Reply Brief — Arizona v. California

Office - Supreme Cour 3

FILED

No. 8, Original

— Jun 19 962

Supreme Court of the United S as. aati

October Term, 1981 r

STATE OF ARIZONA,

Complainant,

vs.

STATE OF CALIFORNIA, PALO VERDE IRRIGATION DISTRICT,

IMPERIAL IRRIGATION DISTRICT, COACHELLA VALLEY

COUNTY WATER DISTRICT, THE METROPOLITAN WATER

DISTRICT OF SOUTHERN CALIFORNIA, CITY OF LOS AN-

GELES, CITY OF SAN DIEGO, and COUNTY OF SAN DIEGO,

Defendants ,

UNITED STATES OF AMERICA and STATE OF NEVADA,

Intervenors,

STATE OF NEW MEXICO and STATE OF UTAH,

Impleaded Defendants.

—_—_——_

ANSWERING BRIEF OF THE STATES OF ARI-

ZONA, CALIFORNIA, AND NEVADA AND THE

OTHER CALIFORNIA DEFENDANTS TO THE

EXCEPTIONS AND SUPPORTING MEMORAN-

DUM OF THE UNITED STATES AND THE CHE-

MEHUEVI, COCOPAH, COLORADO RIVER,

FORT MOJAVE, AND QUECHAN INDIAN

TRIBES.

Names and addresses of attorneys on inside front cover.

Parker & Son, Inc., Law Printers, Los Angeies. Phone 724-6622

For the State of Arizona,

RALPH E. HUNSAKER,

Chief Counsel,

Arizona Water Commission,

99 East Virginia,

Phoenix, Arizona 85012,

(602) 263-3888,

For the State of California,

Deputy Attorneys General,

3580 Wilshire Boulevard,

Los Angeles, California 90010,

(213) 736-2132,

For Palo Verde Irrigation District,

ROY H. MANN,

Counsel,

CLAYSON, ROTHROCK,

& MANN,

601 South Main Street,

P.O. Box 1447,

Corona, California 91720,

(714) 737-1910,

For the City of Los Angeles,

IRA REINER,

City Attorney,

EDWARD C. FARRELL,

Chief Assistant City Attorney

for Water and Power,

KENNETH W. DOWNEY,

Assistant City Attorney,

GILBERT W. LEE,

P.O. Box 111,

Los Angeles, California 90051,

(213) 481-3296,

For the City of San Diego,

JOHN W. WITT,

City Attorney,

C. M. FITZPATRICK,

Senior Chief Deputy

City Attorney,

202 C Street,

Mail Station 3A,

San Diegc, California 92101,

(714) 236-6220,

For the Coachella Valley County

Water Disirict.

MAURICE C. SHERRILL,

General Counsel,

JUSTIN McCARTHY,

REDWINE & SHERRILL,

Suite 1020,

3737 Main Street,

Riverside, California 92501.

(714) 684-2520.

For the Imperial Irngation

District,

R. L. KNOX, JR.,

Chief Counsel,

HORTON, KNOX, CARTER

& FOOTE,

Suite 101, Law Building,

895 Broadway,

El Centro, California 92243,

(714) 352-2821.

For the Metropolitan Water District

of Southern California,

CARL BORONKAY,

General Counsel.

KAREN TACHIKI.,

Deputy General Counsel,

P.O. Box 54153,

Terminal Annex.

Los Angeles, California 90054,

(213) 626-4282.

For the County of San Diego,

DONALD L. CLARK,

County Counsel,

JOSEPH KASE. JR..

Assistant County Counse!,

LLOYD M. HARMON, JR.,

Deputy County Counsel,

1600 Pacific Highway,

Room 355,

San Diego, California 92101.

(714) 236-3991,

For wae State of Nevada,

RICHARD BRYAN,

Attorney General,

JAMES LAVELLE,

Chief Deputy Attorney General.

State of Nevada,

Mail Room Complex.

Las Vegas, Nevada 89158,

(702) 733-7755.

No. 8, Original

IN THE

Supreme Court of the United States

October Term, 1981

STATE OF ARIZONA,

Complainant,

vs.

STATE OF CALIFORNIA, PALO VERDE IRRIGATION DISTRICT,

IMPERIAL IRRIGATION DISTRICT, COACHELLA VALLEY

COUNTY WATER DISTRICT, THE METROPOLITAN WATER

DISTRICT OF SOUTHERN CALIFORNIA, CITY OF LOS AN-

GELES, CITY OF SAN DIEGO, and COUNTY OF SAN DIEGO,

Defendants,

UNITED STATES OF AMERICA and STATE OF NEVADA,

Intervenors,

STATE OF NEW MEXICO and STATE OF UTAH,

Impleaded Defendants.

ANSWERING BRIEF OF THE STATES OF ARI-

ZONA, CALIFORNIA, AND NEVADA AND THE

OTHER CALIFORNIA DEFENDANTS TO THE

EXCEPTIONS AND SUPPORTING MEMORAN-

DUM OF THE UNITED STATES AND THE CHE-

MEHUEVI, COCOPAH, COLORADO RIVER,

FORT MOJAVE, AND QUECHAN INDIAN

TRIBES.

The United States, with the concurrence of the five Indian

Tribes, has filed four Exceptions to the Report of Special

Master Elbert P. Tuttle. The State Parties hereby answer

those Exceptions as follows:

FIRST EXCEPTION: The State Parties agree with the

United States that boundary lands within the ‘‘checkerboard

=

area’’ of the Fort Mojave Reservation should be treated the

same as other ‘‘boundary lands’’ in this case. That is, the

State Parties contend that such lands should not be assigned

water rights until and unless their boundaries are finally

determined and that unilateral actions by the Secretary of

the Interior on behalf of the United States, a party to the

lawsuit, utterly fail to qualify as such final determinations.

Moreover, the prospect of the United States purporting to

rule in the future that such checkerboard lands are within

the Fort Mojave Reservation, at which time the irrigable

portions of such lands automatically qualify for water rights,

merely underscores the outrageous denial of due process to

the State Parties that such a result would entail. With a

stroke of a pen, the United States could unilaterally decide

whether 641 gross irrigable acres are or are not entitled to

water rights. However arbitrary, capricious, or merely

wrong that decision might be, no other party to this lawsuit

would have any legal recourse to challenge it. The United

States’ argument on the finality of boundaries must be

rejected.

SECOND EXCEPTION: The State Parties agree with

the United States that the question of reserved water rights

for reservation lands alienated to non-Indians after the es-

tablishment of the reservations should not be foreclosed by

a casual provision in the Special Master’s proposed Decree.

The State Parties therefore accept the substitute provision

offered by the United States.

THIRD EXCEPTION: The State Parties have no ob-

jection to adding provisions so as to conform to the 1979

Decree. However, the United States has misstated the so-

called subordination clause (which was stipulated to by all

parties) of the 1979 Decree by saying that al/ Indian Res-

ervation diversion rights are to be satisfied first in times of

shortage, irrespective of priority date (except for Miscel-

= Te

laneous Present Peitected Rights). The subordination clause

of the 1979 Decree applies only to: 1) Indian reservation

rights then recognized in Article II(D)(1-5); and 2) any

additional rights recognized as the result of the final deter-

mination of reservation boundaries.’ The subordination

clause says nothing whatsoever about additional rights rec-

ognized for so-called ‘‘omitted lands.”’ In fact, this Court

inquired about the absence of any such language during oral

argument in October 1978:

**Q. [Justice Stewart] That takes care, however,

of only one part of the Indians’ claims to greater res-

ervations of water, does it not? One was the effect of

new boundaries, and the other was the effect of a mis-

take stemming from failure of zealous representation

by the United States or from whatever cause in the

original allocation of irrigable acreage; is that not right?

**MR. NOBLE: That is true, Your Honor. We

have exciuded these from the subordination agreement

because we have taken the position that recalculation

of irrigable acreage for the lands that existed in the

reservations, that were recognized as reservation lands

in 1964, is barred by res judicata because the Indians

were adequately represented and because the issues

were fully litigated at that time.

'**(5) In the event of a determination of insufficient mainstream water

to page > nt perfected rights pursuant to Art. 11(B)(3) of said De-

tary of the Interior shall, before providing for the sat-

hein of any of the other | ay rfected rights ex for those

listed herein as ‘*MISCELLAN PRESENT RIGHTS’

(rights numbered 7-21 and 29-80 below) in the order of their priority

dates without regard to State lines, first provide for the satisfaction in

full of all of the Chemehuevi Indian Reservation, Cocopah Indian Res-

ervation, Fort Yuma Indian Reservation, Colorado River Indian Res-

ervation, and the Fort Mojave Indian Reservation as set forth in Art.

ID) 1)-(5) of said Decree, provided that the quantities fixed in para-

s (1) through (5) of Art. II(D) of said Decree shall continue to be

subject to — adjustment by agreement or decree of this Court

in the event the boundaries of the respective reservations are finally

determined.”’ (1979 Decree.)

as ae

*“We also feel that these claims are basically limitless

claims. I think the various submissions we have here

have so many different figures and such huge claims

that we felt we simply could not subordinate to some-

thing like that.’’ (Transcript, pp. 8-9 — Oral Argument

10-9-78.)

The State Parties have never consented to subordinate

any of our prior rights to any reservation rights for ‘‘omitted

lands’’ and decline to do so now. We contend that it is not

proper to even award rights for such lands, much less to

subordinate any of our priorities to them. We therefore agree

to the United States’ additional provisions only if paragraph

B is modified so as to reflect the actual language of para-

graph (5) of the 1979 Decree. This should be done simply

by striking all language following ‘‘January 9, 1979 (439

U.S. 419, 421-423),”” so that paragraph B would read:

*‘B. The provisions of Introductory Paragraphs (1)

through (5) of the Decree entered herein January 9,

1979 (439 U.S. 419, 421-423).”’

FOURTH EXCEPTION: We agree with the United

States as to the necessity of listing Indian reservation water

rights according to State and priority date for particular

acreage. We also anticipate that we will be able to agree

with the other parties as to those allocations.

Respectfully submitted,

State of California,

GEORGE DEUKMEJIAN,

Attorney General,

R. H. CONNETT,

N. GREGORY TAYLOR,

Assistant Attorneys General,

DOUGLAS B. NOBLE,

EMiL STIPANOVICH, JR.,

Deputy Attorneys General,

a

State of Arizona,

RALPH E. HUNSAKER,

Chief Counsel,

Arizona Water Commission,

Palo Verde Irrigation District,

Roy H. MANN,

Counsel,

CLAYSON, ROTHROCK & MANN,

Coachella Valley County Water District,

MAuRICE C. SHERRILL,

General Counsel,

JUSTIN MCCARTHY,

REDWINE & SHERRILL,

Imperial Irrigation District,

R. L. KNox, JR.,

Chief Counsel,

HORTON, KNOX, CARTER & FOOTE,

The Metropolitan Water District of

Southern California,

CARL BORONKAY,

General Counsel,

KAREN TACHIKI,

Deputy General Counsel,

a ee

City of Los Angeles,

IRA REINER,

City Attorney,

EDWARD C. FARRELL,

Chief Assistant City Attorney

for Water and Power,

KENNETH W. DOWNEY,

Assistant City Attorney,

GILBERT W. LEE,

Deputy City Attorney,

City of San Diego,

JOHN W. Witt,

City Attorney,

C. M. FitzPATRICK,

Senior Chief Deputy City Attorney,

County of San Diego,

DONALD L. CLARK,

County Counsel,

JOSEPH KASE, JR.,

Assistant County Counsel,

LLoyD M. HARMON, JR.,

Deputy County Counsel,

State of Nevada,

RICHARD BRYAN,

Attorney General,

JAMES LAVELLE,

Chief Deputy Attorney General,

By DouG.as B. NOBLE.