted,

/ -

EDMUND G& BROWN, JAMES il, HOWARD,

‘Afiorney General of the General C Thunsel,

Ntate of California, ay a |

OM} State DBuiiding, c HARL ES C. “COOPER, dR,

San Francisco, California, Assistant General € san)

(Stqnatures are continued on. next page)

. .

67 |

VORTHCY TT ELY, DONALD M WET TH.

Pas hi Oe : de ps o dre ery } hy seo ae dy

SROBERT. L.- McCABTY, Deputy General, Cannsel

Assistant Attorneys General, » aPAN pP ATTE 1 ae

a biased reat : Dy puty Ge ne ri al Ce OWNS RG

yshington 9, : a Paz.

PRENTISS MOORE,” RANI pADOUERTY,

horeatensy for eeicger, * ' ' 306. West 3rd Stree :

Assistant Attorney General, ‘oh West 31 7 eyed 2 i

HT South Hill Street, | Los Angeles 13. California, .

‘ : >. " &

Aftorneus for Dy fenmaant

bs iy c € é _ ie : : . e

Los, Angeles I: 3, California, The Metrapolitan Water

Assistant Attorney General, California;

y CHARLES CORKER * ROGER ARNEBERGH,

De puty Attor ney (re ne ral, Bs City. Attor ney,

IRVING JAFFER, :

Deputy Aftorney General,

315 South Broadway,

j ‘Los Angeles U3¢ ( ‘alifornia,

CHARLES PF. WHEATLEY, JOUN TE. MATHEWS,

GILMORE TILLMAN,

Chis f Assistant City sifforney

for Water and Pawer,

IR. ' | DiputP City Attorney,

OF Counsel, VOT South Broadway,

~~ *§ P00 Tower Building. °- . Los Angeles 12, Cafifornia,

Washington 5. DB. CL. Afforneys for De fe ndant,

Attorneys: for Defendant, The City of Los Angeles,

State of California ; Californias -

FRANCIS E. JE NXE x J. FP: De PAUL,

fos. South Spring, Street, “City Attorney. +

Los Ange ‘les 13, California, | :

Attorine iy for Defendant, i SHELLEY J. HhaaidNs,

Palo Verde ‘Irrigation . Assestant he ela

x Disteret : * Civie Center,

HARRY W. HORTON, > San Diego, California, |

Chief Counsel, T. B. COSGROVE,

R. L. KNOX, JR.. 1031 Rowan Building,

Is Rehkopf Building, : Los Angeles 13, California,

El Centro, Cabfornia - AMornens for Defendant,

“Attorneys for Defendant, The Citycof San Diego,

fmperial Irrigaliong ‘ California: ,

Tyree 5

sa istrict: | JAMES. DON KELLER, \

“EARL REDWINE, cae * District Aflernesy,

Ob Sth Street. Court Tlouse, |

aba fi incl . i . saa Die ro, { ‘alifornhia;

Attorye vy for Detendant, WVltorney for Defendant,

Coachella Velde i] County \ (' Guntiy of NaH Digan

Water District ; California. -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.