# Brief for the Appellant — United States v. Arizona > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0215%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Appellant - **Published:** January 1, 1935 - **Citation:** 295 U.S. 174 ## Text INDEX Page 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 Gcacccco926). 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. . ”* 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. 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 a ; k STF put : ua 53° oie HL Hi i iis 3 . 3 fae : Hi - 23 a s chy 3 ‘. hs i; fa Tit pela ke Hist uh --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0215%3A7. Public record. Not legal advice.