Appendix — California v. United States

Supreme Court brief1978

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MICHAEL RODAK, JR., CLERK

APPENDIX (VOLUME I)

: y

In the Supreme Court of the Huited States

Ocroser Tzrm, 1977

No. 77-285

Srate or Caurrorni, et al.,

Petitioners,

Vs.

Unirep States or AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR CERTIORARI FILED auaustT 19, 1977

CERTIORARI GRANTED DECEMBER 2, 1977

I TE A EEE TE

SORS PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 04105

APPENDIX (VOLUME I)

INDEX

Entries Pages

Docket Entries ...................... t

a. Federal District Court ............... 1

I I cecereenssctessnisninnsninnniniinnssicintiiiaciapiiiipiiiaiibe 4

SEED cicssrinssnussiinnieanitiincidiiieapeicainaeniil 11

DORR GOI scccccnsiiitrcnienatbiitiiteniciilialciaaiedas 20

BITED « cccsrmsriniltinniniacsissiietiansnsiisanaienietaniniiiaaiabainpaitlutaidiiias 21

Dems GRGUED TINT ccreecscecsnensneesccencnniniitiaiiaaianian 28

DOCKET ENTRIES (FEDERAL DISTRICT COURT)

1973

10-15

10-30

11-13

11-16

11-17

11-19

12-20

1974

1- 2

1- 7

3- 2

3-16

5-14

6-11

7- 8

7-13

7-17

8-13

9-11

9-18

9-21

9-11

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

Filings—Proceedings

Fld complaint, issued summons.

Fld summons on ret exe.

Fld stip & ord ext time.

Fld no of mo to stay & consolidate.

Fld no of mo for ord staying proceedings.

Fld amend to complaint.

Fld anser.

Fld memo of State of Cal in partial opp to & partial

support of US mo to stay proceedings.

Reg for mo to stay & consolidate, Ord briefs fid by

Feb 19, & ord Feb 4 hrg on mo for summ judgmt reset

to Mar 4, 74 at 2:00 PM.

Ord case reset to May 14, 74 for fur proceedings.

Fid status memo.

Ord ease cont’d to Jun 11, 74 for fur proceedings.

Reg for hrg on motions, ord submitted on briefs & case

cont’d to Jul 8, 74.

Fld munite ord re stayed proceedings.

Fld notice of mo for sum jdgmt.

Fld no of mo on judgment on Pleadings.

Fld mo for sum jdgmt.

Fld mo for judgmt on pleadings.

Fid memo of po and auth in sup of mo for sum jdgmt

and judmt on pleadings.

Fld pltff interrog to deft.

Reg for mo for sum jdgmt and jdgmt on pleadings.

Stip to Oct 22, 1974.

Fld pltfs memo of po and auth in opp to defts mo for

sum jdgmt and jdgmt on pleadings.

Reg defts mo for sum jdgmt and jdgmt on pleadings.

Hearing reset from Oct. 22, 1974 to Nov. 19, 1974 at

10:00 A.M.

Fld defts answers to pltfs interrog.

Fld defts reply memo of po and auth.

oud = OC

to © 1 te

DAMM 19

Appendix

Filings—Proceedings

Fld pltff supp memo of po and auth in opp to defts

mo for sum jdgmt and jdgmt on pleadings.

Fld notice and order on mo for sum jdgmt on plead-

ings be re-set to Nov. 25 and 26, 1974 at 10:00 A.M.

Fld defts reply memo of po and auth.

Reg for defts mo for Sum Jdgmt and Jdgmt on plead-

ing. Oral arg made by both parties and cont’d to Nov

26, 1974 for fur hearing.

Reg for Further hearing. Ord. case cont’d to Nov 27,

1974 for F/P.

Reg for Further hearing and completion of arg. Ord

fur briefing as fol Ca. to open Jan 2, 1975; U.S. reply

Feb. 2. 75; Ca to close Feb 24, 75. with the case taken

under submission on Feb 24, 75. The transcript is to

be available within 60 days. Cont’d to Feb 24, 75 for

F/P.

Fld memo of po and auth Amici Curiae in opp to mo

of defts sum jdgmt.

Fld defts opening brief.

Fld memo of Kern Co. Water Agency as amicus curiae.

Fld pltfs opening brief after hearing on mo for sum

jdgmt.

Ord cont’d to Apr 21, 1975 for F/P.

Fld defts reply brief for sum jdgmt.

Ord cont’d to 6-30-75 for F/P.

Reg for F/P. Cont’d to 8-25-75.

Reg F/P. Cont'd to 10-20-75.

Fld opinion. Mo for sum jdgmt Denied. U.S. Mo

Granted.

Fld cert of serv by mail.

Fld Judgment. Ent this day. Mld.

Fld no of appeal.

Fld personal bond on appeal. $250.00 Cash.

Mld notices.

Fld designation of record on appeal of Ca.

Fld pltfs X-designation of record on appeal.

Fld request to include proceedings in transcript had

on 11-27-74.

Fld appellant’s designation of record. (AG)

Appendix 3

Filings—Proceedings

Fld ord ext time to transmit record on appeal.

Fld ext for transmission of appeal to Feb. 26, 1976.

Ord of 9th Cir directing clerk’s transcript to be filed

in that court by 3-23-76.

4 Appendiz

75-3554

DOCKET ENTRIES—9%th CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. S-3014

Judge Thomas MacBRIDE

filed 10-28-75

Fed. Rep. 2nd P 1239

D in DC: 10-15-73

IL DC Eastern California (Sacto) For Appellant:

United States of America, Richard Nichols,

Plaintiff-Appellee Asst US Atty.

vs.

State of California, State Water Re- For Appellant:

sources Control Board, W. W. Adams, Roderick Walston,

Chairman, Ronald B. Robie, Vice Deputy Atty Gen.

Chairman, Roy E. Dodson, et. al.,

Defendants-Appellants

Date Appellant's Account Balance Received Disbursed

28 Deposit, 12 St. of Ca. Atty G.

(5 eon 50 50

28 Treasurer U.S. ....................0-.- — — 50

Date Filings—Proceedings

1975

Nov. 21 DOCKETED CAUSE AND ENTERED APPEAR-

ANCES OF COUNSEL. -acb-

Dee. 29 Filed Aplt’s Motion for Ext. of Time to Transmit rec-

ord and for filing of record on appeal. (to C) — -aeb-

1976

Jan 6 Filed order (C) Record due 56 days date (Jan 2).

Mar 8 Filed Appellants’ motion for order directing filing of

Mar 10

record on appeal without inclusion of reporter’s trans.,

or in the alternative for an order extending time for

transmission of record on appeal and directing prepara-

tion of reporter’s transcript by date certain. to “C”

Filed order (C) The clerk of the district court will

eause the record to come forward within 14 days (of

March 9, 1976) without the transcript. -dmf-

Date

1976

Mar 17

March 23

Mar. 23

Mar 29

Mar 30

Apr 6

Apr. 7

Apr 14

Apr 20

Appendiz 5

Filings—Proceedings

Filed Appellants’ motion (State of California, et al)

for expedited hearing on appeal and for establishment

of briefing schedule. to “C”

FILED CERT TRANSC RECORD ON APPEAL IN

FOUR VOLUMES: VOLS. I-IV, PLDGS, THREE

CERT COPIES. ONE BOX IN ROOM 208. _ -acb-

Aplt’s brief due May 2, 1976

Filed Appellee’s (USA) motion for summary affirm-

ance. 3/26 to Schickele (copy to “C”) Filed Appellee’s

(USA) opposition to motion for expedited treatment,

to “C”) (eopy to Schickele)

Filed order (C) Case will proceed on normal briefing

schedule. When appellants opening brief is filed counsel

may move to set the case. -dmf-

Filed Appellants’ Reply to Opposition to Motion for

expedited hearing on appeal. to “C” (eopy to

Schickele) ee

Filed Appellants’ (State of Calif. & State Water Re-

sources) to augment record and request to take judicial

notice, affidavit of Richard C. Jacobs. 4/5 to Schickele.

Filed Appellants’ (State of Calif., et al) motion for

leave to file oversized brief. to Schickele. Filed Ap-

pellants’ (State of Calif., et al) motion for expedited

hearing on appeal and to set appeal for argument. to

Schickele

Ree’d 25 oversize Aplts’ Briefs (State of California, et

al) 4/5/76 -dmf- (two copies to Schickele)

Filed as of April 5th, order -C- “order of March 26,

1976 (filed in clerk’s office 3-29-76) will stand. In re-

applying the aplts will state that aple is opposed.” ejb

Filed Application of Dept. of Water Resources of the

State of Calif. for permission to file Amicus Curiae

Brief. (to Schickele)

Ree’d 25 Amicus Curiae Brief. (Dept. of Water Re-

sources of the State of Calif.) (2 copies to Schickele)

-acb- 4-7-76

Ree’d from Atty. General, Calif. (appellant) letter

dated Apr 12, 1976, re renewed motion to expedite

(filed Apr 6/76), the motion should note that the ap-

pellee was opposed. to Schickele

Ree’d from aplt (Atty. Gen., Calif.) copy of letter

asking to consider opening brief as opposition to motion

for summary affirmance. to Schickele -dmf-

Apr 26

May 3

May 6

May 10

May 11

May 13

Appendix

Filings—Proceedings

Filed Motion of the City of Sacramento and Arcade

County Water District for leave to file brief amicus

curiae in support of appellants. 4/21 to Schickele

w/copies of brief

Ree’d 25 Joint Amicus Curiae briefs (City of Sacra-

mento and Areade County Water District) 4/21/76

-dmf-

FILED AS OF APRIL 20, 1976, CERT SUPPL REC-

ORD ON APPEAL: ONE VOL OF RPTRS TRANSC,

VOL. V, ORIG. & ONE COPY. RECORD NOW IN

FIVE VOLUMES.

Filed order (C) permitting City of Sacramento and

Areade County Water District to file a joint Brief

Amicus Curiae. Effective six days after date (April 24,

1976) if no objection filed meanwhile. -dmf-

Filed 25 Joint Amicus Curiae Briefs (City of Sacra-

mento and Areade County Water District) 4/21/76

-dmf-

Filed Appellee’s motion (USA) for ext of time to file

appellee’ brief. to Schickele ec

Ree’d Notice of Withdrawal as Amicus Curiae of the

State of South Dakota (no motion to appear as amicus

was filed)

Ree’d from appellant (State of California) letter dated

May 10, 1976, informing that they have no objection

to the motion for extension of time for filing appellant’s

brief (filed May 6), but will oppose any further re-

quest for extension of time. to Schickele

Filed as of May 10, 1976, order (Hu, Cy) a) the motion

for summary affirmance is denied; b) motion for ex-

pedited hearing is granted insofar as the clerk of the

court is requested to schedule the ease for oral argu-

ment in August or September, 1976; ¢) motion for

leave to file an oversized brief is granted; d) motion

to augment the record is denied and the request to take

judicial notice is referred to the panel which hears the

ease; e) motion of the California State Water Re-

sources Board for leave to file an amicus brief

is granted. -dmf-

June 30

Appendiz 7

Filings—Proceedings

Filed as of May 10, 1976, 25 Aplts’ Briefs (State of

California, et al) 4/5/76 -dmf-

Filed, as of May 10, 1976, 25 Amicus Curiae Briefs

(California State Water Resources Board) 4/7/76

-dmf-

Ree’d from Atty. General letter dated May 18, 1976,

re matters to be stricken from their brief.

Filed Motion for late filing of Amici Curiae Brief on

behalf of the States of Arizona, Colorado, Idaho, Kan-

sas, Montana, Nebraska, etc. to “C” w/copy of brief.

Ree’d late 25 Amicus Curiae Briefs (States of Arizona,

Colorado, et al) 5/26/76 -dmf-

Filed order (C) granting leave to file Amicus brief.

Subject to reconsideration if any objection filed within

7 days. jr

Filed 25 Amicus Curiae Briefs (State of Arizona,

Colorado, et al).

Filed, as of 5/26/76 order (W & S) upon due con-

sideration, the motion for ext of time to file a brief is

granted to and including June 21, 1976. jr

Filed Application of the Environmental Defense Fund,

Inc., et al., for permission to file amicus curiae brief.

to Schickele w/brief.

Ree’d 25 Amicus Curiae Briefs (Environmental Defense

Fund, et al) 5/28/76 -dmf-

Filed aple’s motion for ext of time to file brief. (to

THE CLERK)

Filed and order (Clk) granting aplee (USA) an ext

of time to file brief to and including June 25, 1976.

-dmf-

Filed aple’s motion for permission to file xeroxgraphic

copy of brief pending repro. to “C” w/copy of brief.

Ree’d from Atty. Gen., California, letter dated June

29, 1976, advising that the State of Texas joins in the

brief filed by State of Arizona, et al)

Filed as of June 24, 1976 order (Cy & Ky) upon due

consic ration, the application for permission to file an

amicus curiae brief by the Environmental Defense

Fund, Inc., the Natural Resources Defense Council,

Inc., and the Sierra Club is granted and the brief

heretofore received is ordered filed. jr

Date

1976

Jul 2

July 6

Jul 7

Jul 13

Jul 16

Jul 20

Jul 21

Jul 23

Jul 29

Aug 5

Aug 12

Sept 2

Sept 3

Appendiz

Filings—Proceedings

Filed order (C) granting aplee (USA) leave to file

xerographie copy of brief pending repro. -dmf-

Filed, as of June 24, 1976, 25 Amicus Curiae Briefs

(Environmental Defense Fund, et al) 5/28/76 -dmf-

Filed, as of July 2, 1976, one xerographie copy aplee’s

brief (USA) 6/25/76 -dmf-

Filed Motion and Order (Clk) granting aplt an ext of

time to file reply brief to and including July 19, 1976.

-dmf-

Filed 25 Aplee’s Briefs (7/2/76) -dmf-

Filed motion & order (Clk) extending time for filing

aplts’ reply brief to July 21, 1976. ee

Filed Appellants’ motion (State of California, et al)

for leave to file oversized brief. to Schickele ec

Rec’d 25 oversized Aplts’ Reply Briefs (7/21/76)

-dmf-

Filed Motion of Contra Costa County Water Agency

for leave to file its brief as amicus in support of appel-

lants. to panel w/brief

Ree’d 25 Amicus Curiae Briefs (Contra Costa County

Water Agency) 7/23/76 -dmf- (panel)

Ree’d from Atty. Gen, Ca. letter dtd. Jul 28, 1976,

indicating that aplt has no objection to the filing of

Amicus brief (Contra Costa Water Agency) to panel

Filed order (Ca) It is hereby ordered that Contra

Costa County Water Agency shall be permitted to file

in the above-entitled appeal its brief as Amicus Curiae.

-dmf-

Filed 25 Amicus Curiae Briefs (Contra Costa County

Water Agency) 7/23/76 -dmf-

Filed order (H, T) Upon due consideration, the motion

for leave to file an over length reply brief heretofore

received is granted. -dmf-

Filed 25 Aplts’ Reply Briefs (7/21/76) -dmf-

(panel)

Ree’d from Atty. Gen., Calif., letter dtd. Sept 2, 1976,

requesting that each side be given 45 minutes to argue.

panel

Pursuant to instructions from the Court (via way of

memorandum) counsel advised via telephone that the

Court allot 45 minutes per side for oral argument. je

Appendiz 9

Filings—Proceedings

Atty general letter of 8/24/76 (submitted to panel

8/26/76) requesting add’l time for oral argument.

(Letter reevd 8/26/76)

ARGUED & SUBMITTED BEFORE: DUNIWAY,

CARTER & WALLACE, CJJ

Ree’d from U.S. Dept. of Justice, Washington D.C.,

letter dtd. Sept 9, 1976, re add'l citation. panel ec

Filed aplts’ (State of Calif., et al) motion to augment

record on appeal by inclusion of newly discovered

evidence. 1-17 panel

Filed Response (USA) to motion to augment record

with newspaper clipping. panel ec

Received from aple (USA) letter dated 2/2/77 re case

of Israel v. Morton. (panel) ec

Ree’d from aplt letter da'-d Feb 7, 1977, re case of

Israel v. Morton and additional citations. (panel)

-dmf-

Ree’d aplt’s letter (State of Calif.) dated Feb 18, 1977.

panel

Ree’d from aple (USA) letter dated Feb 25, 1977, in

response to letter dated Feb 18, 1977 (State of Calif.)

to panel ec

ORDERED OPINION (DUNIWAY) CARTER CON-

CURRING SPECIALLY; WALLACE CONCURRING

& DISSENTING; FILED & JUDG TO BE FILED &

ENTD

Filed opinion—The judgment is affirmed.

Filed & Entd Judgment. -fn-

Filed as of Mar. 31, order (D, CA, & WL) The motion

to augment the record on appeal, ree’d by the clerk on

Jan. 18, 1977 is granted, and the record is augmented

accordingly. -fn-

Filed aplt’s (State of Calif. et al) application for ext

of time w/in which to file petition for rehearing. (D)

Filed order (D) Granting aplts’ motion for an ext of

time to and including April 29, 1977 in which to file

a petition for rehearing. -fn-

Date

1977

Apr 15

Apr 26

May 3

May 16

May 17

May 19

May 20

May 26

June 2

Aug 12

Aug 25

Appendix

Filings—Proceedings

Filed Aplts’ (State of Calif., et al) Petition for Re-

hearing. 4/15 panel

Clerk’s letter advising that the court desires to have a

response to the petition for rehearing, to be filed no

later than May 9, 1977. -dmf-

Filed Aplts’ (State of Calif., et al) motion to augment

record on appeal by inclusion of newly discovered

evidence. 5/3 panel

Ree’d Aplts’ (State of Calif., et al) Reply to response

to Petition for Rehearing. (Response to Petition not

vet ree’d) to panel

Ree’d Aple’s Response to Petition for Rehearing (late)

5/9 to panel

Filed motion (State of Calif., et al) for permission

to file reply to response to petition for rehearing

(panel) ee

Filed order (D, CA & WL) The motion of the aplts

to augment the record on appeal by inclusion of newly

discovered evidence, ree’d by the clerk on May 3, 1977,

is denied.

Filed Ap!ts’ (State of Calif., et al) motion to file

response to petition for rehearing late. to panel ec

Filed order (D) State of Calif.’s motion for permission

to file reply to response to petition for rehearing is

granted.

Filed State of Calif.’s reply to response to petition for

rehearing which was ree’d on May 16, 1977. -fn-

Filed order (D) Granting Aple’ss (UNITED

STATES)’s motion to file response to petition for

rehearing.

Filed (UNITED STATES)’s response to petition for

rehearing, which was ree’d on May 17, 1977. -fn-

ORDERED OPINION (DUNIWAY) WALLACE

CONCURRING IN PART; FILED & JUDG TO BE

FILED & ENTD

Filed opinion—The petition for a rehearing is denied.

Received Supreme Court notice of filing petition for

certiorari on Aug 19 "77, assigned no. 77-285. ogm

Appendiz

Original Filed Oct. 15, 1973

Clerk, U.S. District Court

Eastern District of California

Dwayne KeEyEs

United States Attorney

Ricuarp W. NicHoits

Assistant United States Attorney

2058 Federal Building

650 Capital Mall

Sacramento, California 95814

Telephone: 449-2331

Joun H. GERMERAAD

Dovetas N. Kine

Barry L. Hsortr

Attorneys, Department of Justice

Land and Natural Resources Division

Washington, D.C. 20530

Telephone: (202) 739-2712, 2713, 2724,

2793, 2794, 2800

Attorneys for Plaintiff United States of America

In the Uniied States District Court

for the Eastern District of California

No. Civ. $3014

The United States of America,

Plaintiff,

The State of California, State Water Re-

sources Control Board, W. W. Adams,

Chairman, Ronald B. Kobie, Vice Chair-

man, Roy E. Dodson, Jean Auer, And

W. Don Maughan, as members of the

State Water Resources Control Board,

Defendants.

COMPLAINT FOR DECLARATORY RELIEF

12 Appendix

ACTION AND JURISDICTION

1. The jurisdiction of this Court is invoked pursuant to

the provisions of 28 U.S.C. Section 1345.

2. This is an action for a declaratory judgment pursu-

ant to 28 U.S.C. Section 2201, for the purpose of determin-

ing a question of actual controversy between the parties as

hereinafter set forth. [1]

PARTIES

3. Plaintiff, the United States of America, through its

agency the Bureau of Reclamation of the Department of

the Interior (hereinafter referred to as the “Bureau’’), is

engaged in the construction and operation of the Central

Valley Project (hereinafter referred to as “CVP”).

4. Defendants herein are the State of California; the

State Water Resources Control Board, a public agency of

the State of California created by the California Legisla-

ture pursuant to the provisions of West’s Ann. Water Code,

Section 174 et seq.; and that Board’s five members, W. W.

Adams, Ronald B. Robie, Roy FE. Dodson, Jean Auer, and

W. Don Maughan, who are appointed by the Governor of

the State of California. The defendant Board is located in

the City and County of Sacramento, California, and within

the territorial jurisdiction of this Court. The Board is the

successor to the duties, liabilities and responsibilities of

the State Water Rights Board. West’s Ann. Water Code,

Section 179.

VENUE

5. Venue for this action properly lies in the United

States District Court for the Eastern District of California

Appendiz 13

pursuant to 28 U.S.C. Section 1391(b), in that the plaintiff’s

claims arose in the Eastern District of California.

THE CENTRAL VALLEY PROJECT

6. The Central Valley Project, a federal reclamation

program, was designed to provide, among other things, [2]

for the coordinated development of the Sacramento and

San Joaquin Rivers and their tributaries through a system

of physical works to regulate and distribute water supplies

needed for agricultural, industrial and municipal develop-

ment in the Central Valley of California. For extensive

descriptions of the project see Ivanhoe Irrigation District

v. McCracken, 357 U.S. 275 (1958), United States v. Gerlach

Live Stock Co., 339 U.S. 725 (1950), and Dugan v. Rank,

372 U.S. 609 (1963).

7. The Central Valley Project was authorized as an

undertaking by the State of California in the enactment by

the California Legislature of the Central Valley Project

Act of 1933, Cal. Stats. 1933, Ch. 1042.

8. After the Central Valley Project Act of 1933 was

passed, the State of California, failing in its efforts to fi-

nance such a giant undertaking, attempted to secure federal

assistance. The CVP works were initially authorized as a

federal project by the Rivers and Harbors Act of August

30, 1935, P.L. 74-409, 49 Stat. 1028, 1038, and some federal

funds were made available for various features of the proj-

ect in that year. On December 2, 1935, the President ap-

proved a report of the Secretary of the Interior, dated

November 26, 1935, declaring the Central Valley Project to

he feasible from engineering, agricultural, and financial

stan lpoints, approving and recommending its construction

as a federal reclamation project.

14 Appendiz

9. The 1936 session of Congress appropriated funds for

continuation of the CVP, Act of June 22, 1936, P.L. 74-739,

49 Stat. 1597, 1622, and in 1937 Congress reauthorized the

CVP as a federal reclamation undertaking in the Rivers

and [3] Harbors Act of August 26, 1937, P.L. 75-392, 50

Stat. 844, 850.

10. The Rivers and Harbors Act of 1937, P.L. 75-392,

50 Stat. 844, 850, Section 2 provides in part as follows:

..., That the entire Central Valley project, California,

..., 18 hereby reauthorized and declared to be for the

purposes of improving navigation, regulating the flow

of the San Joaquin River and the Sacramento River,

controlling floods, providing for storage and for the

delivery of the stored waters thereof, for construction

under the provisions of the Federal reclamation laws

of such distribution systems as the Secretary of the

Interior deems necessary in connection with lands for

which said stored waters are to be delivered, for the

reclamation of arid and semiarid lands and lands of

Indian reservations, and other beneficial uses, and

for the generation and sale of electric energy as a

means of financially aiding and assisting such under-

takings and in order to permit the full utilization of

the works constructed to accomplish the aforesaid

purposes. ...

11. Construction of the Central Valley Project was

begun in 1937 and the initial units of the CVP were first

placed in full, coordinated operation in 1951.

12. Over the years the Bureau of Reclamation has filed

applications with the State Water Resources Control Board

or its predecessors for water uses necessary for various

aspects of the CVP. Such filings have been made in the

interest of comity with the State of California, but are

not required as a matter of federal reclamation law.

Appendiz 15

13. As water use increased in the Central Valley, it

was evident that more units would be necessary to accom-

plish all of the purposes for which the CVP was envisaged.

Accordingly, Congress has continued to authorize addi-

tional units and has appropriated additional funds for the

Central [4] Valley Project.

THE NEW MELONES PROJECT

14. The New Melones Project was authorized as one

of the units of the CVP by the Flood Control Act of

December 22, 1944, P.L. 78-534, 58 Stat. 88. The project

was reauthorized by the Flood Control Act of October 23,

1962, P.L. 87-874, 76 Stat. 1180, 1191, which substantially

modified the Project in accordance with House Document

453, 87th Congress, First Session. That Act reads in part

as follows:

... That upon completion of construction of the dam

and powerplant by the Corps of Engineers, the project

shall become an integral part of the Central Valley

project and be operated and maintained by the Secre-

tary of the Interior pursuant to the Federal reclama-

tion laws, except that the flood control operation of

the project shall be in accordance with the rules and

regulations prescribed by the Secretary of the Army:

... Provided further, That before initiating any diver-

sions of water from the Stanislaus River Basin in

connection with the operation of the Central Valley

project, the Secretary of the Interior shall determine

the quantity of water required to satisfy all existing

and anticipated future needs within that basin and

the diversions shall at all times be subordinate to the

quantities so determined: . . . Provided further, That

contracts for the sale and delivery of the additional

electric energy available from the Central Valley proj-

ect power system as a result of the construction of the

16 Appendiz

plants herein authorized and their integration with

that system shall be made in accordance with pref-

erences expressed in the Federal reclamation laws...

And provided further, That the Secretary of the Army

give consideration during the preconstruction planning

for the New Melones project to the advisability of

including storage for the regulation of streamflow for

the purpose of downstream water quality control.

[Emphasis added. ]

15. The Congressionally approved New Melones Project

provides for a dam on the Stanislaus River, about [5] thirty-

five miles northeast of Modesto, California, to create a

reservoir with a gross storage capacity of about 2,400,000

acre-feet for flood control, irrigation, municipal, industrial,

domestic, power, recreation, water quality control, and fish

and wildlife purposes.

16. The New Melones Project provides for construction

of a 300,000 kw capacity hydroelectric powerplant imme-

diately below the dam. The Project will also provide flood

protection to about 35,000 acres of highly developed agri-

cultural land in the flood plain of the Stanislaus River and

to suburban areas. When completed the New Melones

Project will develop a presently estimated conservation

yield of 285,000 acre-feet annually including up to 70,000

acre-feet for water quality in any one year. This yield will

provide a new irrigation supply for diversion to the local

service areas or for export to other areas in the Central

Valley needing water; provide urgently needed power;

provide recreational opportunities and insure the preserva-

tion and propagation of fish and wildlife; and provide water

quality control along the Stanislaus, the lower San Joaquin

River and in the Delta.

Appendiz 17

17. The United States, through the Bureau of Reclama-

tion, sought to obtain permits to appropriate unappropri-

ated water from the Stanislaus River for development of

the New Melones Project, and in this regard, filed Applica-

tions 19303 and 19304 and sought as well the assignment of

Applications 14858 and 14859. The defendant, on April 4,

1973, rendered Decision 1422 which ruled on these applica-

tions. A copy of that decision is attached hereto and made

a part hereof.

18. In Decision 1422, the Board specifically found [6]

that “[t]here is unappropriated water available to satisfy

the demands of the project as proposed.” (D-1422 at 26)

The Board then ordered that Applications 14858 and 14859

be transferred to the Bureau of Reclamation, and further

ordered that permits to appropriate be issued on these

applications as well as on Applications 19303 and 19304.

(D-1422 at 28)

19. The Board, however, attached numerous conditions

and limitations to these permits. (D-1422 at 29-37) Such

limitations and conditions interfere with and affect the

operation of the Project as authorized by Congress. By

way of example:

1.) Decision 1422 gives a preference to the use of

the Stanislaus River above the New Melones Dam for

boating and rafting uses over the power, lake recre-

ation, fishery, and water conservation uses provided

for in Congressional Acts authorizing the New Melones

Project. The area above New Melones Dam on which

boating and rafting is done consists to a large extent

of federal lands withdrawn by the United States for

power and reclamation purposes.

Appendiz

2.) Because the Board decided in Decision 1422 that

water was not then needed for irrigation and domestic

use, it prohibited storage of water in the New Melones

Reservoir except for those quantities necessary to pro-

vide flows in the Stanislaus River below the New

Melones Dam for the preservation and [7] enhance-

ment of fish and wildlife and for the maintenance of

water quality. Storage of water for irrigation uses

envisioned by the New Melones Project would only be

permitted after a satisfactory demonstration to the

Board of the need for the water.

3.) Decision 1422 forbids the use of water conserved

by the New Melones Reservoir in areas that could be

served by other Central Valley Project sources. This

limitation is contrary to the Congressional authoriza-

tion which requires that the New Melones Project be

operationally and financially integrated with the Cen-

tral Valley Project. Decision 1422 also would require

the United States to undertake studies, investigations,

and measurements that have not been authorized and

to submit its operating criteria to the State Water Re-

sources Control Board for approval.

4.) The New Melones Reservoir was planned and

authorized to take full advantage of power generation

developed from water released from the reservoir for

flood control, conservation, water quality control, and

fish and wildlife management. To develop the full

potential of project water for power generation as

authorized by Congress, it is essential that a minimum

Appendix 19

pool be established in the reservoir to provide sufficient

head for operation of a powerplant Decision 1422 for-

bids the [8] maintenance of such a minimum power and

recreation pool.

Wuererorg, the plaintiff United States of America re-

quests this Honorable Court to:

(1) Enter judgment declaring that the United States of

America can appropriate unappropriated waters necessary

for use in any federal reclamation project within the State

of California, without the necessity of applying to the Cali-

fornia State Water Resources Control Board;

(2) Enter judgment declaring that when the United

States of America chooses as a matter of comity to submit

applications to the California State Water Resources Con-

trol Board, that Board must grant such applications if

unappropriated waters are available;

(3) Enter judgment declaring that when the United

States chooses as a matter of comity to submit applications

to the California State Water Resources Control Board,

that that Board cannot impose any terms or conditions in

permits issued pursuant to such applications in contraven-

tion of federal law;

(4) Enter judgment declaring that Decision 1422 of the

California State Water Resources Control Board is void in

all respects where that decision conflicts with or contra-

venes federal law;

(5) Enter an order charging defendants with the costs

of this suit; and

20 Appendix

(6) Enter an order for such other and further relief as

the Court deems proper.

Respectfully submitted,

Dwayne Keyes

United States Attorney[9]

By: RicHarp W. NicHois

Richard W. Nichols

Assistant United States Attorney

Joun H. GeERMERAAD

Attorney, Department of Justice

Washington, D. C. 20530

Dove tas N. Krne

Attorney, Department of Justice

Washington, D. C. 20530

Barry L. Horr

Attorney, Department of Justice

Washington, D. C. 20530

Attorneys for Plaintiff[10]

(Title Omitted in Printing)

AMENDMENT TO COMPLAINT

Filed Dee. 19, 1973

Clerk, U. 8. District Court

Eastern District of California

Comes now plaintiff UNITED STATES OF AMERICA,

by and through its undersigned attorneys, and pursuant to

the provisions of Rule 15(a) of the Federal Rules of Civil

Procedure does hereby amend its complaint in the above

entitled action by deleting therefrom paragraphs (3) and

(4) of the prayer as therein set forth at page 9, lines 15

through 24 of plaintiff’s complaint, and by substituting in

the place and stead thereof the following paragraphs:

Appendiz 21

“(3) Enter judgment declaring that when the United

States chooses as a matter of comity to submit applications

to the California State Water Resources Control Board,

that that Board cannot impose any terms or conditions in

permits issued pursuant to such applications in contraven-

tion of federal law, or which are not specifically authorized

and required by federal law, federal regulation or federal

administrative directive;

(4) Enter judgment declaring that Decision 1422 of the

California State Water Resources Control Board is void

in all respects where that decision conflicts with or con-

travenes federal law, or requires action not specifically

authorized and required by federal law, federal regulation

or federal administrative directive ;”.

DATED: December 19, 1973

Dwayne Keyes

United States Attorney

By: RicHarp W. NIcHOoLs

Assistant U.S. Attorney

ORIGINAL FILED

DEC 26 1973

CLERK, U. 8. DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

(Title Omitted in Printing)

ANSWER TO COMPLAINT

The defendants answer the complaint herein as follows:

1. With respect to the lst through the 11th paragraphs

of the complaint, the defendants admit said allegations.

2. With respect to the 12th paragraph in the complaint,

the defendants admit the first sentence thereof, and deny

the second sentence thereof.

33 Appendia

8. With respect to the 18th through the 15th paragraph

of the complaint, the defendants admit said allegations,

4, With respect to the 16th paragraph in the complaint,

the defendants admit the frat three sentences thereof, and

(leony the fourth sentence thereof (commencing with the

words “This vield” at line 14, and ending with the words

“in the Delta” on line 21),

5. With reapeet to the 17th paragraph of the com.

plaint, [101] the defendants admit said allegations,

6. With respect to the I8th paragraph of the complaint,

the defendants deny the first sentence thereof, and admit

the second sentence thereof, The Board found that unappro-

priated water was only available to be collected to storage

from November 1 to June 80th of the sueceeding year in

each year, and found that there was no unappropriated

water available during the month of July, Auguat, Septem.

ber and October,

7, With respect to the 19th paragraph in the complaint,

the defendants admit the first sentence thereof, and deny

the second sentence thereof,

8, With respect to subparagraph 1) of paragraph 19

in the complaint, the defendants deny the first sentence

thereof and admit the second sentence thereof, The defend.

ants allege that Decision 1422 states, at page 18, that,

“Cwlhile stream fishing downstream from the reservoir

would be enhanced, it would be practically eliminated in

the area to be inundated, together with other stream-related

activities and wildlife habitat,” and, on page 21, that “any

permit issued pursuant to Applications 14858 and 19804

should contain terms requiring releases of up to 98,000 acre.

feet annually for maintenance of fish and wildlife as planned

by the Bureau,”

Appendia a3

With respect to subparagraph 2) of the 19th para.

graph in the complaint, the defendants adinit said allega.

tions,

10, With reapeet to subparagraph 3) of paragraph 19

of the complaint, the defendants deny said allegations, Deci-

sion 1422 states, at page 19, that because of the lack of

showing of need for water for the project outside the

counties of Calaveras, Tuolumne, Stanislaus and San Joa.

quin, the permits should restrict the place of use of water

for consumptive purposes to those counties, but should

provide that a petition to include other [102] specific areas

Will be considered by the Board upon a showing that water

from other Central Valley project sources is not available

to serve such areas, Furthermore, Decision 1422 states, at

page 30, that the Bureau shall submit its operations sched.

ule to the Board for approval,

11, With respect to the allegations in subparagraph 4)

of the 19th paragraph of the complaint, the defendants deny

the allegations therein on lack of information and belief,

12, The defendants allege that the plaintiff United

States is required to comply with all terms and conditions

imposed by the defendants on permits issued to the U, 8,

Bureau of Reclamation to appropriate water for reclama-

tion purposes in California, pursuant to the federal reclama-

tion lawa, including but not limited to section & of the

Reclamation Act of 1902, See 32 Stat, 390,

13, The defendants allege that the plaintiff United

States is required to comply with all terme and conditions

imposed by the defendants on permits issued to the U, 8,

Bureau of Reclamation to appropriate water for reclama-

tion purposes in California, pursnant to recent environ.

mental legislation passed by Congress, including but not

limited to the National Environmental Policy Act (83 Stat,

852),

24 Appendix

l4 The defendants allege that the United States, by

accepting assignments for permit applications and by aub-

mitting its own permit applications, has agreed to comply

with California law in appropriating water for the Central

Valley Project, and the defendants further allege that the

plaintiff? United States has accepted the benefite of the

permits issued by the defendants since 1998, and the defend

ants therefore allege that the plaintiff United States should

he estopped from denying the truthfulness of the allegations

in paragraphs 12 and 13 above, [108]

15. The defendants allege that, if the plaintiff United

States prevails in its position that it is not required to

comply with terms and conditions imposed on permits issued

by the defendants, plaintiff United States and the U, 8,

Bureau of Reclamation are required to surrender any and

all permits previously received by the defendants, and to

withdraw any and all applications previously submitted

to the defendants,

16, The defendants allege that the plaintiff United

States failed to file a mandamus action, or any other kind

of action, in the courts of California, or any other court,

to seek judicial review of D 1422 within the time required

by California law, and pursuant to the provisions of Cali-

fornia law, Defendants therefore allege that, under Cali.

fornia law, the assertion of plaintiff United States con.

cerning the alleged invalidity of D 1422 is bared by the

doctrine of res judicata, and that this court is accordingly

without jurisdiction to consider said assertions, The defend.

ante further allege that, for the reasons set forth in this

paragraph, the plaintiff United States is estopped from

denying the validity of D 1422,

17, The defendants allege that any further consideration

of the issues in this matter should be staved pending reso-

Appendix 25

lution of the issues raised in State of California v, Morton,

S 2024, or in the alternative that the two matters should

be consolidated,

Whernerone, the defendants State of California, State

Water Resources Control Board, et al, request this honor.

able Court to:

(1) Deny the relief sought by plaintiff United States;

(2) HMnter judgment declaring that plaintiff United States

and the U.S, Bureau of Reclamation are required to comply

with conditions imposed in permits issued by the State

Water [104] Resources Control Board, which permits

vuthorize said Bureau to appropriate water for use in the

Central Valley Project in California;

(3) Mnter judgment declaring that Decision 1422 of the

State Water Resources Control Board does not conflict

with or contravene federal law, and that plaintiff United

States and the U. 8, Bureau of Reclamation are required

to comply with all terms and conditions therein ;

(4) Enter judgment declaring that the United States is

estopped from denying the validity of D 1422, and estopped

from denying its obligation to comply with all terme and

conditions therein;

(5) Enter judgment requiring the plaintiff United States

and the U, 8, Bureau of Reelamation to surrender any

permits previously issued by the defendants, in the event

that the court grants the relief sought by the plaintiff

United States;

(6) Taane an order declaring that this court is without

jurisdiction to consider the merits of the action herein;

(7) Stay any further consideration of the matter herein

pending resolution of the imsnes in State of California v,

Morton, 8 2924 (FD, Cal.), or in the alternative to consol.

idate that proceeding with this proceeding,

26 Appendix

(8) Grant the defendants their costs of suit herein; and

(9) Grant such other relief as the Court deems proper,

Daren: Deeember 21, 1973,

Kverie J, Younann, Attorney General

Cant Donon kay,

Avaistant Attorney General

Ropeniok Waiaron,

Roderick Walston

Deputy Attorney General

Attorneys for Defendants [105]

Appendis 27

STATE OF CALIFORNIA SN

CITY AND COUNTY OF SAN PRANCISCO

ALICE MAZZA, being firat duly sworn, deposes and

anys

Lam a citizen of the United States, over the age of 18

years, and not a party to the within cause; my business

address is GO00 State Building, San Francisco, California

M102; | served a copy of the attached Anawer to Complaint

on the following by placing same in an envelope addressed

as follows:

llon, Dwayne Keyes

United States Attorney

(50 Capitol Mall, Room 2058

Sacramento, CA 95814

Attention: tlon, Richard W, Nichols

Assistant U, 8, Attorney

Said envelope was then, on December 21, 1973, sealed and

deposited in the United States mail at San Francisco,

California, with the postage thereon fully prepaid,

I declare under penalty of perjury that the foregoing is

true and correct,

Avice Mazaa

Subscribed and sworn to before me,

this 2let day of December, 1973,

Fionence B, Crogien

Notary Publie

in and for the City and County of

San Francisco, State of California,

28 Appendis

UNITED STATES of America,

Plaintiff-Appellee,

The STATE OF CALLFPORNTA, State Water Resources

Control Board, W. W. Adama, Chairman, Ronald i,

Robie, Viee Chairman, Roy Kh, Dodson, Jean Auer, and

W, Don Maughan, as members of the State Water

Resources Control Board, Defendants Appellants,

No, 75.3604,

United States Court of Appeals,

Ninth Cireuit,

April 1, 1977,

Rehearing Denied Aug. 12, 1977, [1347]

Kivelle J, Younger, Atty, Gen,, Carl Boronkay, Asst, Atty,

Gen., Roderick b, Walston, argued, and Richard C, Jacobs,

Deputy Attys, Gen, San Franciseo, Cal, for defendants.

appellants,

Carl Straws, Atty, argued, Land & Natural Resources

Div., Dept, of Justice, Washington, D, C., for plaintiff.

appellee,

Appeal from the United States Distriet Court for the

Mastern District of California,

ltefore DUNIWAY, CARTER and WALLACE, Cirenit

Judges,

DUNIWAY, Cirenit Judge :

The State of California and ite State Water Resources

Control Board appeal from judgment for the United States

entered by the Distriet Court for the Kastern Distriet of

California, The opinion and judgment of that court was

Appendiz 29

reported in United States v. State of California, E.D. Cal.,

1975, 403 F.Supp. 874. The judgment of the district court

appears at 403 F.Supp. 902-03. The principal questions are

(1) whether Section 8 of the Reclamation Act of 1902, 32

Stat. 388, now 43 U.S.C. § 383, requires that the United

States apply to the California State Water Resources Con-

trol Board for a permit to appropriate unappropriated

water from the Stanislaus River for the New Melones

project, and, (2) if so, what conditions, if any, the Board

can attach to a permit that it grants. The questions are

of great importance, and we have given them careful

attention. [1348]

[1] Our study of the record and the law convinces us

that the judgment must be affirmed, substantially for the

reasons stated by Judge MacBride in his opinion.

Two recent decisions of the Supreme Court strengthen

our conviction. In Hancock v. Train, 1976, 426 U.S. 167, 96

S.Ct. 2006, 48 L.Fd.2d 555, the question was whether § 118

of the Clean Air Act, 42 U.S.C. § 1857f, permits a state to

require federally owned or operated installations to obtain

a permit to operate, as required by the state’s federally

approved plan for assuring air quality. The pertinent

language of § 118 reads:

Each department, agency, and instrumentality of the

executive, legislative, and judicial branches of the

Federal Government (1) having jurisdiction over any

property or facility, or (2) engaged in any activity

resulting, or which may result, in the discharge of air

pollutants, shall comply with Federal, State, inter-

state, and local requirements respecting control and

abatement of air pollution to the same extent that anv

person is subject to such requirements.

42 U.S.C. § 1857f.

30 Appendix

The Court states its holding as follows:

Kentucky, like the Court of Appeals for the Fifth

Cireuit in Alabama v. Seeber, 502 F.2d 1238, 1247-1248

(1974), finds in $$ 118 a sufficient congressional authori-

zation to the States, not only to establish the amount

of pollutants a federal! installation may discharge, but

also to condition operation of federal installations on

securing a state permit. We disagree because we are

not convinced that Congress intended to subject federal

agencies to state permits. We are unable to find in § 118,

on its face or in relation to the Clean Air Act as a whole,

or to derive from the legislative history of the Amend-

ments any clear and unambiguous declaration by the

Congress that federal installations may not perform

their activities unless a state official issues a permit.

Nor can congressional intention to submit federal

activity to state control be implied from the claim that

under Kentucky’s EPA-approved implementation plan

it is only through the permit system that compliance

schedules and other requirements may be adminis-

tratively enforced against federal installations. Jd. at

180-81, 96 S.Ct. at 2013.

In view of the undoubted congressional awareness

of the requirement of clear language to bind the United

States, our conclusion is that with respect to subjecting

federal installations to state permit requirements, the

Clean Air Act does not satisfy the traditional require-

ment that such intention be evinced with satisfactory

clarity. Should this nevertheless be the desire of Con-

gress, it need only amend the Act to make its intention

manifest. Jd. at 198, 96 S.Ct. at 2021.22 (footnotes

omitted).

In Environmental Protection Agency v. California ex rel.

State Water Resources Control Board, 1976, 426 U.S. 200,

96 S.Ct. 2022, 48 L.ld.2d 578, the Court reached a similar

Appendix 31

conclusion as to the effect of § 313 of the Water Pollution

Control Act Amendments of 1972, 86 Stat. 816, 33 U.S.C.

§ 1323. That section provides that federal installations

must “comply with Federal, State, interstate, and local

requirements respecting control and abatement of pollution

to the same extent that any person is subject to such

requirements.” California and Washington sought to apply

the permit requirements of their programs. We held that

they could do so (511 F.2d 963), but the Supreme Court

reversed. Applying the principles of Hancock, supra, the

Court said:

Our decision in this case is governed by the same

fundamental principles applied today in Hancock v.

Train, ante, [426 U.S.] at 179 [,96 S.Ct. 2006, 48 L. Fd.

2d 555]: federal installations are subject to state regu-

lation only when and to the extent that congressional

authorization is [1349] clear and unambiguous. /d.

at 211, 96 S.Ct. at 2028.

Except for the reference to service charges, § 313 is

virtually identical to § 118 of the Clean Air Act, 42

U.S.C. § 1857f. Taken alone, § 313, like $118 of the

Clean Air Act, states only to what extent—the same

as any person—federal installations must comply with

applicable state requirements. Section 313 does not

expressly provide that federal dischargers must obtain

state NPDES permits. Nor does § 313 or any other

section of the Amendments expressly state that obtain-

ing a state NPDES permit is a “requirement respecting

control or abatement of pollution.” Jd. at 212-13, 96

S.Ct. at 2028 (footnotes omitted).

The language of § 8 of the Reclamation Act of 1902, set

out in the opinion of the district court, 403 F.Supp. 8835, is

no more specific in subjecting federal projects to state

permit requirements than are the statutes construed in the

foregoing cases. Our view that the judgment in this case

32 Appendiz

should be affirmed is, we think, supported by the principles

applied in those cases. Indeed, we find that California’s

claim in this case that the United States must obtain a per-

mit and comply with conditions embodied in it is less

supportable than the claims of Kentucky in Hancock, supra,

and of California and Washington in Environmental Pro-

tection Agency, supra. In each of those cases, it could more

plausibly be argued that Congress did intend to subject

federal installations to state permit requirements than in

this case. When the Congress enacted $118 of the Clean

Air Act and § 313 of the Water Pollution Control Act

Amendments of 1972, the use by the state of the permit

device as a means of enforcing their laws in these areas

was well known. The language of the two acts, subjecting

federal instrumentalities to state laws, is very broad. Yet

the Court declined to read either section as requiring com-

pliance with state permit requirements.

On the other hand, when §8 of the Reclamation Act was

adopted in 1902, California’s permit requirement did not

exist. At that time, under the Civil Code of 1872, $$ 1410-

1422, surplus water was appropriated by the physical act

of taking and diverting it to beneficial use. An appropriator

could post a notice of taking at the point of diversion and

record a copy with the county recorder. If the appropriator

was diligent in completing the work for the diversion, his

rights would date back to the posting of the notice. The

statute did not create appropriative rights; it merely pro-

vided evidence of the date of appropriation. A fortiori,

then, we cannot read $8 as requiring compliance with

California permit requirements that did not exist when

$8 was adopted.

In 1913, California enacted the Water Commission Act

(Cal.Stats.1913, ¢. 586) which created the State Water

Appendix 33

Commission and provided a statutory procedure that could

be followed in the appropriation of unappropriated water

flowing in any natural channel “for useful and beneficial

purposes.” The Act became effective, following a referendum

vote, in 1914. In 1923, an amendment made the statutory

procedure the exclusive method of appropriating water.

(Cal.Stats.1923, ce. 87.) The Act, as amended, is now part

of the California Water Code, Divisions 1 and 2.

[2] As the district judge concluded, a major purpose of

$ 8 of the 1902 Act was to recognize and protect state water

law, particularly the state law doctrine of appropriative

rights to water. 403 F.Supp. at 888. Similarly, the Clean Air

Act and the Water Pollution Control Act amendments give

effect to state law and require compliance with it by federal

installations. Indeed, those acts are more specific than § 8

of the 1902 Act. Yet the Court has declined to read them

as subjecting federal installations to state permit require-

ments, even though the use of permits by the states as a

means of enforcing their clean air and water pollution laws

was known, To read [1350] § 8 of the 1902 Act as requiring

compliance with laws that did not then exist and procedures

not made compulsory by California until 1923—over 20

years later—would fly in the face of the Hancock and En-

vironmental Protection Agency decisions. We could only do

so if the language of § 8 were much more specific than it is.

[3, 4] In one respect, however, we disagree with Judge

MacBride’s decision. He savs, 403 F.Supp. 889-90:

Indeed, while the Congressional history of the 1902

Act indicates broad federal purpose and authority in

the operation and control of federal reclamation proj-

ects, the comity inherent in a federal svstem would not

permit an overbroad usurpation of state sovereignty.

Accordingly, the federal government is required, when

acquiring water for federal reclamation projects, to

34 Appendix

comply with the forms of state law, including applica-

tion to state water boards where necessary, for two

purposes: (1) to enable the state to determine, accord-

ing to its law, whether there is sufficient unappropri-

ated water available for the project; and (2) to give

notice to the state of the scope of the project.

His judgment provides:

(1) The United States can appropriate unappropri-

ated water necessary for use in any federal reclama-

tion project within the State of California, but must

first, in accordance with comity, apply to the California

State Water Resources Control Board for a determina-

tion by that Board of the availability of unappropri-

ated water.

(2) When the United States submits applications to

the California State Water Resources Control Board,

that Board must grant such applications if unappro-

priated waters are available.

We agree with this result, but we do not agree that the

requirement is one of comity. It is legal requirement of § 8.

Under § 8, the national government, in constructing and

administering reclamation projects, must recognize and can-

not nullify either water rights created by state laws or the

laws that create them. But enforcement of the government’s

duty via the permit device is not handed over to the state.

The phrase “in accordance with comity” is stricken from

paragraph (1) of the judgment. In all other respects, the

judgment is affirmed.

JAMES M. CARTER, Circuit Judge, concurring speci-

ally:

T concur in the ahove opinion. /T/ancock v. Train, 426 U.S.

167, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976), and Exnviron-

mental Protection Agency v. California ex rel. State Water

Appendiz 35

Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48

L.Ed.2d 578 (1976), make improper, under existing statutes,

any state requirements in the nature of permits. The cases

hold that is is for the Congress to explicitly determine

whether to subject federal agencies to state permits.

I would suggest, however, that it may be one thing for the

Congress to provide that a state may require a permit to

assure proper air or water quality standards of a federally-

owned or operated installation; it is quite another thing to

permit a state to require permits for the very operation of

such a facility. I cannot envision the Congress providing

that the states, by a permit process, may control the opera-

tion of federally constructed, funded, and operated water

and power projects.

WALLACE, Circuit Judge, concurring and dissenting:

Although recent Supreme Court decisions leave me with

no clear concept of what Congress must say in order to

require the federal government to comply with state law,

I am persuaded that the language of the statute reviewed

here is insufficient to validate California’s permit procedure.

While the “shall” in section 8 of the 1902 [1351] Recla-

mation Act appears to be mandatory, and while the Bureau

of Reclamation’s conduct over nearly three-quarters of a

century indicates that it had no doubt of the necessity for

compliance with state law, I cannot say that the language

of the section is any clearer or less equivocal than that

rejected as insufficient in Hancock v. Train, 426 U.S. 167,

96 S.Ct. 2006, 48 L.Ed.2d 555 (1976), and EPA v. Cali-

fornia ex rel. State Water Resources Control Board, 426

U.S. 200, 96 S.Ct. 2022, 48 L.Md.2d 578 (1976). Thus, with

reluctance I concur that the statute does not require the

Bureau of Reclamation to secure, pursuant to state law,

the permit in question.

36 Appendix

llowever, unlike the majority,’ T would go no further,

Nothing in //ancock or EPA necessarily forecloses federal

compliance with state-imposed requirements not involving

permits, Indeed, the more than 70 vears of cooperative de-

velopment of water resourees in the West under the Ree.

lamation Act attest to the wisdom in providing non-exclu-

sive control over this limited asset,

Also, | believe that we must disapprove that portion

of the district court's order that requires the federal gov-

ernment, “in accordance with comity, [to] apply to the

California State Water Resources Control Board for a

determination by that Board of the availability of unap-

propriated water” and that requires the Board to “grant

such applications if unappropriated waters are available.”

United States v, State of California, supra, 408 F.Supp, at

02, By construing section 8 under compulsion of /Tancock

and EPA as not requiring Bureau of Reclamation compli.

ance with state appropriation procedures, we bring an

element of uncertainty to the administration of water re.

sourees, Absent some mechanism to convey the information,

the states cannot know what amount of wnappropriated

water remains for private use ina watershed after a portion

is appropriated by the Bureau, The “eomity” theory and

1. The majority's approach to the permit issue seems to be

premised on the belief that the impermissible aspect of the state's

scheme ia not the permit requirement but rather the conditions the

state has attached to the permit, California has conceded all along

that, although the Bureau must seek and secure a permit, the state

has no power to attach to the permit conditions inconsistent with

or contradictory to congressional purposes underlying the particular

reclamation project, California believes, however, that no such con-

flict exists in this case,

In a proseosing before a state agency, it was determined that

the conditions imposed by California were valid, The federal govern.

ment did not appeal this decision, Accordingly, the government

conceded at oral argument that it is preeluded by the doctrine of

res judicata from raising the issue anew in this case,

Appendix 87

application/notice requirement of the district court are an

effort to patch this tear caused by the new construction of

section 8,

It is a wayward effort, Comity is a concept of deference

and voluntary action, Zink v. Estelle, 403 F.Supp, 656, 659

(S.D.Tex.1975); Galloway v. Watts, 395 F.Supp, 729, 781

(D.Md,1975), To use such a concept as a basis for requiring

affirmative federal action seems peculiarly incongruous, Ac.

cordingly, T agree with the majority's disapproval of the

dlistriet court's comity theory,

But the majority does no better in its effort for it pro-

vides no defensible basis for requiring federal ageney

action, Accordingly, | must reject that portion of the

majority's opinion which direets the federal government

“to comply with the forms of state law” (emphasis added)

because “[i}t is a legal requirement of § 8." Majority op, at

1243,

Concededly where two sovereigns, acting independently,

administer water rights in the same watershed, there is a

great poten. [1352] tial for uncertainty, But that is what

our Hancock. and EPA-inspired construction of section

8 means, The majority has failed to find a defensible legal

2. While the majority fails to provide us with any legal rea.

soning for requiring compliance with “the forms of state law,” I

can only assume that the requirement is derived from federal com.

mon law, Before embarking on this new and unchartered course of

constructing common law, IT would ask; Do we have the | com-

peteney to fashion any rules in this area? Even if we do, is it

wise for us to undertake the task? While IT entertain doubts that

the first question can be answered affirmatively, I am convinced

that we ought not undertake the task of judicial rulemaking in an

area as complex and sensitive as state-federal relation over water,

If my assumption regarding the federal character of the applica.

tion/notice requirement is incorrect, then that requirement must be

viewed as one of state law, If derived from state law, there would

be an inconsistency with the majority's initial conclusion that see.

tion 8 does not require federal agency compliance with state permit

procedures,

38 Appendix

basis to give effect to its desire to avoid this problem,

Unfortunately, | can see no such basis either, Accordingly,

we have, | believe, no alternative but to leave it to the

legislative branch to devise a solution, Therefore, | would

wo no further than to disapprove the permit procedure in

question,

On Petition for Rehearing

In its petition for a rehearing, California relies upon an

argument that it made, but did not emphasize, in its briefs

on appeal, an argument that we overlooked, It points to the

fact that certain of the permits involved in this case had

their origin in two applications filed by the State Depart.

ment of Finance, These applications were then assigned

by the Department to the Bureau of Reclamation, The State

points out that its Department of Finance, had it prose.

cuted the applications to the obtaining of permits, would

certainly have been bound by whatever conditions the State

Board might impose, It follows, says the State, that the

Bureau, assignee, is also subject to those conditions be.

cause, as assignee, it could acquire no greater rights than

its assignor, The argument is superficially appealing, but,

on reflection, we reject it,

The argunent overlooks two considerations, The first is

that the assignment was of an applicetion, not of a permit

containing conditions, The second is that the assignee was

the Bureau, a Federal agency exercising powers conferred

upon it by the Congress of the United States, whose valid

enactments are “the supreme Law of the Land” (U.S,

Const, Art, VI, el. 2).

(5) Under California law, an application for a permit

to appropriate surplis or unappropriated water confers

nothing upon the applicant as against the state; all that it

Appendiz 39

confers is a priority over later applicants if the application

is granted, Cal, Water Code § 1450 states:

Any application properly made gives to the applicant

a priority of right as of the date of the application

until such application is approved or rejected, Such

priority continues only so long as the provisions of law

and the rules and regulations of the board are followed

by the applicant,

Cal, Water Code § 1455 then adds; “The issuance of a per-

mit continues in effect the priority of right as of the date

of the application, , ,.”

{6} The Supreme Court of California interpreted these

provisions in Madera Irrigation District v, All Persons,

1957, 47 Cal.2d 681, 690, 306 P.2d 886, 891 rev'd on other

grounds, Jvanhoe Irrigation District v, MeCracken, 1958,

357 U.S, 275, 78 S.Ct, 1174, 2 L.d.2d 1313, There the court

stated:

The filing of an application under the present law is

comparable and of like effect to the posting and record-

ing of notice or commencement of actual construction

work under the rules which had previously prevailed,

... The Water Code provides that the effect of filing

an application confers, for all practical purposes, a

priority only,

To the same effect, see United States v, Fallbrook Public

Utility District, 8.D.Cal,, 1958, 165 F.Supp, 806, where

Judge James M, Carter stated (at 855) :

Until the application to appropriate is acted upon by

the State Water Rights Board favorably to the appli-

eant, and the issuance of a permit is directed, the

applicant has no property right of any kind as against

the state, He has an inchoate, [1353] incipient, condi.

tional right of procedural priority over later appli-

cants,...

40 Appendix

That is all that the State Department of Finance had,

and all that it could assign to the Bureau,

When the Bureau became the assignee of that “inchoate,

incipient, conditional right,” it was acting in the same

capacity as when it filed its own applications, It was acting

under the same Federal laws, and, absent those laws, it

would have had no right to appropriate any water, Its

substantive rights arose from the Congressional legisla.

tion, not from the assignment, There is no contention that

the assignment was expressly conditioned upon acceptance

of whatever permit conditions the State might impose, On

the contrary, the State’s briefs make it clear that the State

Department of Finance filed the applications for one pur.

pose only, to obtain, not for itself, but for the Bureau when

the project finally went forward, a priority date as appro-

priator,’

1, Originally, the Central Valley Project, of which New Melones

in a part, was to be constructed and operated by the State, There.

fore, as California told us in its opening brief, its Department of

Finance began in 1927 filing ——— for permits to appropriate

water for the Central Valley Project,

ao that the State—in anticipation of State construction of the

CVP—could obtain a prior right to the use of water, as

ome private appropriators who submitted later applica.

tions; ....

(Brief, page 5)

As noted earlier, Decision 1422 approved the assignment of

two applications to the Bureau, and issued permits to the

Bureau on the basis of these applications; these applications

had originally been filed by a State agency for the purpose of

obtaining an early priority date,

(Brief, pages 83. 4)

There is a similar assertion in California's Reply to Response to

Petition for Rehearing, page 6:

Vd on State Department of Finance, in applying for water

rights in 1927, did not apply for the purpose of ultimately

Appendiz 41

We conclude that the Bureau, as assignee of an applica.

tion, is no more subject to the imposition of conditions by

the Board than it is as an original applicant.

The petition for a rehearing is denied,

WALLACE, Cireuit Judge, concurring in part:

I concur in part, Concluding that the first of Judge

Duniway's reasons to deny the petition is more than ade.

quate (“the assignment was of an application, not of a

permit containing conditions”), T would not reach the con-

atitutional issue, See Ashwander v. Tennessee Valley Au-

thority, 297 U.S, 288, 341, 56 8.Ct, 466, 80 Lid, 688 (1936)

(Brandeis, J., coneurring), [1354]

encumbering the Bureau's water rights, Rather, it applied

because it was expected that the State rather than the federal

vernment would build and operate the Central bees

roject, and the State wanted to obtain the earliest possib

priority dates in its own water rights,

(footnote omitted)

It was apparent in 1944 that New Mcloncs was to be built and

operated as a Federal Project, lt was authorised in the Flood Con.

trol Act of 1944, 58 Stat, 887, See also § 209 of the Flood Control

Act of 1962, 76 Stat, 1191, Thus, when the State applied for water

rights for New Melones in 1952, its purpose was, as it says, to

obtain onsty priority dates, and its intent must have been to do

what it ultimately did, to assign its applications to the Bureau of

Reclamation, which was to build and operate the project.

42 Appendiz

The UNITED STATES of America,

Plaintiff,

The STATE OF CALIFORNIA et al,

Defendants,

Civ, No, 8.3014,

United States District Court,

bf, D. California.

Oct, 9, 1975, [874]

John H. Germeraad, Douglas N. King, U. 8, Dept. of

Justice, Washington, D. C., Richard Nichols, Asst, U, 8.

Atty., Sacramento, Cal., for plaintiff,

Svelle J, Younger, State Atty, Gen, and Richard C,

Jacobs, Roderick EB. Walston, San Francisco, Cal., for de-

fendants,

OPINION

MacBRIDE, Chief Judge.

At the turn of the century, a burgeoning nation was in the

midst of Western expansion, Hampering this expansion,

however, was the simple geographical fact that great areas

within the Western states and territories encompassed arid

and semiarid lands, By the enactment of the Reelamation

Act of 1902, Title 43 U.S.C, § 371 et seq., Congress concluded

that much of these arid and semiarid lands could be made

habitable and fruitful by the construction‘of federally.

funded irrigation works,

Now, 73 years, dozens of projects, and billions of dollars

later, this court is asked to enter “the delicate area of

federal-state relations in the irrigation field,” and resolve

1. Ivanhoe Irrigation District v. McCracken, 357 U.S, 275, 78

S.Ct, 1174, 2 L. Bd.2d 1918 (1958),

Appendix 43

the question whether a state may impose terms and condi-

tions on the federal government’s acquisition of water for

reclamation projects.

The United States initiated suit in this court on October

15, 1973, against the State of California, the State Water

Resources Control Board, and its members. Jurisdiction was

grounded under Title 28 U.S.C. § 1345, conferring original

jurisdiction to the district courts over all civil actions, suits

or proceedings commenced by the United States. The

amended complaint of the United States seeks declaratory

relief pursuant to Title 28 U.S.C. § 2201 as follows:

(1) Declaratory judgment that the United States can

appropriate unappropriated water necessary for use in any

federal reclamation project within the State of California,

without the necessity of applying to the California State

Water Resources Control Board;

(2) Declaratory judgment that when the United States

chooses as a matter of comity to submit applications to the

California State Water Resources Control Board, that

Board must grant such applications if unappropriated

waters are available;

(3) Declaratory judgment that when the United States

chooses as a matter of comity to submit applications to the

California State Water Resources Control Board, that

Board cannot impose any terms or conditions in permits

issued pursuant to such applications in contravention of

federal law or which are not specifically authorized and

required by federal laws, federal regulations, or federal

administrative directives;

(4) Declaratory judgment that Decision 1422,? an April

4, 1973, decision of the California State Water Resources

2. The conditions and terms imposed by Decision 1422 are speci-

fied hereafter in this opinion.

44 Appendiz

Control Board, is void in all respects where that decision

conflicts with or contravenes federal law or requires ac-

tion not specifically authorized and required by federal

laws, federal regulations, or federal administrative direc-

tives. [877]

By its answer, California*® raises the following legal is-

sues in response:

(1) The United States is required to comply with all

terms and conditions imposed by California on permits is-

sued to the United States Bureau of Reclamation to appro-

priate water for reclamation purposes in California, pursu-

ant to Section 8 of the Reclamation Act of 1902, 43 U.S.C.

§ 383, 32 Stat. 390 ;*

(2) The United States is required to comply with all

terms and conditions imposed by California on permits

issued to the United States Bureau of Reclamation to ap-

propriate water for reclamation purposes in California,

pursuant to recent environmental legislation passed by

Congress, including the National Environmental Policy Act

of 1969, 42 U.S.C. § 4321, 83 Stat. 852, and the National En-

3. For the purposes of brevity and clarity, all defendants in this

action shall be referred to as “California.”

4. A detailed discussion of Section 5 of the Reclamation Act of

1902 wili be made later in this opinion. Section 8 reads as follows:

“Nothing in [this act] shall be construed as affecting or

intended to affect or to in any way interfere with the laws of

any State or Territory relating to the control, appropriation,

use, or distribution of water used in irrigation, or any vested

right acquired thereunder, and the Secretary of the Interior,

in carrying out the provisions of such sections, shall proceed in

conformity with such laws, and nothing in such sections shall

in any way affect any right of any State or of the Federal

Government or of any landowner, appropriator, or user of

water in, to, or from any interstate stream or the waters

thereof: Provided, that the right to the use of water acquired

under the provisions of this Act shall be appurtenant to the

land irrigated, and beneficial use shall be the basis, the meas-

ure, and the limit of the right.”

Appendiz 45

vironmental Quality Improvement Act of 1970, 42 U.S.C.

§ 4371, 84 Stat. 114;

(3) The United States, by accepting assignments for

permit applications and by submitting its own permit ap-

plications, has agreed to comply with California law in ap-

propriating water for reclamation purposes in California;

(4) The United States has accepted the benefits of the

permits issued by California since 1938, and is thus es-

topped to deny the truthfulness of the statement that it

must comply with all terms and conditions imposed by Cali-

fornia’s permits:

(5) The United States failed to file mandamus action or

to seek judicial review in California of Decision 1422 in

accordance with California law, and thus the doctrine of

res judicata bars the United States from alleging the inval-

idity of Decision 1422.

On September 3, 1974, California moved for summary

judgment pursuant to FRCP 56 and for judgment on the

pleadings in accordance with FRCP 12(c). By these mo-

tions, California contends that there is no genuine dispute

of any material fact and that the case is purely one of in-

terpretation of federal and California law. The ease is here

now for disposition on these motions.® To fully understand

the posture of this case and the nature of the question

presented herein, it is necessary to review its immediate

history.

5. By order of this court dated July 8, 1974, all action, except

for discovery, in four companion cases was stayed pending a deci-

sion in the instant ease. The staved cases include: Central Valley

Eastside Project Association v. State Water Resources Coutrol

Board (Civ S-2582); Kern County Water Agency v. State Water

Resources Control Board (Civ 8-2583); San Joaquin County Flood

Control and Water Conservation District v. State Water Resources

Control Board (Civ S-2730); and State of California v. Morton

(Civ S-2924). All parties in these actions were given leave to file

_ briefs in the instant case as amici curiae.

46 Appendiz

HISTORY OF THE CASE

Following the enactment of the Reclamation Act of 1902,

Congress from time to time has authorized specific recla-

mation projects by way of special reclamation acts. One

such special project which was eventually authorized by

Congress was the Central Valley Project [hereafter CVP]

which envisioned the coordinated development of the Sac-

[878] ramento and San Joaquin Rivers and their tribu-

taries through a system of physical works to regulate and

distribute water needed for agricultural, industrial and

municipal uses in the Central Valley of California. The

CVP was authorized by the State of California through the

Central Valley Project Act of 1933, Cal.Stats. Ch. 1042.

California thereafter sought and secured federal assistance

through the Rivers and Harbors Act of August 30, 1935,

P.L. 74-409, 49 Stat. 1028, 1038; the Act of June 22, 1936,

P.L. 74-739, 49 Stat. 1597; and the Rivers and Harbors Act

of August 26, 1937, P.L. 75-392, 50 Stat. 844, 850. The Act

of October 17, 1940, 54 Stat. 1198 provided in pertinent part

as follows:

“ .. that the entire Central Valley Project, California.

. . iS hereby reauthorized and declared to be for the

purposes of improving navigation, regulating the flow

of the San Joaquin River and the Sacramento River.

controlling floods, providing for storage and for the

delivery of the stored waters thereof, for construction

under the provisions of the Federal reclamation laws

of such distribution systems as the Secretary of the

Interior deems necessary in connection with lands for

which said stored waters are to he delivered, for the

reclamation of arid and semi-arid lands and lands of

Indian reservations, and other beneficial uses, and for

the generation and sale of electric energy as a means

of financially aiding and assisting such undertakings

and in order to permit the full utilization of the works

constructed to accomplish the aforesaid purposes. .. .”

Appendiz 47

Construction of CVP was begun in 1937 and the initial

units of CVP were placed into full coordinated operation in

1951. Speaking of the scope of the project, the Supreme

Court of the United States noted in the case of Ivanhoe

Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct.

1174, 2 L.Ed.2d 1313 (1958) :

“Central Valley is the largest single undertaking yet

embarked upon under the federal reclamation pro-

gram, It was born in the minds of far-seeing Califor-

nians in their endeavor to bring to that State’s parched

acres a water supply sufficiently permanent to trans-

form them into veritable gardens for the benefit of

mankind, Failing in its efforts to finance such a large

undertaking, California almost a quarter of a century

ago petitioned the United States to join in the enter-

prise. The Congress approved and adopted the project,

pursuant to repeated requests of the State, and thus

far has expended nearly a half billion dollars.” 357

U.S. at 280, 78 S.Ct. at 1178.

Over the years, water uses increased in the Central Val-

ley and Congress continued to authorize additional units

and funds for CVP. One such unit, and the subject matter

of the instant case, was the New Melones Project. The New

Melones Project was originally authorized by the Flood

Control Act of December 22, 1944, P.L. 78-534, 58 Stat. 887,

and reauthorized by the Flood Control Act of October 23,

1962, P.L. 87-874, 76 Stat. 1180, 1191. The Flood Control

Act of 1962 reads in part as follows:

“ .. That upon completion of construction of the dam

and powerplant by the Corps of Engineers, the project

shall hecome an integral part of the Central Valley

project and he operated and maintained by the Secre-

tary of the Interior pursuant to the Federal reclama-

tions laws... .”

48 Appendiz

The New Melones Project provides for a dam on the

Stanislaus River, approximately 35 miles northeast of Mo-

desto, California, to create a reservoir with a gross storage

capacity of about 2,400,000 acre-feet,® for flood control, irri-

gation, municipal, industrial, domestic, [879] power, recre-

ation, water quality control, and fish and wildlife purposes.

The New Melones Project provides also for the construc-

tion of a 300,000 kilowatt capacity hydro-electric power-

plant immediately below the dam.

The United States, through the Bureau of Reclamation,

Department of the Interior [hereafter the Bureau], had

regularly applied to the California State Water Resources

Control Board [hereafter the Board], and its predecessor,

in accordance with California law, for permits authorizing

appropriations of water. Similarly, the United States,

through the Bureau, sought to obtain permits to appropri-

ate unappropriated water from the Stanislaus River for

development of the New Melones Project. To this end the

Bureau filed with the Board applications Nos. 19303 and

19304, and sought assignments of applications Nos. 14858

and 14859.7 The Board on April 4, 1973, rendered Decision

1422 which ruled on these applications. Although Decision

1422 granted the assignments and allowed permits to be

issued for al! the applications, it placed various terms and

conditions on the permits. While California asserts that it

has the authority to place terms and conditions on permits

authorizing appropriations of water for reclamation proj-

ects, the United States counters that any imposition of

terms and conditions by the state is impermissible.

§. It is estimated that this storage capacity would create a lake

stretching approximately 13 miles behind the dam.

7. Applications Nos. 14858 and 14859 were originally filed in

1952 by the California Department of Finance. The Bureau sought

assignment of these applications rather than file new ones so as to

obtain a priority date of appropriation in accordance to California

law.

Appendiz 49

DECISION 1422

As noted above, the Bureau applied to the Board for per-

mits in the New Melones Project in accordance with four

separate applications :

(1) Application 14858 was for a permit to appropriate

8,800 cubie feet per second [efs] of water by direct diver-

sion year round, and 980,000 acre feet per annum [afa] by

storage to be collected from October 1 of each year to July

1 of the succeeding year for irrigation, domestic, municipal,

industrial, fish culture, recreation, and water quality pur-

poses from the Stanislaus River in Calaveras and Tuol-

umne Counties.

(2) Application 14859 was identical to Application 14858

except its purpose was to use the water for power genera-

tion purposes.

(3) Application 19303 was for a permit to appropriate

6,000 efs by direct diversion and 2,400,000 afa by storage,

both year round, for power generation from Stanislaus

River in Calaveras and Tuolumne Counties.

(4) Application 19304 was for a permit to appropriate

2,250 efs by direct diversion, and 2,400,000 afa by storage

both year round, for irrigation, domestic, municipal, indus-

trial, fish culture, recreation, and water quality control pur-

poses from the Stanislaus River in Calaveras and Tuolumne

Counties.

The primary point of diversion under all four applieca-

tions is the proposed New Melones dam on the Stanislaus

River, but there is also included a Knight Ferry division

dam downstream from the New Melones dam.*

8. The Knights Ferry dam is listed as a point of direct diversion

under applications Nos. 14858 and 19304.

50 Appendix

Numerous protests were filed in opposition to these ap-

plications by various individuals, companies, public agen-

cies such as the Department of Fish and Game, and private

associations such as the Environmental Defense Fund and

the Sierra Club, These protests were concerned primarily

with environmental matters or purported problems of di-

version as related to prior users,

[1] California law requires the Board to evaluate the

specific intended use of each proposed project and find that

it is reasonable, beneficial, and in [880] the public interest,

The Board undertakes a balancing of competing demands

and poliey considerations and has broad diseretion, Cal,

Water Code § 1240; Temescal Water Co, vo, Department of

Public Works, 44 Cal.2d 90, 280 P.2d 1 (1955), As a pre-

liminary matter, it should be noted that the Board con-

cluded that sufficient nappropriated water was available

to supply the Bureau's requests, other factors being equal,”

Hevond this determination, the Board in Decision 1422

expressed several concerns:

(1) Perhaps of primary concern to the Board was the

belief that the limited unappropriated resources of Cali-

fornia should not be committed to an applicant in the

absence of a showing of actual need for the water presently

and within a reasonable time in the future, The Board

noted;

“The lack of evidence that the New Melones Project

water will be needed for consumptive use outside the

four basie counties [Tuolumne, Calaveras, San Joa-

quin, Stanislaus} for many vears to come, if ever, or

that it will be used within those counties at any definite

time in the future, raises substantial doubt whether

permits should be issued to impound more water in the

——S

1, Decision 1422 at page 26,

Appendix 51

New Melones Reservoir, at least at this time, than is

needed for satisfaction of prior rights and non-con.

sumptive purposes—protection and enhancement of

fish and wildlife, water quality, recreation, and the

generation of power,” Decision 1422 at page 17,

The Board noted that the Bureau had presented no spe-

cifle plan for applying project water for constunptive pur-

poses at any particular location, Further, the Board noted

that CVP has substantial quantities of water that are not

being used and are not under contract.

(2) The Board was further concerned that the reservoir

which would be created by the New Melones dam would

eliminate the use of the Stanislaus River for whitewater

recreation and for stream fishing. The Board recognized

that the reservoir would serve as a man-made lake for

purposes of recreation and fishing, but did not consider this

an equivalent substitute for the river's natural sources of

recreation and fishing, The Board concluded:

“In view of the preponderance of the adverse conse.

(uences of maintaining a reservoir of the size proposed

by the Bureau, the public interest requires that any

permits issued pursnant to Applications M858 and

19304 prohibit the impoundment of water in New

Melones reservoir for consumptive purposes until fur-

ther order of the Bourd following a showing that the

benefit that will acerue from a specific proposed tse

Will outweigh any damage that would result to fish.

wildlife and recreation in the watershed above New

Melones Dam and that the permittee has firm commit.

nents to deliver water for such purposes.” Dee!sion

1422 at page LS,

(3) Another concern of the Board was the effect on the

Stanislaus River salwon fishing resource—estimated to be

worth $300,000 por yearby the granting of applications

52 Appendix

Nos, 14858 and 19904, Further study of this factor was felt

to be necessary,

(4) The final major issue concerning the Board dealt

with the question of granting the applications for the

purpose of water storage, The question the Board posed to

itself was whether the need for maintaining the river at its

present regimen outweighed the need for additional power,

Although the Board found that the annual benefits of the

power function would be $5.5 million, it felt that the use of

the river for reereation and environmental factors—-

especially whitewater uses and stream fishing—outweighed,

[ssi]

In summary, the Board coneluded ;

“There is unappropriated water available to satisfy

the demands of the project as proposed, However, the

Burean has no definite plan as to when or at what

specific locations project water will he used for con-

siimptive purposes outside the four basin counties, and

it has sufficient surplus water from other sources to

meet fiture increased demands outside these counties

for a long period of years, Permits should not be issned

for use of water outside these counties at this time,

The public interest requires that the use of the Stani-

slaus River for whitewater boating, stream fishing and

wild life habitat be protected to the extent that water

is not needed for other beneficial uses, Therefore, al-

though there is a demonstrated need for the full yield

of the project for the four basin counties at some time

in the future, but for whieh no contracts have been

negotiated, and in view of the adverse effeet the pro-

posed reservoir will have upon these recreational uses,

impoundment of water to satisfy that need should not

he permitted at this thie, Instead, the Board should

retain jurisdiction over the permite for the purpose

of approving Ineremental appropriations for consimap:

tive tive ip to the quant’ tes covered by the applications

when the need for the water is substantial,” Decision

1422 at pages 26-27,

Appendix 53

The Board thereupon approved assignment of applica.

tions Nos, 14858 and 14859 to the Bureau, and approved

these applications and applications Nos, 19303 and 19304,

in part, Permits were issued subject to 25 separate terms

and conditions, It would serve no useful purpose at this

stage to delve extensively into the particulars and require-

nents of these 25 terms and conditions, However, a sum-

mary of these terms and conditions will be helpful to an

understanding of the posture of this case:

(1) Conditions relating to impoundment—Conditions 1

and 2 defer full impoundment of all the waters sought by

the Bureau until such time as the Bureau is able to demon-

strate a plan or a firm commitment for the use of project

water,

(2) Conditions relating to reservation of jurisdiction—

Conditions 6, 9, 18, 20, and 22 reserve jurisdiction to the

Board to impose further conditions on the Bureau to pro-

tect the “beneficial use” of water involved,

(3) Conditions relating to reporting requirements—Con-

ditions 3, 7,8, 12, and 21 impose requirements of further or

continuing study or the filing of specified reports,

(4) Conditions limiting or controlling the use of water—

Conditions 4, 5, 14, 19, 28, 24, and 25 place various limits or

controls on the use of water to or from the project,

(5) Conditions relating to time—-Conditions 10 and 11

impose various time constraints on completion of the

project and application of water,

(§) Conditions relating to accessability-—Conditions 15

and 16 discuss the access to be afforded to representatives

of the Board and members of the public,

(7) Conditions imposing mandatory requirements—Con-

dition 17 iinposes the requirement on the Bureau to install

an outlet pipe “as near as practicable to the hottow of the

natural stream channel”; condition 18 requires the Bureau

to clear vegetation and structures from the side of the

‘4 Appendiz

reservoir in. accordance with California Water Code

provisions,

QUESTIONS PRESENTED

Although the United States initiated this action in quest

of declaratory relief, the legal issues presently before the

court are framed by California's motions for summary

judgment and judgment on the pleadings, To facilitate

analysis, it is possible to consolidate under three general

categories, the questions presented by California’s motions :

(1) Interpretation of federal law—Does Section 8 of the

Reclamation Act of 1902, 43 U.S.C, § 383, require federal

[882] agencies, in appropriating water for reclamation

purposes, to comply with state law? Tn this regard, Califor.

nia has asked the court to consider (a) the plain language

and the Congressional history of the Reclamation Act of

1002: (h) the eases which have considered the Act; (¢)

the analogies which might be drawn from other Acts of

Congress enacted subsequent to the Reclamation Act of

1002s" (d) and the administrative practice of the Bureau

of Reclamation,

— The eases on which the parties primarily rely include ;

Nebraska v, Wyoming, 295 U.S, 40, 55 8.Ct, 568, 79 L.Ed, 1289

(1935); California Oregon Power Co, v, Beaver Portland Cement

(o,, 205 U.S, 142, 55 8.Ct, 725, 79 L.Ed, 1956 (1995); Nebraska v,

Wyoming, 325 U.S, 589, 65 8.Ct, 1892, 89 L.Ed, 1815 (1945) ;

Ivanhoe Irrigation District v, MeCracken, 357 U.S, 466, 78 8.Ct.

1174, 2 L.Bd.2d 1918 (1958); Fresno v, California, 372 U8, 627,

83 S.Ct, 996, 10 1, Bd.2d 28 (1963); Arizona v, California, 873 U8,

546, 83 S.Ct, 1468, 10 L, Bd.2d 542 (1963) ; Tvanhoe weer Dis.

trict v, All Parties, 53 Cal.2d 692, 3 Cal. Rptr, $17, 350 P.2d 69

(1960),

_ Specific acts relied upon include the Federal Water Supply

nat af 1958, USC, § 390b; the Auburn-Folaom South Project

Act, 43 U.S.C, §§ 616ana-616fff (1965); the National Environ.

mental Poliey Aet of 1969, 42 U.S.C, § 4921; and the National

‘nvironmental Quality Improvement Aet of 1970, 42 U.S.C, § 4371,

In oral argument, California abandoned any reliance on the Fed.

eral Water Pollution Control Act, 33 U.S.C, § 1251 (1972),

Appendis 55

(2) Contentions in the nature of estoppel—(a) Should

the United States be equitably estopped to deny the validity

of the Board's jurisdiction and of Decision 1422 because

the United States initiated proceedings before the Board?

(b) What is the res judicata and collateral estoppel effect

of Decision 1422 as to the United States arising from the

failure of the United States to appeal that decision pursn-

ant to California law? (¢) Should the court find that as a

matter of law Decision 1422 does not materially alter or

conflict with the purposes of the New Melones Project? (d)

Would the failure to enforee Decision 1422 be contrary to

the public poliey of the people of Californiat

(3) Procedural considerations—Are the questions pre-

sented by this case appropriately determined and resolved

by stummary procedure?

INTERPRETATION OF FEDERAL LAW

Hoth the United States and California have admitted to

this court in oral argument that pursuant to the Supremacy

Clause of the United States Constitution, U.S.Const, Art.

Vi el, 2, and because of national implications inherent in

reclamation of arid and semiarid lands, the Congress could

afford all power and control over federal reclamation

projects to the federal government, reserving no power or

control for the states, See /vanhoe Irrigation District vw.

MeCracken, 397 US, 275, 294, 78 S.Ct, 1174, 2 L.ed.2d 1318

(1958), The United States has argued that Congress did

just that when it enacted the Reclamation Act of 1902, By

its reading of that Act, the United States contends that: (1)

heeaive all power and control over reclamation projects has

heen given to the federal government, it need not even apply

to the states for permits to appropriate water for snel

projects, and (2) even if the federal government, heeanse

of comity, does apply to the states for permits to appropri.

56 Appendiz

ate water, the states’ sole function is to determine whether

there exists sufficient unappropriated water for the project.

California, on the other hand, has argued that the Congress,

hy way of the Reclamation Act of 1902 and other federal

legislation, intended that the federal government should

physically operate reclamation projects, but that the federal

government must comply with state law in the appropria-

tion of water for projects. Thus, the essential dispute be-

tween the litigants here is not whether the Congress could

preempt the field, but whether the Congress has chosen to

do so, [883]

(1) The Reclamation Act of 1902,

At the very heart of this inquiry is the Reelamation Act

of 1902 [hereafter the 1902 Act], In 1902 the Western states

and territories contained nearly one billion acres of land

and comprised somewhat more than half of the United

States’ contiguous area, Great segments of this Western

land, however, lay dry and fallow, either unnourished or

undernourished by the nation’s waterways, Over one-third

of North and South Dakota were within the arid and semi-

arid belts, The portions of the States of Oregon and Wash-

ington lying west of the Cascade Mountain Range were

within the humid climate, while portions lying east of the

range, comprising approximately one-half of the territory

of the two states, were arid or semiarid, In California arid

and semiarid conditions existed over two-thirds of the

state, Nearly one-third of Oklahoma was semiarid in char-

acter, Although neither Kansas nor Nebraska contained

ts briefing and in oral argument before this court,

Oclitorshe bas that even under its view of the law, there

would be two major limitations on the rights of states to impose

terma and condit un federal reclamation projects, wens me =

limitations are; (1) the state cannot infringe on any specific a.

of power to the federal government under federal law, and (2) the

state can only control wnappropriated water,

Appendix 57

lands which were strictly speaking arid, nearly one-third of

the western portion of each state was considered semiarid.

The other states and territories of the West were wholly

within the arid region, with the exception of limited areas

affected by local conditions."

As the United States grew in population, demand for

productive land grew proportionately. It was estimated that

through proper irrigation, between 35,000,000 and 70,000,000

acres of land in the West could be reclaimed.“ In 1900 the

national platforms of the major political parties declared

in favor of the undertaking by the federal government of

the work of reclaiming arid and semiarid lands and holding

such lands for settlers."

President Theodore Roosevelt also favored development

of the Western states and territories through irigation and

vigorously urged the enactment of legislation to this end :**

“Tt is as right for the National Government to make the

streams and rivers of the arid region useful by engi-

neering works for water storage as to make useful

the rivers and harbors of the humid region by engi-

neering works of another kind. The storing of the

floods in reservoirs at the headwaters of our rivers is

but an enlargement of our present policy of river con-

trol, under which levees are built on the lower reaches

of the same streams.

The reclamation and settlement of the arid lands will

enrich every portion of our country, jst as the settle-

iment of the Ohio and Mississippi valleys brought pros-

13. Report of the Heuse Committee on Irrigation of Arid Lands,

57th Cong. Ist Sess. p. 1 (1902). Other states and territories in-

cluded: Arizona, Colorado, Idaho, Montana, Nevada, New Mexico,

Utah, and Wyoming.

14. Report of the House Committee on Irrigation of Arid Lands.

57th Cong. Ist Sess. p. 2 (1902).

15. Id. at pp. 4-5.

16. Id. at p. 5.

58 Appendiz

perity to the Atlantic States. The increased demand

for manufactured articles will stimulate industrial

production while wider home markets and the trade of

Asia will consume the larger food supplies and effec-

tually prevent Western competition with Eastern agri-

culture. Indeed the products of irrigation will be con-

sumed chiefly in upbuilding local centers of mining and

other industries which would otherwise not come into

existence at all. Our people as a whole will profit, for

successful home making is but another name for the

upbuilding of the nation.”

Before enacting the 1902 Act, Congress carefully con-

sidered the alternatives that either private enterprise or

the states themselves develop reclamation projects, rather

than the federal government. It was recognized that private

enterprise had constructed various irrigation projects in

the past, but it was also recognized that such private proj-

ects were of a relatively simple character, intended to supply

only single farms [884] or limited areas of country.” As to

the various states, the Congress considered lack of adequate

funds for such extensive projects to be the most serious im-

pediment.'* Congressman Mondell, the leading advocate in

the House for passage cf the 1902 Act, suggested other rea-

sons why the federal government, rather than the states,

construct the reclamation projects :”

“Tt has been suggested that if private enterprise can

not properly develop large irrigation systems the work

might be undertaken by the respective States. There

are many reasons why the States are not so well equip-

ped to carry on this work as the Federal Government.

17. Id. at pp. 2-3. House Debate on the Reclamation Act of

1902, 35 Cong.Ree. 6669 at 6675 (1902).

18. House Committee at pp. 3-4.

19. House Debate at p. 6676.

Appendiz 59

In the first place, were the work carried on by the

States, the disposition would be to utilize all of the

waters flowing through a State within the State, pro-

vided there was no prior appropriation lower down

on the stream, regardless of the most beneficial and

economical development of the irrigation possibilities

of the entire region. Further, the constitutions of some

of the States forbid the undertaking of works of in-

ternal improvement; and even were the States the

proper agency through which to carry on this develop-

ment, none of the States in the arid region, are finan-

cially able to do so.”

Nevertheless, the Congress was mindful that the indiv-

idual states had substantial and legitimate interests in the

appropriation, use, and distribution of water used for irri-

gation. There were interests represented in the Congress

which favored strong States’ rights and advocated legisla-

tion whereby the federal government would simply build the

reclamation project works and then turn over to the states

control of the waters, On the other hand, there were advo-

cates of reclamation legislation which would be more limit-

ing on the States’ authority, with power vested primarily in

the federal government.

Section 8 of the 1902 Act as originally drafted and passed

by the Senate was a strong States’ rights provision :2°

“Nothing in this Act shall be construed as affecting or

intended to affect or to in any way interfere with the

laws of any State or Territory relating to the control,

appropriation, use, or distribution of water used in

irrigation ; but State and Territorial laws shall govern

and control in the appropriation, use and distribution

of the waters rendered available by the works con-

structed under the provisions of this act: Provided.

That the right to the use of water acquired under the

20. §. 3057, 57th Cong., Ist Sess., § 8 (1902).

60 Appendix

provisions of this act shall be appurtenant to the land

irrigated and beneficial use shall be the basis, the

measure, and the limit of the right.” [emphasis added].

The above-quoted provision was then amended in the

House Committee on Irrigation of Arid Lands. It is the

House amendment which was enacted into law and that

amendment reads as follows :* .

“Nothing in this act shall be construed as affecting or

intended to affect or to in any way interfere with the

laws of any State or Territory relating to the control,

appropriation, use or distribution of water used in

irrigation, or any vested right acquired thereunder and

the Secretary of the Interior, in carrying out the pro-

visions of this act, shall proceed in conformity with

such laws, and nothing herein shall in any way affect

any right of any State or of the Federal Government or

of any land owner, appropriator, or user of water in,

to or from any interstate stream or the waters thereof:

Provided, That the right to the use of water acquired

under the provisions of this act shall be appurtenant

to the [885] land irrigated and the beneficial use shall

be the basis, the measure, and the limit of the right.

{emphasis added. ]

The change the House Committee made in the legislation

apparently resulted from intervention by President Roose-

velt, as noted by Representative Robinson of Indiana >

“At the beginning of this session the arid-State mem-

bers in committee assembled properly elected the gen-

tleman from Nevada chairman and proceeded to draft

an irrigation bill. The committee was composed of a

large majority of Republicans, but politics was sub-

merged to get some irrigation legislation. The com-

21. House Committee at p. 20.

22. House Debate at p. 6670.

Appendix 61

mittee, of course, was confronted with platforms and

constitutions, national and State. Where they pointed

their way, they adopted them; where they ran counter,

they ran over them or passed them by.

They took up first the Republican national platform

of 1900, and upon that this bill was drafted and intro-

duced in the Senate, After a little while the bill passed

without a division in the Senate, and went to the House

Committee on Arid Lands, a majority of whose mem-

bers are from arid or semiarid States.

The troubles then began. The President was for one

kind of irrigation, with national control of canals and

water distribution, and the Republican platforms, na-

tional, State, and Territorial, and some State constitu-

tions of States affected, were for another kind, with

State control of canals and water distribution. The

President told the committee that called on him that

the Senate bill was not in consonance with his ideas

of irrigation; that if the United States built canals it

should, to keep the water supply from politicians, con-

trol the distribution.”

This presidential intervention and its purpose was con-

firmed by President Roosevelt in his autobiography :*8

“On the day the message was read, a committee of

Western Senators and Congressmen was organized to

prepare a Reclamation Bill in accordance with the

recommendations. By far the most effective of the

Senators in drafting and pushing the bill, which be-

came known by his name, was Newlands. The draft

of the bill was worked over by me and others at several

conferences and revised in important particulars; my

active interference was necessary to prevent it from

being made unworkable by an undue insistence upon

State Rights, in accordance with the efforts of Mr.

23. Theodore Roosevelt; An Autobiography, at p. 396 (Seribner

1926).

62 Appendiz

Mondell and other Congressmen, who consistently

fought for local and private interests as against the

interests of the people as a whole.”

Time and again during the Congressional debates, the

supporters of the 1902 Act made clear thie understanding

that reclamation was a national project to be undertaken

by the national government. To the suggestion that the fed-

eral government not itself reclaim the land in question but

rather cede the land to the states, Congressman Reeder

notes :**

“We have been told that the Government, which is the

owner of these lands, should not reclaim them itself,

but should cede them to the States. It is sufficient an-

swer to that to say that many State grants have been

already made of different amounts of land and for

different purposes, and the experience of the past has

demonstrated beyond any question that the States

cannot be safely intrusted with the reclamation and

settlement of these lands. No matter what conditions

might be imposed on such a grant, schemers and specu-

lators would find some way of manipulating the State

legislatures and getting control [886] of the lands in

large tracts which would retard settlement.”

And again Congressman Newlands notes as follows :*

“Nothing can be accomplished by conveying this land

to the States, The State lines are arbitrary lines, not

drawn with reference to the watersheds, but arbitrarily

by the surveyors, straight north, south, east and west.

Were these States so bounded that each could com-

pose an entire watershed, with all of its tributaries,

then it would be possible to cede all the public domain

to the States with the expectation of some just and

proper result, but a river, with all its tributaries, may

24. House Debate at p. 6740.

25. Id. at p. 6734.

Appendiz 63

reach into four or five States, Scientific reclamation

requires conservation regardless of State lines.”

However, by the inclusion of Section 8, Congress recognized

that notwithstanding the national scope of reclamation

state law had important, albeit limited, functions in the

equation. Certainly, Section 8 on its face does not make

crystal clear the role of state law, although it is apparent

that state law does have a role in regard to federal rec-

lamation projects. By a careful reading of the Congres-

sional history, however, it is apparent that state law would

have at least two functions under Section 8 of the 1902 Act.

[2] As to the first function, Congressman Martin indi-

cated that Section 8 would be used to modify and com-

plement Section 7, which latter section dealt with the fed-

eral government’s power of eminent domain :2*

“[Section 7] should be read in connection with section

8, which is in the nature of a limitation upon this sec-

tion. Section 8 provides that the Secretary of the In-

terior, when proceeding under this act, must proceed

in conformity with the State laws. It therefore makes

taking the two sections together, simply an instruction

to the Secretary of the Interior to invoke the aid of the

State laws upon the subject of eminent domain where

necessary.”

Indeed, it was settled by the Supreme Court in Jvanhoe

Irrigation District v. McCracken, 357 U.S. 466, 78 S.Ct.

1174, 2 L.Ed.2d 1313 (1958) and in Fresno v. California

372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963), that Sec.

tion 8 requires the federal government to look at state law

to define the property interests for which compensation

must be made pursuant to Section 7 eminent domain pro-

ceedings.

26. Id. at p. 6759.

64 Appendiz

[3] Secondly, Section 8 is a reaffirmation of the doc-

trine that the states are free to apply their own rules of

water law and the federal government cannot enforce any

particular rule upon any state. Section 8 was not written

upon a clean slate, but rather, on the overlay of prior fed-

eral law. As examples of the federal legislation upon which

Section 8 was based, Congressman Mondell cited the Act of

July 26, 1866 (14 Stat. 253); the Act of July 9, 1870 (16

Stat. 218): and the Act of March 3, 1877 (19 Stat. 377).

In California Oregon Power Co. v. Beaver Portland Cement

Co., 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356 (1935), and

cases cited therein, the Supreme Court noted as follows :*

“For many years prior to the passage of the Act of

July 26, 1866 [citations omitted], the right to the use

of water for mining and other beneficial purposes in

« (California and the arid region generally was fixed and

regulated by local rules and customs. The first appro-

priator of water for a beneficial use was uniformly

recognized as having the better right to the extent of

his actual use. The common law with respect to riparian

rights was not considered applicable, or, if so, only

[S87] to a limited degree. Water was carried by means

of ditches and flumes great distances for consumption

by those engaged in mining and agriculture. [citations

omitted] The rule generally recognized throughout the

states and territories of the arid region was the ac-

quisition of water by prior appropriation for a bene-

ficial use was entitled to protection; and the rule

applied whether the water was diverted for manu-

facturing, irrigation, or mining purposes. The rule was

evidenced not alone by legislation and judicial decision,

27. Id. at p. 6679; other acts cited include the Act of March 3,

1891 (26 Stat. 1095) and the Act of June 4, 1897 (30 Stat. 1136)

[sic].

28. 295 U.S. at 154, 55 S.Ct. at 727.

Appendix 65

but by local and customary law and usage as well.

[citations omitted].

This general policy was approved by the silent ac-

quiescence of the federal government, until it received

formal confirmation at the hands of Congress by the

Act of 1866. [citations omitted]” ;

The Supreme Court further explained that the Act of

July 9, 1870, which amended the Act of 1866, was a reaffir-

mation of the doctrine that the states are free to apply their

own rules of water law.” See also Kansas v. Colorado. 206

U.S. 46, 94, 27 S.Ct. 655, 51 L.Ed. 956 (1907).

Finally, the Supreme Court notes that the Desert Land

Act of March 3, 1877, is fully consistent with this doe-

trine :”

“The Desert Land Act does not bind or purport to bind

the states to any policy. It simply recognizes and gives

sanction, in so far as the United States and its future

grantees are concerned, to the state and local doctrine

of appropriation, and seeks to remove what might be

an impediment to its full and successful operation.”

[4] Similarly, Section 8 does not bind or purport to

bind the states to any policy, but recognizes and gives

sanction, as far as the United States and its grantees are

concerned, to the state law doctrine of appropriative rights

to water, In this regard, also, Section 8 guards prior rights

granted by the individual states to individual water users,

As noted by Congressman Mondell in his committee’s re-

port to the House 3

29. Id. at p. 155, 55 S.Ct. 725.

30. Id. 295 U.S. at p. 164, 55 S.Ct. at 731.

31. House Committee at p. 8.

66 Appendiz

“The American irrigator, beginning with the handicap

of a woeful lack of knowledge of the subject, and an

inherited common-law rule fatal to its solution, has

acquired a vast fund of theoretic knowledge and prac-

tical experience. He has been instrumental in the adop-

tion of rules and regulations, and the establishment of

customs, relative to the use of water in irrigation to

the arid region which, in some States, are well-nigh

perfect, and in all are a distinct advance over former

conditions. The bill recognizes the control of these

local laws in matters of recording appropriations of

water and in establishing and maintaining rights of

users....”

California, however, discerns another meaning within

the words of Section 8. In short, California reads Section

8 as requiring the federal government to apply to affected

states for permits to appropriate water for reclamation

projects and to comply with terms and conditions which

the affected states might impose (as long as not expressly

prohibited by other federal law), before the federal gov-

ernment can acquire the water necessary to construct the

project.

As an initial matter, it is at least arguable whether the

United States, in acquiring water for the development of a

reclamation project, should be considered an “appropria-

tor” in the true legal sense of that term. Appropriation of

a water right implies legal title thereto, and as the Supreme

Court noted in Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81

L.Ed, 525 (1937) :**

“Although the [federal] government diverted, stored,

and distributed the water, the contention of petitioner

that thereby ownership of the water or [888] water

rights became vested in the United States is not well

32. 300 US. at pp. 94-95, 57 S.Ct. at pp. 416-417.

Appendiz 67

founded. Appropriation was made not for the use of

the government, but, under the Reclamation Act [of

1902], for the use of the landowners.”

Perhaps for clarity, it would be better to consider the fed-

eral government’s actions in obtaining water for the develop-

ment of reclamation projects as the “acquisition” rather

than the “appropriation” of water.

However, even if the federal government is considered

to be “appropriating” the water required to develop and

operate the reclamation project, it is certainly not clear

from the language of Section 8 nor from the Congressional

history that the federal government must apply to states

for permits to appropriate or that the federal government

must comply with terms and conditions which states might

impose on such permits.

If anything, the Congressional history of Section 8 indi-

cates the opposite interpretation: that reclamation is an

undertaking of national concern, transcending the often

arbitrary geographic boundaries of individual states and

territories. Even a leading States’ rights advocate such

as Senator Clark recognized the necessity of broad federal

power in the development and construction of reclamation

projects :*

“The question of the conversation of waters is one of

national importance; the question of reservoir sites

and reservoir building is one that appeals to the

[federal] Government as a matter of national import,

but the question of State or Territorial control of

waters after having been released from their hondage

in the reservoirs which have heen provided is a

separate and distinct proposition .. ..

33. Senate Debate on the Relamation Act of 1

m9 | of 1902, 35 Cong.

68 Appendiz

It is right that the General Government should control,

should conserve, and should reservoir the headwaters

of these streams. In this it is a national and not a

State proposition. But in the distribution of these

waters ... it is right and proper that the various

States and Territories should control in the distribu-

tion.”

Of course, Senator Clark’s suggestions as to the power of

the States in controlling distribution were rejected by the

House and ultimately, by Congress as a whole. Nevertheless,

his comments are relevant and useful on the question of

federal power regarding the development and construction

of reclamation works.

The only comment within the Congressional history of

the 1902 Act which might be supportive of California’s

position is a statement by Congressman Mondell in response

to a question seeking clarification of the federal-state rela-

tionship envisioned by the 1902 Act. Congressman Mondell

noted that it was necessary for the federal government,

after determining the need and feasibility for a particular

reclamation project, to refer to the affected state by “giving

the notice and complying with the forms of law of the State

_. . in which the works [are to be] located.”™

On the one hand, this statement by Congressman Mondell

supports California’s position that the federal government

must apply to affected states before acquiring the water

necessary to construct a reclamation project. On the other

hand, however, this statement might also be read, as the

United States has done, to require compliance with the

forms, but not necessarily with the substance of state law.

[5] Indeed, while the Congressional history of the 1902

Act indicates broad federal purpose and authority in the

34. House Debate at p. 6678.

Appendiz 69

operation and control of federal reclamation projects, the

comity inherent in a federal system would not permit an

overbroad usurpation of state sovereignity. Accordingly,

the federal government is required, when acquiring water

for federal reclamation projects, to com- [889] ply with the

forms of state law, including application to state water

hoards where necessary, for two purposes : (1) to enable the

state to determine, according to its law, whether there is

sufficient unappropriated water available for the project ;

and (2) to give notice to the state of the scope of the proj-

ect.

(2) Judicial Interpretation of the Reclamation Act of 1902.

Both the United States and California rely on several

judicial decisions relating to the 1902 Act. It is necessary to

review these cases to determine if they provide any

insight on the question presented by the instant ease. .

(a) Nebraska v. Wyoming, 295 U.S. 40, 55 S.Ct. 568, 79

L.Ed. 1289 (1934) was a suit by Nebraska against the State

of Wyoming for equitable apportionment of the waters of

the North Platte River. The United States was not made

a party to that suit and Wyoming, as part of its motion to

dismiss, asserted that the United States was an indis-

pensable party. In deciding that the United States was

not an indispensable party, the Supreme Court stated :*

“The bill alleges, and we know as a matter of law

[citing Section 8 of 1902 Act], that the Secretary and

his agents, acting by authority of the Reclamation Act

and supplementary legislation, must obtain permits

and priorities for the use of water from the state of

Wyoming in the same manner as a private appro-

priator or an irrigation district formed under the

state law. His rights can rise no higher than those

of Wyoming, and an adjudication of the defendant's

rights will necessarily bind him. Wyoming will stand

35. 295 U.S. at 43, 55 S.Ct. at 569.

70 Appendiz

in judgment for him as for any other appropriator

in that state. He is not a necessary party.”

Additionally, there is dicta in this opinion which is cer-

tainly supportive of the position California advances to this

court: the Supreme Court notes that the Secretary of the

Interior had applied to the state engineer of Wyoming for

permission to construct reservoirs and impound water “pur-

suant to the [1902] act,” and also that the acts of the fed-

eral government in operating reservoirs are subject to

the law of Wyoming.”

This dicta should not be afforded great weight, however,

since the actions of the Supreme Court in 1935 should be

considered procedural only. In 1938, the Supreme Court

allowed the United States to intervene, over the objections

of all the state parties, and stated that its order “shall be

without prejudice to the determination on final decree of

any of the substantive questions of law or fact advanced

or to be advanced by any of the parties herein.”*

(b) Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332,

89 L.Ed. 1815 (1945) was both a continuation and an

extension of the 1935 case. At this time, however, the

United States asserted that it owned all of the unappro-

priated water in the North Platte River at the time it

acquired water rights for two federal reclamation projects,

the North Platte Projeet and the Kendrick Project. The

Supreme Court did not reach the question whether the

United States did, in fact, own all the unappropriated water

in the North Platte River because it determined that the

United States’ acquisition of water rights for the North

36. 295 U.S. at 42, 55 S.Ct. 568.

37. Nebraska v. Wyoming, 304 U.S. 545, 546, 58 S.Ct. 1035, 82

]..Ed. 1519 (1938).

Appendiz 71

Platte Project and the Kendrick Project “have been ob-

tained in compliance with state law.’*

In fact, the United States had made filings with the

state :*®

“Tnitiation of both projects [North Platte Project and

the Kendrick Project] was accompanied by filings made

pursuant to $8 fof the 1902 Act] in the name of the

Secretary of the In- [890] terior for and on behalf of

the United States. Those filings were accepted by the

state officials as adequate under state law. Thev estab-

lished the priority dates for the projects, There were

also applications to the States for permits to construct

eanals and ditches. They described the land to be

served. The orders granting the applications fixed the

time for completion of the canal, for application of the

water to the land, and for proof of appropriation. Indi-

vidual water users contracted with the United States

for the use of project water. These contracts were later

assumed by the irrigation districts. Irrigation districts

submitted proof of beneficial use to the state authoritice-

on behalf of the project water users. The state author.

ities accepted the proof and issued decrees and certifi-

cates in favor of the individual water users. The

certificates named as appropriators the individual land-

owners. They designated the number of acres included

the use for which the appropriation was made the

amount of the appropriation, and the priority date

The contracts between the United States and the irriga-

tion districts provided that after the stored water was

released from the reservoir it was under the control “"

the appropriate state officials.”

Although the United States did submit the appropriate

forms of law to the affected states and thereby gave notice

of the construction of the reclamation projects, and also

38. 325 U.S. at 612, 65 S.Ct. at 1348.

39. 325 U.S. at 613, 65 S.Ct. at 1348.

72 Appendix

complied with the state law requirements in the construc-

tion of canals and ditches carrying water from the projects

to users, the Supreme Court was careful to point out an

important caveat :*°

“Nor, as we shall see, is it important to the decree to

be entered in this case that there may be unappro-

priated water to which the United States may in the

future assert rights through the machinery of state

law or otherwise.” [emphasis added]

And again the Court noted as follows :*

“We intimate no opinion whether a different procedure

might have been followed so as to appropriate an:!

reserve to the United States all of these water rights.

No such attempt was made.”

On the one hand, these quotations may only be a reference

to the power of eminent domain which the United States

might have exercised pursuant to Section 7 of the 1902 Act.

Viewed broadly, however, the quotations indicate a recogni-

tion that in the particular case before the court the United

States had followed state law, but that opinion is reserved

whether, under the circumstances of that case, the United

States was required to do so under the 1902 Act.

And finally, the Supreme Court noted the narrow issues

decided by the case, and indicated that its decision “in no

40. 325 U.S. at 612, 65 S.Ct. at 1348.

41. 325 U.S. at 615, 65 S.Ct. at 1349.

The following language from the Nebraska opinion is also note-

worthy:

“We do not suggest that where Congress has provided a

system of regulation for Federal projects it must give way

before an inconsistent state system.” 325 U.S. at 615, 65

S.Ct. at 1349.

This admonition was later borne out in Ivanhoe Irrigation District

v. McCracken, 357 U.S. 275, 78 8.Ct. 1174, 2 L.Ed.2d 1313 (1958),

discussed infra.

Appendiz 73

wise interfers with the ownership and operation by the

United States of its storage and power plants, works, and

facilities.”

(ec) Ivanhoe Irrigation District v. McCracken, 357 U.S.

275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958) is not particularly

helpful to either the United States or California in the dis-

position of the instant case. In Ivanhoe the United States

Supreme Court reversed several decisions of the California

Supreme Court which had refused to confirm certain con-

tracts entered into hetween two state irrigation districts

and a water agency on the one hand, and the United States

on the other. The California Supreme Court had held that

the language of Section 8 requiring compliance with state

law overrode the [891] requirements of Section 5, which

provides generally that no project water should be sold for

use on land parcels exceeding 160 acres in size. The Cali-

fornia court found that Section 5 of the federal law would

be contrary to California law because it would result in dis-

crimination against owners of parcels exceeding 160 acres.

This decision led the court to refuse to confirm the afore-

mentioned contracts. The United States Supreme Court in

reversing the California Court, stated as follows :*

“As we read § 8, it merely required the United States

to comply with state law when, in the operation of a

reclamation project, it heecomes necessary for it to ae-

quire water rights or vested interests therein. But the

acquisition of water rights must not be confused with

the operation of federal projects. ... We read nothing

in $8 that compels the United States to deliver water

on conditions imposed by the State. ...

The California Supreme Court on remand in /ranhoe

Irrigation District v. All Parties, 53 Cal.2d 692, 3 Cal.Rptr.

42. 325 U.S. at 616, 65 S.Ct. at 1349.

43. 357 U.S. at 292, 78 S.Ct. at 1183.

74 Appendix

317, 350 P.2d 69 (1960), recognized the scope of federal

power in operating reclamation projects when it noted :**

“The United States Supreme Court] expressly held

that the United States may acquire, by condemnation

if necessary, whatever water rights it may need to oper-

ate the project, so that after such acquisition such

rights are not subject to state control.”

However, this court feels that the true impact of the

United States Supreme Court’s decision in Ivanhoe as it

relates to this ease is not so much what the court said, but

rather, what the court did not say. While recognizing that

Section 8 did not require the United States to violate Sec-

tion 5 merely because state law was not consistent with the

requirements of Section 5, the United States Supreme Court

expressly noted that its decision should not be read as “pass-

ing generally on the coverage of § 8 in the delicate area of

federal-state relations in the irrigation field.”

(d) City of Fresno v. California, 372 U.S. 627, 83 S.Ct.

996. 10 L.Ed.2d 28 (1963) is not particularly relevant to the

inquiry in this case, although it is cited by both parties

herein. Fresno merely stands for the proposition that while

Section & of the 1902 Act requires compliance with Califor-

nia law when defining the property interests, if any, for

which compensation must be made pursuant to the Section

7 eminent domain power, Section 8 cannot operate to pre-

vent the United States from exercising the power of

eminent domain.

(e) Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10

L.Fd.2d 542 (1963), while primarily concerned with the

construction of Section 14 of the Boulder Canyon Project

44. 53 Cal.2d at 715, 3 Cal.Rptr. at 330, 350 P.2d at 82.

45. 357 U.S. at 292, 78 S.Ct. at 1184.

Appendiz 15

Act, necessarily interpreted the applicability of Section 8

of the 1902 Act, since, under Section 14 of the Boulder

Canyon Project Act, the reclamation law shall govern the

management of the works, except as otherwise provided.

The Boulder Canyon Project Act established a reclama-

tion project on the Colorado River. Notwithstanding the

federal government’s construction, ownership, operation,

and maintenance of the Colorado River works and the broad

power given by Congress to the Secretary of the Interior

to make contracts for the distribution of water, it was

argued that Sections 14 and 18 of the Boulder Canyon Proj-

ect Act took away virtually all of the Secretary’s power

by permitting the States to determine with whom and on

what terms the Secretary would make water contracts. The

Supreme Court disagreed with this argument.

Section 18 of the Boulder Canyon Project Act states:

[892]

“Nothing herein shall be construed as interfering with

such rights as the States [now have] either to the

waters within their borders or to adopt such policies

and enact such laws as they may deem necessary with

respect to the appropriation, control, and use of waters

within their borders.”

The Supreme Court noted as follows :47

46. 45 Stat. 1057, 43 U.S.C. §§ 617-617t (1928).

47. 373 U.S. at 585-587, 83 S.Ct. at 1490-1491. The partial dis-

senting opinion of Mr. Justice Harlan is helpful in focusing on the

narrowness of the Supreme Court’s determination in Ivanhoe

ee notes : )

“[Ivanhoe], despite its dictum that §8 applies only

acquisition of rights by the United eae on not - }

operation of a dam, holds only that the clear command of § 5

of the [1902 Act]—that water deliveries to each user not

exceed the quantity required for 160 acres—prevails over

state law, not that state law does not generally govern priori-

ties in the use of water from federal reclamation projects

under § 8.” 373 U.S. at 623-624, 83 S.Ct. at 1510.

76 Appendix

“Section 14 provides that the reclamation law, to which

the Act is made a supplement, shall govern the manage-

ment of the works except as otherwise provided, and

$8 of the Reclamation Act [of 1902], much like § 18

of the Project Act, provides that it is not to be con-

strued as affecting or interfering with state laws ‘r~

lating to the control, appropriation, use, or distribution

of water used in irrigation.’ In our view, nothing in

any of these provision affects our decision, stated

earlier, that it is the Act and the Secretary’s contracts,

not the law of prior appropriation, that control the

apportionment of water among the States. Moreover

. we hold that the Secretary in choosing between

users within each State and in settling the terms of

his contracts is not bound by these sections to follow

state law.

The argument that § 8 of the Reclamation Act requires

the United States in the delivery of water to follow

priorities laid down by state law has already been

disposed of by his court in [Ivanhoe and Fresno]....

Since §8 of the Reclamation Act did not subject the

Secretary to state law in disposing of water in [Ivan-

hoe], we cannot, consistently with Ivanhoe, hold that

the Secretary must be bound by state law in disposing

of water under the Project Act.”

California has argued, however, that the Boulder Canyon

Project differs significantly from the New Melones Project

in that the former is an interstate development, whereas the

latter is “wholely intra-state.” This contention ignores the

fact that reclamation projects, as a whole, are of national

importance, transcending state lines. And this is so even

where the project works are located solely within the geo-

graphical confines of a single state. Crops raised by project

water in California, for example, may feed families in

Maine, or create processing jobs in Lilinois. In Arizona it

Appendix 77

was clear that the federal government, as operator of the

Boulder Canyon Project, could not be subject to the varying

and possibly inconsistent commands of different state legis-

latures in the disposal of water from the project. That hold-

ing, of course, does not directly answer the question posed

by the instant case: whether the federal government must

submit to state law in acquiring the water for the project.

In summary, it must be said that the cases cited and

relied upon by both the United States and by California

are more supportive of the position advanced by the United

States, than of the position uf California.

(3) Other federal legislation.

By analogy to acts of Congress passed into law sub-

sequent to the 1902 Act, California contends that Congress

has consistently intended to afford to the states the primary

responsibility over “water distribution,” and that the role

of the federal government is to cooperate and participate

with the states in [893] reclamation projects. As an initial

matter, it must be reiterated that the issue in this case

does not revolve around “water distribution,” but rather,

“water acquisition.” A thorough reading of the enactments

cited by California does not, however, evince a Congres-

sional abdication of the federal government’s role in devel-

oping, operating, and controlling, federal reclamation proj-

ects.

[6] (a) California contends that the policy declaration

within the Federal Water Supply Act of 1958, 43 U.S.C.

§ 390b, is a reaffirmation of the primary responsibility of

the states over “water distribution.” That section reads as

follows:

“Tt is declared to be the policy of the Congress to

recognize the primary responsibilities of the States and

local interests in developing water supplies for do-

78 Appendiz

mestic, municipal, industrial, and other purposes and

that the Federal Government should participate and

cooperate with State and local interests in developing

such water supplies in connection with the construction,

maintenance, and operation of Federal navigation, flood

control, irrigation, or multiple purpose projects.”

Certainly, this section is a recognition of the individual

states’ primary obligations to develop water supplies for

internal uses. On this basis the federal government is

charged with participation and cooperation with the states

in the development of such water supplies. It would be too

broad a reading of this section to infer that the federal

government is thereby subjected to individual state control

in the development and operation of federal reclamation

projects.**

[7] (b) California also attempts to draw analogies to

Section 5 of the Auburn-Folsom South Project Act, 43

U.S.C. § 616aaa— 616fff. This act generally provides for

the construction of the Auburn Dam on the American River

and for distribution facilities in downstream areas. The

Auburn-Folsom South Project Act imposes specific obli-

gations on federal officials, similar to those imposed in the

New Melones Acts,*® including: provision for power genera-

tion, 43 U.S.C. § 6l6aaa; flood control, 43 U.S.C. § 616bbb;

recreation, 43 U.S.C. § 616cce; fish and wildlife enhance-

ment, 43 U.S.C. § 616ece; protection of the needs of counties

and watersheds in which the water originates, 43 U.S.C.

§ 6l6eee. Additionally, the Auburn-Folsom South Project

Act imposes a further obligation on the Secretary of the

48. It should be noted that the Federal Water Supply Act also

specifically provides that the act “shall not be construed to modify

the provisions of” Section 8 of the 1902 Act. 43 U.S.C. § 390b(c).

49. See discussion of New Melones Authorizing Acts, infra.

Appendiz 79

Interior to “give due consideration” to California’s water

plan and to “consult” with local interests affected by the

project, 43 U.S.C. § 616dda, .

Specifically, Section 5 of the Auburn-Folsom South Proj-

ect Act provides as follows:

“N othing contained in [this Act] shall be construed by

implication or otherwise as an allocation of water, and

in the studies for the purposes of developing plans for

disposal of water as herein authorized, the Secretarv

shall make recommendations for the use of water in

accord with State water laws, including but not limited

to such laws giving priority to the counties and areas

of origin for present and future needs.”

Section 5 of the Auburn-Folsom Project Act mandates that

the Secretary of the Interior shall make recommendations

for the use of water in accord with State law in the studies

for the purposes of developing plans for the disposal of

water as authorized by the Act. It does not confer project

control on the State of California.” [894]

[8] (ec) It is also pointed out by California that the

National Environinental Quality Improvement Act of 1970

(NEQTA) provides that the “primary responsibility for

implementing this policy [for protection and enhancement

of the national environment] rests with State and local

governments.” 42 U.S.C. §$ 4371(b)(2). California further

indicates that the National Environmental Policy Act of

1969 (NEPA) states that federal agencies must cooperate

with States and local governments in the achievement of

environmental goals. 42 U.S.C. § 4331(a).

50. This reading is entirely consistent with the Congressi

history of § 5 of the Auburn-Folsom South Project Act. See She

No. 1289, 88th Cong., 2d Sess., 3-4 (1964); H.R. Rep.No. 1826

88th Cong., 2d Sess., 10 (1964).

80 Appendiz

The Congressional intent underlying both NEQIA and

NEPA was to raise awareness of environmental concerns

and provide a mechanism for the input of such concerns in

the decision-making process. The “mechanism” to be em-

ployed is the Environmental Impact Statement. At least in

the case of the New Melones Dam project, the Ninth Circuit

Court of Appeals has already tested the sufficiency of the

Environmental Impact Statement and has determined that

environmental concerns were adequately considered. En-

vironmental Defense Fund, Inc. v. Armstrong, 487 F.2d 814

(9th Cir. 1973), cert. denied 416 U.S. 974, 94 S.Ct. 2002, 40

L.Ed.2d 564 (1974). There is no indication that Congress

intended either NEQIA or NEPA to either affirm or estab-

lish a policy of state control of the environmental aspects

of federal reclamation projects.

[9] (d) The Flood Control Act of 1944, P.L. 78-534, 58

Stat. 887, and the Flood Control Act of 1962, P.L. 87-874,

76 Stat. 1180, 1191, authorize the New Melones Project.

California cites sections of these authorizing acts in sup-

port of its contention that states may exercise control over

the development and operation of federal reclamation pro-

jects. California relies particularly on three aspects of

these acts:

[1] The 1944 Act declares as follows:

“[T]t is hereby declared to be the policy of the Con-

gress to recognize the interest and rights of the states

in determining the development of the water sheds

within their borders and likewise their interests and

rights in water utilization and control, as herein

authorized to preserve and protect to the fullest pos-

sible extent established and potential uses, for all

purposes, of the waters of the Nation’s rivers.” 58

Stat. 887-88 (1944).

Appendix 81

[2] The 1962 Act imposes specific obligations on federal

government officials in operating the project including:

giving priority to water needs within the Stanislaus River

Basin before water is exported for use outside the basin,

providing for the preservation and propagation of fish

and wildlife, providing for the generation of electrical

energy, and maintaining downstream water quality control.

76 Stat. 1191-92.

[3] The 1962 Act makes specific mention that states are

not to control flood control aspects of the project, 76 Stat.

1191, and the 1944 Act specifically prevents state control

with respect to water rights reserved for Indian reserva-

tions. 58 Stat. 891.

The authorizing act provisions cited by California, how-

ever, are entirely consistent with the concept of federal

control of federal reclamation projects, coupled with

federal-state development and coordination as to water

uses. Coordination in the planning stage does not mean

federal abdication or responsibility or control to state

boards and agencies in the development and operation of

federal reclamation projects. Further, the enumeration of

specifie federal obligations does not infer state control nor

does the specific identification of exceptions to state control

imply that other elements of project operation are to be

placed within state control.

In summary, therefore, although the acts cited by Cali-

fornia indicate a strong Congressional intention to include

the [895] States and state law in the planning process and

to ensure federal-state cooperation in projects, it cannot

be said that these acts indicate by analogy or otherwise. a

Congressional intention to abdicate the federal govern-

ment’s responsibility to develop and operate reclamation

projects.

82 Appendiz

(4) Administrative Practice.

Although the Congressional history and judicial inter-

pretation of Section 8 supports the legal posture of the

United States, the State of California has urged this court

to nevertheless consider the administrative practice of the

Bureau of Reclamation vis a vis the state board. Certainly,

when construing the meaning of a statute, it is pertinent

and appropriate for a court to look to the administrative

practice and interpretation placed on the statute by those

charged with its administration. Zemel v. Rusk, 381 U.S. 1,

85 S.Ct. 1271, 14 L.Ed.2d 179 (1965). This rule of statutory

construction is grounded in the belief that by statutory

clarification Congress would presumably have altered any

administrative interpretation which conflicts with the stat-

ute’s intent.

The administrative practice of the Bureau of Reclama-

tion is of some relevance in the present case. Both the

United States and California have asserted to this court

that this is a case of first impression and of national im-

portance. If indeed this is true, as appears to be the case,

then the administrative practice of the Bureau regarding

the acquisition of water for federal reclamation projects

has been an extraordinarily happy and tranquil practice

which has somehow avoided the courts for three-quarters

of a century since the enactment of Section 8. Such long-

standing harmony would indicate that Congress was appar-

ently satisfied that hoth the Bureau and the state boards

were exercising authority within the allowable scope of

Section 8.

The exhibits and affidavits on the subject of administra-

tive practice have heen primarily submitted by California.

The Secretary of the Interior, the Commissioner of Recla-

mation. and the Regional Director of the Bureau of Recla-

Appendiz 83

mation have all been cited in these exhibits and affidavits.

For example, California cites the 1944 statement submitted

hy the Regional Director of the Bureau, after consultation

with the Secretary of the Interior and the Commissioner

of Reclamation. This statement was quoted by the Supreme

Court in United States rv. Gerlach Live Stock Co., 339 U.S.

725, 740, 70 S.Ct. 955, 94 L.Fd. 1231 ( 1950). The statement

reads in pertinent part as follows :™"

“The Bureau of Reclamation does recognize and re-

spect existing water rights which have been initiated

and perfected or which are in the state of being per-

fected under State laws. The Bureau of Reclamation

has been required to do so by Section 8 of the Recla-

mation Act of 1902 ever since the inception of the

reclamation program administered by the Bureau of

Reclamation. The Bureau of Reclamation has never

proposed modification of that requirement of Federal

law; and on the contrary, the Bureau of Reclamation

and the Secretary of the Interior have consistently

through the 42 vears since the 1902 Act, been zealous

7 ee compliance with section 8 of the 1902

ct.

They are proud of the historic fact that the reclama-

tion program includes as one of its basic tenets that

the irrigation development in the West by the Federal

Government under the Federal Reclamation Laws is

carried forward in conformity with State water laws.

Ample demonstration of the effect of this law and

policy of administration, in action, has been given in

connection with the Central Valley Project. Water

filings made by the State have been obtained by the

Bu- [896] reau of Reclamation by assignment, and

vested water rights have been acquired by the United

States, by purchase, the consideration amounting to

millions of dollars and being agreeable to the vendors

—all in conformity with state law.”

51. Defendant’s memorandum, p. 21, September 3, 1974.

84 Appendiz

In 1958, the Bureau repeated this view. The Bureau’s

Regional Director, in a letter to Representative Clair

Engle of California, quoted from a letter of the Assistant

Secretary of the Interior William E. Warne, as follows :”

“As vou know, the Sacramento Valley water rights are

protected by: (1) Reclamation law which recognizes

State water law and rights thereunder; (2) the State’s

counties of origin act, which is recognized by the

Bureau in principle; and (3) the fact that Bureau

filings on water rights are subject to State approval.”

In 1950, Congress received a memorandum from the

Commissioner of Reclamation entitled “Administrative

Practice in Regard to Federal Appropriation of Water, a

copy of which was also submitted to the Supreme Court in

the Gerlach case. The Commissioner stated in pertinent

part as follows :*

“It is the practice of the Government to make appro-

priations of water from unnavigable streams in accord-

ance with the provisions of state law (sec. 8, act of

June 17, 1902, 32 Stat. 388).

Before taking any steps toward the appropriation of

water in any State, either by posting and recording

notice of appropriations or filing application for per-

mits to appropriate, full report as to the advisability

of making such apropriation shall be submitted . .

It appears from the foregoing that in practice the

Department has generally regarded section 8 of the

Reclamation Act of 1902 as directory of the course of

action to be followed in its assertion of water rights

52. Defendant’s memorandum, p. 22, September 3, 1974, quoting

from 95 Cong.Rec. A961, 8ist Cong., 2d Sess. (1948).

53. Defendant’s memorandum, pp. 22-23, September 3, 1974,

quoting Hearings on S. 1275 before the Subeommittee on Irrigation

& Reclamation, Senate Comm. on Int. & Ins. Affairs, 88th Cong.,

2d Sess., 311, 312, 320, 322, 323 (1964).

Appendix 85

for projects governed by the Federal Reclamation

Laws and with respect to the recognition of rights

under various State statutes and that it has followed

the line marked out by that section regardless of

whether the stream is navigable or nonnavigable.

Publie statements by officials of the Department of the

Interior in recent years with the approval of the De-

partment are in conformity with this practice.

Whatever the correct theory be as to ownership of

unappropriated water, the net effect as regards State

laws is the same so far as the Bureau of Reclamation

and its activities are concerned. This is true because

of section 8 of the 1902 act. The Bureau of Reclamation

and the Secretary of the Interior are required by that

law to proceed in conformity with state water laws;

they do so proceed; and they would strenuously oppose

any change in the Federal law which now requires

them to proceed in conformity with State water laws.

Should the United States, in connection with the devel-

opment of the Central Valley Project, as now or as it

may be in the future authorized, desire to obtain or

develop additional water supply for the project, it is

and will be the intention and the clear policy of the

Bureau of Keclamation and the Secretary of the In-

terior to obtain or develop the additional water supply

by proceeding in conformity with the State law.”

In 1952, Secretary of the Interior Oscar L. Chapman,

wrote the following words in a letter to California Governor

Karl Warren:* [897]

“The State of California of course asserts a certain

scope of jurisdiction of the water of the State and of

its use, and by section 8 of the Reclamation Act of

1902 .. . Congress enjoined the Secretary of the In-

terior, in carrying out the provisions of the act, to

54. Defendant’s memorandum, pp. 23-24, September 3, 1974,

quoting from CVP Documents, Part 1, 810-812 (1956).

86 Appendix

proceed in conformity with the State law. . .. The

current estimate of the cost of the construction of the

Central Valley Project is $700,000,000.00. The recoup-

ment of the legally reimbursable portion of this Fed-

eral expenditure is necessarily dependent on a legal

freedom, as well as a legally sanctioned duty, on the

part of the United States to operate the project as

it has been planned by both the State of California and

the United States. This freedom in turn depends on

the validity and extent of the rights of the United

States to store, divert, and use water under the law

of California. These rights have their inception in

certain applications by the California Director of

Finance to appropriate unappropriated water, which

have been or are to be assigned by him to the United

States, in certain applications made by the United

States itself, and in already vested rights to the use

of water which have been acquired by the United

States from private parties through a negotiated pur-

chase or inverse condemnation involving the payment

of compensation.”

The United States has not disputed the making of the

statements cited by California, but rather has interpreted

both their meaning and their relevancy differently than

has California. The United States contends, inter alia, that

the statements were all made prior to 1952 in a non-ad-

versary proceeding and “are not likely to have the clarity

one should look to to find the precise position of litigants,”

that the statements were all made prior to a number of

very important court decisions which helped to define Sec-

tion 8, and that in any case, the views expressed in the

statements are entirely consistent with the notion that the

55. It is apparent, of course, that at least some of the statements

were made after 1952.

Appendix 87

federal government must comply with the forms of state

law, but only on the basis of comity.

As to the actual practice of the Bureau of Reclamation

in California, affidavits have been submitted by California

which assert that since 1938, the State Board has received

51 applications from the federal government to acquire

water for various elements of the Central Valley Project.

California notes that 41 of those applications were con-

ditionally approved. The United States does not dispute

this, but asserts that it has consistently maintained to the

State Board that it was appearing only for reasons of

comity.**

[10, 11] In analyzing the statements and actions, two

points are noteworthy. The Supremacy Clause of the

United States Constitution is a limitation upon the states

according to which federal law cannot be subordinated to

state regulation within the areas of Congress’ exclusive

legislative powers. People of the State of California ex rel

State Water Resources Control Board v. Environmental

Protection Agency, 511 F.2d 963 (9th Cir. 1975). As noted

earlier in this opinion, both parties to this action have

admitted that because of the national implications in-

herent in reclamation, Congress could have afforded all

power and control over federal reclamation projects to the

federal government, giving no power and control to the

states. See Ivanhoe Irrigation District v. McCracken, 357

U.S. 275, 294, 78 S.Ct. 1174, 2 L.Ed. 1313 (1958). Cali-

fornia’s position, however, is that the 1902 Act was a mani-

festation of Congress’ intent to give [898] states certain

56. Plaintiff's memorandum, pp. 28-30, October 11, 1974.

57. Defendant’s memorandum, p. 24, September 3, 1974.

58. Plaintiff's memorandum, p. 54, October 11, 1974. Califor-

nia does not dispute this assertion. See Defendant’s memorandum,

pp. 4-6, November 19, 1974.

88 Appendix

powers in the operation and control of federal reclamation

projects. To accept California’s position, however, would

require a finding that the 1902 Act waived exclusive federal

jurisdiction. Waivers of exclusive federal jurisdiction, like

waivers of sovereign immunity, are to be strictly con-

strued. Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) ; People

of the State of California ex rel State Water Resources

Control Board v. Environmental Protection Agency, 511

F.2d 963 (9th Cir. 1975).

Secondly, this court must remain mindful of the admoni-

tion of the Ninth Circuit Court of Appeals in Turner v.

Kings River Conservation District, 360 F.2d 184, 198 (9th

Cir, 1966) :

«| [R]eason precludes an interpretation of the gen-

eral provisions of Section 8 of the Reclamation Act

[of 1902] .. . which would impute to Congress an in-

tention to frustrate its plans for this project by sub-

jecting it to the risk that it might never be used for

some of the authorized purposes, should a state permit

not be forthcoming.”

Certainly, all the administrative pronouncements and

actions cited above are susceptible to either the inter-

pretation advanced by California or the interpretation

advanced by the United States. Viewed, however, in the

perspective of the Congressional history and judicial deci-

sions relating to Section 8 previously cited in this opinion,

this court is constrained to reject the interpretation ad-

vanced by California as being inconsistent with the Con-

gressional history and those judicial decisions. On the other

hand, all the administrative statements and actions are

consistent with the view that the Bureau does and will

Appendix 89

respect existing state water laws and further, that the

Bureau does and will comply with state filing requirements

on the basis of comity.

CONTENTIONS IN THE NATURE

OF ESTOPPEL

As an alternative argument, California has raised sev-

eral issues in the nature of estoppel against the United

States. This alternative argument is grounded on the

proposition that even if federal law precludes state con-

trol of federal reclamation projects in general, factors

inherent in the instant case would estop the United States

from contesting the authority of the State Board to issue

Decision 1422. These contentions will be discussed seriatim.

(1) Equitable estoppel.

California contends that the United States should be

equitably estopped from denying the authority of the

Board, particularly as to Decision 1422, because the United

States has consistently submitted to the Board or its

predecessor, applications for permits to appropriate un-

appropriated water for the Central Valley Project.

California has cited the cases of United States v. Georgia-

Pacific Co., 421 F.2d 92 (9th Cir. 1970), Brandt v. Hickel,

427 F.2d 53 (9th Cir. 1970), and Gestuvo v. District Direc-

tor, 337 F.Supp. 1093 (Cal. 1971), for the proposition that

the United States cannot be estopped in its sovereign

capacity, but can be estopped in its proprietary capacity.

Such a distinction, however, is not the law in this circuit.

[12] Equitable estoppel may, under certain circum-

stances, be applied against the United States without re-

gard to its “capacity”, whether proprietary or sovereign.

United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir.

90 Appendix

1973). As the Ninth Cireuit Court of Appeals stated in Lazy

FC Ranch:

“(]stoppel is available as a defense against the gov-

ernment if the government’s wrongful conduct threat-

ens to work a serious injustice and if the public’s in-

terest would not be unduly damaged by imposition of

estoppel. .. . This proposition is true even if the gov-

ernment is acting in a ca- [899] pacity that has tradi-

tionally been described as sovereign . . . although we

may be more reluctant to estop the government when

it is acting in this capacity.”

The test of estoppel applied in this circuit was outlined in

Georgia-Pacific at 421 F.2d at 96: (a) the party to be es-

topped must know the facts; (b) he must intend that his

conduct shall be acted on or must so act that the party

asserting the estoppel has a right to believe it is so intended ;

must rely on the former’s conduct to his injury.

[13] If in fact there is a legitimate disagreement be-

tween the United States and California as to the true nature

of their relationship regarding the acquisition of water to

develop federal reclamation projects, then it can hardly be

said that the United States “knew” the true facts and

thereby “induced” California to engage in detrimental con-

duct. Further, this court is doubtful whether the expendi-

ture of time and effort by the State Board in the conduct

of hearings can rise to the level of “injury” envisioned by

the equitable estoppel doctrine.

(2) Res judicata and collateral estoppel.

California Water Code § 1360 provides that any person

interested in any application for a permit to appropriate

water may within 30 days after final action by the Board

59. 481 F.2d at 989.

Appendiz 91

file a petition for a writ of mandamus in the Superior Court

to inquire into the validity of the Board’s action. California

Code of Civil Procedure § 1094.5 provides for the mechan-

ism and procedures on review of administrative actions.

At no time did the United States seek a direct appeal of

Decision 1422 to the California courts. Rather, the United

States initiated the instant declaratory relief action in

federal court. This failure to pursue California’s mandamus

provisions, argues California, makes Decision 1422 res

judicata and, through the doctrine of collateral estoppel,

prevents attack in this Court on issues and matters decided

by the Board in Decision 1422.

[14] The doctrines of res judicata and collateral estoppel

rest upon considerations of economy of judicial time and

the public policy favoring the establishment of certainty in

legal relations. The doctrine of res judicata has a double

aspect: (1) it precludes parties or their privies from reliti-

gating a cause of action that has been finally determined by

a court of competent jurisdiction; and (2) any issue nec-

essarily decided in such litigation is conclusive

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