# Appendix — California v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2417%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 438 U.S. 645 ## Text Ga Pile th, oe oe, oS 'K ge ~ Pee hs Te ~ is ~ — 5. . & 7 3% » ec a at 2," i+ mt 4 4 a A tog + tur rats ae a 2’ > x. The ere - a a » 7 9 ter oes 5 > A . ‘ . . : y Pe A . * : s ; ~* > ie Se gk rs = I L E D . OEC x<1977 =! 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 no of mo for ord staying proceedings. Fld no of mo for ord staying proceedings. 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. t ho 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 of 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” ec 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 29 Mar 30 Apr 6 Apr 6 Apr 6 Apr. 7 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 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. ec 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 8 Date 1976 Jul 2 July 6 Jul 7 Jul 13 Jul 16 Jul 20 Jul 21 Jul 21 Jul 23 Jul 23 Jul 29 Aug 5 Aug 5 Aug 12 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 ec 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) ec 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- 10 Date 1977 Apr 15 Apr 26 May 3 May 16 May 17 May 19 May 20 May 26 June 2 June 2 June 2 June 2 Aug 12 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, v. 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 1l 12 Appendix I 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] II 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. Ii 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. IV 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. V 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. 18 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, v. 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, v. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2417%3A03. Public record. Not legal advice.