Brief for the United States and Respondents — City of Fresno v. California

Supreme Court brief1963

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Opinions below. --..-------------------7- 707770 770°"" '

Jurisdiction - -----------------------: seasaonns seeenes

Questions presented. ---.-.------------;-20007 77700077

Statutes involved. .--.---------------- Sa al Cea ae

ES cacncondccsascuescnseennessenesesseue

Summary of argument-.--.-----------------++--77797"

Argument:

I. The United States has not consented to the claims

for relief of Fresno and the other plaintiffs -- - - -

“II. The claims of Fresno for declaratory relief are

barred by sovereign immunity ----------------

A. The claim for a declaration of superior

9 water rights~ = . - --------------------

Clpnebetlny. a Lcn cnt sannestedewnSaneneneacepod-enee

CITATIONS

Cases :

Anderson vy. United States, 229 F. ee

Belknap v. Schild, 161 U.S. 10.-.------- os ekandee

Berman v. Parker, 348 U.S. 26------------------>>"

Blackmar v. Guerre, 342 U.S. 512- -----------------

‘Claridge Apartments Co. v. Commissioner, 323 U.S. 141.

Coffman v. Breeze Corps., 323 ie | hiciacaam

Holbrook Irrigation District v. Fort Lyon Canal Co., 84

. Colo. 174, 269 Pac. 574..---------------------"°

“Hough v. Porter, 51 Ore. 318, 98 Pac. 1083. .....----

Hudspeth County Conserv. & Reel. Dist. No. 1 v. Rob-

bins, 213 F.-2d 426. ...------------------4----- ;

Hurley v. Kincaid, 285 U.S. 95- - ----------------->

Hynes v. Grimes Packing Co., 337 U.S. 86-----------

Pee

. -

29 §

Ivanhoe Irrigation District v. McCracken, 357 U.S. 275.--- 12,

26, 30, 31, 35

(I)

668128—62——1

Casese—Continued Page

Land v. Dollar, 330 U.S. 731...-------- ee Ae 25

Larson v. Pomestic & Foreign Corp., 337 U. S. 682... 13,

14, 24, 25, 28°

Love v. United States, 108 F. 2d 43. ...--.--------- . 29

Miller v. Jennings, 243 F. 2d 157, certiorari denied,

, Sit S . Aa ewer rr re tert ror 18, 19

Minnesota v. United States, 305 U.S. 382--...-------- 14

Nevada v. United States, 279 F. 2d 699........------ 18

Ogden River Water Users’ Ass'n v. Weber Basin Water

Conservancy, 238 F. 2d 936-.--.-.----------------- 24

Pacific Live Stock Co. v. Oregon Water Board, 241 U.S.

Oe... 8... .ccnnenwehesstndcudcnadguduccesecs ... 16,19

People of the State of California v. United States, 235 F

OO. cn de dendnae Ge cenennsdceseassaccucess 16

Silvies River, In re, 199 Fed. 495--.....------------ 16

Siour Tribe v. United States, 316 U.S. 317-- “ae 30

Spanish Fork West Field Irrigation Co. v. District Court

of Salt Lake County, 99 Utah 527, 104 P. 2d 353. 16

State ex rel. Hinckley v. Sixth Judicial District Court,

53 Nev. 343, 1 P. 2d 105_-__- eR me]

Swigart v. Baker, 229 U.S. 187...-.---------------- 30, 31

United States v. Gerlach Live Stock Co., 339 U.S. 725-- 12,

13, 26, 35

United States v. San Francisco, 310 U.S. 16..--.----- 30

United States v. Shaw, 309 U.S. 495. ---..---------- 14

Washington State Sugar Co. v. Sheppard, 186 Fed. 233 16

Williams v. Fanning, 332 U.S. 490... .----------- : 28

Work v. Louisiana, 269 U.S. 250_. - -- ee ae 28-29

Yuma County Water Users’ Ass’n v. Schlecht, 262

Se ME a obec eke keh SSSE meecadesesanesancet 30, 31

Constitution: Article [V, Section “Nat ta nee 29-30

Statutes: os

Act of July 10, 1952, 66 Stat. 560, 43 USC. e06!)..... -9,

10, 12, 13, 14, 15, 16, 18, 20, 21, 22, 25

Act of October 14, 1949, 63 Stat. 852... ---.- Bae 26

Federal Tort Claims Act, 28 U.S.C.-2401..)- ~~. -- P 15

Reclamation Act of 1902, 32 Stat. 390, 43 U. S.C. 383,

ee eee ep rprr ae oe 2c dae w -O; 23, 21

Reclamation Act of 1902, 32 Stat. 389, 43 U. S.C. 461,

0 NS|. BREE eee bee ; 30

‘

Stat utes—Continued

Reclamation Act of 1902, 32 Stat. 388, as amended,

43 U.S.C. 391, Section 1. SLES PAE

Reclamation Project Act of 1939, 53 Stat. 1193, as

amended, 43 U.S.C. 485h(e¢), Section 9(¢)

28, 31, 35

Town Site Act of 1906, 34 Stat. 116, 483 U.S.C. 567,

Section 4 _- eases

yay ee so cacenteencceua

Miscellaneous:

Hearings, American River Basin Project, House Sub-

committee on Trrigation and Reclamation, SIst

Cong., Ist Sess.

Hearings before Senate Subcommittee on Appropria-

tions, Interior Department, Sist Cong., 2d Sess

H. Doc. No. 146, 80th Cong., Ist Sess

H. Doc. No. 416, S4th Cong., 2d Sess., 1 Central

Valley Project Documents —

S. 18, S2d Cong., Ist Sess P :

S. Rep. No. 755, 82d Cong., Ist Sess 17,

2 Wiel, Water Rights in the Western States (3d ed )

Is, 2]

16, 19

Gu the Supreme Court of the United States

OcroBER TERM, 1962

Ciry OF FRESNO, PETITIONER

v. is

SraTE OF CALIFORNIA, UNITED STATES Or AMERICA,

. ET AL. ;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPLALS FOR THE NINTIF CIRCUIT

BRIEF FOR THE UNITED STATES AND H. P. DUGAN, EDWIN F.

SULLIVAN, AND JAMES M. INGLES, RESPONDENTS

OPINIONS BELOW

The opinion and supplemental opinion of the dis-

trict court (R. VII: 22-282, 287-293) are reported ;

sub nom. Rank v. Krug (United States) at 142 F.

Supp. 1-198. The opinion of the court of appeals,

as corrected, and its opinion denying the City of

Fresno’s petition for rehearing CR. VUT: 364-394,

397-400) are reported sub nom. California v. Rank

at 293 F. 2d 340. Its opinion on rehearing (R. Wilt:

400) is reported at 307 F*. 2d 96.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

March 31, 1961 (R. VII: 395). The City of Fresno’s

timely petition for rehearing was denied on August 14,

1961 (R. VII: 396). On November 3, 196], Mr. Jus-

tice Douglas extended the time for the City of Fresno

to file a petition for a writ of certiorari to December 12,

1961 (R. VIT: 404), The petition was filed on Decem-

ber 11, 1961, and was granted on April 2, 1962 (R. VII:

405). ‘The jurisdiction of this Court is invoked under

28 U.S.C, 1254(1).

QUESTIONS PRESENTED

-1. Whether Congress, by consenting to joinder of the

United States in suits for general adjuication of all

water rights in a river system, waived its sovereign im-

munity with respect to a suit against it for an order

enjoining the operation of a federal reclamation proj-

ect or directing it,to construct certain public works.

2. Whether a suit for a judicial declaration (1) that

the plaintiff has. water rights superior to those of the

United States, and (2) that the plaintiff is entitled to

receive water from the United States at a certain price,

is a suit against the United States and hence, if not con-

sented to, barred by sovereign immunity.

STATUTES INVOLVED

Section 208(a) of the Act of July 10, 1952, 66 Stat.

560, 43 U.S.C. 666, provides :

208. (a) Consent is hereby given to join the

United States as a defendant in any suit (1) for

the adjudication of rights to the use of water ofa

river system or other source, or (2) for the ad-

ministration of such rights, where it appears that

/ 3

the United States is the owner of or is in the

process of acquiring water rights by* appropria-

tion under State law, by purchase, by exchange,

or otherwise, and the United States is a necessary

party to such suit. The United States, when a

party to any such suit, shall (1) be deemed to

have waived any right to plead that the State

laws are inapplicable or that the United States is

not amenable thereto by reason of its sovereignty,

and (2) shall be subject to the judgments, or-

ders, and decrees of the court having jurisdic-

tion, and may obtain review thereof, in the

same manner and to the same extent as a private

individual under like circiimstances: Provided,

That no judgment for costs shall be entered

against the United States in any such suit.

(b) Summons or other process in any such

suit shall be served upon the Attorney General or

his designated representative.

as authorizing the joinder of the United States

in any suit or controversy in the Supreme

Court of the Tnited States involving the mght

of States to the use of the water of any inter-

state stream.

* * * #* *

Section 9(¢) of the Reclamation Project Act of

August 4, 1939, 53 Stat. 1193, as amended, 43 U.S.C.

485h(¢), provides in relevant part:

(¢) The Secretary is authorized to enter into

contracts to furnish water for municipal water,

supply or miscellaneous purposes: Providéd,

That any such contract, either (1) shall require

repayment to the United States, over a period

of not to exceed forty years from the year in

which water is first delivered for the use of the

contracting party, with interest not exceeding

- the rate of 314 per centum per annul if the

Secretary determines an interest charge to be

proper, of an appropriate share as determined

by the Secretary of that part of the construc-

tion costs allocated by him to municipal water -

supply or other miscellaneous purposes; or (2

shall be for such periods, not to. exceed forty

years, and at such rates as in the Secretary's

judgment will produce revenues at least suffi-

cient to cover an appropriate share of the an-

nual operation and magntenance cost and an

appropriate share of such fixed charges as the.

Secretary deems proper, and shall require the

payment of said rates each year in advance

of delivery of water for said year. Any sale

of electric power or lease of power privileges,

made by the Secretary in connection with the

operation of any project or division of a pro)-

ect, shall be for such, periods, not. to exceed

forty years, and at such rates as in his judg-

mént will produce power revenues at least suffi-

cient to cover an appropriate share of the an-

nual operation and. maintenance cost, interest

on an appropriate share of the construction

investment at not less than 3 per centum. per

annum, and such other fixed charges as the

Secretary deems proper * * *. No contract

relating to municipal water supply or miscel-

laneous purposes or to electric power or power

privileges ‘shall be made unless, in the judg-

. iN a)

5 star

meént of the Secretary, it will not impair the

efficiency of the project fdr irrigation purposes.

STATEMENT

This case arises out of the same litigation as Dugan

v. Rank, No. 31, this term. As sét out more fully in our

brief in that ease, the suit from which both cases stem

was instituted by a number of users of water from the -

San Joaquin River (1) to enjoin certain local offi-

cials ofi the Bureau of Reélamation (the individual

respondents herein)’ from interfering, by means of

the Bur sau-administered Central Valley Project, with

‘their water rights, or (2) to obtain a ‘physical solu-

tion’? that would provide them with water, to meet

their needs. Subsequently the United States (over

“its objection that it was immune from suit) was joined

-as a necessary party defendant, and: petitioner herein,

the City of Fresno, intervened, as a ara plaintiff.’

The district court entered a decreesen joining the fur-

ther operation of the Project in such a way as to

‘interfere with plaintiffs’ rights, unless a specified

“physical solution’ should ,be undertaken by the gov-

ernment. The court of appeals dismissed as to the

United States and affirmed as to the officials. It 1s

the officials’ petition for review of that ruling that is

involved in No. 31. ;

The present case relates primarily to certain ancil-

lary relief sought by Fresno in connection. with its

alleged need for an additional water supply for mu-

nicipal purposes. In its com aint, Fresno requested,

"The Secretary of the ae Commissioner of the

Bureau of Reclamition were also named in the complaint but

were not served and did not appear. — Cp ;

668128—62—- 2 if

in addition to the in june tive relief deseribed above, (1)

a declaratiofi that it has water’ rights whieh are su-

perior to those of the United States and which inust

therefore be satisfied before the United States diverts

any water from | the’ area, and (2) a declaration that

it is entitled to receive Project water from the United

States at the same rate charged for water delivered

for irrigation purposes ($3. DO per acre-foot for Class

I water and $1.50 per acte-foot for Class II water*),

rather than the rate of up to $10.00 per acre-foot pro-

posed to be charged for municipal water by the De- |

partment of the Interior. fee ec

/ The district court, concluded (R. VII: 270) that

Fresno “is entitled to a declaratory judgment that its

_ Tights for domestic and municipal purposes are supe-

‘rior to any right of the United States to divert water

beyond the watershed or county of origin”; and that,

while Fresno is “not.presently in a position to enforce

its rights” because it has not constructed any diver-

sionary or conduit works or reservoirs, “ [ijf, as, and

‘when the City of Fresno isin a position to take and.

receive the water, it will then be sufficient time to

enforce that right by an appropriate” decree under the

provisions of Section 2202 of Title 28, United States

Code.””* The court’s conclusions of law and judgment

‘provide that, upon constructing the necessary works,

Fresno will be entitled to an appropriate injunction

* Class I water is water for which a firm supply is contracted,

and Class’ II water is additional water that is made available

-(R. VIT: 270). ,

’ 8 This section provides for further relief in- ‘Federal Declara-

tory Judgment Act proceedings.

™~

against the. Uniied States (R. IIT: 956-9: 57, 1014-

1O17Y. The dist ri et court also concluded \(R. VIL:

271) that F reyno i

in-Untitled to a declaratory Judgment that iiny

charge ‘for water which may be’ made by the

United States should be reasonable. Reason-

ablen¢ss, in light of the facts and the Federal’

Reel: mation Act and the Statutes of California,

requires that such—charges. should be no more

thansthe Irrigation Districts are charged from

time to time for Class [ water.

- The court} of appeals set aside the judgment of the

district cou “insofar as it relates to the terms upon

which the City of Fresno is entitled to receive water

from the United States at Friant Dam” (R. VII:

394). With respect to Fresno’s claim of a right to

receive -water at a ceftain rate the court stated (R.

mic 381) :

In negotiating and contrac otlnur for the delivery

of water from Friant Dam, defendant offici als

were acting within the scope of their statutory

authority and were ¢arr ying out the duties im-

posed upon them by their official positions. It

is their administrative function to determine the

rates at which water shall be delivered. It ean-

not be said that their statutory authority is

limited to the making of such determinations as

the courts may ‘find to be Teasonable. ‘The

complaint of Fresno in this regard is a com-

plaint against the United States and this dis-

pute may yot be entertained judicially without

a waiver of sovereign immunity on the part of

‘the U hited States.

32,

With respect -to the district court’s conclusion that

Fresno had water rights superior to those of the

United States, the court below found it unnecessary

to decide that question because, in any event (R. VIT:

383) :

. Fresno has * * * no vested right to command

the services of the United States in receiving its

waters. The terms upon which the United

States is willing to act in this respect remain an

administrative decision which it is w.thin the

authority of the defendant officials to make.

In denying Fresno’s petition for rehearing, the

court elaborated upon the latter holding by stating

that, to the extent Fresno claimed rights to the natural

flow of the river superior to those ” the — States

‘(R. VIT: 399) :

Tf and when such rights have been established

in aceordance with state law, Fresno may be

able effectively to protest the impounding of

waters by these defendants in contravention of

such rights. But this is speculation upon future

events and future issues and decision must

await the occurrence and the dispute.

However, the court assumed that what Fresno was

claiming was a right to Project water. As to that, the

court stated (R. VIT: 399-400) :

If Fresno is to have such water or is to enjoy

the benefits of Friant storage or the delivery

service of the United States, the terms upon

which it may do so are not\(for the reasons ex-

pressed in our opinion) appropriate issues in

this action against the individual officers of the

. bureau.*

SUMMARY OF ARGUMENT

The United States has not waived its immnnity

from a suit where, as here, the relief sought is an

injunction against the operation of a federal reelama-

tion project or, alternatively, a directi@s to construct

certain public works. Section 8 of the Reclamation

Act of 1902 was not such a waiver. The provision

of that section that the Secretary of the Interior

*A contract for the provision of Project water to Fresno has

recently been executed between the City and the United States.

It provides that each year the United States will deliver water

from Friant Dam to Fresno at a graduated rate of increase

from 5,000 acre-feet the first year to a maximum of 60,000 acre-

feet annually at the end of 29 years; each year Fresno is to be

advised of the rate of payment for that year, “but in no event

shall the rate so announced be in excess of Ten Dollars ($10)

per acre-foot” (para. 3(a)). It also provides:

12. (a) Nothing in this contract shall be construed as

affecting the rights of the parties to or concerned in that

_certain action entitled (State of California, United States

of America, et al. v. Rank, et al. (No. 15540) now on

appeal in the Circuit Court of the United States in and

for the Ninth Circuit.

(b) In the event any of the provisions of this contract

shall be®contrary to any issue as finally decreed in said

State of California, United States of America, ef al., v.

Rank, et al., then this agreement shall be amended to com-

ply with the said final decree: Provided, however, That

in any event the City shall be entitled to the amount of

water specified in Article 3 hereof or such amount as

may -be decteed in State of California, United States of

America, et_al. v. Rank, et o7., whichever amount is the

larger.

10°

shall proceed in conformity with state water-rights

law means only that state law defines the property

interests that must be acquired if and when the gov-

ernment exercises its paramount power of eminent

domain.

Nor did Section 208(a) of the Act of July 10, 1952,

constitute such a waiver. Congress there consented

to the joinder of the United States in suits “for the

adjudication of rights to the use of water of a river

system or other source, or * * * for the administra-

tion of such rights.’’ As the legislative history of

this provision demonstrates, it refers to a quasi-public

proceeding, familiar in the law of western States,

for the general adjudication of the reciprocal water

rights of all claimants in an entire river system.

In enacting Section 208(a), Congress was at pains

to disclaim any purpose of allowing it to be used to

interefere with the operation of reclamation projects.

Furthermore, the present suit is not of the type con-

templated by Section 208(a) for the reasons (1) that

not all claimants to the water supply involved have

been joined, (2) no determination of the. rights of

each claimant as against each other claimant. was

sought or granted, and (3) the suit does not embrace

an entire river system. Since the United States has

not consented’to this suit, it is barred by sovereign

immunity. ,

aoe ¢ |

Fresno’s claims for judicial declarations (1) that it

has certain additional water rights superior to those

of the United States, and (2) that it is entitled to

receive such water from the United States at a given

price, are barred by sovereign nmmunity. Such

declarations of rights as against the United States

operate directly against the sovereign; they cannot be

prosecuted without its consent.

Fresno’s claim of a right to receive water at a

given price is based on the fact that the price pro-

posed to be charged for municipal water is higher

than that charged irrigators. Such a differential has

been expressly authorized by, Congress, which pro-

vided that municipalities may be charged interest

(which irrigators are not) and tkat they must pay an

“appropriate share” of project costs. Moreover,

Congress has been kept fully aware of the Secretary

of the Interior’s policy of charging municipalities

higher rates than irrigators. In view of the fact that

the prime purpose of the reclamation laws and proj- .

ects is to promote irrigation, neither the congressional

authorization of this differential nor its implementa-

tion by the Secretary is unreasonable.

ARGUMENT

I. THE UNITED STATES HAS NOT CONSENTED TO THE.

CLAIMS FOR RELIEF OF FRESNO AND THE OTHER PLAIN-

TIFFS |

Although it also made certain special claims for

relief which we discuss later in this brief,’ the City

of Fresno sought the same relief as that sought by

the other plaintiffs in this proceeding and granted

by the district court—an injunction against the opera-

tion of the federally constructed and maintained Cen-

tral Valley Project, unless the government should

* See pp. 22-36, infra.

undertake a “physical solution” consisting of the con-

struction of specified public works. For the reasons

set forth in detail in our brief in Dugan v. Rank, No.

31, this claim for relief is barred by sovereign immu-

nity, and the district court was without jurisdiction to

entertain it.

Fresno urges, however, that the United States has

waived its sovereign immunity, by virtue either of

Section 8: of the Reclamation Act of 1902, 32 Stat.

390, 43 U.S/C. 383 (Fresno Br. 122-123), or of See-

tion 208(a) of the Act of July 10, 1952, 66 Stat. 560,

43 U.S.C. 666 (Fresno Br. 116-121). The court

below was clearly correct in holding that neither of

these Acts of Congress constituted a consent by the

United States to this suit (R. VII: 372, 376; sce also

R. VII: 385).

There is no basis whatever for inferring a waiver of

immunity from Sectior’8 of the Reclamation Act of

1902, which provides that the Seeretary of the Inte-

rior ‘‘shall proceed in conformity”? with state laws re-

lating to ‘the control, appropriation, use, or distribu-

tion of water used in irrigation, or any vested right ac-

quired thereunder.’’ As this Court held in Ivanhoe

Irrigation District v. McCracken, 357 U.S, 275, 291,

that provision means simply that state law defines the

property interests that must be acquired if and when

the government exercises its paramount power of emi-

nent domain. See Pet. Br., Dugan v. Rank, No, 31,

p. 26, n. 12; see also R. VIT: 385. Nor did any mem-

ber of this Court suggest the contrary in United States

v. Gerlach Live Stock Co., 339 U.S. 725, as Fresno

eontends (Fresno .Br. 122). Both the Court and Mr.

Justice Douglas, in his separate opinion, read Seetion

8 as assuming that the United States had waived its

immunity with respect to a suit for damages for a

taking of state-detined property interests, 339° U.S.

at 739, 757, 758, but there is nothing in eithey opinion

in that case te suppert an assertion that the govern-

ment waived its immunity from judicial interference

with the administration of the Central Valley Project.

See Larson v. Domestic & Foreign Corp, 337 U.S.

682, 703.°

Section 208(4) of the 1952 Net, sapra, provides im

relevant part that )

Consent is hereby viven te join the Uiited

States as a defendant im any suit (1) for the

adjudication of rights to the use of Water of a

river system or other source, or (2) for the

administration of such rights, where it appears

that the United States is the owner of or is in

the process of acquiring water rights by appro-

priation under State Taw, by purchase, by ex- .

change, or otherwise, and the United States isa

necessary party to sueh suit. * * *

The court of appeals, after detaded consideration,

rejected the contention of Fresno and other plointiffs

that this provision constitutes a waiver of severeien

immunity with respect to the present smut. ORAVEE:

372-376). Its ruling, we submit, is plainly correct.

Préliminarily we nete that this Court has lone

adhered to the view that it should gnet extend the

waiver of sovereign immunity more breadiv than has

* See p. Lb. fa fre.

668128—462-—-8

been directed by the Congress.”” United States v.

Shaw, 309°U.S. 495, 502; Belknap v. Schild, 161 U.S.

10, 16; Minnesota v. Unitéd States, 305 U.S. 382, 387.

And while the Court suggested in Larson v. Domestic:

_& Foreign Corp., 337 U.S. 682, that perhaps sovereign

immunity should be given relatively limited scope in

relation to suits for damages (337 U.S. at 703-704), it

emphasized that

[ijt is a far different matter to permit a court

to exercise its compulsive powers to restrain the

Government from acting, or to compel it to act.

There are the strongest reasons of prifilié policy

for the rule that such relief cannot be had

against the sovereign. The Government, as rep-

resentative of the ¢ommunity as a whole, cannot

be stopped in its tracks by any plaintiff who

presents a disputed question of property or

contract right.

So here, especially where a suit for damages under

the Tueker Act was availah! fe to plaintiffs (see Pet.

Br., Dugan v. Rank, No. 31, pp. 9,31), there is no

occasion to broaden the waiver in Section 208(a).

Furthermore, Section 208(a) was not enacted until

almost five vears after this suit was instituted in 1947, |

and the government was not brought into the case in

alleged pursuance of this provision until 1953, after

most of the evidence in the case had been received

(see Pet. Br.. Digan v. Rank, No. 31, pp. 9, 11).

Under the circumstances, we submit that Section

208(a) cotild not govern this suit. As the Court has

pointed out, “Retroactivity, even where permissible,

is not favored, except upon the clearest mandate.”’,

Claridge Apartments Co. Vv. Commissioner, 323 U.S.

141, 164. Where Congress has wished to waive sov-

ereign immunity retroactively, it has done so in no

uneertain terms. See Federal Tort Claims Act, 28

U.S.C. 2401. However, neither expressly nor im-—

pliedly does Section 208(a)*provide for the joinder

of the United States; in suits instituted before its

enactment—let, alone ‘in suits in’ which most of the

evidence had already been taken.

The clearest reason for thy nonapplieability of See-

tion 208(a) to this ease—and the ‘reason on which the

court below based its ruling that the United States

had not consented to this action—is that Section

208(a) was intended to apply to a wholly different

kind of suit. The court of appeals covered the matter

suecinetly CR. VIP: 373) :

There can be little doubt as to the type of

suit Congress had in mind. It was not a pri-

vate dispute between certain water users as to

their conflicting rights to the use of waters of

a stream system, rather, it was the quasi-public

proceeding which in the kaw of westetm waters

is known as a “general adjudication”? of a

stream system: one in which the rights of all

claimants on-a stream svstem, as hetween them-

selves, are ascertained and officially stated.

The most notable characteristies of such a suit, which

is an action sui generis, are (1) that all known claim-

ants to the water supply involved must be joined,

(2) that the rights of each of them as against each

of the others must be determined by the final decree,

and (3) that it embrace an entire river, stream or

other such system. See, e.g., Pacific Live Stock Co.

‘vy. Oregon Water Board, 241 U.S. 440, 447-449; Hol-

brook Irrigation District v. Fort Lyon Canal Co., 84

Colo. 174, 195, 269 Pac. 574, 582; State ex rel. Hinck-

ley v. Sixth Judicial District Court, 53 Nev. 343, 352,

1 P. 2d 105, 106; Hough v. Porter, 51 Ove. 318, 439,

98 Pac. 1083, 1109; Spanish Fork West Field Irriga-

tion Co. v. District Court of Salt Lake County, 99

Utah 527, 536, 104 P..2d 353, 357; People of the State

of California v. United States, 235 F. 2d 647, 663 °

(C.A. 9); Washington State Sugar Co. v. Sheppard,

186 Fed. 233, 235-236 (D. Idaho); Jn re Silvies River,

199 Fed. 495, 503 (D. Ore.). See also 2 Wiel, Water

Rights in the Western States (3d ed.), pp. 1120-1125.

That Section 208(a), in speaking of a suit “for

the adjudication of rights to the use of water of a |

river system or other source,”’ was referring to a very

specifi¢ and well-known kind of action in western

water law is fully confirmed by its legislative history.

In explaining the type of suit contemplated by this,

provision, the Senate Report on the bill (S. 18, 82d

Congress) quoted as follows from this Court’s de-

cisign in Pacific Live Stock Co. vy. Oregon Water

‘Board, supra, 241 U.S. at 447-48:

_ All claimants are required to appear and prove

their claims; no one can refuse without forfeit-

ing his claim, and all have the same relation to

the proceeding. It is intended to be universal

and to result in a complete ascertainment of all

existing rights, to the end; First, that the

waters may be distributed, under publie super-

vision, among the lawful claithants according

to theit respective tights without needless waste

or controversy; Second, that the rights of all

may be evidenced by appropriate certificates

and publie records, always .readily accessible,

, and may not be dependent upon the testimony

of witnesses with its recognized infirmities and

uncertainties; and, Third, that the amount of

surplus or unclaimed water, if any, may be

ascertained and rendered available to intending

appropriators.

S. Rep. No. 755, 82d Cong., Ist Sess. 5 (1951). Sena-

tor McCarran, the sporfsor of the bill and Chairman

of the Senate Jiidiciary Committee. stated that the

provision ‘tis not intended to be used for any other

purpose than to allow the United States to, be joined

in a suit wherein it is necessary to adjudicate all of

the rights of various owners on a given: stream. This

is so because unless all of the parties owning or in

the process of acquiring water rights ona particular

stream can be joined as parties defendant, any subse-

quent decree would be of little value.”” Letter to Sen.

Magnuson, set forth in S. Rep. No. 755, supra, at p. 9.

It is particularly relevant to note that Congress.

-disavowed any purpose of having Section 208(a)

used to interfere with the administration of federal

projects. Thus, when Senator Magnuson raised the

question whether the provision could be used to dela;

or block a multiple-purpose development such as the

then-pending proposed Hells Canyon project on the

Snake River, Senator McCarran replied: “tS. 18 is

not ‘intended to be used for the purpose of obstruct-

ing the project of which you speak or any similar

projects * * *.”’ Letter to Sen. Magnuson, supra,

S. Rep. No. 755 at p.9. And the Judiciary Committee

in its report affirmed its desire “to repudiate any such

intent,” stating (S. Rep. No. 755, supra, at p. 6):

Where reclamation projects have been author-

ized for the benefit of the water users and the

publie generally, they should proceed under the

law as it exists at the — time and should

the Government have reason to need the water

of any particular user on a stream, that water

should be obtained by condemnation proceed-

ings as is already provided for by law. * * *

The holding of the court below that Section 208(a)

is limited to such a general adjudication of rights in

a stream system follows the uniform view of the ap- °

pellate courts that have passed on the provision. In |

Miller v. Jennings, 243 F, 2d 157 (CA. 5), certiorari

denied, 355 U.S . 827, 885, the court affirmed dismissal

where, as here, an ‘attempt was made by a suit against

Bureau of Reclamation officials to establish claimed

priorities as against the Elephant Butte Reclamation

project. The same result was reached by the court

helow in Nevada v. United States, 279 F. 2d 699

(C.A. 9), where it affirmed dismissal of a suit for a

declaratory judgment that the United States must

secure State permission to develop water from wells

at a naval installation.

The court below was clearly correct in holding that

the present suit was not a “general adjudication”

suit such as that contemplated by Section 208(a)

(R. VII: 374376). In the first place, not all of

the known claimants to the water supply involved

19.

have been joined im ‘this. action CR. VII: 379). While

the plaintiffs numbered” 14 individwala, one private

corporation, one municipal corporation (Fresno )swnd

one public corporation (the Tranquillity [rrigation

District) (R. VII: 50), the district court found that

‘there are many hundreds of owners of property

along the river and within the boundary lines of the

alluvial cone’? (R. VII: 224); indeed, the district

court listed more than 200 affected land holdings: in

its findings (R. TET: 900, 914, 919). There’ is _cer-

tainly no basis for holding that all of these owners

are now bound by*the district court’s findings.

Fresno atteinpts to circumvent the absence of these

owners by characterizing this Suit as a ‘élass ae-

tion.’ This argument, which was rejected by the

Fifth Cireuit in Miller v. Jennings, supra, 243 FB. 2d

at 160, was properly rejected by the court below

€R. VIL: 375). The theory of class action’ is wholly

antithetical, to the concept of a ‘*general adjudica-

tion’’ suit, ih whie ‘h “[{ajll claimants are required to,

appear and prove their clainis, ” Pace ife Live Stock

Co. v. Oregon WwW ater Board, supra, 241 U.S. at 447.

As the. court below ‘pointed out, even if all claimants

of riparian and overlying rights could be treated as a

class, claimants of appropriative or prescriptive rights

could not, for the extent of such rights *tmust depend

upon the circumstances of cach /individual case’

(R. VII: 375); accordingly, as ‘the court found,

oe claimants individually must be before the

court”? (ibid.). See, also, 2 Wiel, Water Rights im

the Western States (3d ed.), p. 1120.

Nor is it any ‘answer to ask the Court, as Fresno

does (Fresno Br. 134), now “to join other parties.

Fresno made the same request of the court below,

which correctly pointed out that’ such joinder could

not “convert this action into a. general | adjudication,

of a stream system” (R. VII: 399 ).. An . entirely

different kind of. case. was made on the pleadings and

the proof; the joining of additional parties would

require a new trial upon new pleadings.and new evi-

~ dence. We submit that it is now entirely too’ late

to remedy the nonjoinder objection to considering this

proceeding as a “‘genera] adjudication” suit.

¢. The second reason this suit.cannot be viewed as

ot ? Paar re ae ;

_ one for a general adjudication ‘of rights in a stream

system as contemplated by Section 208(a) is that it

did not, nor was it, designed to, determine the rights

of each claimant against each of the others (R. VII:

375-376). The district court recognized as much:

‘This ts not a-suit wherein the plaintiffe seek to estab-

lish for each of them their separate rights’ inter sese

to a given quantity of water as state themselves or

as afainst one.another” (R. VIT: 27; emphasis in

original) ; and, again: “this suit is ha a case where

the waiter users, either riparian or averlving, are seek-

ing to enforce any separate or several rights among

themselves or against. one another, or to have a given

amount of water deel ared and adjudicate be the

right for use on a specified tract of land”’ (R. VII:

220). Nor did the district court make the slightest

attempt to adjudicate the rights of any owner in

_relation to any other, except to find that Fresno has

certain rights *‘prior and.superior to any right of the

4”

United States” (R. IIT: 1016-1017; see pp. 22-23,

infra). As the court below pointed out (R. VIL:

376), there is not even an adjudication of the rights,

as between-one another, of the partigs who were pres: .

ent and subject to the jurisdiction of the court.

The third reason this case is not a Section 208(a)

suit for a general adjudication is that it is concerned,

not with “the use pf water of a river system or other

souree,” but with the use of water in only one section

of the San Joaquin River. The difference is not it

technical one... A general adjudication suit must em-

brace an entire system of water from one souree be-

cause “by reason of the interlocking of athjudicated |

rights on any stream system, any order or action

affecting one right affects all such rights’? (S. Rep.

No. 755, 82d Cong., Ist Sess., p. 5). Nor is it even

arguable (Fresno Br. 130) that Friant Dam is an

‘other source”’ within the meaning of Section 208(a).

The other sou ees to which a genera! adjudication suit

might relate are such actual sources of water as lakes

and swamps; the waters at issue in this case have their

source in the San Joaquin system, not in Friant Dam.

Moreover, this suit has at all times been concerned

with the rights to San Joaquin River water that

existed prior to the construction of Friant Dam.

In ‘sum, as the court below held, the United States

has not consented to the litigation against it of the

claims of Fresno and the other plaintiffs for injunc-

tive relief. Section 8 of the Reclamation Act of 1902

does not constitute such a consent, having no other

effect than to leave to state Jaw the definition of the

interests the United States must take if it proceeds by

“

eminent domain. Sectidn 208(a) of the Act of

July 10, 1952, is not a waiver of immunity from the

present suit, because that provision is concerned only

with a suit for the general adjudication of rights to

the use of water in a river system; the present case

is not such a suit because not all known claimants

to the water supply involved have been joined, no

determination of the rights of each claimant against

the others was sought or made, and the suit does not

embrace an entire river system.~ In the absence of

the consent of the United States, these claims are

barred by sovereign immunity for the reasons set

forth in our brief in Dugan v. Rank, No. 31.

If, THE CLAIMS OF FRESNO FOR DECLARATORY RELIEF ARE

BARRED BY SOVEREIGN IMMUNITY be

In addition to the claims Fresno made in common

with the other plaintiffs in this proceeding (and which

are discussed in our brief in Dugan v. Rank, No. 31,

and at pp. 11-22, supra), it also sought, and was

granted by the district court, judicial declarations (1)

that it had certain additional water rights superior to

those of the United States, and (2) that it was en-

titled to contract for water from the Central Valley

Project at a certain price. The court of appeals

properly held that these claims for relief were barred

by sovereign immunity (R. VII: 381, 382; see also

R. VII: 399-400).

A. THE CLAIM FOR A DECLARATION OF SUPERIOR WATER RIGHTS

By an amendment to its complaint, filed in August

1954, Fresno sought a declaratory judgment settling

its Water-rights as Against the United States CR. LI:

5-520), The distriet court, in its tinal judgment,

declared that “the rights of the City of Fresno to

secure surlace Water for domestic and municipal pur-

poses from the San Joaquin River,” over and above

the rights it has in common with the other plaintiffs,

“are prior and superior to any right of the United

States * * * to divert and take any water of the San

Joaquin River, or store the same for diversion, by

nfvans of Friant Dam, or Friant-Kern canal, or other-

wise, out of the Counties of Fresno and, or Madera,

and or out of the watershed or area wherein the

water of the San Joaquin River originates’? (R. ILL:

1016-1017). The court of appeals held that, since

the United States had not consented to this suit (R.

VII; 376) and since the conduct of its officials in rela-

tion to Fresno’s claim for additional water had been

within their authority (R. VII: 383), the claim was

barred by sovereign immunity (see also R. VII: -

9-400)" This ruiing wag correct,

*This ruling assumed, with reason, that Fresno ciaimed a

right to water from the Central Valley Project (R. VII: 399).

The court also ruled that, if Fresno’s claim was rather to water

from the natural flow of the San Joaquin, that claim was pre-

mature, since Fresno had not perfected such rights in a -cord-

ance with the proredures established by state law (R. VIL: 299).

In so ruling, the court was following the settled doctrine that

the declaratory judgment procedure “may not be made the

medium for securing an advisory opinion in a controversy which

has not arisen” (Coffman v. Breeze Corpa., 325 US. 316, 524).

“a

The relief sought and granted would operate

directly upon the United States. In Larson v. Do-

mestic & Foreign Corp., 337 U.S. 682, 689, n. 9, this

Court noted that the plaintiff there had sought declar-

atory relief as to the validity of a ‘sale to which it

and the United States were parties. The Court

observed that the request for such relief was “‘even

more clearly directed at the sovereign” than the in-

junctive relief there sought, gnd it eoncluded that

“fs]uch a declaration of the ri@ts of the respondent

vis-a-vis the United States would clearly have been

beyond the court’s jurisdiction” (ibid.). See also

‘Ogden River Water Users’ Ass’n. v. Weber Basin

Water Conservancy, 238 F. 2d 936 (C.A. 10); Huds-

peth County Conserv. & Reel. Dist. No. 1v. Robbins, 213

F. 2d 425, 432 (C.A. 5). So here, where a declara-

tion of Fresno’s water rights as against the United

States was both sought and granted, the suit was for

relief against the sovereign and was barred by the

sovereign’s immunity.

The district court also ruled that ‘‘upon the City

of Fresno constructing the necessary transportation

works to bring such supplemental supply of surface

water of the San Joaquin River to said City of

Fresno,” it ‘‘will be entitled to an injunction restrain-

ing and enjoining”’ the United States (and the other

defendants) ‘‘from diverting, or storing for diversion,

by means of Friant Dam, or the Friant-Kern canal, or

otherwise, any San Joaquin River water out of the

watershed and the Counties of Fresno and/or Madera, ,

or out of the area wherein the water of the San J oa-

quin River originates, until said supplemental water

requirements of said City of Fresno are met * * *”

(R. IT: 1017-1018). Like the injunctive branch of

the relief sought by and granted to all of the plaintiffs

(see Pet. Br., Dugan v. Rank, No. 31, pp. 19-20),

such a decree would obviously operate directly against

the United States and interfere with its administra-

tion of a federal reclamation project. ‘Such relief

is plainly beyond the power of the court to grant as

against the unconsenting sovereign. See Larson v.

Domestic & Foreign Corp., supra, 337 U.S. at 704;

Land v. Dollar, 330 U.S. 731, 738.

Nor can the United States be said to have consented

to the prosecution of Fresno’s claim for declaratory

relief by virtue of Section 208(a) of the Act of

July 10, 1952, discussed at pp. 13-21, supra. Fresno’s

claim was by no stretch of the imagination a «"‘lasi-

publi¢ suit for a general adjudication of water rights

in a river system, such as Section 208(a) contem-

plates; Fresno sought nothing more, and. the district

court granted it nothing more, than a narrow declara-

tion of its own rights as against those of one other

claimant, the United States. As with the claims of

all of the plaintiffs, this claim of Fresno’s fell short

of a Section 208(a) suit by (1) the absence of known

claimants, (2) the lack of a determination of all the

claimants’ rights as among one another, and (3) the

failure to ernbrace more than a limited stretch of a

river. Accordingly, there is no basis for finding any

such consent on the part of the sovereign as would

waive its immunity from suit. fe

Since Frgsno’s claim is plainly barred by sovereign

immunity, there is no occasion to inquire into the

merits of the City’s contention that it has water

rights superior to those of the United States-and-it

was for that reason that the court below expressly

declined to rule on Fresno’s claim (R. VII: 383).

There is another, even more cogent, reason for not

inquiring in‘o the merits of that claim—namely, that,

whatever Fresno’s rights may be, they are clearly

subordinate to the4ederal power of eminent domain.

‘As we have pointed out (see Pet. Br., Dugan Vv.

Rank, No. 31, pp. 32, 42-46; see also pp. 12-13, su pra),

not only did the court below sustain the govern-

ment’s comprehensive power to take whatever water

rights it needed for the Central Valley Project (R. VII:

384-387), but this Court has made, it clear that the

only restrictions on that power are that the govern-

ment must respect state definitions of property taken

and that it must pay just compensation therefor.

See Ivanhoe Irrigation District v. McCracken, 339

U.S. 275, 291; United States v. Gerlach Live Stock

Co.; 339 U.S. 725" Thus, if any legitimate rights"

*Kresno argues that the Act of Oct. 14, 1949, 63 Stat. 852,

853, which calls upon the Secretary of the Interior to “make

recommendations [to Congress] for the use of water in accord

with State water laws, including but~not limited to such laws

giving priority to the counties and areas of origin for present

and future needs,” limits the federal power of eminent domain

(Fresno Br. 142). It is clear from the context of this provi-

sion (which was adopted at the suggestion of the Bureau of

Reclamation, Hearings, American River Basin Project, House

Subcommittee on Irrigation and Reclamation, 81st Cong., 1st

Sess., pp. 35-36) that it refers to projects thereafter under-

taken, not those already operative, such as the portion of the

of Fresno, as established in consonance with state law,

have been or may in the future be interfered with by

the federal government's operation of the Project, the

City’s remedy is a Tucker Act suit. “The a vilability

of that remedy provides Fresno. with all of the con-

stitutional protection to which it ‘s entitled. Marley

v. Kincaid, 285 U.S. 95, 104; Berman \, Parker, 348

U.S. 26; see also Pet. Br. Dugan v. Rank, No. 31,

p. 31.

B. THE CLAIM: POR A DECLARATION OF AS RIGIEE TO WTR VE |

CERTAIN PRICE

Fresno also sought a judicial declaration that it

was entitled to receive water from the Central Valley

Project at the same price as that charged for irriga-

tion water, rather than at the higher rate the De

partment of the Interior proposed to charge for water

for domestic and municipal purposes. Pursuant to

this request, the district court concluded that Fresno

was_ entitled to a declaratory judgment that ‘any

charge’ for water which may be made by the United

States should be reasonable” and that “TrJeasonable-

ness, in light of the facts andthe Federal Reelama-

tion Act and the Statutes of California, requires that

such charges should be no more than the Irrigation

Districts are charged from time to time for Class |

water” (R. VII: 271). The court below held that

since the respondent officials were acting within their

Central Valley Project at issue here. ‘Furthermore, as we have”

shown (Pet. Br., Dugan v. Rank, No.-31, pp. 4-46), Congress

was kept aware of the manner in which the United States was

affecting existing rights by the operation of Friant Dam, and

Congress fully ratified that conduct.

authority in determining the rates at which Project

water should! be sold, ‘*[t]he complaint of Fresno in

this regard is a complaint against the United States

and this dispute may not be entertained judicially

without a waiver of sovereign immunity on the part

of the United States” (R. VII: 381), and, as the

court had held (R. VIL: 386), there had been ne such

waiver. This ruling, too, was correct.

Just as Fresno’s claim for a judicial declaration of

superior water rights is ‘clearly directed at the sov-

ereign,’” Larson V. Domestic & Foreign Corp., supra,

397 U.S. 682, 689, n. 9 (see Pp. 24, supra), the

City’s claim for a judicial declaration of a right to

contract for Project water 1s similarly a claim di-

rectly against the United States and similarly ‘would

clearly have been beyond the court’s jurisdiction” »

(ibid.). Moreover, the enforcement of such a right

would, of course, require affirmative action by the

United States through its officials—namely, the execu-

tion of a contract for the delivery of water to Fresno

at the lower rate. Since this relief would thus “re-’

quire affirmative action by the sovereign” and “eom--

pel it to act,” Larson V. Domestic & Foreign Corp.,

supra, 337 U.S, at 691, n. 11, 704, it is barred by

sovereign immunity.” Nor is this conclusion avoided

* Similarly, since ‘affirmative action would be required of the

Secretary of the Interior, who is the officer empowered by stat-

ute to execute such contracts, Reclamation Project Act of 1959,

Section 9c), 53 Stat. 1195, as amended, 43 U.S.C. sSdhic),

the Secretary (who was not served and did not appear, see

note 1, p. 5, supra) is clearly an indispensable party under

Hynex vy. Grimes Packing Co. 337 U.S. 86, and Williams v.

Fanning, 332 U.S. 490. Fresno’s reliance on Work v. Low-

by the fact that the relief! was granted in terms of a

“right’?; sovereign immunity eannot be evaded by

eouching relief sought in terms ofa declaration of a

right to enter Inte a covtract containing certain terms,

rather than by directing a mandatory injunction to

compel government officers to contract on those terms.

Love Vv. United States, 108 F. 2d 43, 50 (CLA. 8):

Anderson Vv. United States, 229 F. 2d 675 (CLA. 5);

ef. Blackmar v. Guerre, 342 US. 512, 515-516.

Fresno seems to argue (Fresno Br. 92-115) that,

the doctrine of sovereign immunity does not apply

here beeause it would be beyond the statutory (and

: perhaps oven constitutional) authority of the respond-

ent officials to charge Fresno more for municipal

water than it charges other users for irrigation water.

The court below disposed of any such contention thus

(R. VIE: 3st):

li negotiating and contracting for the deliv-

ery of water from Friant Dam, defendant offi-

eials were acting within the seope of their statu-

tory authority and were carrying out the duties:

imposed upon them by their official positions.

Tt is their adnunistrative function to determine

the rates at which water shall be delivered. * * *

Fresno has come forward with no adequate basis for

challenging that conclusion.

“Any constitutional attack on the federal charges

for the use pf Project water, as implemented by the

respondent officfals, is wide of the mark. Section 3,

ixiana, 269 U.S, 250 (Fresno Br. 99), points up the aecessity

of joinder of the Seeretary, since that case Was a muandamus

-proceeding against the Secretary of the Interior.

30 : :

Article IV, of the Constitution imposes exclusive and

_ unlimited authority upon Congress ‘to dispose of and

make all needful Rules and Regulations respecting

the Territory. or other Property belonging to the

United States,’’,see Siour Tribe v. United States, 316

U.S. 317, 324; United States v. San Francisco, 310

U.S. 16, 29. The power thus granted to manage fed-

eral reclamation facilities plainly embraces the au-

thority to regulate charges for the benefits resulting

from their operation. Irrespective of where title to

the water stored and distributed by the government’s

reclamation facilities lies (see Fresno Br, 96-98 ),

their operation for the benefit of the public bestows a

federal privilege, and “the power of the Federal Gov-

ernment to impose reasonable conditions on the use

of * * * federal privileges’ is, as_ this Court ob-

served in Ivanhoe Irrigation District v. McCracken,

357 U.S. 275, 295, “beyond challenge * * *.”’ See

also Yuma County Water Users’ Ass’n Vv. Schlecht,

962 U.S. 138, 145-146; Swigart v. Baker, 229 U.S.

187. As we show below, in view of the prime purpose

of the reclamation legislation to promote irrigation, it

was entirely reasonable for Congress to determine

‘that users of reclamation project water for irrigation

should pay a lower rate than users for municipal,

industrial or power purposes.

The original act authorizing the construction and

operation of federal reclamation projects, the Reela-

mation Act of 1902, Section 4, $9 Stat. 389, 43 U.S.C.

. 461, provided that charges for irrigation water ‘‘shall

- be determined with a view of returning to the recla-

ee 31

mation fund the estimated cost of construction of the

project, and shall be apportioned equitably.”” "This

Court, in Swigart v. Baker, supra, 229 U.S, at 197-199,

held that the cost of maintaining the project was also

properly taken. into account in determining — the

charges for irrigation water. In that case the Court

also recognized that interest on the amount of con-

struction costs that have not been returned to the recla-

mation fund is not charged users of irrigation water.

229 U.S. at 197; see also Ivanhoe Irrigation District

v. McCracken, supra, 357 U.S, at 295.

The first provision for the supplying of water from

reclamation projects to others than irrigators was

Section 4 of the Town Site Act of 1906, 34 Stat. 116,

43 U.S.C. 567, which authorized the Secretary of the

Interior to provide ‘towns or cities on or in the im-

mediate vicinity of irrigation projects” with project

water and to fix charges for such water which ‘shall

not be less nor upon terms more favorable ‘than those

fixed * * * for the irrigation project from which the

water is taken.”’ This implicit authority to charge

‘municipalities higher rates than those paid by irri-

gators was made explicit by Section 9(¢) of the Recla-

mation Project Act of 1939, 53 Stat. 1193, as

amended, 43 U.S.C. 485h(¢). That section authorized

the Secretary ‘‘to enter into contracts to furnish

As this Court has recognized, the “estimated cost of con-

struction” cannot. usually ‘be determined until the constriction

of the project is virtually complete, so that water charges must

be based on tentative estimates, subject to whatever *djust-

ments later circumstances dictate. See /vanhoe Irrigation Dis-

trict v. McCracken, supra, 357 US. at 2985; see\ also wma

County Water Users’ Ass'n v. Nchlecht, 262 U.S. 138, 143-144.

—_—_—_—- —

ee _-

“a

water for ‘municipal supply or miscellaneous pur-

poses,” and to require payment,

: eee a) ?e** with interest not exceeding

the rate of. 3' per centum ’per arinum if the

Secretary determines an interest charge to be

proper, of an appropriate share as determined

by the Secretary of that part of the construc-

tion costs allocated by—him_to municipal water

supply or other miscellanem:.. purposes; Or

+ ) ie such rates as in the Secretary's

judgment will produce revenues at least suffi-

cient to cover an appropriate share of the an-

nual operation and maintenanee cost and an

appropriate share of such fixed charges as the

Secretary deems proper ¥ —<

Thus, not only was the Secretary authorized to include

a charge for municipalities that is not included for

irrigators—i.e., interest (see Pp. 31, supra)—but he was

given broad discretion to determine what would be

an “appropriate share” of construction costssor oper-

ation and maintenance costs fora municipality to pay.

Congress, moreover, has been fully aware that the

Secretary has implemented this statutory authoriza-

tion to charge municipalities higher rates for project

water than irrigators. For example, in the Senate

hearings on the 1951 Interior Department appropria-

11 With respect to the sale of electric power or the lease of

power privileges, the Secrevury was authorized to fix “such

rate¢ as in his judgment will produce power revennes at least

_ sufficient to cover an appropriate share of the annual operation

and maintenance .cost, interest on an appropriate share of the

construction investment at not less than 3 per centum per an-

num, and such other fixed, charges as ‘the «Secretary deems

proper * * *.” 2 Pie Se

33 :

tions, the subject of the utilization of project water

for municipal purposes came Up, and the subcommittee

chairman, Senator Hayden, said, “Usually the rate of

the municipality for water is higher than the rate for

irrigation. 1 think they probably would be charged

more for municipal purposes—it is more valuable to

them.” Hearings before the Senate Sabeomunittee on

Appropriations, Interior Department, 1951, SIst

Cong., 2d Sess., p. 1114. At those same hearings the

Department submitted a statement as to the basis of

charges for municipal water, which made it clear that

such charges are set in accordance “with the particular

circumstances under which municipal water has been ~

provided,” not/-in relation to the charges made for

irrigation water (td. at p. 1115):

Among other things, these “varying ¢irenm-

stances have involved existence of prior munici-

pal water rights * * * the point of delivery of

the water * * *, the purpose for which water

was used within the municipal limits (for irri-

cation, domestic, municipal or industrial uses),

the extent to which the municipality contributes

to the project by transfer of Jands or other

rights ** *, the type, extent, and cost of facil-

ities necessary to make municipal water avail-

able provided by the United States, who con-

structed and paid for the construction and oper-

ation and maintenance of specified facilities, the

degree of permanency of the municipal water

right involved, the choice of contract as to re-

payment or water service, and many other spe-

cial local considerations.

Furthermore, Congres§ was expressly advised, as

early as 1946, as to the basis for the Sgcretary’s deter-

mination of the appropriate charge for municipal

water in the Central Valley —— (t.e., $10.00 per

acre-foot *) +s : a

It is estimated that, under full operation of the

authorized project, gross annual revenues from

the sale of municipal and industrial water [at

this. rate} will amount to $680,000, whereof:

$119,070 will'be necessary to support operation,

maintenance, and replacement costs, and $560,930

will be av vailable‘for application to capital costs.

This will be sufficient. to repay the allocated

«costs during the project repayment period, plus

3 percent interest’ on the unpaid balance, and to

meet: an appropriate sliare of other fixed costs

of the project water supply.

H. Doe. No.-146, 80th Cong., Ist Sess., p. 19, quoted

in 1 Central Valley Project Documents, H. Doe: No.

416, 84th Cong., 2d Sess., pp. 595-596. Corigress was

also advised. as to the reasonableness of this rate (td.

! ~

, at p. 595): , 9

oa This rate may be judged by comparison with

prevailing rates in areas adjacent to those

where sales are contemplated. The principal

alternative source sells water-on a rate sched-

ule varying from $52.27 to $95.83 per acre-foot

within“its district, depending on the amount

used and exclusive of meter service charges.

This water is treated, but the cost of treatment

will not exceed $10 per acre-foot. * * *

2 See pp. 6, 9, n. 4, supra.

In short, in this, as in all aspects of the Central

Valley Project, Congress was kept fully informed,

and, with full knowledge of what had been done and

_ what was planned, Congress continued to appropriate

funds and to authorize expansion of the: project by

adding new elements (see Pet. Br:, Dugan v.-Rank,

No. 31, pp. 4446). 6

The prime purpose of the reclamation laws and of

the projects authorized and constructed under, them

has been the promotion of irrigation. See, ¢.g., Recla-

ation Act of. 1902, Section 1, 32 Stat. 388, as

/amended, 43 U.S.C. 391; United States v. Gerlach Live

Stock Co., 339 U.S. 725, 731-742. Other purposes—

navigation, flood -control, salinity prevention, recrea-

tion and fish and wildlife preservation—and other

uses of project water, such as for domestic; muni-

cipal, industrial and power purposes, are clearly inci-

dental to that central aim. Indeed, the Reclamation

Project Act of 1939, 53 Stat..1193, as amended, 43

U.S.C. 485h(¢), provides that *fnJo contract relat-

ing to municipal water supply or miscellaneous pur-

poses or to electric power or power privileges shall

be made unless, in the judgment of the Secret tary, it

will not per the efficiency of the project for irriga-

tion purposes.” Accordingly, it cannot be said that

Congress ‘was acting unreasonably when it dete ‘rmined >

that irrigation should receive a substantial subsidy in

the form of non-payment of interest, while other uses’

should recéive dittle or no such bounty. See Ivanhoe

Trrigation District v. McCracken, supra, 357 U.S. at |

295-296. Fresno’s claim that it should receive the

same subsidy, rather than being expected to pay an

‘appropriate share’’ of the cost of bringing it muwi-

cipal water, is without the slightest warrant in either

the Constitution or any Act of Congress.

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed insofar as it sustained the clauns

that the City of Fresno pressed in common with the

other plaintiffs in this proceeding (see pp. 11-22,

supra) and affirmed insofar as it directed the dismis-

sal of those claims that the City of Fresno alone

advanced (see pp. 22-36, supra).

Respectfully submitted,

ArcuipaLtp Cox, . nat

Solicitor General.

J. Writam Doo.irrer, .

Assistant to the Solicitor General.

Wiuuam H. Verver,

Rocer P. Margtts,

Attorneys.

DeceMBER 1962.

Os GOvtewere” Fee Be Ore tT freer

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