# Reply Brief — Arizona v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1867%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1983 - **Citation:** 460 U.S. 605 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1867%3A18. Public record. Not legal advice.