# Brief of Calif Defendants in Support of their Motion — Arizona v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0146%3A30 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of Calif Defendants in Support of their Motion - **Published:** January 1, 1955 - **Citation:** 350 U.S. 114 ## Text TRRARY- vee 5 ‘ = RT. US id ’ *® 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 ® : . % eo @ md + rae . 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 ae , 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 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 " .: . 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 ee 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 . 32 36 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 | 48 . : : 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- e® «2 , Shicdds \ vin -% Cowl ‘ ~ Stat it J ~ _ Barrow, ‘ ‘onitents Cont intied 17 Thow. 1 Bank: a] Vew mack, “York e Rees | ave e . . 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 ....... . 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) } 7 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 - - I ~« 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 . oi 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 ’ ‘ OL 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’. . es 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 ? ° 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 = a - , 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, -. 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 ») * Ba B. Nou: » wp tiv 4 + 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 : ‘ ° e- 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 ; 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. t , m3 (ban addition to the apportipfiivent in paragraypi ps ). the Lower . Bast: is herebw@given the right “to © *"ineréase its beneficial. consiimptive. use of sueh waters » 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 . | : @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, ’, ° ; . : ‘ . 14 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, e- 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 o . 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 . ¢ ‘ 15 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 pa 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.) ss 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. e 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 ga 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-- J 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 o [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} ‘ , 2 g ‘ se Sree 2] 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 > 99 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. x 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 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 ie . 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 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 / > ¥ 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. wy 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)” es ~~ 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 4 a, 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 \ 4 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: e 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 oN ss “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 é » 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, e » oo 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. — 4 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 = : : \ Hy 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 ow 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 4] 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:- of ~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- © e ° *t ela a we ae 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, |; a. 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 ‘ ° . > ; } 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- Yd - losses on laike Mead. ~ 46 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 | to * “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: on “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, a 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 hj 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- mS 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 ow 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. ) : | * . 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) a 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. - . te 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: =» we ‘ 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’ * ‘ 4 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); National. City Bank ©. Harbin Electric Joint- Stock i OU 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 the Statutory © ompact in the present suit would be opel 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 ) . -— = -—— ~ — “* —- - 62 . " & Aftorneus for Dy fenmaant bs iy c € é _ ie : : . e Los, Angeles I: 3, California, The Metrapolitan Water “ CILBER i ae NELSON, ef . © District of Nouthern 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. - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0146%3A30. Public record. Not legal advice.