Reply Brief — Arizona v. California

@ Supreme Court, U. &

“FILS

FEB 24 1978

__MICHAEL RODAK, JR., CLERK

No. 8, ORIGINAL

Gu the Supreme Court of the Cited States

OcroBeR TERM, 1977

STaTE OF ARIZONA, COMPLAINANT

v.

STATE OF CALIFORNIA, ET AL.

ON MOTION FOR LEAVE TO INTERVENE

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, Jr.,

Solicitor General,

JAMES W. MOORMAN,

Assistant Attorney General,

MYLES E. FLINT,

Attorney,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

I. The Tribes’ claim to be indispensable parties__._~-~- 2

II. Allegations of patent ambiguities......-..---------- 5

ERE. Beeninary Ggets wcncccccnssenenasaneescsecnenece 8

TV. Gusitted BeGe ..ccenccevensencsencgenscenssscsnse 10

V. Tribal objections to present wnagaen rights claimed

i 11

VE. ComG cncnenssenenncssnwaseceessenessnsenses 1l

CITATIONS

Cases :

Arizona v. California, 373 U.S, 546.......----------- 3, 10

Arizona v. California, 376 U.S, 342, and amended, 383

WB, Binet cewecceccccececescccesscesce passim

Cherokee Nation v. Georgia, 5 Pet, 1.--.------------- 12

Heckman v. United States, 224 U.S. 413_.------------ 3

Pueblo of Picuris v. Abeyta, 50 F, 2d 12_----.-------- 3

State of New Mewico vy. Aamodt, 537 F. 2d 1102__---- 3

United States vy. Mason, 412 U.S. 391.--------------- 5

United States vy. Minnesota, 270 U.S, 181------------- 12

Winters v. United States, 207 U.S. 564-.----------_-- 2-3

Statutes and rules:

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BD BG: Ca ccccnenecnqueccusensannnnniapenunee 4

BD Pees Sern icentenninnmnennndaiineanidicinionpaesinds 5

Rule 9, Rules of the Supreme Court of the United

IES Sainccicnisdepincthtitntaipepiiientiaimnqsntndiniieinetintnpaids 2

gg SD OR OF nee 2

(1)

255-648—78

Gu the Supreme Court of the Cited States

OcroBeR TERM, 1977

No. 8, ORIGINAL

StTaTE OF ARIZONA, COMPLAINANT

v.

StTaTe OF CALIFORNIA, ET AL.

ON MOTION FOR LEAVE TO INTERVENE

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

In May 1977, Arizona, Nevada, California and

seven California public agencies (the state parties)

filed a joint motion for a determination of their

present perfected rights under Article VI of the

decree entered in this case on March 9, 1964, 376

U.S. 340, 351-352, and amended on February 28, 1966,

383 U.S. 268. The United States, which has partici-

pated throughout this litigation on behalf of the five

tribes along the lower Colorado River, responded to

this motion in November 1977. The issues raised in the

Joint Motion and the response of the United States

are restricted to matters relating to the determina-

tion of the non-Indian present perfected rights under

Article VI.

(1)

2

Now three of the five lower Colorado River tribes—

the Quechan Tribe of the Fort Yuma Reservation, the

Fort Mojave Tribe, and the Chemehuevi Tribe (the

Three Tribes)—have moved to intervene as “Ti jndis-

pensable [p]arties.” Their motion states the follow-

ing grounds: the tribes are the real parties in inter-

est; the representation of their interests by the United

States is and has been inadequate; the proposed sup-

plemental decree is patently ambiguous; the United

States’ response does not set forth the status of cer-

tain boundary disputes; the United States’ response

fails to make any claims for certain lands “omitted”

from the Court’s original decree; and the present

perfected rights claimed by the movants have no basis

in fact. The applicants in intervention did not attach

a proposed complaint in intervention to their motion

(see Rule 9 of this Court and Rule 24, Fed. R. Civ.

P.), and their motion requested (Mot. 18) that they be

permitted to file such a petition within sixty days

after the grant of their motion.

L. THE TRIBES’ CLAIM TO BE INDISPENSABLE PARTIES

The Three Tribes contend that they should be per-

mitted to intervene because they are the real parties

in interest (and thus indispensable parties), and

that the government’s representation of their inter-

ests is and has been wholly inadequate.

The United States is fully in accord with the Three

Tribes’ assertion that they are the beneficial owners

of water rights reserved by the United States at the

time it established their reservations. See Winters v.

3

United States, 207 U.S. 564. As the Three Tribes

acknowledge (see Br. 5-6), the United States’ com-

plaint in intervention stated that the United States

“as trustee for the Indians and Indian Tribes”

claimed “on their behalf rights to the use of the water

from the Colorado River and its tributaries in the

River Basin” (Complaint, { 27). As this Court’s

opinion demonstrates, the United States successfully

contended that the Tribes were entitled to substantial

reserved water rights. See Arizona v. California, 373

U.S. 546, 595-601.

However, although we agree that the Three Tribes

have a beneficial interest in the water rights claimed

by the government on their behalf, we do not agree

that this interest establishes that they are indispen-

sable parties. To the contrary, the decisions of this

Court recognize that the United States as trustee has

standing to bring suit to protect or enforce such

rights, and that at least in the absence of conflict of

interest * this representation of the tribal interests is

“complete.” Heckman v. United States, 224 U.S. 413,

444-445.

The Three Tribes recognize the United States’

trusteeship status (Br. 14-15), but they urge that they

should be permitted to intervene and represent their

own interests because the representation of the United

States has been inadequate due to pervasive conflicts

of interests in both the Department of Justice and

* Compare State of New Mexico v. Aamodt, 537 F. 2d. 1102 (C.A.

10), with Pueblo of Picuris v, Abeyta, 50 F. 2d i2 (C.A. 10).

4

the Department of the Interior. Although they allege

that the government’s conduct of the case from the

outset has been inadequate,’ the Tribes’ primary sub- -

mission is that the government’s response to the Joint

2JIn addition to general allegations that the government has

succumbed to adverse political pressures (Br. 5-6), the brief con-

tains two specific allegations of past malfeasance by government

attorneys. First, the Tribes quote an affidavit alleging that govern-

ment attorneys “abandoned the Tribes’ interests and vigorously

advocated the conflicting claims of joint movants Yuma and Gila

Federal Reclamation Projects” (Br. 7) ; second they cite a memo-

randum allegedly proving “beyond a question” that conflicts of

interest precluded the Tribes from having their day in court (Br.

29 and n. 61). Although both the affidavit and the memorandum

to which the Tribes refer were prepared by Bureau of Indian

Affairs employees, the views expressed in these documents do not

represent the position of the Department of the Interior. Nor, in

our view, do these charges reveal an actual conflict of interests. The

United States’ primary undertaking in the instant case was the

presentation of the Indian claims. The only other rights advanced

by the United States and ultimately determined by the Court were

for the Imperial National Wildlife Refuge, the Lake Mead Rec-

reation Area, the Havasu Lake National Wildlife Refuge, and the

satisfaction of the United States’ obligations under its treaty with

Mexico dated February 3, 1944, 59 Stat. 1219. Of those claims, only

the treaty claim involved a substantial amount of water (normally

1.5 million acre-feet per year, half of which would be supplied by

the upper basin in times of shortage). 59 Stat. 1237. However,

the rights of United States to water to satisfy its treaty obligation

was virtually indisputable ; indeed no party in the litigation sought

to challenge that claim. Moreover, that right could conflict with

the tribal rights only in the event of extreme shortage.

We therefore believe that the motion to intervene is grounded less

on charges of conflicting interests than on disagreements with the

wisdom of various judgments necessarily made in the course of

developing a litigation strategy. Although we believe that the gov-

ernment’s conduct of this litigation has been competent and fully

in accord with its fiduciary obligations, we do not believe it would

5

Motion demonstrates the gross inadequacy of its rep-

resentation of their interests. We therefore address

in turn each of the points upon which they rely to es-

tablish this inadequacy.

II. ALLEGATIONS OF PATENT AMBIGUITIES

The Tribes’ chief argument (Mot. 6-9; Br. 16-22)

is that the proposed supplemental decree is patently

ambiguous. The Tribes argue that paragraph 5 of the

proposed decree, the subordination agreement, does

not ensure the priority of their present perfected

rights. That paragraph provides that,

“In the event of a determination of insufficient

mainstream water to satisfy present perfected

rights pursuant to Article II(B) (3) of said de-

cree, the Secretary of the Interior shall * * *

first provide for the satisfaction in full of all

the rights of the * * * Tribes.

The Tribes contend (Br. 16), however, that the final

decree contains ‘‘no provision relating to ‘insufficient

mainstream water to satisfy present perfected

rights,’’’ and therefore a patent ambiguity exists

which leaves their rights open to challenge.

be feasible or appropriate at this stage of the proceedings to de-

scribe fully and seek to justify the judgments made regarding the

strategy of the litigation and method of presentation of evidence

to the Special Master approximately twenty years ago. A separate

action presenting any such claims of breach of trust, if timely and

authorized by statute, would be the appropriate forum for the

development of the necessary record to permit the adjudication

of such charges. See United States v. Mason, 412 U.S. 391, 398-399 ;

28 U.S.C, 1505.

6

In our view there is no ambiguity. Article IT(B)

provides for all possible contingencies. Articles

II(B) (1) and (2) of the decree, 376 U.S. 342, pro-

vide for all instances in which sufficient mainstream

water exists to satisfy 7,500,000 acre-feet of annual

consumptive use. Where Article II(B)(1) and (2)

apply, Article II(D) provides for the satisfaction of

the Tribes’ present perfected rights out of the

7,500,000 acre-feet. Article II(B) (3) provides for the

remaining instances—in which insufficient main-

stream water is available to satisfy 7,500,000 acre-

feet of consumptive use—and in that circumstance

Article II(B)(3) requires the Secretary to provide

for the satisfaction of all present perfected rights

before apportioning the remaining available water.’

Although Article II(B)(3) provides that the Secre-

tary is to provide for present perfected rights “in

order of their priority date without regard to state

lines,” paragraph 5 of the proposed supplemental

decree alters this order of priority by providing

* Article II(B) (3) provides:

“Tf insufficient mainstream water is available for release, as

determined by the Secretary of the Interior, to satisfy annual con-

sumptive use of 7,500,000 acre-feet in the aforesaid three States,

then the Secretary of the Interior, after providing for satisfaction

of present perfected rights in the order of their priority dates

without regard to state lines and after consultation with the parties

to major delivery contracts and such representatives as the respec-

tive States may designate, may apportion the amount remaining

available for consumptive use in such manner as is consistent with

the Boulder Canyon Project Act as interpreted by the opinion of

this Court herein, and with other applicable federal statutes, but

in no event shall more than 4,400,000 acre-feet be apportioned for

use in California including all present perfected rights.”

7

that the Tribes’ rights shall be satisfied “first.’’ Ac-

cordingly, in our view no ambiguity exists, and the

proposed supplemental decree provides for the pri-

ority of the affected Indian water rights without

regard to their priority date in all cases where there

is a shortage of mainstream water, and Indian rights,

though perfected, might not otherwise be satisfied.

The State parties’ response to the Tribes’ motion to

intervene indicates that they concur in this inter-

pretation of the subordination agreement. They re-

present that the proposed supplemental decree “with

[the United States’] modifications, * * * through

subordination language * * * allows all Indian pre-

sent perfected rights to be satisfied ahead of all major

non-Indian rights in time of shortage’’ (St. Resp. 17).

The Tribes also suggest (Br. 20-22) that a second

ambiguity arises from a comparison of the language

of the proposed supplemental decree as to use in

diversion, with the language of Article II(D)(1)-(5),

which in the case of each of the Tribes describes the

entitlements to “present perfected rights” as follows:

* * * in annual quantities not to exceed (i)

acre feet of diversions from the main

stream or (ii) the quantity of main stream

water necessary to supply the consumptive use

required for irrigation of * * * acres and for

satisfaction of related uses, whichever of (i)

(ii) is less, with a priority date of * * *.

The amendment to paragraph 5 proposed in the

United States’ response to the Joint Motion (U.S.

Resp. 3), however, provides that main stream water

for additional areas determined to be within tribal

reservations shall not exceed the quantities—

* & &

8

* * * necessary to supply the consumptive use

required for irrigation of the irrigable acres * * *.

The language in the proposed supplemental decree,

instead of the language in the original decree, was

adopted for the very practical reason that the parties

are unable at this time to specify the number of

practicably irrigable acres included within the areas

subject to boundary disputes resolved since the entry

of the Court’s decree. As a result, the total number

of acre feet of diversions cannot be specified. The

use of the proposed language, in our view, provides a

workable definition in the absence of the information

required to compute the total number of acre feet of

diversions. We believe that the Tribes’ entitlement to

water under the proposed language (which is based

upon the second test of the original decree) cannot

be less than it would be under the dual standard of

the original decree, since the decree specifies that the

Tribes are entitled only to the application of which-

ever of the two formulas provides less. The language

proposed is used only because of lack of the proper

data to enable the parties to use the dual standard set

forth in the original decree.

III. BOUNDARY DISPUTES

The Tribes also contend (Mot. 9-15; Br. 23-28)

that the government’s response to the Joint Motion

is inadequate in that it fails to address the issue of

disputes concerning the boundaries of tribal lands.

The Tribes argue that the supplemental decree should

make provision for water rights in areas recognized

9

as part of the tribal reservations‘ as a result of the

resolution of boundary disputes occurring since the

filing of the original decree. We agree that these

rights ultimately must be determined, and we intend

at an appropriate time to file a motion with this

Court seeking a determination of these rights. Such a

motion would not, however, be brought under Article

VI, but rather under Article II(D) and Article IX

of the original decree. The present proceeding is

limited to issues involving Article VI of that decree.

In our view, substantial benefits will accrue to the

Tribes if the present efforts to resolve the controversy

under Article IV suc eed, and tribal rights that may

be subject to future proceedings are in no way jeo-

pardized or affected.

Indeed, the State parties’ response to the Tribes’

motion to intervene expressly acknowledged that the

proposed decree does not affect the Tribes’ rights to

raise claims resulting from boundary disputes under

Articles II and IX (St. Resp. 15-16). As the State

parties note (id. at 16-17), the proposed decree is

explicit on this point. Paragraphs 2 and 3 provide:

(2) This determination shall in no way affect

future adjustments resulting from determina-

tions relating to settlement of Indian reserva-

tion boundaries referred to in Article II(D)

(5) of said Decree.

‘In large part the motion of the Three Tribes concerns the

boundaries of the Colorado River Indian reservation (Mot. 11-13) ;

the Colorado River Tribe, however, has not at this time moved to

intervene.

10

(3) Article IX of said decree is not affected

by the list of present perfected rights.

Moreover, as noted in our original response to the

Joint Motion (U.S. Resp. 4-5), the language proposed

by the United States for paragraph 5 (the subor-

dination agreement) is intended to apply to addi-

tional areas determined to be within the boundaries

of the reservations. The State parties accept this in-

terpretation; in their response to the intervention mo-

tion they state that the Indian rights “advantaged” by

the subordination “include not only those present per-

fected rights already quantified in the decree, but

also any present perfected rights quantified in the

future as a result of boundary dispute resolutions”

(St. Resp. 17; emphasis added).

We believe that treating Article VI matters sepa-

rately from rights affected by boundary disputes is in

accord with this Court’s distinction between Article

VI matters, as to which it directed the parties to file

lists of their claims within three years, 383 U.S.

268-269, and boundary disputes, upon which the Court

declined to rule. Arizona v. California, 373 U.S. 546,

601.

IV. OMITTED LANDS

The Tribes also contend (Mot. 16) that the govern-

ment’s response to the Joint Motion is inadequate in

that it fails to make any claims for ‘‘omitted” lands,

i.e., those for which no evidence was presented to the

Special Master. At present there is not sufficient hy-

drological and technical data to adjudicate these

11

claims. However, we believe, as in the case of lands

ultimately determined to be within reservation bound-

aries, that adoption of the proposed supplemental de-

eree under Article VI in no way forecloses a later

claim for such lands under Article IX.

V. TRIBAL OBJECTIONS TO PRESENT PERFECTED RIGHTS

CLAIMED BY THE STATE PARTIES

The Tribes deny (Mot. 17) the validity of the State

parties’ claims to present perfected rights. We do not

agree with the Tribes’ allegations that the dates and

amounts claimed are patently false; however, as noted

in our response to the Joint Motion, we accept these

claims only conditionally as part of a stipulation in-

cluding an agreement subordinating all these state

rights to the Tribes’ present perfected rights.

VI. CONCLUSION

As the foregoing demonstrates, the United States

has no governmental interests which conflict with

those it is asserting on behalf of the Tribes in this

proceeding under Article VI.° Throughout the negoti-

ations on this subject over the past several years, the

primary aim of the United States has been to insure

that the rights of the five lower Colorado River tribes,

including those of the applicants in intervention, are

fully protected. The purpose of the proposed sub-

* The only federal present perfected rights (other than those

claimed on behalf of the tribes) listed in the proposed supple-

mental decree are a diversion right of 1,140 acre feet (with a pri-

ority date of 1915) for a parcel of land in Arizona (Pro. Supp.

Decree 8), and a diversion right of 500 acre feet (with a priority

date of 1929) for the Lake Mead Recreation Area (id. at 18). We

do not believe that the Three Tribes suggest the assertion of these

minor claims creates any conflict.

———eeeeeeee SS

Za

12

ordination agreement is to establish by decree that

the rights of the five tribes will be satisfied in times

of shortage prior to all other present perfected rights

except for a few miscellaneous rights.’ The United

States is continuing its negotiations with the State

parties seeking to achieve that purpose, consulting

with the Tribes, and considering all the Tribes’ com-

ments as efforts to resolve this matter continue.

In light of the lack of conflict between the United

States’ interests and those cf the Tribes, we believe

their intervention at this late stage in the proceeding

is unwarranted. An important additional considera-

tion is the States’ assertion (St. Resp. 4-7) of sov-

ereign immunity. See United States v. Minnesota, 270

U.S. 181; Cherokee Nation v. Georgia, 5 Pet. 1. It

may be that Arizona (the plaintiff) and Nevada (an

intervenor), by asserting title to the water rights at

issue and submitting that question for adjudication,

have consented to determination of adverse claims

with respect to the same res or asset. But that argu-

ment would not apply to California, New Mexico, or

Utah, who were involuntarily made parties.

Accordingly, since the Tribes’ interests are (and

have been) fully represented by the United States and

since the intervention of the Tribes at this late date

might frustrate the complete adjudication of the com-

peting claims, the motion to intervene should be de-

nied. We urge the Court, however, in light of the

*The proposed supplemental decree does not subordinate the

Miscellaneous Present Perfected Rights (Pro. Supp. Decree 7-11,

12-18) to the rights of the Tribes. Those rights, however, total only

17,504 acre-feet of diversions, part of which are for municipal and

industrial purposes, Most of those rights are minimal and not all

are senior to the tribal rights.

13

Tribes’ obvious interest in these proceedings, to per-

mit the Tribes to submit their views as amici curiae.’

Respectfully submitted.

Wave H. McCrer, Jr.,

Solicitor General.

JaMES W. Moorman,

Assistant Attorney General.

Myues E. Furt,

Attorney.

Fepruary 1978.

* Allowing the Tribes to participate as amici curiae is consistent

with an earlier ruling by the Special Master on the request of

several tribes other than the Three Tribes that the Attorney Gen-

eral be directed to appoint separate counsel for them, although they

expressly disclaimed any desire to intervene (6 Tr. 2644). The

Special Master ruled that although “[t]he legal power of the Attor-

ney General to represent the petitioners and to manage the litiga-

tion in their behalf cannot be curtailed by judicial action,” there

was “some room for accommodation” ; he concluded that the tribes

could submit a brief at the conclusion of the hearing that would be

similar to an amicus curiae brief (6 Tr. 2644-2646). We know

of no instance in these proceedings in which a tribe did so.

U.S. GOVERNMENT PRINTING OFFICE: 1978