Brief for the Appellant — United States v. Arizona
Supreme Court brief1935
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PU Rtecccccoceccoses lncucucceboccsnosqusesouseosses 1
Gestion Sevstttes cccccccccceqocccqoceseseoccceseseseses 1.
Constitution, treaties, and statutes involved. ..............-- 2
SE a 3
ASD GF GRMMNBE Bc ccccccccccccescoceoceseesscess seose 6
Argument:
Part I. On the motion to Dismiss:
I. The. United States has Constitutional
power to construct Parker Dam in aid
of navigation and flood control......... 10
II. The United -States has Constitutional
power to construct Parker Dam ‘for the
reclamation of the Colorado River Indian
Reservation and public lands-.---..-..-. 16
III. If the consent of Arizona were otherwise
necessary for the construction of Parker
Dam in aid of reclamation of Indian and
public lands, that consent has been
irrevocably given.............-.-.---- 22
IV. The Secretary of thé Interior has adequate
statutory authority for the construction *
of Parker Dam, and the contract of Feb-
ruary 10, 1933, with the Metropolitan
Water District is a valid exercise of that
QUAI -ccccccccccpecccccccegcerese 29
Part II. On.the Application for a Temporary Restraining
Order:
I. The bill of complaint states a cause of
action. entitling the United States to a
permanent injunction...............-.. 43
Il. The United States will suffer irreparable
injury if the State of Arizona is permitted
to continue its forcible prevention of con-
struction pending final determination of
‘ GP Einewosecocsvcesscosecoseesoned 43
DT... cscssusdesacdsdbwesousdedneeeasosnesseedenns 46
BEMBEBccccccccccccccccescesccesodcecsssosesscososeesee 47
113359—35——1 (I)
CITATIONS
Cases: Page
Alsos v. Kendall, 111 Ore. 359............ 2... -. ee 28
Arizona v. California, 242 U. 8. 36@.................... 22
Arizona v. California, 283 U. 8. 423... ...... 2-2-2222 0.. 3, 10,
12, 13, 14, 15, 30, 33, 36, 37, 45
Arizona v. California, 292 U. 8. 341... .....--- eee 3
Bavacy ¢. Rashulh; 06 G. ©. Bb. ccccccccécccccccccccece 27
Boyd v. Thayer, 143 U. 8. 135...........-..-2--- 2 24
Brewer Elliott Oil & Gas Co. v. United States, 260 U. 8. 77... 26, 28
Brown v. United States, 263 U. 8. 78.................... 34
Camfield v. United States, 167 U. 8. 518, ...........- eee 15
Central R. R. Co. v. Jersey City, 209 U.8.473(70N.J.81).. 27
Conrad Inv. Co. v. United States, 161 Fed. 829............ 19
Coyle v. Oklahoma, 221 U. 8. 559. ................-.-+.. 24
Cubbins v. Mississippi River Comm., 241 U. 8. 351........ 15
Donnelly v. United States, 228 U.S. 243... .......2.-... 28
PUguseD ©. Geek, GES Te Fo Gcacccco<ccccececescccess 27
For River Paper Co. v. Railroad Camm., 274 U. 8. 661..... 27
Gibson v. United States, 166 U. 8. 269_...............-.. 12, 15
Gilman v. Philadelphia, 3 Wall. 713..................... 15
Gulterres v. Albuquerque Land Co., 188 U. 8. 545... ...... 37
Hairston v. Danville & Western Railway, 208 U. 8. 598-___- 35
See Ge GER, GEO Ge Ge Dee ccoceccoccocccececcosecs 18
Massachusetts v. New York, 271 U. 8. 65.....2.........- 27
Mobile Transportation Co. v. Mobile, 187 U. 8. 479........ 27
New Jersey v. Sargent, 269 U. 8. 328...................- 12, 15
People v. Central R. R. of New Jersey, 42 N. Y. 283.......- 27
Philadelphia Co. v. Stimson, 223 U. 8. 605..............- 15
Scranton v. Wheeler, 179 U. 8. 141...............-..--.- 12
OQ 17, 19, 27
South Carolina v. Georgia, 93 U. 8. 4...........-...-----. 30
ee 136
State v. Cunningham, 59 So. 76......... Seccaccesgevesee 28
Stearns v. Minnesota, 179 U. 8. 223..........-.. goecccces 24, 25
Tempel v. United States, 248 U.S. 121...................- 33
United States v. Alford, 274 U. 8. 264... ..............-- 15, 30
United States v. Chandler-Dunbar Co., 229 U. 8. 53; 209
We lb Gil cecccsccceceseccecsecsocosesecosesecesescs 12, 36
United States v. Holt State Bank, 270 U. 8. 49............ 26
United States v. Morrison, 203 Fed. 364... .............. 19
United States v. Rio Grande Dam &.Irr. Co., 174 U. 8. 690. 22, 28, 37
- | United States_v. Winans, 198 U. 8. 371__.....-.- 15, 19, 22, 26, 27
Utah Power & Light Co. v. United States, 243 U. 8. 389... _ .. 37, 45
| Ward v. ON 27
S|” | Winters v. United States, 207 U. 8. 564....-.------ 18, 19, 26, 37
Wisconsin v. Duluth, 96 U. 8. 379... ..............-.-.--
Statutes: ss Page
Act of March 3, 1865 (c. 127, 13 Stat. ee 3, 38
Act of March 2, 1867 (c. 175, 14 Stat. — SE 3
Act of July 27, 1868 (c. 248, 15 Stat. 198)....... 3
Act of March 3, 1899 (c. 425, 30 Stat. 1151)........__. 3, 16, 41
Act of June 17, 1902 (c. 1093, 32 Stat. 388)...... 3, 36
Act of April 21, 1904 (c. 1402, 33 Stat. 189)........ 3, 21,
26, 29, 33, 36, 38
Act of April 4, 1910 (ec. 140, 36 Stat. atimavevessancne 3, 36
Act of June 20, 1910 (c. 310, 36 Stat. 567, 570)... 3, 22, 39
Act of June 25, 1910 (c. 407, 36 Stat. 836)... ss 3, 38, 40
Act of February 21, 1911 (c. 141, 36 Stat. 926)... _. 3, 32, 33, 40
Act of March 4, 1921 (c. 161, 41 Stat. 1367, 1404)... 3, 31, 33, 40
Act of December 5, 1924 (43 Stat. 701)........ 3, 34, 37
' Act of January 21, 1927 (o. 47, 44 Stat. 1010, 1021)______. 14
Act of December 21, 1928 (c. 42, 45 Stat. 1057).....__- 3, 13, 38
Act of June 16, 1933 (c. 90, 48 Stat. 195)...... 3, 38
Constitutions:
Constitution of the United States:
Art. III, Sec. 2, Clauses land2......... | geeceee 2
Art. IV, Sec. 3, Clause 1.......................__. 24
Constitution of Arizona, Article 20.............. 3
Executive Order:
Executive Order No. 6252, August 16, 1933..........___. 3, 39
Treaty: ;
Treaty of Guadelupe Hidalgo, February 2, 1848 (9 Stat.
Ge sctheadipesuddomammneustbndidemisune: Recequeccoccbeoo 3
The Colorado River Compact (Nov. 24,1922)... __ wee 3
MisceHaneous:
Boulder Canyon Project; cooperative contract for con- .
struction and operation of Parker Dam............____ 47
Recommendation of Parker Dam and appurtenant Works
under National Industrial Recovery Act...........____ 66
Appropriation Acts for flood control on Colorado River
below site of Parker Dam.........................___ 68
regarding ‘contributed funds”....................___ 71
Statement of Contributed Funds Act of March 4, 1921_.___- 72
Colorado Rfver Indian Reservation, Arizona and Cali-
fornia; Acts appropriating funds.______. peeeuenssouews 65
Sen. Doc. No. 142, 67th Cong., 2d Sess., p. 56.........___ 14
U. 8. Geological Survey Water Supply Paper 734, p. 88... 14
Inthe Sagreme Court of the Wnited vue
OctoBER TERM; 1934
No. 18, Ortaiwan
THE UNITED STaTeEs or AMERICA, PhpAINTIFF
/
v.
THE StTaTeE oF Arnizona
}
BRIEF OF THE PLAINTIFF IN SUPPORT OF APPLICATION
FOR A RESTRAINING ORDER, AND IN OPPOSITION TO
THE DEFENDANT'S MOTION TO DISMISS THE BILL OF
COMPLAINT
JURISDICTION
This is an original action by the United States
against.a State, brought under Article ITT, Section
2, clauses 1 and 2 of the Constitution of the United
States. .
QUESTIONS PRESENTED
Two motions are before the Court:
(a) The plaintiff has applied for an order re-
straining all interference by the defendant, the
State of Arizona, its officers, agents, and employees,
with the construction of Parker Dam pending the
final determination of this action. The following
questions are presented by this application:
(1)
2
(1) Does the complaint state a cause of action?
(2) Is-there such a prospect of irreparable in-
jury that a temporary restraining order should is-
sue pending final determination of the action? |
(b) ‘The defendant has moved to dismiss the bill
of complaint. The following questions are pre-
sented by this motion:
(t) Does the United States have ecusiitations!
authority to construct Parker Dam in the Colorado
River for inyrovement of navigation, protection
of federal property from floods, reregulation of
water discharged from Boulder Dam, and reclama-
_ tion of Indian and public lands, without fhe con-
_ sent of the State of Arizona, within which State
the eastern abutment of the dam will rest? —
(2) If the consent of the State were necessary,
do the provisions in the Arizona ‘Enabling ‘Act
validly give such consent?
(3) Do the Secretary of tlie Interior and the
Federal Emergency Administrator of, Public
Works possess adequate statutory authority to
construct Parker Dam, and, in aid of such con-
struction by the Government, to contract with the
Metropolitan Water District of Southern Cali-
fornia for cooperation by that District in | financing
the project? ¥
CONSTITUTION, TREATIES, AND STATUTES INVOLVED
Constitution of the United States, Article ITI,
Section 2, Clauses 1, 2; Article IV, Section 3,
Clause
rr Eee
3 .
Constitution of Arizona, Article XX.
Treaty of Guadelupe Hidalgo, Feb. 2, 1848 (9
Stat. 922). BAS
Act of March 4, 1865 (¢.\127, 13 Stat. 541, 559).
Act of March 2) 1867 (¢. 175, 14 Stat. 492, 514).
Act of July 27, 1868 (c. 248,\15 Stat. 198, 232),
Act of March 3, 1899 (30 Stat. 1151).
Aet of June 17, 1902 (¢. 1093, 32 Stat. 388).
Act of April 21, 1904 (4. 1402, 33 Stat. 189, 224),
Act of April 4, 1910 (¢. 140, 36 Stat. 269, 273).
Act of June 25, 1910 (¢,407, 36 Stat. 836).
Act of June 20, 1910.(é 310, 36 Stat. 567, 570).
Act of Feb. 21, 1914 (c. 141, 36 Stat>926).
Act of March 4,1921 (c. 161, 41 Stat. 1367, 1404). . |
Act of Dee. 5, 1924 (43 Stat. 701-2, 3). . od
Act of Dee. 21, 1928 (e¢. 42, 45 Stat. 1057). {
The Colorado River Compact (November 24,
1922). e
Act of June 16, 1933 (e. 90, 48 Stat. 195).
Executive Order No. 6252, dated August 16, 1933,
STATEMENT
This ease britigs before the Court for the third .
time a phasé of the Colorado River controversy
(Arizona v. California, 283 U. §S. 423; Arizona Vv.
California, 292 U. 8. 341). ®
The bill of complaint was filed on January 14,
1935. Process issued on-that date, returnable April
* 1, 1935. On January 18, 1935, the United States
applied to the Court for ain order to show cause why
4
a temporary restraining order should not issue.
The order issued on January 2T, 1935, returnable
February 4, 1935. On February 2, 1935,. the de-
fendant filed a return to the order to show cause
and a motion to dismiss the bill of complaint.
The bill of complaint, in brief, alleges that on
November 7, 1934, the United States was engaged
in the construction of Parker Dam, in the Colorado
River on the Arizona-California boundary, for the
purposes ‘of improvement of navigation, flood con-
trol, re-regulation of water discharge from Boul-
der Dam, and reclamation of, lands ‘within the Colo-
rado River Indian Reservation and publie lands,
pursuant to the Reclamation Act (¢. 1093, 32 Stat.
388), and acts amendatory thereto, and the Na-
tional Industrial Recovery Act (¢. 90, 48 Stat.
195) ; that thereupon the defendant State of Ari-
zona, by the proclamation of martial law and the
threat of armed force, stopped construction and
has continued to prevent work on thé dam. It is
alleged that the dam must be constructed during»
the limited time while the flow of the Colorado
River is being impounded during the filling of
Boulder Dam reservoir.
The bill prays the issuance of a permanent in-
junction, and other remedies.
The application for a restraining order alleges
that the United States will suffer irreparable in-
jury if construction of Parker Dam is delayed.
The application is supported by affidavits of the
5
Commissioner of Reclamation and the Secretary
of the Interior, stating the necessity for immediate
resumption of construction, and the irreparable
character of the injury which will be sustained if
' the conditions now temporarily existing by virtue
: of the filling of Boulder Dam reservoir, and which
can never be restored, are not availed of for con-
struction of Parker Dam. ,
Arizona’s return to the order to show catse is ac-
companied by a motion to dismiss the bill of ecom-
plaint, and, in‘support both of the return to the
rule and of the motion to dismiss, by an affidavit 6f
Governor B. B. Moeur of that State and by a brief.
There are, consequently, two matters now before
the Court: The plaintiff’s application for a re-.
straining order, and the defendant’s motion to dis-
miss the bill of complaint. The: issues upon the —
motion to dismiss the bill of complaint,*are, of
course, restricted to the face of-the bill; the motion
necessarily admits all properly pleaded allegations.
The affidavit of the Governor contradicting the al-
legations of the bill of complaint and alleging
affirmative matter; such as the contents of ' tele-
grams which he has received from a United States
‘Senator concerning this case, is therefore not
properly before the Court on any issue raised by
the motion to dismiss, although the defendant’s
brief in support of that motion relies on the state-
ments in the Governor’s affidavit. These state-
ments, if they constitute defenses to this action,
a 6
may be raised hereafter by way of answer in a
proper pleading. The Court may pass upon the
application for a restraining order and the motion
‘to dismiss separately, and at different times.
Accordingly, this brief is divided into two parts:
Part I deals with the motion to dismiss, and
Part II with the application for a restraining
order.
‘SUMMARY OF ARGUMENT
Part I. The defendant’s Motion to Dismiss the
Bill of Complaint should be denied.
‘ (1) The United States has constitutional power
to construct Parker Dam in aid of navigation and .
flood control. The bill alleges, and its allegations
must be taken as admitted by the motion to dismiss,
that Parker Dam will reregulate and equate, in aid
of navigation and flood control, the waters dis-
charged at Boulder Dam, and jvill impound and
control the floods of the Bill Williams River and
other waters entering the Colorado River between
Parker Dam and Boulder Dam which now imperil
navigation and cause damage to the Colorado
River Indian Reservation and other federal prop-
erty. The consent of the State of Arizona is not
necessary to the exercise of these Federal powers.
- (2) The United States has constitutional power
to construct Parker Dam for the reclamation of
Indian and public lands. The bill of complaint
alleges, and the allegations must be deemed admit-
ted by the motion to dismiss, that the Colorado
7
River Indian Reservation contains about 150,000
acres of irrigable land, which, however, require _
pumping or diversion of waters of the Colorado
River for the reclamation thereof, and that Parker
Dam is so, designed and will be so constructed as
to enable the reclamation of all lands within the
reservation by means of puniping with electric
energy to be generated at Parker Dam, or by means
of diversion of water at the dam, or both. The -
. consent of the State of Arizona is not necessary
for the exercise of the federal power to reclaim and
irrigate lands within an Indian Reservation and
public lands, and to erect structures necessary for
the furnishing of water fer such purposes,
(3) If the consent of the State of Arizona were
otherwise necessary, the provisions of the Enabling
Act under which the State was admitted to the
Union specifically consent to the erection of works
for reclamation purposes. The stipulation in the
Enabling Act is a valid provision for the protection
of interests of the United States’ in Indian and
publie lands.
(4) The Secretary of the Interior and the Publie
Works Administrator have adequate statutory au-
thority for the construction of Parker Dam. The
Secretary is authorized by the Act of April 21,
1904 (e¢. 1402, 33 Stat. 189, 224), to divert waters
of the Colorado River and to reclaim-lands within
the Colorado River Indian Reservation therewith.
He is authorized by the act of March 4, 1921 (ce. 161,
’
~
8
41 Stat. 1367, 1404), te accept funds furnished by
other parties and to expend them under the Ree-
lamation Act as though specifically appropriated
by Congress. The contract of February 10, 1933,
between the United States and the Metropolitan '
Water District of Southern California is an advan-
tageous and proper exercise of that authorization.
The United States will build, own, and control
Parker Dam, and the fact that the District will
receive bénefits by its construction and will pay
‘for those benefits, does not diminish the Federal
interest.
Independently, the Federal Emergency Admin-
istrator of Public Works is authorized by the Na-
tional Industrial Recove: y Act (¢. 90, 48 Stat. 195,
Title IL) to construct or aid in the construction or
financing of conservation and river improvement
works, and to utilize other governmental officers
and agencies in so doing, including necessarily the
Secretary of the Interior. It is immaterial that
the National Industrial Recovery Act was enacted
afier the execution of the contract of February 10,
1933, between the United States and the Metro-
politan Water District; the Recovery Act was in
force When the construction of Parker Dam was
commenced, and the projeet had been duly included
in the “‘comprehensive program of publie works”
prior thereto. The existence or nonexistence of
the contract of February 10, 1933, did not affect the
validity of the authority exercised under the Re-
9
covery Act, as distinguished from the independent ~
bases of authority existing prior to passage of that
- act.
As to the action of the Chief of Engineers: First,
the ‘‘recommendation” of a project under the In-
dustrial Recovery Act (ec. 90; 48 Stat. 195, Title
IT), unlike the “approval” of a project under the
Act of March 3, 1899 (30 Stat. 1151), and its sup-
plements, is recognized by Congress as an author-
ization independently of concurrence by the State.
Second, the 1899 Statute relates solely to construc-
tion by: private parties, not to projects constructed
by the United States,
Part II. The plaintiff’s application for a tempo-
rary restraining order should be granted :
(1) The bill states a cause of action entitling the
United States to a permanent injunction. -The
“argument upon this point has. been presented in
relation to the motion to dismiss the bil] of
complaint. |
(2) The United States will suffer irreparable
injury if the, State of Arizona is permitted to con-
tinue its forcible prevention of construction pend-
ing final determination of this suit. First, the
continued use, or threat of use, of troops to prevent
action by the Federal Government in lieu of re-
course by Arizona to this Court, should not be
sanctioned, and whatever the final decision in this
case may be, this method of obstruction should be
restrained pending the orderly consideration by
10
this Court of the motion to dismiss and of the fur-
ther proceedings that may be had in the case. Sec-
ond, the statements in the Government’s affidavits
that successful completion of Parker Dam requires
immediate resumption of construction, in order to
take advantage of the temporary impounding of
the flow of the river at Boulder Dam, are not de-
nied by the defendant’s response to the order to
show cause or by its affidavit. The defendant
specifically admits that ‘‘enormous advantages’’
accrue to the United States through construction
of Parker Dam, and these advantages will be lost, ~
without benefit to the defendant, if work is further
prevented.
. ARGUMENT
Part I. On THE Motion To Dismiss
I
THE UNITED STATES HAS CONSTITUTIONAL POWER TO
CONSTRUCT PARKER DAM IN AID OF NAVIGATION .AND
FLOOD CONTROL .
In Arizona v. California, 283 U. 8. 423, 457, this
Court said, referring to.Boulder Dam:
Since the grant of authority to build the
dam and reservoir is valid as an exercise of
the constitutional power to improve naviga-
tion, we have no occasion to decide whether
the authority to construct the dam and reser-
voir might not also have been constitution-
ally conferred for the specified purpose of
irrigating public lands of the United States.
.
SO em ee Be wy pores fone o e *» . ——— ar
11
Compare United States v. Rio Grande Dam
& Irrig. Co., 174 U. S. 690, 703; United .
States v. Alford, 274 U. 8. 264. Or for the
specified purpose of regulating the flow and
preventing floods in this interstate river. Or
as a means of conserving and apportioning
its waters among the states equitably en-
titled thereto. Or for the purpose of per-
forming international obligations. <Com-
pare Missouri v. Holland, 252 U. 8. 416.
The present controversy presents certain of those
issues mentioned but not decided in that case, as
well as the issue of improvement of navigation com- -
mon to both cases.
Navigation.—The bill of complaint (p. 5) al-
leges, and the motion to. dismiss necessarily admits,
that: - :
Parker Dam and Reservoir are so located
and designed both as to reservoir capacity
and outlet works as to be operated by syn-
chronization with Boulder Dam so that -
Parker Dam will: :
1. Re-regulate and equate, in aid of navi-
gation and river regulation, the waters dis-
charged at Boulder Dam in response to re-
quirerfénts of flood control and fluctuating
power and irrigation demands;
2. Permit the discharge of water for gen-
eration of power at Boulder Dam which
otherwise would be required to be retained
in storage for river regulation, improve-
ment of navigation, flood control, irrigation,
and domestic uses ;
12
3. Permit the conservation for irrigation
and domestic uses and satisfaction of pres-
ent perfected rights. of waters required to
be discharged at Goulder Dam for improve-
ment of navigation, river and flood control,
‘ud power generation.
These allegations being conceded, it is imma-.
terial whether Arizona owns the bed of the river,
as the defendant’s brief contends (p. 11). Such
title as the State may have is a ‘‘qualified title’’,
subject to the ‘servitude in respect to navigation’”’
created in the Federal Government by the Consti-
tution. Arizona v. California, 283 U. 8. 423; New
Jersey Vv. Sargent, 269 U. 8S. 328, 337, 340; United
States v. Chaudler-Dunbar Co., 229 U. 8. 63, 72;
Scranton v. Wheeler, 179 U. 8. 141, 163; Gibson v.
United States, 166 U.S. 269, 272. ‘The Federal au-
thority is not impaired by ‘‘the fact that purposes
other than naviation will also be served.?’ Arizona
v. California, 283 U.S. 423, 456. The regulation of
a river-so as to obtain a more nearly constant flow is .
certainiy a means ‘‘not unrelated to the control of
navigation’; United States y. Chandler-Dunbar
Co., supra. Boulder Dam, located 150 miles above
Parker Dam, is a structure erected for improve-
ment of navigation and other purposes, those other
purposes including the generation of power and the
storage and release of water for irrigation and
flood-control requirements. Arizona v. California,
supra. Manifestly the reregulation of water dis-
charged at Boulder Dam in response 'to flood con-
13
_ trol, irrigation, and power requirements, and thus
discharged in fluctuating quantities, is in aid of
navigation. The bill alleges that Parker Dam will
provide a reservoir capacity of 717,000 acre-feet:
_ Arizona argued in Arizona vy. California, 283
U.S. 423, that Boulder Dam Was an obstacle, rather
than‘'an aid, to navigation. That argument is re-
peated here. Since the bill alleges, and the motion
to dismiss admits, that the dam will aid navigation
by reregulating the flow of the river below it, it seems
unnecessary that the bill should allege that locks
or other means of passage will be installed at
Parker Dam for the further assistance of naviga-
tion when traffie warrants the expenditure. The
contract between the United States and the Metro-
pohtan Water District, pursuant to which the dam
is being constructed, specifically makes provision
for financing the costs of ‘‘ such facilities for navi-
gation as the Secretary may find necessary ” ( Arti-
cle 10). This contract appears in the Appendix.
No provision for locks has been made at Boulder
Dam, and the Boulder Canyon Project’ Act (e. 42,
45 Stat. 1057) does not provide for locks at Laguna
Dam or any other dam referred to in that statute.
Floed Control.—The bill alleges that Parker
Dam will protect Indian and publie lands from
damage by the floods of the Colorado River and
the Bill Williams River. The flow of the latter
river, which enters the Colorado immediately above
the dam site, has varied between 9 eubic feet per
113359-—-35——2
2a nr rr
14
second and 50,000 cubic feet per second within a
period as short as two weeks. These floods are of
short duratioa, but of heavy volume, constituting a
constant menace to the Colorado River Indian Res-
ervation and public lands of the United States in
Arizona and California, as well as to the naviga-
tion of the Colorado River below the site of Parker —
Dam. For data on the destructive character of a
50,000-second-foot flood at these points, see United:
States Geological Survey Water Supply Paper
734, p. 88, and Senate Document 142, 67th Cong.,
2d Session, p. 56. The United States has hereto-
fore expended $2,462,000 for flood control of the
Colorado River below the site of Parker Dam, and
the Act of Congress of January 21, 1927 (c. 47,
44 Stat. 1010, 1021), authorized annual appropria-
tions of $100,000 for defraying the cost of Colorado
River front work. The Appropriation Acts are
cited in the Appendix.
This Court has not-directly passed upon the
‘power of the Federal Government to construct
works for flood control, independent of navigation
improvements. See, however, references to the
question in Arizona v. California, 283 U. 8. 423,
458, particularly footnote No. 9. Where the, land
to be protected by flood control is the property of
the United States, the Federal Government un-
doubtedly has power to regulate the flow of the
stream. We suggest that the qualified interest of
the State in the bed of a navigable stream is subject
15
to a servitude in respect to Federal flood-control,
comparable to the “‘ servitude in respect to naviga-
tion ’’, to which flood control is related. Compare
Gilman v, Philadelphia, 3 Wall. 113, 725; Philadel-
phia Co. v. Stimson, 223 U. 8. 605; Gibson v. United
States, 166 U. S. 269; New Jersey v. Sargent,
supra; Cubbins v, Mississippi. River Commission, .
241 U. S. 351: The power of the United States
to deal with the bed of a navigable stream without
the consent of the State is not limited to purposes
of navigation and commerce, provided that the pur-
pose be Federal. Such a restriction was urged and
specifically denied in United States v. Winans, 198
U. S.371, 382. And, if protection of Federal prop-
“erty is the purpose. of the work, it is not fatal to
the exercise of the power that the act of protection
must be done on lands in which the State or private
parties have an interest. United States v. Alford,
274 U.S. 264; Camfield v. United States, 167 U. 8.
518.
Consent of the State to Navigation and Flood
Control Improvements.—If the United States has
the constitutional power to erect Parker Dam for
the purposes alleged in the bill of complaint, the °
exercise of that power is not subject to contrel by
the State, Arizona v. California, 283 U. 8. 423, 451.
The cases cited by Arizona (Defendant's brief, p.
13 et seq.), in support of the contention that the
concurrent consent of Congress and of the State is
required for erection of structures in a navigable
16
stream are all cases involving construction by pri-
. vate parties, not by the United States. The de-
fendant’s references, to the Act of March 3, 1899
(30 Stat. 1151) and its amendments are likewise
not in point; this statute relates to construction by
private parties, “a
II
THE UNITED STATES HAS CONSTITUTIONAL POWER. TO
CONSTRUCT PARKER DAM FOR THE RECLAMATION OF
THE COLORADO RIVER INDIAN RESERVATION AND
PUBLIC LANDS .
The bill of complaint alleges (par. 14) that, be-
ginning in 1865, Congress has carried forward an
irrigation program for the Reservation at a.cost
to date of $1,359,000 for the ultimate reclamation.
of 150,000 acres within the Colorado River Indian
- Reservation; that this area is irrigable, but that
pumping of waters of the Colorado River, or diver-
sion of waters of the River by a dam and canal, is
necessary for such reclamation. It alleges that
. the construgtion of Parker Dam will enable the
reclamation of all lands in the Reservation at a cost
‘ Jess than is feasible by any other method; that.
Parker Dam will furnish hydroelectric energy for
pumping, as well as provide diversion works. It
_ also alleges that several hundred thousand ackes of
public lands lie along and near the Colorado River
below Parker Dam, and that those lands are ir-
rigable in like manner.
17
The Government may, for an appropriate pub-
lic ‘purpose, establish an interest in a navigable
stream bed prior to the admission of a State, and
that interest will survive the admission of thé
new State. Shively v. Bowlby, 152 U.S. 1, 47:
Notwithstanding the dicta contained in
some of the opinions of;this court, already
quoted, to the effect that Congress has no
power to grant any land helow high-water
mark of navigable waters in a Territory of
the United States, it is evident that this is
not strictly true, * ada
By the Constitution, as is now well set-
tled, the United States, having rightfully
acquired the Territories, and being the only
government which can fimpose laws upon
them, have the entire/dominion and sov-
ereignty, national ay municipal, Federal
and state, over alVthe Territories, so long
as they remait in a_ territorial eondi-
wna * * 3
We cannot doubt, therefore, that Con-
gress has the power to make grants of lands
below high-water mark of navigable waters
in any Territory of the United States, when-
ever it becomes necessary to do so in order
to perform international obligations, or to
effect the improvement of such lands for the
promotion and convenience of commerce
with foreign nations and among the several
States, or to carry out other publie purposes
appropriate to the objects for which the
United States hold the Territory. ‘
18
The protection of the interests of an Indian
. Tribes constitutes an appropriate public purpose.
McGilvra v. Ross, 215 U. 8. 70.
Thus the United States may, by the creation of
an Indian reservation prior to statehood arid by leg-
islation for the protection of the water rights of
that reservation, create an interest in the Indians’
favor which will not be impaired by later inclusion
of these lands within the boundaries of a new State.
In Winters vy. United States, 207 U. 8S. 564, the
United States sued’ successfully to restrain the
erection of reservoirs which would have impounded
waters of the Milk River flowing down to the Fort
Belknap Indian Reservation. The land on which
the dams would have been built had originally been
in the possession of the Indians, but had been ceded
to the United States. After the cession, and before
ratification of a second treaty, the new State of
Montana, within whose borders all of the land lay,
was admitted to the Union. The defendants’ res-
ervoirs had been licensed by the State. The Court
held (p.. 577) : .
Another contention of appellants is that
- if. it be conceded that there was a reserva-
tion of the waters of Milk River by the
agreement of 1888, yet the reservation was
repealed by the admission of Montana into
the Union, February 22, 1889, ¢. 180, 25 Stat.
676, ‘upon an equal footing with the origi-
nal States.’’ The language of counsel is
that ‘‘any reservation in the agreement with
19
the Indians, expressed or implied, whereby
the waters of Milk River were not to be sub-
ject ef appropriation by the citizens and in-
habitants of said State, was repealed by the
act of admission.’’ But to establish the re-
peal counsel rely substantially upon the same
argument that they advance against the in-
tention of the agreement to reserve the
waters. The power of the Government to
reserve the waters and exempt them from
appropriation under the state laws is’ not
denied. and could not be. The United States
v. The Rio-Grande Ditch & Irrigation Co.,
174 U. 8. 690, 702; United States v. Winans,
198' U. 8. 371. That the Government did
reserve them we have decided, and for a
use Which would be necessarily continued
through years. * * *
For cases in the lower courts following the
Winters case, see Conrad Inv. Co. v. United States,
161 Fed. 829; United States vy. Morrison, 203 Fed.
364, 365,
The Winters case involved, a -nonnavigable
stream. But the Government’s power to continue
the development and protection of Indian rights
in a stream which were established prior to
statehood is not curtailed by the admission of a
State, even though the use of the bed of a navigable
stream is involved. In United States v. Winans,
198 U, 8. 371, the Court, citing Shively v. Bowlby,
supra, upheld thé right of the Yakima Indians to
take fish from the Columbia River at ‘‘all usual and
|
:
accustomed places.”” The right was claimed
under the provisions of a treaty between the
United States and the Indians, made in 1859, prior*
to the admission of the State of Washington. The
. right was contested by certain owners of riparian |
lands under patents from the United States, who
* held fishing wheel licenses from the State of Wash-
ington. The Court, at pages 382-384, stated:
It is further contended that the rights
conferred upon the Indians are subordinate
to the powers acquired by the State upon its
admission into the Union. In other words,
it is contended that the State acquired, by
its admission into fhe Union ‘upon an
equal footing with the original States’’, the
power. to grant rights in or to dispose of
the shore lands upon navigable streams, and
such power is subject only to the paramount
authority of Congress with regard to pub-
lie navigation and commerce. The United
States, therefore, it is contended, could
neither grant nor retain rights in the shore
or to the lands under water,
The elements of .this contention and the
answer to it are expressed in Shively Vv.
Boulby, 152 U. 8.1. It is unnecessary, and
it would be difficult, to add anything to the
reasoning of that case. The power and
rights of the States in and over shore lands
were carefully defined, but the power of the
United States, while it held the country as
‘a Territory, to create rights which would be
binding on the States was also announced,
opposing the. dicta seattered through tlie -
i 21
°
eases, which seemed to assert a contrary
view. . * *
. The extinguishment of the Indian title,
opening the land for settlement.and prepar-
ing the way for future States, were ap-
propriate to the objects for which the United
States held the Territory. And surely it
was within the competency of the Nation to
secure to the Indians such a remnant of the
great rights they possessed as ‘‘taking fish
at all usual and accustomed places.’’ Nor
does it restrain the State unreasonably, if at
all, in the regulation of the right. Jt only
fixes in the land such easements as enables
the right to be exercised, (Italies supplied. )
The project for itrigating the Colorado River
Indian Reservation had been definitely initiated
prior to the statehood of Arizona, beginning in
1865, and continued by the appropriation of many
thousands of dollars, as shown by the appropria-
tion acts cited in the Appendix. The diversion of
water (and inferentially, the construction of diver-
sion works) was specifically authorized by the Act
of April 21, 1904 (¢. 1462, 33 Stat. 189, 224), which
authorized the Secretary of the Interior to divert
the waters of the Colorado River and to reclaim,
utilize, and dispose of any land in the Colorado
River Indian Reservation which might be made
irrigable by works constructed under the Reclama-
tion Act.
As to the Reservation, therefore, the preexist-
ing power to construct reclamation works would
—$
-
22
clearly have not been curtailed by admission of
Arizona to the Union, whether or not the State con- -
sented to the continuatce of those powers. But
the State did affirmatively consent, in a form
which, to quote United States v. Winans, 198 U.S.
371, 384, “fixes in the land such easements as en-
“ables the rights to be exercised." That agreement —
is discussed under heading III.
As to public lands, The federal authority to con-
struct reclamation works for publi¢ lands is to be
distingnished from the power to regulate the use
of water.. Arizona v. California, 243 U. 8S. 389.
The United States is certainly free of the police
regulations of a State in exercising the first fune-
tion (United States v. Rio Grande Dam & Irriga-
tion Co., 174 U. 8. 690, 703), which is all that is
involved in the controversy in its present stage.
Il
IF THE CONSENT OF ARIZONA WERE OTHERWISE NECES-
SARY FOR THE CONSTRUCTION OF PARKR DAM IN AID
OF RECLAMATION OF INDIAN AND PUBLIC LANDS,
THAT CONSENT HAS BEEN IRREVOCABLY GIVEN
The Enabling Act, under which Arizona was ad-
mitted to the Union (Act of June 20, 1910, e. 310,
36 Stat. 557, 570) contains the following stipula-
tion: ;
Seventh. That there be and are reserved
to the United States, with full acquiescence
of the State, all rights and powers for ‘the ©
23
carrying out of the provisions by the United
States of the Act of Congress entitled ‘‘ An
Act appropriating the receipts from the sale
and disposal of public lands in certain States
and Territories to the construction or irriga-
tion works for the reclamation of arid
lands’’, approved June seventeenth, nineteen
hundred and two, and Acts amendatory
thereof or supplementary thereto, to the
same extent as if said State had remained-a
territory.
The stipulation was included in the constitution
of Arizona (Article XX), and remained there until
repealed on June 7, 1927. The attempted repeal
was ineffective if the original stipulation was valid,
inasmuch as it constituted a part of a compact
whieh in terms was irrevocable, and the United
States has not consented to its amendment.
Arizona contends (defendant’ 8 brief, p. 22) that
the United States can assert no rights under the
Enabling Act reservation, which she says is in
derogation of her sovereignty and therefore void.
To the contrary, it appears that the stipulation was
for the protection of the right of use and develop-
ment of Federal property. If so, on the authority
of the cases cited below, it was a valid provision.
Arizona’s brief itself assumes (p. 21) that ‘in re-
claiming public or Indian lands the United States
“tacts in the capacity of a proprietor of its own
lands and as a guardian or trustee of Indian
lands.”’
24
The Federal Constitution, Article IV, Section 3,
Clause 1, provides:
New States may be admitted by the Con-
gress into this Union; but no new State shall
be formed or erected within the Jurisdiction
of any other State; nor any State be formed
by the Junction of two or more States, or
Parts of States, without the Consent of the
Legislatures of the States concerned as well
‘as of the Congress. .
As originally reported to the Constitutional Con-
vention, this section contained the following addi-
tional language: .
If the admission be consented to, the new
State shall be admitted on the same terms
as the original ones. “But the Legislature
may make conditions’ with the new States
concerning the publie debt which shall be
then subsisting.
The additional chhuse was stricken out, ‘‘upon
the view that a wide latitude ought to be given to
the Congress, and the denial of any attempt to
impede the growth of the western country.”’ Boyd
v. Thayer, 143 U.S. 135, 163. @
The leading cases on thiseclause are Coyle vy.
_ Oklahoma, 221 U. 8. 559, and Stearns v. Minnesota,
179 U.S. 223. The former case held unconstitu-
tional a stipulation in the Oklahoma Enabling Act
prohibiting the removal of the State capital from
the City of Guthrie for a specified period of years.
Si
~-
25
Coyle v. Oklahoma, supra, classified enabling act
stipulations in three groups: It distinguished (p.
568) —
first, between provisions which are fulfilled
by the admission of the State; second, be-
tween compacts or affirmative legislation in-
tended to operate in futuro, which are with-
in the scope of the conceded powers of Con-
gress over the subject; and third, compacts
or affirmative legislation which operates to
restrict the powers of such new States in re-
spect of matters which would otherwise be
exclusively within the sphere of state power.
‘Stearns v. Minnesota, supra, drew this distine-
tion between void and valid enabling act stipula-
tions (p. 244);
* * * In an inquiry as to the validity
of such .2.compact this distinction must at
“the outset be noticed. There may be agree-
ments or compacts attempted to be entered
into between two States, or between a State
‘and the nation, in reference to- political
rights and obligations, and there may be
those solely in reference to property belong-
ing to one or the other. That different con-
siderations may underlie the question as to
‘the validity of these two kinds of compacts
or agreements is obvious. It has often been
said that a State admitted into the Union en-
ters therein in full equality with all the
others, and such equality may forbid any
agreement or compact limiting or qualifying
political rights and obligations ; whereas, on
the other hand, a mere agreement in refer-
ence to property involves no question of
equality of status, but only of the power of a
State té deal with the nation or with any
other State in reference to. reeane prop-
erty. * * *
We believe that the compact contained in the
Arizona Enabling Act was an ‘‘agreement in refer-
ence to property.” The property involved was a
large area of Indian and public land, worthless
unless the Government’s right to’irrigate this area _
was preserved. United States v. Winans, supra, ,
established that an Indian right to the use of the
bed of a navigable river, initiated before statehood,
constituted a right which the advent of statehood
could not impair. The 1904 Statute, authorizing a
diversion of water (c. 1402, 33 Stat. 189, 224), if
_ not the appropriation statutes between 1865 and
1910 cited in the Appendix, had specifically initiated
an Indian water Mght which the enabling act stipu-
lations were competent to protect. Winters v
United States, 207 U. 8S. 564, has shown that such
an Indian right, initiated even without specific
legislative protection, survives stateliood. :
In our view, the Arizona Enabling Act was an
‘affirmative declaration’’ by the United States of
in-the dream and stream bed previously
initiated on behalf of Federal reclamation projects
and of its Indian wards. Compare United States
v. Holt State Bank, 270 U. 8. 49, and Brewer El-
27
liott Oil and Gas Co. v. United States, 260 U. 8. 77.
It was an-“‘expression of the intention of Congress
to continue the burdens in question in the State.”’
Compare Ward v. Race Horse, 163 U. 8. 504. It
“fixes in the land such easements as enables the
right to be exercised.”’ United States v. Winans,
198 U. 8. 371, 382.
The enabling act compact would have been valid
whether the lands intended to be protected were
riparian or not. But. the bill alleges that the
United States is owner of large riparian -areas
below Parker Dam, and at the dam site and the
reservoir site, the enabling act clauses may
derive sig appr from that fact.
A State may4alidly recognize an interest in the
bed of a navigable stream in favor of a riparian
landowner. Shively v. Bowlby, 152 U. 8. 1. **Thus,
if the State chooses to resign to the riparian pro-
prietor sovereign rights over navigable rivers
which it, acquired on assuming statehood, it is not
' for others t6é raise objections.” Fox River Paper
Co. v. Railroad Comm., 274 U. 8. 651,655. See also
Barney v. Keokuk, 94 U. 8, 324; Mobile Transpor-
tation Co. v. Mobile, 187 U. 8. 479. o~
. Or a State may validly agree to recognize the
interest of another State, either proprietary or sov-
ereign, or both; Central R. R. Co. ‘v..Jersey City,
209 U. 8. 473 (70 N. J. 81). Compare People v.
Central R. R. of New Jersey, 42 N. Y. 283 ; Fergu-
son V. Ross, 126 N. Y. 459; Massachusetts v. New
»?
‘
’ >.
”*
28
York, 271 U. 8, 65; Alsos v. Kéndall, 111 Ore. 359;
State v. Cunningham, 59 So. 76, 79.
And a State may validly yield such an interest to
the United States itself. In Donnelly v. United
States, 228 U. 8. 243, the defendant had been in-
dicted by the United States for murder committed
upon the stream bed adjoining a riparian Indian
reservation. While the Court held that the river
was not navigable and that the Federal title to the
reservation embraced the bed of the stream, it fur-
ther held that if the stream were navigable (as the
local law of California: had held it to be), that the
law of California conferred upon the riparian
_ owner the title to the stream bed to the thread of
the river, and that such title would have ‘been an
adequate basis for Federal juriediction. The Court
said (p. 262):
Thus the State of Califernia, if she sees fit,
. may confer upon the riparian owners the
title to the bed of any navigable stream
within her borders.
And see the dicta in Brewer Elliott Oil and Gas
Co. v. United States, supra, as to the recognition by
a State of Indian riparian rights to a streambed. |
In United States v. Rio Grande Irrigation Co, “
supra, p. 703, ‘this Court said:
* * *. in the absence of specific au-
‘thority from Congress a State cannot by
its legislation destroy the right of the United
States, as the owner.oZ lands bordering on a
29
stream, to the continued flow of its water;
so far at least.as may be necessary for the
beneficial uses of the government property.
An agreement specifically preserving such a right -
a ppears valid.
TV
|, THE SECRETARY OF THE INTERIOR HAS ADEQUATE STATU-
; TORY AUTHORITY FOR THE CONSTRUCTION, OF PARKER
DAM, AND THE CONTRACT OF FEBRUARY 10, 1933, d
WITH THE METROPOLITAN WATER DISTRICT IS A
VALID EXERCISE OF THAT AUTHORITY | ' ,
The défendant’s brief contends that both the Sge-
retary of the Interior and the FederaP Emergency
Administrator of Public Works lack statutory au-
thority to construct Parker Dam.
<
The Authority of the Secretary of the Interior to Construct the Dam
Section 25 of the 4ct of April 21, 1904 (ce. 1402,
33 Stat. 189, 224), which has been cited on a pee-
vious page, provides in substance : ‘
* * * that in carrying out any irrigation
enterprise which may. be undertaken under
the provisions of the reclamation act
*.* * and which may make possible and
» provide for, in connéction with the reclama-
tion of other lands, the rectamation of all or -
any portion of the irrigtble lands on the
Yuma and Colorado River Indian reserva-
¢ tion in California and Arizona, the Secre-
tary of the Interior is hereby authorized to
divert the waters of the Colorado River and
to reclaim, utilize and dispose of any lands
115.859—35—--3
30
in said reservations which may be irrigable -
by such works in like manner as though’
the same were a part’ of the public
domain. * * *.
Proceeding under this authority the ‘Seeretary,
in 1905, constructed Laguna Dam (near Yuma) for
the benefit, in part, of the: Yuma Reservation
( which includes lands at the eastern end of Laguna .
Dam) but at the cost of the Yuma Project..
The statutory authority for the erection of works
in a navigdble river by an officer of the United
States need not be specific, and is not invalid be-
cause it leaves to his discretion how and where the
works shall be .built.. Cf. South ‘Carolina v.
Georgia, 93 U. S. 4, 13. In the Boulder Canyon
project Att the site of ‘the dam authorized ‘to be
built was not fixed by the Act, but the determina-
tion of that question was left to the discretion of
the Secretary of the Interior. The Act provided
that the dam should be built at Black Canyon or at
Boulder Canyon. The Secretary decided upon the
site at Black Canyon and it is there that the
Boulder Dam is built.
If the use of Parker Dam site, and the genera-
tion of power there for pumpir® water to the Colo-
rado River Imian Reservation is, in the Secre-
tary’s opinion, the most feasible way to carry out
the “‘diversion of water’’ authorized by the 4904
statute, it is immaterial that the site itself is not
within the limits of the-reservation. .Cf. United
States Vv. ‘Alford, supra. In the Winans Case,
31°
supra, as here, the disputed location was outside
the limits, of the reservation.
The Secretary's authority to finance construction by means of the
contract of February 10, 1933, with the Metropolitan Woter:
District
The bill recites that on February 10, 1933 the
Secretary entered into a contract with the Metro-
politan QWVater District of Southern California
whereby the District agreed to prepay the cost of
Parker Dam in return for certain benefits, inelud-
ing use of one-half of the power privilege; the
. United States, nevertheless, to own and contrél the
structure and, without contribution by: the Gev- -
ernment to the cost of the dam, to utilize the reser-
voir capacity for river regulation and improve-
ment of navigation, flood control and irrigation, di-
version of water, reclamation of Colorado River
Indian Reservation and public lands; and to utilize
one-half of the power priyilege for reclamation of
those areas. .
Arizona’s brief contends (p. 26 et seq.) that the
Secretary was without authority to make that con-
tract, and that in carrying it out the Interior De-
partment is building Parker Dam for the Metro-
politan Water District. :
The Act of Mareh 4, , 1921 (41 Stat. 1404) pro-
vides:
All moneys hereafter received from any
state, municipality, corporation, association, .
firm, district, or individual for investiga-
tions, surveys, construction work, or any.
4
+ : ‘ 32
other development incident thereto involv-
ing operations similar to those provided for
by the reclamation law shall be covered into
the reclamation fund and shall be available
for expenditure for the purposes for which
contributed in like manner as if said sums
hagl been specifically appropriated for said
purposes.
‘Section 2 of the Act of February 21, 1911 (36
Stat. 926) ‘authorizes the Secretary, upon such
' terms as may be agreed upon, to cooperate with
irrigation ¢Cistricts, water users’ associations, cor-
porations, entrymen, or water users €or the con-
struction: or use of such reservoirs, canals, or
ditches as may be adv antageously used by the Gov-
ernment and irrigation districts, etc., for impourid-
ing, delivering, and carrying water for irrigation
purposes.
The brief of the defendant admits that ‘‘enor-
mous advantages accrue to the United States”
under its’ contract with the Metropolitan Water .
District (pp. 26, 27), including a power privilege
which the brief estimates to be worth from $12,-
000,000 to $17,000,000 (p. 28). It argues that the
District would not have yielded such a valuable
right unless it anticipated ‘‘very valuable consid-
erations which are not expressed in the contract.”’
If this argument is relevant, it demonstrates two
things: First, that the Secretary made a provident
contract, whereby, withoyt cost to the taxpayers of
the United States, the objective of the Act of April
-
33
~ |
21, 1904 (¢. 1402, 33 Stat. 189, 224) to provide water
for the Indians, as well as the objectives of navi-
gation improvement and flood control, could” be
» accomplished; second, that since the District ob-
tained, in addition to othtr benefits, a power privi-
lege exactly equal to the Government’s, and thus
worth, on Arizona's statement, from $12,000,000 to
$17,000,000, the District received full value for its
$13,000,000 payment. Such an arrangement ap-
pears well within the authority of the Act of March
4, 1921 (ce. 161, 41 Stat. 1367, 1404) and February
21, 1911 (36 Stat. 926). That authority has been
frequently exercised in the construction of other
' projects,-as shown by the annual reports of the See-
retary of the Interior eited in the Appendix. The
Court may take judicial notice of those reports.
Arizona V, California, 283 U.S. 423, 457, Note 8;
Tempel v. United States, 248 U.S. 121.
It is immaterial whether the District could or
éould not have built the dam without Arizona’s
consent. :
The Federal title, control, and use of Parker
Dam are not lessened by the fact that the District
is advancing its cost in payment for a limited right ;
. to its benefits. The dam is designed by the Bureau
Bai Reclamation engineers, the specifications are
* written by them, bids are taken by the Government,.
the construction contract is niade by the United
States, and the contractor afd. materialmen are
paid by Treasury vouchers. The difference be-
‘
‘
. p4:
tween this project and those like it—such as Amer-
ican Falls and Jackson Lake, on the one hand, and
projects such as. the All American Canal, on the
other—is in one respect only: in the first, the Gov-
- _ ernment is placed in funds in advance, and in the
second, it must recoup its expenditures after con-
_ Struction. In both cases the Government is made
whole by a funding contract with an‘entity which
- will, benefit by the expenditure. Generally the .
whole henefit goes te that entity—that is, all of
the water impounded, and.all of, the proceeds of ©
.power. See the “Fact Finders’ Act” (Act of Dee.
5; 1924, 43 Stat. 701, 703), subsection ‘‘J’’, pro-
viding for credit of ‘‘total accumulated net prof-
its’’ to the repayment contract on transfer: of op-
eration and maintenance to the water users. Here
the Government retain’-half the power privilege,
and ruris no risk on its investment. The authority
of the United States to. exercise eminent domain in
: aid of a “cuntributed funds” project (American
Falls, Idaho) was sustained in Brown Vv. United
States, 263 U.S. 78.
The claim of Arizona that, notwithstanding the .
indi¢ia of Federal interest in the Parker Dam
Project, the United States is in fact acting on be-'
_ half of the Metropolitan Water District, and as
its agent, is similar to the objection which has been
raised and answered in a number of emiment do-—
main cases, in which the power of eminent domain
was resisted on the ground that while nominally it
.
35
was exercised in behalf of a qualified entity, as, for
instance, a common carrier, that the real bene- °
ficiary was unqualified as, for instance,.a particular
shipper. Cf. Hairston v. Danville & W. Ry., 208
U. 8. 598, 607.. A case resembling the Parker Dam.
matter is Wisconsin v. Duluth, 96 U. 8: 379, an
original action in which the State of Wisconsin
_ Sued to enjoin the City of Duluth, Minnesota, from
cutting a new outlet for the St. Louis River, a
navigable stream emptying into Lake Superior in
Wisconsin. It was claimed that the new works in-
juriously affected Wisconsin's sovereign interests.
‘The city defended on the grounds, a#mong others,
that although this canal had béen begun by it, the
Tirited States had taken it over and was in fact
do...g the work under Federal appropriations of
Senile The Court sustained the defense, saying
(p. 386) : a
| We do not feel ealled upon to make an
argument to prove that these statutes of the
Congress of the United States, and these “
acts of the Exeeutive Department in carry-
ing these statutes into effect, constitute an
adoption of the canal and harbor improve-
ment started by the City of Duluth, and a
taking exclusive charge and control of it.
That they amount to the declaration of the
Federal government, that we here inter-
pose and assert our power. We take upon
ourselves the burden of this improvement,
which properly belongs to us, and that here-
after this work for the public good is in our
hands and subjevt to our control.
36
See also South Carolina v. Georgia, 93 U. 8s.
4, 13.
If the Government has authorit? to build the
dam, that authority is not lessened by the incidep-
tal use of the reservoir thereby created for genera-
tion of power. Arizona has no interest in the
Government’s disposition of the power. United
States v. Chandler-Dunbar Co.~209 U.S. 447, 229
U. 8. 53; Arizona v. California, 283 U. 8. 423.
The defendant has referred to certain statutes
which it contends limit the Secretary’s authority.
* The Indian Appropriation Act of April 4,°1910
(36 Stat. 269, 270) (not cited by the seen
provides that |
hereafter no new project to cost in the ag-
gregate to exceed thirty-five thousand dol-
lars shall be undertaken on any Indian
reservation or allotment without specific
authority of Congress. . : '
However, the Act of April 21, 1904 (33 Stat. 189,
224), constituted specific authority, and reenact-
ment of it was not required: The Appropriation
Act containing the quoted proviso contains also an
appropriation of $50,000 toward securing an appro-
priation of water for the Colorado River Indian
_Reservation, negativing any abandonment of the
1904 program (36 Stat. at 273).
Section 8 of the Reclamation Act (Act of June
17, 1902, 32 Stat. 388), provides that nothing in
that Act shall he construed as interfering with the
laws of any State relating to the control, appro-
“«-
37
priation, ete., of water used in irrigation, and that |
the Secretary of the Interior shall proceed in con-
formity with such laws in carrying out the Act.
But this provision was intended to protect water —
rights, not to control the erection of works for
Federal purposes. Arizona y. California, supra;
‘Utah Power & Light Co. v. United States, 263°
U. .S. 389, 410. For the history of this language
see Gutierres v. Albuquerque Land Co., 188 U. 8.
545. The Federal Governfhent’s power to permit
third parties to use the water stored by Parker —
Dam for irrigation might be affected by this stat-
ute, Lut not its power to build the dam for Federal
purposes, as for example, the protection and recla-
mation of Indian lands (ef. Winters v.\ United
States, supra), public lands (United States v. Rio
Grande Irrigation @o., supra) or other Federal
objects (Arizona. v. California, supra). °
Subsection B of the Act of December 5, 1924
(43 Stat. 701, 702), requires certain findings of:
feasibility before construction of a new project or,
division of a project. If this statute applies to.
projects previously authorized, such as the Colo-
rado River Indian Reservation, the requisite find-
ing is recited in Articles 4 and 5 of the contract
betaveen the Secretary and the Metropolitan Water
District, printed in the Appendix, and is supported
by reports on file in the Bureau of Reclamation.
made under:the direction of Section 11 of the
Boulder Canyon — Act (45 Stat. 1057, 1063).
38
The defendant’s brief cites Section 4 of the Act
of June 25, 1910 (ce. 407, 36 Stat. 836), which h pro-
vides in part that:
hereafter no irrigation project contemplated _
by said Act of June seventeenth, nineteen
hundred and two, shall be begun unless and
until the same shall have been recommended
by the Secretary of the Interior and ap-.
proved by the direct order of the President
. of the United States. -
This statute applies to future projects initiaged
. subsequent to its date. The irrigation of the lands
of the Colorado River Indian Reservation was
initiated _March 2, 1867 (14 Stat: 514), when
Congress appropriated $50,000 for that oo
purpose.
But if this statute is comtrued as applying to p
projects previously authorized by Congress, such
as the diversion of water for the Colorado River In-
dian Reservation authorized by the Act of April
21, 1904 (c. 1402, 33 Stat. 189, 224), the require-
ment appears to have been met by the proceedings
had under the National Industrial Recovery: Act
(48 Stat. 19@), outlined infra.
}
As to the Wuthority of the Federal Emergency
Admisistratohy of Public Works.—Section 202 of |
the National }Industrial Recovery Act (48 Stat.
195) authorizg@s the President, through an Admin-
istrator, to “prepare a comprehensive program of
including
,
publie work
' 39 .
conservation and development of natural
resources, including control, utilization; and-
purification of waters * .* * develop-
ment of water power, transmission of elec-
trical energy, and constriction of river and
_ harbor improvements and flood control
* * * Provided, that no river or harbor .
7 ~
improvements shall be carried -out unless
they shat] have heretofore or hereafter been
adopted by the Cengress or are recom-
mended by the Chief of Engineers of the
United States Army * "* *,
Section. 203 authorizes the-Rresident’ _ .
through the Administrator or through Such
* other agency as. he may designate or create,
(1) to construct, finance, or aid in the. con-
struction or financing of any public-works
project included in the program prepared
pursuant to Section 202. |
Executive Order No. 6252, August 16, 1933,
delegated. authority, to the Federal Emergenéy
Administrator of Public Wotks,in sibstguttially E
the language of ‘See, 203, i. é., ‘‘to> construct,
finance, or aid. in the construction or finane-
ing of any public-works project included in the
program prepared’’, ete. The bill alleges that in
the exercise of that authority the Administrator
included Parker Dam in the comprehensive pro-
gram. The same executive order (Sec, A 1) au-
thorizes the Administrator “to utilize such Fed-
eral officers and employees * * * as he ntay
|
find necessary * *-*.’’ The Secretary of the
Interior, in building Parker Dam, is thus construct-
ing-a project the authorization for which is derived
from the 1933 Industrial Recovery Act as well as
the Act of Apgil 21, 1904, supra, and is an officer
awhom the Administrator is authorized to designate
as the construction agen¢y, independently of the
autherity the Secretary derived from the 1921
‘**Contributed Funds”’ statute (Act of Mar. 4, 1921,
41-Stat. 1404) and the Act of February 21, 1911
(36 Stat, 926).
Section 201 of the Recovery Act authorizes the
President to perform all functions under Title II
thereof through the Administrator. The Admin-
istrator was thereby authorized to give the “direct
order’’. referred to in section 4 ‘of the Act of June
25, 1910 (c. 407, 36 Stat. hand if that order was
required here.
The brief of the defendant (p. 35) -lays stress
on the fact that Parker Dam was not included in
the “‘comprehensive program’’ until December 28,
1933, ten months after execution of the céntract -
with the Metropolitan Water District. This has
no bearing on the authority of the Administrator.
He is authorized to construct works for which no * |
financing agreement whatever has been made. He
* is authorized to utilize other Government agencies,
sich as the Secretary of the Interior, in so doing.
. From the bill it appears that construction was not
started until after Congress had conferred this
41
authority. Its scope-is not impaired by the fact
_ that foF ten months previously a financing agree-
ment with the Distrigt, whieh was not essential
to the Administrator’s authority, had remained
executory.
As to the Chief of Engineers.—Parker Dam,
under the allegations of the bill, falls within sev-
eral of the categories of projects authorized by
Section 202 of the National Industrial Recovery
Act, supra; that is, (1) control, utilization, and
purification of waters; (2) development of water
power; (3) construction of river and harbor im-
provements; (4) flood control. As to one of these,
the construction of river and harbor improvements,
a proviso requires that *‘no river or harbor im-
provements shall be carried out unless they shall
have heretofore or hereafter been adopted by the
Congress or are recommended by the Chief of En-
gineers of the United States Army.’’ Both of
these alternatives have been complied with: the
Act of April 21, 1904, supra, constitutes an
“adoption by the Congress’’ of a program for di-
verting water for the Colorado River Indian Res-
ervation, and the bill alleges that the Project, has
been recommended by the Chief of Engineers. “His
recommendation appears in the Appendix.
The defendant’s brief (p. 17) apparently con-
fuses the functions of the Chief of Engineers under
" the Act of March 3, 1899 (30 Stat. 1151 ), and under
the National Industrial Recovery Act, supra. The
42
former prohibits the erection of structures in nav-
igable waters without the approval of the Chief of -
Engineers and the Secretary of War. It applies
‘only to private parties, not to.the United States,
‘and is consequently not involved _in this case.
Under the Recovery Act the ‘‘recommendation”’ of
the Chief of Engineers is not the mere negative
finding required under the 1899 Act; it is a new
_and affirmative basis for the inclusion of a project
in a Federal construction program, having* the
same effect under the recognition given to it by that
statute as the designation of that particular project
by an Act of Congress. The cases cited by the de-
fendant as to the limited effect of the ‘‘appreval’’
of a project by the Chief of Engineers under the
1899 statute are not in | point ; he is proceeding here
- under a much broader delegation of -power, and:
with regard to a Federal, not a-private, project.
The defendant’s brief states that the Chief of
Engineers’ action was taken shortly before this suit
was filed, and in contemplation of it. While the
recommendation of thé Chief of Engineers is not
required to bring this project within the compre-—
hensive program of Public Works as a project for
“eontrol, utilization and purification of water’’, it
is recognized that the Court, in considering the
dam’s relation to reclamation and flood control,
must necessarily consider its effect on navigation,
and to that end-the procedure necessary to bring
that phase of the matter before the Court has been
complied with.
43
Part II. ON tHe APPLICATION FOR A TEMPORARY
RESTRAINING ORDER
1° |
THE BILL OF COMPLAINT STATES A CAUSE OF ACTION
ENTITLING THE UNITED STATES TO A PERMANENT ©
INJUNCTION
The argument pon this point has been presented
in relation to the motion to D Cente the bill of com-.
plaint. -
II
THE UNITED STATES WILL SUFFER IRREPARABLE INJURY’
IF THE STATE OF ARIZONA IS PERMITTED TO CONTINUE
ITS FORCIBLE PREVENTION OF (CONSTRUCTION PEND-
ING FINAL DETERMINATION OF THIS SUIT
First. The use of militia by a State to prevent
procedure by a Federal agency, in lieu of resort by
the State to the process of the Court, should not.
be sanctioned. Whatever the final outcome of this -
case may be, this method of obstruction should be
restrained pending the orderly consideration by
this Court of the defendant’s motion to dismiss the
bill of complaint and of the, further proceedings |
that. may be had in this ease. The defendant's
brief (p. 9) itself states; )
Likewise, it might well be said that Ari-
zona has at all times had: available its rem-
edy in the ordinary and orderly course of
judicial proceedings and it was not neces-
sary for it to forcibly stop construction,
whatever it might have thought of the wis-
dom of such a course or of its rights in the
premises.
—
at ieee oe ee
—
wpe ree TE
——— ee
z
SSE
44
Second.—The showing of irreparable injury
made by’ the Government’s bill of complaint and
the affidavits of the Secretary of the Interior and
the Commissioner of Reclamation is not rebutted
and is scarcely denied. It is not denied that the
construction of Parker Dam requires the excava-
tion of the river bed to a depth of .more than 240
feet; that this operation involves great hazard;
. that it can De successfully carried out only by com-
plete control of the flow of the Colorado River;
that for only a limited time the whole flow of the:
river (except releases for irrigation requirements)
will be impounded by Boulder Dam; that Arizona’s
use of force has already cost two and one-half
months (now three months): of this.limited con-'
struction time; and that the/successful completion
of the work requires immediate resumption.. The
defendant’s brief (pp. 27,. 28) specifically admits
that ‘‘enormous:-advantages accrue to the United
States’’ by the construction of Parker Dam, and
fails to deny that the whole project must be carried
forward without further delay if it is to be success-
fully completed, and that the favorable conditions
now existing because of the filling of Boulder pum
reservoir can never be duplicated.
Instead of traversing these statements, the de-
fendant recounts in detail its controversy with
other States and with the United States over the
use of Colorado River water, and particularly its
opposition to the Metropolitan Water District.
45
No question of water rights is involved in this
application for a restraining order. Construction
of Parker Dam: does not of itself interfere with
such appropriations of water as may lawfully be
made in Arizona. A determination of the Govern-
ment’s right to build the dam would not of neces-
sity include a determination of whatever right of
diversion may be held by the District or by Ari-
zona, nor would an adjudication upon diversion
rights necessarily include a decision on the Fed-
eral power to construct the dam. The Supreme
Court settled in Arizona v. California, 283 U. 8.
423, that the question of whether the Government
has authority to erect a dam has nothing to do
_ with relative rights to appropriate water. The
United States may build Parker Dam even if the
District may not divert water. Of. Utah Power &
' Light Co. v. United States, 243.U. 8. 389, 410, 411.
Whatever interest Arizona may have in the opera-
tion of Parker Dam after its construction may be
submitted. to the Court later. As this Court ‘said
in Arizona v. California, 283 U, S. 423, 463:
= If by operations at the dam any then per-
fected right of Arizona, or those claiming
under it, should hereafter be interfered with,
appropriate remedies will be available.
And (283 U. 8. 423, 463) :
There is no occasion for determining now
Arizona’s rights to interstate or local waters
which have not yet been, and which may
~, never be, appropriated.
113350— 35——4
46
A further and additional reason why a restrain-
ing order should issue forthwith is that the forcible
interference by the defendant with the construction
of the dam is an interference with the exere/se by
the Government of a power, conferred upon it by
the Constitution. Any such interference should be
restrained whenever or by whomsoever attempted»
If the existence of the power is determined and the:
fact of the forcible resistancof its exercise is not _
denied, the power is entitled to immediate protec-
tion by this Court. Whatever May be the further.
_ eourse of this case or its ultimate determination,
Arizona should be temporarily restrained pending
final determination of the case.
CONCLUSION
The defendant’s Motion to Dismiss the Bill of
Complaint should be denied. :
_ The plaintiff’s application for an order restrain-
ing all interference by the defendant, the State of
Arizona, its officers, agents, and employees, with
' the construction of Parker Dam pending final de-
termination of this action, should be granted.
Respectfully submitted.
| / J. CRAWFORD Bicas,
Solicitor General.
-/ Harry W. Buair,
Assistant Attorney General.
J/ Davin B. Hempsteap,
Special Assistant to the Attorney General.
Fesruary 1935.
s
APPENDIX
UNITED States DEPARTMENT
OF THE INTERIOR, .
Bureau oF RECLAMATION.:
- BouLpER CANYON PROJECT
’
COOPERATIVE CONTRACT FOR CONSTRUCTION AND
OPERATION OF PARKER DAM
1. This contract, made this 10th day of Febru-
ary, 1933, pursuant to the act of Congress ap-
proved June 17, 1902 (32 Stat. 388), and acts
e amendatory thereof or supplementary thereto, all
of which acts are commonly known and referred to
as the Reclamation Law, and particularly pursu-
ant to the act of Congress approved March 4, 1921
(41 Stat. 1367, 1404), section 25 of the act of Con-
gress approved April 21, 1904 (33 Stat. 189, 224),
and the act of Congrese approved December 21,
- 1928 (45 Stat..1057), designated the Boulder Can-
yon Project Act, and the **Metropolitan Water
District Act’’ of the Legislature of the State of
California (Stats. 1927, Chap. 429), as amended,
particularly section 5, subduivision (9) thereof, be-
tween THE UNITED States or America, hereinafter
referred to as the United States, acting for that
purpose by Ray Lyman Wilbur, Secretary of the
Interior, hereinafter styled the Secretary, and Tue
METROPOLITAN Water District or SouTHERN C ALI-
(47)
' 48
FORNIA, a public corporation, hereinafter referred
to as the District, organized and existing under
and by virtue of the laws of the State of California:
WITNESSETH : ,
EXPLANATORY RECITALS
. 2. WHEREAS, these parties have “heretofore on-
April 24, 1930, and September 28, 1931, entered
inte two contracts entitled respectively ‘‘Contract
for Delivery of Water,’’ and “Supplementary
Contract for. Delivery of Water,’’ which said con-
tracts provide, among other things, for the delivery
by the United States to the District each year from
the . Boulder Canyon Reservoir of quantities of
water «ta point in the Colorado River immediately
above the District’s point of diversion (at or in
the vicinity of the proposed Parker Dani herein-
after referred to), and have also entered into two
contracts (dated April 26, 1930, and May 31,1930),
for the purchase by the District from the United
* States of certain quantities of electrical energy to
be generated at Hoover Dam, for the pumping of. |
said water into and in an aqueduct to be con-
structed by-the District ; and
3. WHEREAS, the said point of delivery =a ‘the
proposed Parker Dam ‘are approximately ten (10)
miles above the boundaries of the Colorado River
Indian Reservation, as designated by the act of
Congress approved Marcli 3, 1865 (13 Stat. 559),
and there are now being irrigated, by pumping,
approximately 6000 acres of land within said reser-
vation, and water has been reserved and appropri-
ated, pursuant to said act as amended or supple-
mented and particularly by the act of April 4,
. a) .
°s
|| 49..
1910 (36 Stat. 273), for additional lands within.
_ said r@servation susceptible of irrigation from the’.
Colorado River, the reclamation of which will re- \
quire diversion from the River by construction of a
dam, or by puinping or both, and will require
drainage of said lands by pumping, for all of which
electrical energy is needed; and
4. WHEREAS, there are also in Arizona additional
public and other lands i in the v icinity of said reser-
_ vation and also in the Gila Valkey, susceptible of
irrig ration from the Colorado River, but requiring
pumping for such purposes, for. whjch electrical
energy will be needed, and'the United States has
now under way an invastigation of possible recla-
mation of such areas as authorized by section fif-
teen (15) of the said Boufder Cany on } F’vegect Act; .
and
5. WHEREAS, the reclamation of said Indign and
public amd other lands -will be rendered more feas=>
ible by the availability of stored’water and electri-
cal energy at the proposed Parker Dam, and the.
floods of the tributaries of the Colorado River be-
tweeti Hoover Dam and Parker Dam will be con-
trolled, and eaten improved, by said dam;
and
6. WHEREAS, the Sestein if authorized by said
act of April 21, 1904 (33 Stat. 224); to build the
proposed Parker Dam for the re¢lamation of all
or any portion of the irrigablelands on the Yuma _
and Colorado River Indian Reservations in Cali-
fornia and Arizona; and stich authority has been
reserved in the Arisona Enabling Act (act of ? une
20, 1910, 36 Stat..570, 575), and
-7. Wuereas, the District is engaged in a project
involving the construetion of an aqueduct for the
purpose of diverting and couveying water from the
Colorado River to the metropolitan area of South-
- ern California for domestic, municipal, and other
useful purposes, aud as a means of such diversion,
desires storage in the main stream of the Colorado
River at the site of the proposed Parker Dam, for
the purpose, among others, of desilting water, re-
ducing pimp lift, and developing incidental elec-
trical energy for pumping water into and in said
aqueduct and other uses subordinate to the said
aqueduct project, and the District desires to utilize
the proposed Parker Dam. in. common with the
United States andgis willing to pay to the United
States the entire capital cost of construction of
said dam, as hereinafter set forth, and is further
willing that one-half of the power privilege created
by said dam shall be reserved to the United States ©
for the purposes of irrigation and drainage of
lands in Arizona within the Colcrado River Indian
Reservation, as now constituted, and the Gila or
Gila-Parker Project without contribution by the
United States to the capital cost of the proposed
dam, as hereinafter set forth, and is. also willing
that the dam be utilized by the United States for
the storage and diversion of water for the require-
ments of Indian, public and other lands in Arizona;
aud
8. WHEREAS, the Secretary is authorized by the
act of Congress approved March 4, 1921, to receive
moneys from the District as aforesaid and to effect
_ therewith the construction of the proposed works:
as though said moneys were specifically appropri-
ated for.said purposes ; and
51.
9. Whereas funds are not otherwise available
for the construction by the United States of said
-dam and the provision of storage and diversion fa-
cilities and of appurtenant works for the irriga-
tion and drainage of said Indian, public, and other
lands in Arizona and the cooperative construction
of the said dam and works, as herein provided, will
be mutually advantageous to the parties hereto,
and the cost of said dam and appurtenant works
will be materially less if constructed during the
period of completion of the-Hoover Dam now under
construction than would otherwise be the case;
Now, THEREFORE, in gotisideration of the mutual
covenants herein contained, the parties hereto
agree as follows, to wit:
CONSTRUCTION BY THE UNITED STATES
10. The United States will, with funds advanced
by the District as hereinafter ‘provided, and for
the purposes: stated in this contract, ¢éonstruct in
the main stream of the Colorado River at a point.
in the vicinity of Parker, Arizona, shown onthe
map attached hereto and described: herein as Ex-
hibit ‘‘A’’, a dam, referred to herein as the Parker |
Dam, creating thereby a storage reservoir having
a maximum water surface elevation of approxi-
mately four hundred fifty (450) feet above sea level
(U. S. Geological Survey datum). Upon like con-
ditions the United States will also construct outlet
works, pressure tunnels, penstocks, and other ap-
purtenant structures to the extent that such strue-
tures may be necessary and/or economically desir-’
able as parts of the original installation, and such —
facilities for navigation as the Secretary may find
' 52
necessary. All buildings intended solely for the
use of either party hereto shall be constructed at
the sole expense of the party for whom such facil-
ities shall be provided. The dam and appurtenant -
structures shall be so constructed that subsequent
installation of diversion or ontlet works shall be
possible in the most feasible manner for canal con-
nections with lands within the Colorado River In-
dian Reservation and with public and other lands
in Arizona now or hereafter included in projects
constructed under the Reclamation Law and sup-
plementary legislation, or otherwise, subject to the
consent and approval of the Secretary, and if either
party hereto requires it, so that one-half of the tofal
installed capacity of electrical generating equip-
ment may be located upon the Arizona side of the
river and one-half on the California side. Outlet
works, pressure tunnels, penstocks, connections for
canals, and appurtenant structures not required by
the District shall be completed under this contract
only to the extent necessary to permit their subse-
quent completion and use without risk of damage
to the remainder of the work.
In carrying out the proposed work hereunder
and in acquiring supplies, materials, and equip-
ment therefor, the United States may proceed di-
rectly under the method commonly referred to as
force account, or may proceed by construction con-_
tract. In the event that such contract or contracts
shall be let with reference to the construction of
said dam, or the acquisition of supplies, materials,
or equipment therefor, the letting of such contracts
shall be governed by the provisions of Section
3709, United States Revised Statutes.
FUNDS TO BE PROVIDED BY THE DISTRICT
11. The District will advance to the United
States, not to exceed the sum of Thirteen Million
Dollars ($13,000,000), or so much thereof as may
be (a) the cost of preparation of plans and speci-
fications described in Article 13 hereof; (b) the
actual cost of the said dam, including acquisition
of lands and rights-of-way for reservoir and other
incidental purpases, outlet works, pressure tun-
nels, and penstocks, to be constructed hereunder,
and of the District’s proportionate share as deter-
mined_by the Secretary, of such power-plant build-
ings and generating, transforming, and high-volt-
age switching equipment as may be installed for
the joint use of the United States and the District,
and (¢) required to meet any overhead and gen
eral expense incurred by the United States in car-
rying out this contract.
Said funds will be furnished to the United States
by payment from time to time to the Secretary or
such fiseal agent as he may designate in advance of
expenditure thereof by the United States. The
Secretary will submit estimates of the monthly’ an-
ticipated expenditures not less than sixty (60) days
in advance, and the District will then advance the
amount not less than thirty (30) days prior to the
month in which such funds shall be estimated to be
required. If the United States effects such con-
striction by contract, such contract shall recite that
the United States shall not be liable for any loss
occasioned by the failure of the District to advance
funds as herein provided. The District agrees to
hold the United States harmless from all claims
whatsoever arising from any such failure. If the
54
funds provided by the District are at any time in-
sufficient, the United States will stop work (if pro-
ceeding under force accounts), when the funds so
advanced are exhausted, or give notice to the con-
struction contractor to stop work (if proceeding by
construction contract), when the funds so provided
are about to be exhausted, and will not resume or
give notice to resume work until additional and
sufficient funds are provided by the District; and,
in any event, the United States shall not be obli-
gated by this agreement beyond the expenditure of
the amount actually provided by the District,
whether the proposed works are completed or not.
The failure of the District to provide funds shall
not impose any liability on the District other than
to hold the United States harmless from the conse-
quences thereof, but the United States may be re-
lieved, at its option, of any obligation under this
contract, if such failure continues for twelve (12)
successive months, after submission of estimate
therefor, by the Secretary’s giving the District
written notice of the termination of any further
obligation of the United States hereunder. |
The cost of the proposed works shall embrace
all expense of whatever kind growing out of or re- -
sulting from said works, including, any overhead
and general expense (as conclusively estimated by
the Secretary) incurred by the United States in
carrying out this contract. Nothing contained in
this article is to be construed as obligating the
United States to expend or Congress to appropriate
money for any share of (a) said power-plant build-
ings or (b) said generating, transforming, and
high-voltage switching equipment intended for the .
joint use of the parties hereto.
, 55
NO OBLIGATION BY THE UNITED STATES TO PAY FOR WORKS
CONSTRUCTED
12. The United States shall not be under any
obligation to repay to the District, or otherwise
contribute toward, the cost of any works built with
funds provided by the District. !
PREPARATION OF PLANS AND SPECIFICATIONS
13. The designs and specifications for all con-
struction or other work under this contract (includ-
ing exploratory and preparatory work) shall be
prepared by the United States with the cooperation —
of and at the cost of the District, and shall be ap-
proved in writing ‘by the General Manager and
Chief Enginéer of the District, or such other officer
‘as the Directors thereof may designate, prior to
orien e thereof o or the letting of contracts for
such work.
DURATION OF CONTRACT
14. Upon written notice from the Distriet to the
Secretary that funds will be available to carry out
the work to be constructed hereunder, the United
States agrees | to submit within thirty (30) days
following such notice its first estimate of funds re-
quired during the first thirty (30) days of work
hereunder and to proceed thereafter with reason-
able diligence. It is ‘contemplated that as far as
practicable, the proposed works shall be constructed
coincidentally with the construction of Hoover
- Dam and the filling of: the reservoir thereby cre-
ated, and that any contract let by the United States
for the erection of Parker Dam shall so provide;
but neither the United States nor the District shall
incur liability to the other through the noneomple-
sn
tion of said works within said period. This con-
tract shall terminate on December 31, 1945, unless
prior thereto the District shall have advanced suffi-
cient funds for all .works to be construeted by the
United States hereunder, and in the event of such
termination, all rights of the District under this
contract shall cease, and the uncompleted works,
together with the rights to the use thereof, shall
vest in the United States.
POWER AND OTHER PRIVILEGES
15. (1) The interests of both parties require,
and it is agreed, that the water surface of the res-
ervoir to be created by Parker Dam shall be main-
tained as nearly as possible at a level of 450 feet
above sea level (U.S. Geological Survey datum) at
the dam. |
II. It is agreed that the United States shall have
and may exercise the following rights and such in-
cidental authority as may be necessary to make
them effective : |
(a) The right to control all water passing the
dam ; provided, however, that the water level stated
in Article 15 (1) hereof shall not be arbitrarily
reduced but may be temporarily reduced from time
to time to a minimum élevation of 440 feet above
sea level, and the water level shall not be reduced
below said minimum level except in cases of emer-
gency affecting the safety of the said dam and
appurtenant works.
(b) The right, without contribution to the cost
of the dam built under this contract, to one-half
the power privilege created thereby for use in the
irrigation and drainage of lands in Arizona within .
the Colorado River Indian Reservation as now
57
constituted and the Gila or Parker-Gila Project, °
as determined by fhe Secretary, and for other pur-
poses incidental to said Célorado River Indian Res-
ervation and Gila or Parker-Gila Project; that is
to say, the right to pass through such generating
equipment as it may install one-half the total avail-—
able flow at the dam at any given time, after deduec-
tions for diversions being made above the dam for
the District’s aqueduct and for the irrigation of
(1) the Colorado River Indian Reservation, as now
constituted, and (2) public and other lands in Ari-
zona now or hereafter included in projects con-
structed under the Reclamation Law and supple-
mentary legislation, or otherwise, subject to the
consent and approval of the Secretary, and the
right to so utilize such portion.of the balance of the
power privilege as aforesaid as may not be used
by the District for the time being. _
(ce) The right to connect with such transmission
system as the District may construct for the pur-
pose of utilizing any power transmission capacity
in excess of the District’s requirements, for the
transmission of power from Hoover Dam to
Parker Dam for general use within the Colorado
River Indian Reservation, as now constituted, and
Gila or Parker-Gila Project, as determined by the
Secretary ; provided that such excess capacity shall
be subject to reasonable operating conditions fixed
by the District, and that the United States shall
pay to the District the cost of transmission of such
power as may be transmitted by use of such excess
capacity hereunder ;
(d) The right to connect with the Parker Dam
and/or the reservoir created thereby: by means of a
canal (including such outlet and diversion features
58
at Parker Dam as may be necessary or advisable) |
with lands within the Colorado River Indian Res-
ervation, as now constituted, and with public and
other lands in Arizona or California, now or here-
after included in projects constructed under the
Reclamation Law and supplementary legislation,
or otherwise, subject to the consent and approval of
the Secretary, and the right to thereby divert such
quantities of water as may be consistent with the
- Colorado River Compact and the Boulder Canyon
Projeet Act.
- ILL. It is agreed that the District shall have
‘and may exercise the following rights and such.
‘incidental authority as may be riecessary to make
them effective:
(a) The right to one-half of the power privilege
created by the proposed Parker Dam for the pur-
pose of developing electrical energy for pumping
water into and in the said aqueduct and other uses
incidental to said aqueduct project in California;
that is to say, the right to pass through such gen-
erating equipment as it may install, one-half the
total available flow at the dam at any given time,
after deductions for diversions being made above
_ the dam for the District’s aqueduct and for the
irrigation of (1) the Colorado River Indian Reser-
vation, as now constituted, and (2) public and
other lands in Arizona, now or hereafter included
in projects constructed under the Reclamation Law
and supplementary legislation, or otherwise, sub-
ject to the consent and approval of the Secretary,
_ and the right to utilize for said purpose such por-
tion of the balance of the power privilege as afore-
5Y
said as may not be used by the United States for
the time being.
(b) The right to divert water from the said
Parker Dam and/or the reservoir created thereby;
by means of an aqueduct, canal, or other appro-
priate works (including such outlet and diversion
features at Parker Dam as may be necessary or ad-
visable) for domestic, municipal, and other benefi-
cial use within the area of the District, as now or
hereafter constituted, in California, and to thereby
divert such quantities of water as may be con-
. sistent with the Boulder Canyon Project Act, the
Colorado River Compact, and she said contracts
heretofore entered into’ betwee e United States
and the District and deseribed And referred to in
Article 2 hereof.
INSTALLATION OF MAGHINERY
16. Machinery and’ equipment for generating,
transforming, and high-voltage switching of energy
for the sole use of the District shail be installed,
owned, and operated’ by the District at its own ex-
pense. The District shall not be liable for the cost
of generating or other electrical equipment in-
‘stalled for the sole use of the United States.
OPERATION AND BASHSSRANCS OF RESERVOIR, DAM, AND OUTLET
WORKS ’
17. The United States will operate and maintain
the reservoir, dam, and outlet works, to, but not in-
cluding, shut-off valves, and reserves the right to
direct the control of all water passing the dam for
any and all purposes; provided that contracts now
60
in force between the parties hereto shall not be °
thereby impaired. So long as the United States
shall make no use of the reservoir, the cost of oper-
ation and maintenance (which shall include repairs
and replacements and a reasonable amount, as de-
termined by the Secretary, for general expenses
and overhead, but excluding contingent liabilities
_ and/or damages) shall be paid monthly in advance
by the District to the United States within sixty
' (60) days of submission of estimates therefor. If
and when the United States shall use or authorize
the use of said reservoir for diversion of water
. and/or development of power, the annual cost of
maintenance and operation of the reservoir and
dam (as hereinabove in this paragraph limited and
defined) shall be pro-rated upon the basis of the
diversions by each party into their respective aque-
duets, canals, and power plants, and shall be paid
in direct proportion to the uses so. made by the
District and the United States.
OPERATION AND MAINTENANCE OF POWER PLANT AND POWER
PLANT BUILDINGS
18. The District will operate and maintain at
its own cost all buildings and equipment used solely
by it for the generation of electrigal energy, from
and including shut-off valves. e United States
will operate and maintain at its own cost all build-
ings and equipment used solely by the United
States for the generation of electrical energy, sub-
ject to the availability of appropriations therefor
by Congress, and said operation and maintenance
shall be effected by the United States through such
agency as the Secretary shall designate.
a , 61
TITLE
19. Title to the dam and all other structures
erected by the United States, whether utilized by
it or by the District, or by both, shall remain in
the United States.
UNITED STATES TO BE HELD HARMLESS
20. District agrees to save the United States,
its offigérs, agents, and employees harmless ‘from
all claims whatsoever arising out of the construc-
tion and maintenance of said dam, and from all
claims whatsoever arising out of such operation
thereof as may be necessitated by the requirements
of the District. The District agrees to pay all
damages resulting from the flooding of lands, and,
to the extent thatiands within the Chimehuevi In-
dian Reservation are damaged, payment therefor
will be madé to the United States for the benefit of
said Reservation.
ACCESS TO WORK AND TO BOOKS AND RECORDS
21. Aceredited officers of the District shall have
the right of ingress to and egress from all work
done under this contract, both in progress and after
completion, and the right at all reasonable hours
to examine and make copies of any books, records,
drawings, or specifications thereof; and the United
States shall have a like right as to all pertinent
books, records, drawings, and specifications of the .
District. Upon demand and at not less than thirty-
day intervals, the United States will furnish to the
_ District detailed statement of all costs and expend-.
itureg in connection with and/or chargeable against
the proposed Parker Dam Project.
113359— 35——_5
a _
62 s
’ EXISTING CQNTRACTS BETWEEN THE UNITED STATES AND THE
DISTRICT o— oAPFECTED
22. Existing contracts between the United States
and the District shall remain in full force and ef-
fect and unaltered by the provisions of this agree-
ment.
TRANSFER OF INTEREST IN CONTRACT
23. No voluntary transfer of this contract, or
of the rights hereunder, shall be made without the
written approval of the Secretary; and any suc-
cessor or assign of the .rights of the District,
whether by voluntary transfert, or otherwise, shall
be subject to all the conditions of the Reclamation
Law and supplementary legislation, and also sub-
ject to all the provisions and conditions of this
contract, to the same extent as though such suc-
_ cessor or assign were the original contractor
: hereunder.
RULES AND REGULATIONS
24. This contract is subject to such rules and :
regulations, conforming to the Reclamation Law
aud supplementary legislation and other statutes
cited ‘in this contract, as the Secretary may from
time to time promulgate ; Provided, however, that.
no right of the District hereunder shall be impaired
or obligation of the District hereunder shall be ex-
tended thereby ; and Provided further, that oppor-
tunity for hearing shall be afforded the District by
the Secretary prior to promulgation or modifica-
tion of any such rules and regulations,
- 63
AGREEMENT SUBJECT TO COLORADO RIVER COMPACT
25. This contract is made upon the express con-
dition and with the express understanding that all
rights hereunder shall be subject to and controlled
by the Colorado River Compact, being the compact
or agreement signed at Santa Fe, New Mexico, No-
vember 24, 1922, pursuant to the Act of Congress
approved August 19, 1921 (42 Stat. 171), entitled
“‘An Act to permit a compact or agreement be-
tween the States of Arizona, California, Colorado,
Nevada, New Mexico, Utah, and Wyoming, respect-
ing the disposition and apportionment of the
waters of the Colorado River, and for other pur-
poses,’’ which Compact was approved in Section
13 (a) of the Boulder Canyon Project Act.
DISPUTES AND DISAGREEMENTS
26. “Whenever a controversy arises out of this
. contract, and if the disputants then agree to submit
the matter to arbitration, the District shall name
one arbitrator and the Secretary shall name one’
arbitrator, and the two arbitrators thus chosen shall
elect three other arbitrators, but in the event of
their failure to name all or any of the three arbi-
trators within five (5) days after their first meet-
ing, such arbitrators, not so elected, shall be named
by the Senior Judge of the United States Circuit
Court of Appeals for the Ninth Circuit. The de-
cision of any three of such arbitrators shall be a
valid and binding award of the arbitrators.
64
MEMBER OF CONGRESS CLAUSE
27. No Member of or Delegate to Congress or
Resident Commissioner, shall be admitted to any
share or part of this contract, or to any benefit that
-may arise therefrom. Nothing, however, herein
‘contained shall be construed to extend to this con-
tract if made with a corporation for its general
. benefit.
IN WITNESS WHEREOF, the parties hereto have
caused this contract to be executed the day and
year first above written.
THe Unirep STATES OF
AMERICA, |
By Ray LyMan Wiusur,”
' Secretary of the Interior.
THE METROPOLITAN WATER
“District oF SovuTHERN
ea
[SEAL] By W. P. Wuirsert, \
Chairman of the Board of Directors.
Attest:
Norrucutr ELy.
Approved as to Form:
‘By James H. Howarp,
General Counsel.
Attest :
A. L. Gram,
Secretary of the Board
of Directors.
65
Cororano River Inptan Reservation, Arizona anp CALI-
rornraA, Acts Aprropriatinc Funps THEREFOR
Date of Act Statute Reference Amount
Hen Gh Seliececennstoeeceenaeeonsoccuns 0 nee $50, 000
Sl Gis Bebe cencscewnsyessuesousercene GPG, Giipocccecevsesnevcecocccesses 50, 900
BENG BD, WNB....0.2000--ccccre-cccececee: (17 Stat. 198) ...........-..--------0--- 20, 000
CE eee eee 18, 000
RR Sh Sreteraswssumeennennen US 35, 000
ES Se sneimbeeenl Gh cmupeeenenenseansnoeid 25, 000
AS Toanewmnas we GD GREE. Gi pe ecccccrvccceuseccovewenst 15, 000
Se i ict tinterietisiiaiiaicaaicantaie biel I I sninictceeheneimmniiiiiaiabantetebipanl 15, 000
SEED. G, GER. nccccegecerocers ee 15, 000
EE AEA SPs SE evenepeebenssensecenqences 70, 000
eres OU ae 188, 000
a Cy Ee 86, 000
8 EE Veen eee Ck 86, 000
gk ISS eee eee Eee 65, 000
Aen St, RENEE an ne eee 65, 000°
a Gay Gl a~esncressnneusesonnnweid 55, 000
EE Mee ees GP EE ecwessonerepensseurenunes 2, 000
ff 8 EE, Le 0 EE 15, 000
ee GE ccnccerrecnsrinstnenewess 10, 000
Ee eae GEA BEE.. Fi cowccvececs grcoceoeeeeeeee 5, 000
Bilas. 6, BER..n.cvcccceeee geovebesvenaes GBD GUB. WTD..w.ccceececocccccccccees 18, 000
Ere 287 See Gl acunncccnmenceseounsenened 25, 000
8 Res ee IS Oe 8, 000
Nk SAE es SS se 7, 00
Se, Te Ge eceverusetumnscsinteeeenes Cf Oe 2, 000
(47 Stat.
RECOMMENDATION OF PARKER DAM AND APPURTE-
‘NANT Works UNpbER NATIONAL INDUSTRIAL RE-
_ COVERY AcT
Wuereas The Secretary of the Interior and the
- Federal ‘Emergency Administrator of Public
Works have made provision for the construction of
a dam and appurtenant works in the main stream
of the Colorado River, to be known as Parker Dam
and to be located about one-half mile below the
confluence of the Bill Williams River and the Colo-
rado River, for the following puppeses, among
others:
1. Reregulation of waters discharged at Boulder
_Dam in power operations and in response to irriga-
tion demands, in order, by such reregulation, to
equate the flow of the Colorado River in aid of
navigation and flood control, and to conserve said
- waters for other beneficial uses;
2. Control of fleods of the Bill Williams River
(the flow of which ranges from a minimum of 9
cubic feet per second to a maximum of more than
50,000 cubic feet per second) in aid of navigation
- and protection of federal property from Gamage
by floods ;
3. Control of scouring action of the clear waters
released at Boulder Dam on the bed of the Colo-
rado River, and prevention of injury to navigation
by disturbance of normal low water levels thereby ;
4. Other purposes in‘aid of the reclamation and
use of property of the United States.
(66)
67
Anp WHEREAS, The Secretary of the Interior and
the Federal Emergency Administrator of Public
Works. have submitted for examination and. ap-
proval plans, specifications, drawings, and maps of
location of said structure and certain appurtenant
works; copies of which are hereto attached ;
Now THereroreE, Pursuant to the authority con-
ferred by Section 202 of Title Il of the National
Industrial Recovery Act, this is to certify that the
said project, constituting Parker Dam, reservoir
and appurtenant works is duly recommended by the
Chief of Engineers of the United States Army and
the inclusion thereof in the comprehensive program.
of Public Works referred to in said Title is ap-
proved; and said recommendation is approved by
the Secretary of War.
Wirvess my hand this 4th day of January 1935.
| E. M. MarKHAM,
_ Major General,
Chief of Engineers.
(illegible initials. )
Wirness my hand this 5th day of January 1935.
Geo. H. Dern, _
Secretary of War. —
APPROPRIATION Acts For FLoop ConTROL on CoLo-
RADO RIVER BeLow Sire or PaRKER Dam
The Act of Congress of March 3, 1925 (43 Stat.
1186), authorizes an appropriation of $650,000 for
Colorado River front work to protect the Yuma
Federal Reclamation project.* An appropriation
in accordance ‘with this authority is made in the
Act of July 3, 1926 (44 Stat. 841, 857). The Act
of. Congress of January 21, 1927 (44 Stat. 1010,
1021), amends the Act of 1925, supra, and author-
-izes annual appropriations of $100,000 or so much
thereof as may be necessary, for defraying the cost
of Colorado River front work.
The Act of Congress of May 10, 1926 (44 Stat.
485), made $35,000 available for the Colorado -
River front work and levee system for the protec-
tion of the Yuma reclamation project. This pro-
vision was carried over in the Act of January 12, .
1927 (44 Stat. 961).
_ The Act of Congress of February 14, 1931 (46
Stat. 1146), makes an appropriation of $100,000 to
defray the cost of the Colorado River front work
and levee system adjacent to the Yuma Federal ir-
rigation project.
The Act of Congress of March 3, 1915 (38 Stat.
861), appropriates $100,000 for Colorado River
front work.
The Act -of Congress of January 12, 1927 (44
Stat. 961 ), appropriates $35,000 for Colorado River
front work.
(68)
69
»The Act of Congress of March 7, 1928 (45 Stat.
231), appropriates $100,000 for Colorado River.
front work.
The Act of Congress of May 29, 1928 (45 Stat.
903), appropriates $72,640 for Colorado River’
front work.
The Act of Congress of March 4, 1929 (45 Stat.
1593), appropriates $100,000 for Colorado River
- front work.
The Act of Congress of May 14, 1930 (46 Stat.
310), appropriates $100,000 for Colorade River
front work.
The Act of Congress of February 14, 1931 (46
Stat. 1146), appropriates $100,000 for Colorado
River front work.
. The Act of Congress of April 22, 1932 (47 Stat.
118), authorizes expenditures of unexpended bal-
ances for Colorado River front work.
' The Act of Congress of February 17, 1933 (47
Stat. 845), authorizes an appropriation of $48,000
for Colorado River front work.
The Act of Congress of March 2, 1934 (48 Stat.
362), authorizes the expenditure of the unexpended
balance on Colorado River front work.
In 1906 there was a disastrous break in the banks
of the Colorado River, and the River was pouring
into the Imperial Valley, threatening to make a
lake of this area. The Southern Pacific Company
elosed the break. In the Act of Congress of May
26, 1924 (43 Stat. 171), the Company was author-
ized to sue the United States in the Court of
Claims for the work so done. A judgment of
$1,012,665.57 was recovered (68 Court of Claims
223).
70
The Act of Congress of July 13, 1892 (37 Stat.
108), appropriates $10,000 for ‘‘Improving Colo-
rado River by construction of a levee on the Gila -
River near its junction with the Colorado River at
Yuma, Arizona, so as to confine the waters to the
channel of said rivers.’’
REFERENCES IN PRINTED REPORTS OF THE SECRETARY
OF THE INTERIOR RELATIVE TO THE OPERATIONS OF
THE Bureau or RECLAMATION ReaarpIna ‘‘Con-
TRIBUTED FuNDSs”’
The following references are found in the Sec-
_retary’s printed Annual Reports in regard to con-
tributed funds: —
24th An. Rep., 1924-1925, page 127, under ‘‘ Ap-
pendix, Consolidated Financial Data, Construction
Account, Contributed Funds, $1,023,597.64.”’
Under the same heading and on page 105 of the
25th An. Rep., 1920-1988, “Contributed Funds,
$1,024,073.13.”
Under the same we and on page 35 of the
26th An. Rep., 1926-1927, “‘Contributed Funds,
$1,174,306.49.”’
Under the same heading and on page 31 of the
27th An. Rep., 1927-1928, “‘Contributed Funds,
- $1,248,813.73.”
Under the same heading and on page 37 of the
28th An. Rep, +» 1928-1929, ‘‘Contributed Funds,
$1,320,870.80.”’
Under the same heading and on page 53 of the
29th An. Rep. 1929-1930, “Contributed Funds,
$1,428,906.38,””
Under the same heading and on page 60 of the
30th An. Rep. 1930-1931, “Contributed Funds,
$1,457,959.63.”’
(71)
72
_ Under the‘same heading and on page 77 of the . .
Bist An. Rep. 1931-1932, “Contributed Funds,
$1,614,552.76.”’
Under the same heading and on page 37 of the
32nd An., Rep. 1932-1933, “Contributed Funds,
$1,733,552.76.””
Under the same heading and on page 47 of the
33rd An. Rep. 1933-1934, ‘‘Contributed Funds,
$1,783,013.08,”
DEPARTMENT OF THE INTERIOR,
BuREAU OF RECLAMATION.
Srarement or Conrrrsvrep Funvs Act or Marcu 4, 1921
Cc
om Pret =
BRED rccceccccecevececsessscecesesors VEER sccccvesceveusecsocegsocoses $101, 113. 80
Ge ewesscccescesccaceyesseusssesd QUBG. ccoscssccscsvesesvesssocecs 1, 00,00
QB Dwecewscscsescscecscssscssscens GG 210, 500. 00
GED ccccescecevecesvenceoussveuseeus BD wescccccccsescececevccsessses 3, 865. 68
WO ccessesecccscssceresssangeseares i KG IE 8, 025. 66
Epi ecensseceusessunscepreunsseuseus SE Pececccccevsrcovecscsvess 856, 778. 08
Bi ecscccscsncesenscemeesenssteeens Minidoka-Gooding................ 1,00. 00
SER essceusesecovevsensscussesaess Eee 717. 64
WR ccecuncceranscncscceverspausesed GD Bi ccscccevecccsecsccessees ‘1. 47
(sd TE | EES 33, 782. 28
Be edcccecesseccsusseseeserescssess OL 1, 458. 05
Se Se esesssnascseceuuecnasesed OEE 7, 080. 06
ee a 370, 925. 00
OE — OE a 5, 000. 00
ee Oe 4, 34. 61
a _ 5,000.00
iiiietipecinnssentenaietinadiaaial i ncinimesnmebennieeenetil 1, 000. 00
ee Belle Pourche..................... 4, 960. 32
Ne intaminaitliaanneaiimemeid 3 EE SS 4,756.77
— a Strawberry Valley. ............... 417
WEED scescsessssvssctescesesscns VYokima.......... 63, 74. 90
eee Shoshone....:... 0. ©
RD ccsccqeenpesumscsesassest Guu Gari cccccccceescescseves * @. @
ee
WURR cesmcsnsccuscecerssuscsess sas eeneeremmnens sus®escessseses 1, 733, 013. 8
73
DEPARTMENT.OF THE INTERIOR,
BUREAU OF RECLAMATION.
”
AMERICAN FALLS RESERVOIR—IDAHO (COOPERATIVE
FINANCING)
(In the account books of the Bureau of Reclama-
tion the amounts contributed by individual con-
tractors for American Falls Reservoir were not
carried as contributed funds.)
© S GOVERN@ENT PRleTinG OFFICE term
16
SUPREME COURT OF THE UNITED STATES.
No. 18, Original. —Ocrtoser Term, 1934.
The United States of America, Plaintiff,
vs.
The State of Arizona, Defendant.
[April 29, 1935.}
Mr. Justice Burier delivered the opinion of the Court.
September 10, 1934, the United States, acting through Harold
L. Ickes, Secretary of the Interior and Federal Emergency Ad-
ministrator of Public Works, caused to be commenced the con-
struction of the Parker Dam in the main stream of the Colorado
River, the thread of which for a distance of about 237 miles is
the boundary between Arizona and California. The site is 150
miles below the Boulder Dam, half a mile below the place where
the Williams River flows into the Colorado and 10 miles north of
the Colorado River Indian Reservation. Its ends rest on public
lands of the United States‘ in Arizona and California. Arizona
objects to the construction of the dam, asserts that it may not law.
fully be built without her consent and threatens the use of military
force to stop the work. January 14, 1935, the United States filed
its bill in equity perpetually to enjoin interference by the State.
On plaiutiff’s motion this court directed defendant to show cause
why a restraining order should net issue pending the final deter-
mination of the suit. Arizona filed a return consisting of an affi-
davit of the governor setting forth the grounds on which the State
claims the right to prevent the construction of the dam in the part
of the river bed that is easterly of the thread of the stream, a
motion to dismiss the bill and a supporting brief. We heard
counsel on plaintiff’s application for a temporary injunction and
defendant's motion to dismiss. ,
We come first to the question whether the complaint alleges facts
sufficient to warrant an injunction against the State. The allega-
tions will be bétter understood after brief reference to the Colo-
rado River Compact' and the Boulder Canyon Project Act, 45
Stat. 1057.
1Printed in California Statutes, 1929, ¢. 1, § 1.
,
-2 United States vs. State of Arizona.
The Compact was made by California, Colorado, Nevada, New
Mexico, Utah and Wyoming. Arizona was not a party. It was —
made to provide an equitable apportionment of the waters of the
Colorado River system among the interested States, establish rela-
tive importance of different beneficial yses and secure the develop-
ment of the Colorado River basin, the storage of its waters and pro-
tection against floods. After apportionment between defined basins
lying above and below Lee Ferry and a declaration that the Colo-
rado has ceased to be navigable for commerce and that the use of -
its waters for purposes of navigation should be subservient to uses
for domestic, agricultural and power purposes, the Compact author-
izes the waters of the system to be impounded and used for the
generation of power and declares that use subservient to uses for
agricultural and domestic purposes. It was approved by § 13 (a)
of the Boulder Canyon Project Act and, by presidential proclama-
tion, it took effect June 25, 1929. 46 Stat. 3000. The Act author-
izes the Secretary of the Interior to construct a dam and incidental
works in the Colorado at Boulder Canyon adequate to create a
reservoir having a capacity of not less than 20,000,000 acre feet
‘‘and a main canal and appurtenant structures located entirely
within the United States connecting the Laguna Dam, or other
suitable diversion dam, which the Secretary .. . is hereby
authorized to construct if deemed necessary or advisable by him
upon engineering or economic considerati with the Imperial
and Coachella Valleys in California’. § 1.2 In a suit in this Court
against the Secretary of the Interior and the States which were
parties, Arizona unsuccessfully sought to have ratification of the
Compact decreed to be unconstitutional and to enjoin construction
of the Boulder Dam and the doing of anything under color of that
Aet. Arizona v. California, 283 U. 8. 423.
The bill alleges that February 10, 1933, the United States, acting
through the Secretary of the Interior, entered into a contract with
the Metropolitan Water District of Southern California. The Dis-
trict agrees to pay to the United States the entire cost of the dam,
assumed not to exceed $13,000,000. By the use of this money the
United States agrees that, under the Reclamation Act, June 17,
2By $$ 12 and 14 of the Boulder Canyon Project Act, the Reclamation Law
is defined to mean the Act of June 17, 1902, 32 Stat. 388, and Acts amenda-
" tory thereof and supplemental thereto, including the Boulder Canyon Project
Act.. :
United States vs. State of Arizona. g
1902, 32 Stat. 388, and supplemental Acts, particularly those of
_ April Zi, 1904, 33 Stat. 224, March 4, 1921, 41 Stat. 1404, and De-
. cember 21, 1928 (The Boulder Canyon Project Act)* it will con-
struct the Parker Dam. The District is to have one-half the power
privilege and the right to divert specified quantities of water. The
“United States is to have the right to the rest of the power, to divert
‘ water, to transmit power at cost over the District’s lines from
Boulder to Parker, and, by means of canals, to connect Parker
Dam with lands in the Colorado River Indian Reservation in Ari-
zona and with other lands in that State and in California.
Parker Dam will intercept waters discharged at Boulder Dam
and the. inflow of tributaries of the Colorado below that dam;
raise the river level 72 feet and create a reservoir about 20 miles
long, having capacity of 717,000 acre feet, and permit generation
of approximately 85,000 horsepower of electricity. Operated with
Boulder Dam, it will ‘‘reregulate and equate, in aid of navigation
and river regulation,’’ the waters discharged at Boulder Dam for
flood control, power generation .and irrigation; allow, for genera-
tion of power, the discharge at Boulder Dam of water which other-
wise would have to be retained there in storage, and also conserve
the waters there discharged. .
The bill ‘also alleges that, heavy flash floods of the Williams
River are a menace to the Colorado River Indian Reservation, to
United States public lands and to navigation below Parker. The
dam is designed to promote reclamation of the reservation lands
and of public lands of the United States. The power privilege
reserved by the United States is for the purpose of pumping water
for irrigation of these lands.
‘To disclose grounds on which the United States claims the
right to construct the dam, the bill sets out that at various times
Congress has made appropriations amounting in all to more than
$1,359,000 for construction of irrigation and diversion works for
*Other-amendatory and suppplemental acts are: Acts of February 25, 1905,
33 Stat. 814; March 3, 1905, 33 Stat. 1032; April 16, 1906, 34 Stat. 116;
June 12, 1906, 34 Stat. 259; June 27, 1906, 34 t. 619; June 11, 1910, 36
Stat. 465; June 25, 1910, 36 Stat. 835; February 21, 1911, 36 Stat. 925;
February 24, 1911, 36 Stat. 930; August 13, 1914, 38 Stat. 686; June 12,
1917, 40 Stat: 149; October 2, 1917, § 10, 40 Stat. 300; 25, 1920,
§ 35, 41 Stat. 450; May 20, 1920, 41 Stat. 605; June 10, 1920, $17, 41 Stat.
1072; December 5, 1924, § 4, 43 Stat. 701, June 6, 1930, 46 Stat. 522.
4 _ United States vs. State of Arizona.
the reservation ;* that the above mentoned Act of April 21, 1904,
authorized the Secretary of the Interior to divert the waters of the
Colorado and io reclaim, utilize and dispose of land in the reserva-
tion which might be made irrigable by works constructed under the
Reclamation Act, and that the Boulder Canyon Project Act appro-
priated moneys for surveys of the Parker-Gila reclamation project
which, it is said, embraces the Indian reservation and certain pub-
lie lands of the United States. And it is asserted that the Parker
Dam project has been included by the Administrator in the com-
prehénsive program of public works authorized by § 202, National
Industrial Recovery Act, 48 Stat. 201; that, pursuant to that Act,
the Chief of Engineers of the United States Army has recom-
mended the construction and his recommendation has received the
approval of the Secretary of War.
1. The bill alleges that the stretch of the Colorado between Ari-
zona and California is navigable, and the motion to dismiss is dealt
with on that basis. Arizona owns the part of the river bed that is
east of the thread of the stream. New Jersey v. Delaware, 291
U. 8. 361, 379 et seq. Her jurisdiction in respect of the appro-
priation, use and distribution of an equitable share of the waters
flowing therein is unaffected by the Compact or federal reclama-
’ tion law. But the title of the State is held subject to the power
granted to Congress by the commerce clause, United States v.
Holt Bank, 270 U. 8. 49, 54-55, and under that clause Congress
has power to cause to be built a dam across the river in aid
of navigation. The Boulder Canyon Project Act is an example
United States va. State of Arizona. 5
we have no concern, § 9 of the Act of March 3, 1899, forbids the
construction of any bridge, dam, dike or causeway over or in any
port, roadstead, haven, harbor, canal, navigable river or other
navigable water of the United States until the consent of Con-
gress shall have been obtained and until the plans shall have
been submitted to and approved by the Chief of Engineers and by
the Secretary of War. 33 U. 8S. C., §401. And § 12 makes vio-
lations of § 9 punishable by fine or imprisonment or both and pro-
vides for the removai of unauthorized structures. 33 U. 8. C.,
§ 406. These provisions unmistakably disclose definite intention
on the part of Congress effectively to safeguard rivers and other
navigable waters against the unauthorized erection therein of
dams or other structures for any purpose whatsoever. The plain-
tiff maintains that the restrictions so imposed apply only to
work undertaken by private parties. But no such intention is
expressed, and we are of opinion that none is implied. The meas-
ures adopted for the enforcement of the prescribed rule are in
general terms and purport to be applicable to all. No valid
reason has beén or can be suggested why they should apply to
private persons and not to federal and state officers. There is no
presumption that regulatory and disciplinary measures do not
extend to such Officers. Taken at face value the language indicates
the purpose of Congress to govern conduct of its own officers and
employees as well as that of others. Donnelley v. United States,
276 U. 8S. 505, 516. If still in force, §9 unquestionably makes
‘‘eonsent of Congress’’ essential to the valid authorization of the |
Parker Dam. There has been no express repeal of that section and,
as will presently appear, it is not inconsistent with subsequent
legislation on which plaintiff relies.
2. Plaintiff, unable to cite any statute specifically authorizing
the Secretary to construct the dam, turns to § 25 of the Act of
April 21, 1904, 33 Stat. 224. That section is a part of the reclama-
tion laws which are enacted—not under the commerce clause, Art.
1, § 8, el. 3, but in the exertion of power granted by Art. IV, § 3, el.
2: ‘*The Congres shall have Power to dispose of and make all need-
ful Rules and Regulations respecting the Territory or other Prop-
. erty belonging to the United States’’. United States v. Hanson,
167 Fed. 881, 883. Kansas y. Colorado, 206 U. 8. 46, 88, et seq.
The part of § 25 relied on follows: ‘‘That in carrying out any irri-
6 s United States vs. State of Arizona. °
gation enterprise which may be undertaken under the provisions
of the reclamation Act . . . and which may make possible and
provide for, in connection with the reclamation of other lands, the
reclamation of all or any: portion of the irrigable lands on the
“Yuma and Colorado River Indian reservations in California and
Arizona, the Secretary of the Interior is hereby authorized to
divert the waters of the Colorado River and to reclaim, utilize, and
dispose of any lands in said reservations which may be irrigable by
such works in like manner as though the same were a part of the ©
public domain’’. The immediate question is whether the italicized
clause can reasonably be construed as adequate to carry the bur-
den that plaintiff would have us lay upon it. The purpose was
not to prescribe or regulate the means to be employed to divert
_ water from the Colorado but to extend the reclamation law to the
Indian. reservations named. . It was merely to empower the Secre-
tary, if the circumstances stated should arise, to reclaim lands in
these reservations by use of water to be taken from that river.
The authority granted was no more than permission to appropri-
' ate them for the purpose specified. No dam is shown to have been .
necessary. Water is frequently taken from streams for the pur-
poses Of irrigation without putting dams across them. Failure
specifically to authorize a dam or ‘even approximately to fix loca-
tion or to require use calculated to aid navigation makes strongly
against the plaintiff. .
In support of the construction for which it contends, plaintiff
asserts that it was under this Act that the Secretary of the Interior
built the Lagupa Dam across the Colorado. But it does not ap-
pear that either riparian State objected or that the validity of his
authority has ever been drawn in question. Congress has made
appropriations for the benefit of the project of which it is a part’
and so recognized and approved the building of the dam.. Wiscon-
sin v. Duluth, 96 U. 8. 379, 386. There has been cited no other
instance of the constructig@n, without the consent of the Congress,
of a dam across a navigalje interstate river. Indeed, it is not cer-
tain that that part of the Colorado was then deemed to be nav-
igable.° We find no merit in the contention that § 25 of the Act
ood Jen "sens, 00 Oe. Baa 39 Stat. 304; ome SS Fg Nall Bae
4, making appropriations for uma ject,
ornia, which includes the Laguna Dam. See «. g., Reclamation
Service Report 13, p. 73, et seq.; 15, p. 68, et seq.
*See Art. IV (a), Colorado River pact.
United States vs. State of Arizona. ade
of April 21, 1904, is the ‘‘consent of Congress’’ required by § 9
of the Act of March 3, 1899. And plainly without force is the sug-
gestion that by making appropriations for irrigation of lands in
Indian reservations Congress authorized this dam.
3. The clause of §1 of the Boulder Canyon Project Act em-
powering the Secretary to construct a main canal connecting the
Laguna Dam ‘‘or other suitable diversion dam’’ with the Imperial
and Coachella Valleys does not authorize the building or in any
respect apply to the proposed Parker Dam. The latter is about
70 miles upstream from the Laguna and the canal proposed to
be. built to bring water to the valleys named." The contract
alleged té have been made by the United States arf the Metropoli-
tan Water District, a copy of which is “attached to plaintiff's brief,
shows that the purpose immediately to be served by the Parker
Dam is to enable the United States in fulfillment of earlier con-
tracts to deliver waters at that place into the aqueduct of the Dis-
trict. And while that instrument specifies ‘other uses to which the
United States may put the waters by means of the dam, transmis-
sion by canal to either of these valleys is not mentioned. Indeed,
the plaintiff does not, and it could not reasonably, claim that § 1 of
the Boulder Canyon Project Act authorizes the construction of this
dam. Nor does it make any contention in respect of the allegation
of the bill that § 11 of the Act authorizes surveys of the Parker-
Gila reclamation project.
4. Parker Dam was not approved by the President as required
by §4 Of the Act of June 25, 1910, 43 U. S. C., § 413. That section
declares that no irrigation project contemplated by the Reclama-
tion Act ‘‘shall be begun unless and until the same shall have
been recommended by the Secretary of the Interior and approved
‘by the direct order of the President of the United 8 " The
project in question rightly may be deemed to have been begun on
the date, February 10, 1933, of the contract made by the United
States and the Water District for the construction of the dam.
There is no allegation that any project including the dam was ever
.*recommended, submitted to or in any manner approved by the
President. But plaintiff maintains that the approval required in
the section has been given through executive action under the Na-
TWilbur and Ely, The Hoover Dam Contracts, United States Department
of the Interior, 1933, pp. II, 71, 325.
Z
(ae ee Lee
& United States vs. State of Arizona.
tional Industrial Recovery Act. It relies on §§ 201 a, 202 and 203
of the Act and Executive Order No. 6252. The first of these
authorizes the President to delegate any of his powers under title
Il of the Act to such agents as he may designate. Section 202
by the Chief of Engineers . . .”. Section 203 authorizes the —
President “‘through the Administrato®.. . . to construct
. « «+ fay publie-works project included in the program pre-
pared pursuant f section 202’’. The Executive Order delegates
‘ authority to the Administrator ‘‘to construct . . . any public.
works project included in the program.’’ The contract here in-
volyed was made more than four months before the passage of that
Act. Plaintiff asserts that the project was included in the com-
-prehensive program, that the Administrator commenced construe-~—
tion about September 10, 1934, and that on November 10 follow-
ing, Arizona interfered forcibly to prevent plaintiff from doing the
work. The alleged recommendation by the Chief of Engineers and
approval by the Secretary of War were not made until January 5,
1935,*° nine days before plaintiff bill. These facts do not
constitute approval ‘‘ by direct order of the President’’ as required
by §4. Plaintiff does ‘not allege or claim that the President has
directly authorized the dam or specifically empowered the Adminis-
trator to include it in the comprehensive program. We find nothing
in the Reeovery Act that reasonably may be held to repea) the re-
-quirement of that section. It follows that the construction of the
dam has noteen authorized as required by the Reclamation Law. :
5. Plaintiff's contention that the dam is being built under au-
thority of the Recovery Act is without force. 24
The chronology just given, when taken in connection with the
citations in the contract of the Acts relied on, shows the claim to
United States vs. State of Arizona.
be an afterthought born of the controversy disclosed by the com-
plaint and about to be here submitted. Section 25 of the Act of
April 21, 1904, does not authorize this dam. Plaintiff doe#’ not °
assert that it was otherwise adopted by Congress. It therefore re-
mains only to consider whether-the dam was recommended by the
Chief’ of Engineers within the meaning of the proviso of § 202.
When the Recovery Act was passed, the phrases ‘‘adopted by the
and ‘‘reeommended by the Chief of Engineers’’, when
used im “Acts of Congress relating to river and harbor improve-
ments, had well-understood and definite technical meanings. The
statutes, at least in the 40 years next preceding the passage of the
Recovery Act, disclose: It has been thé general, if not indeed the
uniform, practice of Congress specifically to authorize all river
and harbor improvements carried out by the United States,’ and
to base its action pon the recommendation of the Chief of Engi-
neers."° That officer makes such recommendation only after pre-
liminary examinations followed by surveys.** ee ae
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.