# Reply Brief — Arizona v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1979
- **Citation:** 439 U.S. 419

## Text

@ 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:
GP .. tiienensnaeretinensnninqussameetiimnene 4
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0829%3A06. Public record. Not legal advice.