Motion on Behalf of the USA — Arizona v. California

4 ~ii

INDEX

. | Ee Page

* Motion on Behalf of the United States of America for Leave to

POUNDS copies (A. cine samcdtnnynacccvasbhoweteunnwins A 1

K Brief of the United States of America in Support of Motion to

NII 5 tc itcce ts vr afip aegis neil bs aia el eka Aaon cli Bk 17

INDEX ’*TO BRIEF

EE Ae BRE Pee NE RID Spe Ie tN 17 yee

Ns Bincu aie ccodsn ct ng nn ccas cane deascdsteewevewsiha 19

I. This Court Is Invested by the Constitution and Con-

nf gressional Enactments With Original Jurisdiction

of Cases of the General Character Here Involved-- 19

II. Review of Earlier Decisions of This Court Respecting

the Controversy Between the States of Arizona and

ie A ibddd cnt hans tandhdsn kai chehen west 22

ITI. Present Legal Status and Developments Which Have

“ Bearing Upon This Court’s Jurisdiction____-__-__--- 26

IV. A Justiciable Controversy Exists Between Claimants

to the Use of the Waters Allotted to the Lower

Basin by the Colorado River Compact___-.-.----- 29

PRES EA IE AD LP ERA ie puses OS alessio wlotcacntoee 35

CITATIONS

Cases: ie

Arizona v. California, 283 U. 8. 423 (1931)_-_------ 2, 22, 23, 31

_ Arizona v. California, 292 U.S. 341 (1934)___-_---_----- 2, 23

_ Arizona v. California, 298 U. S. 558 (1936)__._.*_-_ 2, 25, 26, 34

Hinderlider v. La Plata Co., 304 U. 8. 92 (1937) ------ oan

Kansas v. Colorado, 185 U. 8. 125 (1902)_...______-.---- 20

Kansas v. Colorado, 206 U. S: 46 (1907)_______--_- art dae O 20

Kentucky v. Indiana, 281 U. 8. 163 (1930)___._.__------ 21

Missouri-v. Illinois, 180 U. 8. 208 (1900)_--.-_.-_____- ie 21

Missouri v. Illinois, 200 U. 8. 496 (1905)__._._________---. 34

Nebraska v. Wyoming, 295 U.S. 40 (1935) -_------------ <<

* Nebraska v. Wyoming, 325 U. 8. 589 (1944). -.--==.- 21, 31,33

: Texas v. New Mexico, 343 U. 8S. 932 (1952) -_.___--_.---- 21,34

United States v. Arizona, 295 U.S. 174 (1935)__-----. --- 25

United States v. California, 332 U. 8. 19 (1947) _----- - wee

United States v. Louisiana, 338 U. S. 806 (1949), 339 U.S. %

600: (1040) . 2. 2-2......4: in Sea cinahiaeaa es wieiee as ; 34

United States v.° Texas, 338 U. S. 806 (1949), 339 U. S. 707. —

1 SAREE SNARES GRR LR Se Pl EARS PERT a ess Ps 5 RSisr wa ahs oe 34

— ;

236252—52—1

eg

nn

Cases—Continued < Page

. West Virginia ex rel. Dyer et al. v. Sims, State Auditor, 341

[5 Mag AI cs apse ie ais is ane the SARS cies aii ai ehes ale ws pth 20, 21, 31

Wisconsin v. Illinois, 278 U. 8. 367 (1929)-___...--_-.-- * 20

Wyoming v. Colorado, 259 U. 8, 419 (1922)_..-.......... 20, 33

Constitution: J

Constitution of the. United States, Article Ill, Section 2,

JA Stine EC cdudndandendhumacad chicucdaew acide Sata 9

Treaties: | is 7

Treaty, Executive A, 78th Cong., 2nd Sess........-_- jan Ie

Protocol, Executive A, 78th Cong., 2nd Sess_.....-»__-- . +44

Compact:

i agri s SERRE SES SLR en inwaiveens 7,8, 13, 19

Statutes: Bf

5 a ee wo damonies 20

ee CEE TEEN Sedat tap ae ee a a 6

Boulder Canyon Project Act, Act of December 21, 1928

(45 Stat. 1057), 43 U. 8. C. De ncnecssaspeosne 3, 6, 7, 10, 22 .

Reclamation Act, Act of June 17, 1902, Ch. 1093 (32 Stat. -

388), 43 U. 8. C. 391__.---_- Stacadekcgronaivewes "; @.

Statutes and Amendments to the Codes of California 1929

nT rn ee ooo 7

~ °

/

as = » ~

; 4

:

2 Coe J

: \

Sui Sapeme ont hed sen |

OcropErR TERM 1952 ©

No. —, Original

STATE OF ARIZONA, COMPLAINANT

Spratt or CALirorniaA, Pato VeErpde IRRIGATION -

District, Imperial IRRicATION District,

COACHELLA VALLEY CounTy WartTER District,

METROPOLITAN WATER DisTRICT OF SOUTHERN

CaLirorniA, City oF Los ANGELES, CALIFORNIA,

- Crry or San Dreco, Carirornia AND CouNTY |

OF SAN DIEGO, CALIFORNIA, DEFENDANTS

¢

-—-

MOTION ON BEHALF OF THE UNITED STATES OF AMERICA

; FOR LEAVE = INTERVENE

The 5 sdbonho General and- Solicitor General,

on behalf of the United States of America, re-

spectfully move this Court for léave to intervene

in the above-entitled cause, and for leave to file

a petition for intervention for the following

reasons : :

I

The State of Arizona, as complainant, secks

to invoke the original jurisdiction of this Court:

pursuant to the provisions of Article III, Sec-

ee e

)

2 |

tion 2, Clause 2, of the Constitution of the United

* — States“of America in regard to the rights and

interests which jt asserts in the Colorado River,

a navigable, interstate stream. By a letter

dated October 8, 195%:¢Mr. Robert L. Stern,

_Acting Solicitor General, advised_this Court that

in the event the request of the State of Arizona—

for permission to file its complaint was granted,

the United States would move to intervene in

the cause. Premised upon that action by the —

United States, the State of California and the

other defendants named in Arizof&a’s complaint

‘advised this Court on December 8, 1952, of their

desire to have the case proceed to effective judg-

ment on the merits and that they would not inter-

pose an objection to Arizona’s motion for leave

to file its Bill of Complaint. |

pl | a

' For many years there has been a most serious

conflict between the State of Arizona and the

State of California regarding their respective

° rights to the use of the water of the Colorado

River. On three different occasions the State

‘of Arizonathas unsuccessfully sought relief from

. this Court in. connection with that long-standing

aces hia * The pending motion is Arizona’s

4 Adeline v. California, 283 U. S. 423 (1931) ; Arizona v.

California, 292 U. S. 341 (1934) ; Arizona v. a asa es

ee S. 558 (1936).

3

fourth attempt to obtain an adjudication in this

conflict. By it Arizona seeks to have the rights

which it claims in the Co'orado River quieted as

against the named defendants; to have construed

the Colorado River Compact, the Boulder Canyon

Project Act,’ related laws, contracts and docu-

ments. In addition it seeks injunctive and an-

cillary relief. :

Til

_ Inportant.in regard to the dispute between the

several claimants to rights in the-Lower Basin of -

the Colorado River are the physical phenomena

of that stream and the region traversed by it.

Rising in the State of Colorado near the crest of.

“the Continental Divide at an elevation of approxi

mately nine thousand feet above sea level, it flows °

for a distance of 1293 miles, draining portions of -

the States of Arizona, California, Colorado, Ne-

vada, New Mexico, Utah and Wyoming. More

than half of the average annual yield of that

stream is derived’from the precipitation in the

form of snow and rain which fall upon the ‘high

mountains in Colorado and Wyoniing. The stream

in question flows through the Western half of

Colorado, the State of its origin, and then through

the State of Utah where it has its confluence with

the Green River which rises in Wyoming. After

crossing the common boundary of Utah and Ari-

243 U.S.C. 617 et seq.

4

zona it proceeds in a south and westerly direction

toa point where it forms the boundary between the

State last mentioned and Nevada. For a distance

‘ of 145 miles it separates the two States. There-

after for 235 miles it constitutes the boundary

between Arizona and California; for 16 miles it is

the boundary between the State of Arizona and

the Republic of Mexico. For a distance of 75

miles it flows across Mexico terminating in the

Gulf of California. For 688 miles, more than half

its length, the Colorado River flows in or upon

the boundary of the State of Arizona. Histori-

cally Gommerce was carried on in the ee

lower reaclies of the stream.

IV

In its course the Colorado River traverses a

semiarid area of approximately 240,000 square

miles in which agriculture can be! successfully

practiced only through artificial irrigation. How-

ever, marked geographical and climatological dif-

ferences exist between the upper reaches of the

river and the lower. The former is an area of

high elevations resulting in shorter growing sea®

sons, lower demands for water and by reason of _

the conformation of the area, has a relatively

high return flow. In the lower reaches of the

stream large areas susceptible of irrigation are

found. Due to the extreme aridity of climate and

the long growing season the demand for water for

each acre irrigated is high. Works of great mag-

?

5

nitude with commensurate’ costs are required to

irrigate those lands. ie

Nearly 1,000 miles of canyon separate the lands

upon which water may be beneficially applied in

the upper States of the Colorado River Basin and

those upon which water may be beneficially used

in the Lower Basin.

. | Vv

- Shortly after the turn of the present century

the claims to rights to thesuse of water in the

natural flow of the Lower Basin of the Colorado

River exceeded the available supply during the

latter summer months, with the attendant loss of

crops due to the shortage of irrigation water.

By way of contrast, early spring floods inter-

mittently caused severe damage. Conservation of

the run-off of the stream in the Lower Basin in

high water periods, through regulatory dams and

impounding reservoirs, was essential. That de-

velopment in the lower “reaches of the river was

impeded, however, by the need for an apportion-

ment of the available supply of water between the

two reaches of the river alluded to in the pre-

ceding paragraph. Understandably the States of

the Upper Basin viewed with concern the pos-

sible loss of their rights to the Lower Basin

should that development take place without some

assurance that their future needs in the river

would be protected.

oy

©

6

VI

To accomplish the required allotment and to

insure the Upper ‘Basin States that their rights

would not be impaired by the development in the

Lower Basin, the Colorado River Compact was

formulated and signed November 24, 1922, by

the several States of the Basin—Arizona, Cali-

fornia, Colorado, Nevada, New Mexico, Utah and

Wyoming. By specific act of Congress* and

Presidential Proclamation,‘ the Colorado River

Compact became effective June 25, 1929, though

Arizona at that time failed to ratify it. One of

the conditions to the requisite Congressional ap-

proval of the Compact was that “the State of

California, by act of its legislature, shall agree

irrevocably and unconditionally with the United

States and for the benefit of the States of Ari-

zona, Colorado, Nevada, New Mexico, Utah, and ;

Wyoming, as an express covenant and in con-

sideration of the passage of this act, that the

aggregate annual consumptive use (diversions

less returns to the river) of water of and from

the Colorado River for use in the State of Cali-

fornia, including all uses under contracts made

under the provisions of this act ‘and all water

necessary. for the supply of any rights which may

now exist, shall not exceed four million four

hundred thousand acre-feet of the waters appor-

® Boulder Canyon Project Act, 43 U. S. C. 617-et seq.

* 46 Stat. 3000.

1

7

tioned to the lower basin States by paragraph

(a) of Article III of the Colorado River com-

pact, plus not more than one-half of any excess

or surplus waters unapportioned by said com-

pact, such uses always to be subject to the terms

of said compact.’’® California complied with

that condition” It was not until February 24,

1944, that the State of Arizona ratified the Com-

pact.

VIL

8

By the Colorado River Compact there was ap-

portioned in perpetuity from the Colorado River

System to the Upper Basin and to the Lower

Basin respectively, the exclusive beneficial con-

* sumptive use annually of 7,500,000 acre-feet of

water. In addition there was given to the Lower

Basin the right to inergase annually its bene-

ficial consumptive use of water by 1,000,000 acre-

feet.’ The point of division between the Upper

543 U.S.C. 617c.

- © Statutes and Amendments to the Codes of California, °

41929 Extra Session, c. 16 “An act to limit the use by Cali-

fornia of the waters of the Colorado River in compliance_

with the act of Congress known as the ‘Boulder canyon

projectact? * * *.”

t Colorado River Compact, Article III (a), (b).

“Upper Basin” means those parts of the States of Arizona,

Colorado, New Mexico, Utah and Wyoming within and from

which waters naturally drain into the Colorado River above

Lee Ferry. . es

“T.ower Basin” means those parts of the States of Arizona,

California, Nevada, Nev Mexico and Utah within and from

236252—52——2

; 8

and the Lower Basin is Lee Ferry, 23 miles be-

low the common boundary of the State of Arona

and the State of Utah.’ Provision is likewise

made in the Compact that under prescribed con-

ditions water unapportioned by the Compact will

be allocated at any time subsequent to October,

1963.°

VIII

Though repeated efforts have been made ami-

cably to apportion among the States of the Lower

* Basin the waters allocated to them by the Colo-

rado River Compact, those effurts have failed.

Thus as evidenced by the Bill of Complaint of the

State rizona, there remains undecided the

questio the share of the water each State’

is to receive under the Colorado River Compact ~

and the Boulder Canyon Project: Act. Further,

as evidenced by the Bill of Complaint of the

_ State of Arizona the construction to be placed

upon certain provisions of the Compact is a mat-

ter of grave import having far-reaching effect

upon the respective rights of:the parties to the

controversy. Until those disputed issues are re-

solved, neither the United States of America nor

which waters naturally drain into the Colorado River Sys-

tem below Lee Ferry. : Q

“Lee Ferry” as noted in the text means a point on the main

stream of the Colorado River a short distance below the com-

mon boundary of the States of Utah and Arizona. —

' ®Colorado River Cumpact, Article II (f), (g).

* Colorado River Compact, Article III (a), (b), (c), (f).

9

the State of Arizona nor the parties named in

_Arizona’s Bill of Complaint may safely proceed

“with further construction of diversion works

from the main channel of the Colorado River in-

, volving consumptive use (domestic, agricultural,

industrial,- municipal) of water in the Lower

Basin of the Colorado River. How those issues

are resolved will greatly affect the existing and

future economy of the respective States of

Arizona and California.

IX

On October 11, 1948, the States of Arizona,

Colorado, New Mexico, Utah and Wyoming ap-

portioned percentage-wise among themselves the

7,500,000 acre-feet allotted to the Upper Basin

under the Colorado River Compact. Relying

upon the quantity of water accorded to them by

the Coldrado River Compact and their more

recent _<« covenant, the Upper Basin States have,

in cooperation with the United States, proceeded

to construct, are now constructing, and plan to

coristruct huge projects for the conservation and

utilization of that water.

~ Pursuant to the Boulder Canyon Project Act,

alluded to above, and tothe Reclamation Act of

1902,” and acts supplementary to them, the Secre-

10 Act of June 17, 1902, Ch. 1093, 32 Stat. 388, 48 U. S. C.

391. ,

10

tary of the Interior undertook the-construction of

gigantic projects involving the expenditure of

viftually one-half billion. dollars. These are the

objectives: which have been expressed by Congress

in connection with the development of the Colo-

_rado Rivér in the Lower Basin—the controlling of

-the floods, improving navigation, regulating the

. flow of the Colorado River, providing for storage,

for the delivery of the stored waters for reclama-

tion of public lands, and other beneficial uses.”

Thcluded in that development of the Lower Basin .

of the Colorado River are the following ¢om-

ponents: He s

a. Hoover Dam, at Black Canyvun, 325 miles

above the Mexican boundary. This is the princi-

pal structure of the Lower Basin impounding the

waters which.comprise Lake Mead.

b. Davis Dam, which is located 67 miles below

Hoover Dam. This structure implements the

regulation of the river by Hoover Dam, impounds

water for the generation of electricity and is in

furtheranée of the objectives of the Boulder Can-

yon Project Act. By express provision of the

Mexican Water Treaty alluded to subsequently,

the United States of America was required to

construct Davis Dam to make possible the river | -

regulation provided for in the Treaty.

a 4 :

4 43 U.S. C. 617. ; Aiea pe

11

c. Parker Dam, situated 155 miles below

Hoover Dam, creates Havasu Lake and is the

diversion point of the Colorado River Aqueduct

: of the Metropolitan Water District of Southern

California, which District cooperated in financing

the building of the structure; waters impounded

by it are utilized to generate electricity and it is

operated in conjunction with Davis Dam under

the Mexican Water Treaty.

d. Imperial Dam, 303 miles below Hoover Dam.

It is the headworks for the All-American Canal,

a Bureau of Reclamation Project in the State’ of

California, the largest irrigation diversion system

constructed in the Lower Basin development. It

is likewise a diversion structure for the Gila

Canal in the State of Arizona and for the Yuma

- Reclamation Project in the States-of Arizona and )

California. e, y

e. Laguna Dam, situated /approximately 308

miles below Hoover D m3, structure of the

Yuma Reclamation Project_mentioned above.

In additionto’thé principal structures men-

tioned, there bas. .beentonstructed and is now

operated a system! of generators, diversion works,

ditches and laterals ‘all built and maintained to

accomplish the purposes for which the Congress

of the United States adopted the Reclamation Act

, of 1902, the Boulder Canyon Project Act, and

; acts amending and supplementing those acts.°

a“

12

5

In accordance with the direction and authori-

zation contained in the Boulder Canyon Project

Act the Secretary of the Interior has entéred into

_-eontracts for the delivery of water stored by

_ Hoover Dam. Exercising that authority the Sec-

retary on behalf of the United States entered into |

a contract dated February 9, 1944, with the State

of Arizona, for the delivery annually of 2,800,000

acre-feet of water. Earlier contracts for the de-

livery annually of 5,362,000 acre-feet of water

were entered into by the Secretary with the de-

fendants named in the Bill of Complaint, Metro- :

| politan Water District of Southern California, |:

ny the Imperial Irrigation District, Palo Verde Ir-

om rigation District, and the Coachella Valley County |

Water District. Though a contract was origi- |

nally entered into with the defendant City of |

San Diego by the Secretary of the Interior, sub- 1

sequent arrangements with the Metropolitan — :

Water District. of Southern California by the

City of San Diego cf@used the original -contract

to be superseded. Though the defeudant City

of Los Angeles does not have a contract’ with the

Secretary of the Interior, it is a prime beneficiary

of the above-mentioned: contract of the defendant

Metropolitan Water District of Southern Cali-

fornia. In addition, premised upon the same

authority, the Secretary of the Interior has con-

tracted to deliver to the State of Nevada 300,000

\

eS ee wees

Re eee) es me ees eee =

—

eh ee ree Re ee Aer ene

13

acre-feet. Thus the contracts which the Secre-

tary of the Interior has. entered into in the

Lower Basin for the delivery of stored water

total 8,462,000 acre-feet annually. Contained in

substance in each of the contracts is a provision

that the United States shall, from storage avail-

able in the reservoir created by Hoover Dam,

deliver water at a point on the Colorado River

in accordance with the Colorado River Compact

and the Boulder Canyon Project Act.

» XII

a

-_In addition to the foregoing rights, interests and

obligations of the United States of America in the

Lower Basin of the Colorado River arising in

connection with the Colorado’ River Compact and

the Boulder Canyon Project Act, it has. many

others. Reference in that regard is made to the

Colorado River .Compact_\ which provides that

“Nothing in this compact shall be construed as

affecting the obligations of the United States of

‘America to Indian tribes.’’” Thus there is ex-

cluded from the operation of the compact’ the

rights of the United States to divert or to have

diverted water from the Colorado River and its

tributaries on behalf of the Indians. There is

annually diverted for or by the Indians from the

Colorado River and its tributaries in the Lower

Basin in excess of 750,000 acre-feet.and there are

12 Colorado River Compact, Article VII. ‘s WS

? .

14y .

asserted, in the aassaaial: claims to a greater

amount.

A principal structure across the main channel

of the stream in question is the Headgate Rock

Dam situated 14 miles below Parker Dam. That

structure diverts water for use in the Colorado

River Indian Reservation in the State of Ariz 5 ati |

Other large irrigation projects have been/ con-

structed ‘for the benefit of the Indians pn, the

tributari ies of that stream.

XLT

‘In addition {g the rights, interests, and obliga-

tions of the United States alluded to above, it

has international responsibilities to Mexico pur-

suant to a treaty whereby there was ‘‘guaranteed”

to Mexico an annual quantity of 1,500,000 acre-

feet of Colorado River water.” ;

XIV.

In addition to other responsibilities on the

stream, flood control on the Colorado-River is an

important function of the United States. Not

only°is it required to operate Lake Mead in a

manner which will afford flood control benefits —

but it is now building on the Bill Williams River

and the Gila River large structures which will -

be operated primarily for that purpose. -

* Treaty, Executive A, 78th Congress, 2d sess.; Protocol,

.Executive A, 78th Cong., 2d sess. Pursuant to the Mexican

Treaty Davis Dam was constructed by the United States.

/

}

/

f

16:

XV

\ Large Fish and Wild Life projects are owned

and operated by the United States on the Colo- |

rado River. Similarly, there are in the Lower

Basin numerous recreational areas under the

jurisdiction of the National Park Service. Ad-

ministered by the Bureau of Land Management

are large areas of public domain susceptible of

cultivation only if artificially irrigated. All of

those Federal functions in the Lower Basin of

the Colorado River are dependent upon that

source or its tributaries for water.

XVI

The aggregate of the various claims to rights to

the use of water in the Lower Basin of the Colo-

rado River far exceeds the eight million five

hundred thousand. acre-feet of water available to

that “Basin under thé Colorado River Compact.

Moreover, the State of Arizona asserts claims

: adverse to the rights to the use of water claimed

and exercised by the named defendants and brings

into question the rights and interests claimed and

exercised by the United States’ in the Lower |

Basin. In addition, the adverse claimants seek

different interpretations of the several provisions

of the Colorado River Compact, the Boulder —

Canyon Project Act, related laws and documents.

Premised upon the adverse claims of the par-

ties litigant to the waters allocated to the Lower

236252—52——_3

16

Basin of the Colorado River, it is necessary and

appropriate that the United States have declared

its rights and interests in the Lower Basin of

the Colorado River, and have them quieted as

against those adverse claims. It is also necessary

and. appropriate that the United States have de-

fined its obligations and responsibilities in the

Lower Basin of the Colorado River and have such

other and further relief as this Court may deem

proper.

Wherefore, the United States of America re-

spectfully prays this Court to permit it to file a

petition for intervention in this case subsequent

to the time that the defendants have filed their

answers to the Bill of Complaint of Arizona.”

JAMES P. McGranery,

Attorney General.

: WALTER J. CUMMINGS, Jr.,

Solicitor General.

-. DECEMBER , 1952.

The United States is unable to formulate a proper and

detailed petition for intervention until the defendants. have

made their formal claims and disclosed their positions in

their answers to the Bill of Complaint. -)

Yuthe Supreme Gaurtof the Ginited States

OcTOBER TERM 1952 ©

No. —, Original

StTaTE OF ARIZONA, COMPLAINANT

v. |

Srare OF CALIFORNIA, Palo VERDE TRRIGATION

District, IMPERIAL IRRIGATION DISTRICT, Coa-

CHELLA VALLEY County Water District, MErt-

ROPOLITAN Water District oF SOUTHERN

Cautrornia, Crry. or Los ANGELES, CALIFORNIA,

Crry or SAN Dreco, CALIFORNIA AND COUNTY OF

San Dreco, CALIFORNIA, DEFENDANTS

BRIEF OF THE UNITED STATES OF AMERICA IN SUPPORT

OF MOTION TO INTERVENE

PRELIMINARY STATEMENT

In the motion to intervene of the United States

of America: ‘the long-standing controversy re-

specting rights to the use of water in the Lower

Basin of the. Colorado River is reviewed. As re-

vealed in that motion, the State of Arizona has

for the fourth time sought relief from this Court

in regard to that controversy.’ Reference there

‘Motion on Behalf of the United States of America for

Leave to Intervene, par. IT.

(17)

eo

was likewise made to the\previous expression

of intention on the part of the United States

to intervene in the proceeding if Arizona’s motion

is granted; and to the declaration’ filed with

this Court by the State of California and the

other named defendants, which, having first re-

ferred to the need for a judicial determination

of the controversy on the merits, declared, based

upon the expression of intention by the United

States, that they would interpose no objection to

the granting of Arizona’s motion.

By a letter dated October 15, 1952, this Court

through its Clerk requested the United States of

America to express its views in regard to juris-

diction. In the light of the facts contained in the

~*~: motion of the United States and the Bill of Com-

plaint of the State of Arizona, those views will

be expressed in this brief.

To be emphasized at the outset is the fact that

there has been apportioned by the Colorado River

Compact from the Colorado River System in per-

petuity to the Upper Basin of that stream the

exclusive beneficial consumptive use of 7,500,000

acre-feet. of water. Similarly, there has been

apportioned from the Colorado River System

in perpetuity to the Lower Basin of that stream

the . exclusive beneficial consumptive use of

7,500,000. acre-feet of water. In addition to this

apportionment to\the Lower Basin, the Colorado

_ River Compact gives to the Lower Basin the right |

to increase its beneficial consumptive use of such

19 Boras

water by 1,000,000 acre-feet annually? By its Bill

of Complaint, the State of Arizona seeks only -

to have this Court assume jurisdiction in regard

**o rights to the use of water in the Lower Basin

of the stream in question. : , |

DISCUSSION

-]. THIS COURT IS INVESTED BY THE CONSTITUTION

AND CONGRESSIONAL ENACTMENTS WITH ORIGINAL

JURISDICTION OF CASES OF THE GENERAL CHARAC-

TER HERE INVOLVED

This Court has original and exclusive jurisdic-

tion of cases of the character which the State of

Arizona seeks to initiate against the State of Cal-

ifornia and the other named defendants, as is -

clear from the constitutional provisions pursuant

to which the Nation’s judiciary has been estab-

lished,” and from express congressional enact-

2 Colorado River Compact, Article IIT (a) and (b).

“Upper Basin” means those pa rts of the States of Arizona,

Colorado, New Mexico, Utah and Wyoming within and from

which waters naturally drain into the Colorado River above

Lee Ferry. Siazaes

“Lower Basin” means those parts of the States of Arizona,

California, Nevada, New Mexico and Utah within and from

which waters naturally drain into the Colorado River Sys-

tem below Lee Ferry. |

“Lee Ferry” means a point on the main stream of the

Colorado River a short distance below the common boundary

of the States of Utah and Arizona. See par. VII of the

Motion on Behalf of the United States of America for Leave

to Intervene.

8 Consiitution of the United States, Article III, Section 2,

Cl. 2. ,

a)

‘4 gies between two or mole States;

20

ment: ‘‘The Supreme Court shall have original .

., and exclusive jurisdiction of: (1) All controver-

* * nal 994

Repeatedly, this Court has assumed jurisdiction

where, as here, a controversy respecting an inter-

state stream has arisen.’ Under circumstances

resembling the present controversy, the Court ex-

ercised original jurisdiction over a controversy

between the States of Wyoming and Colorado con-

cerning their respective rights ‘o divert and use

water from an interstate stream.’ Earlier, juris-

diction was assumed by this Court regarding a

dispute between the States ofsColorado and Kansas.’

By Colorado’s pleading, the question was presented

as to whether it was empowered wholly to deprive

the State of Kansas of the benefit of water from +

a stream which rises in the State of Colorado and’

by nature flows through Kansas.. Jurisdiction

was likewise assumed in the injunctive proceeding

Initiated by the State of Wisconsin and others

against the State of Illinois and a public corpora-

tion of that State to prevent the withdrawal of

large quantities of water from Lake Michigan.*

Original jurisdiction by this Court has been as-

sumed in cases between States involving the pol-

‘98 U.S.C. 1251. :

5 See West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 26-7

(1950).

* Wyoming v. Colorado, 259 U. S. 419: (1922).

” Kansas v. Colorado, 185 U. S. 125 (1902).

® See also Kansas v. Colorado, 206 U.S. 46 (1907).

® Wesconsin v. Illinois, 273 U.S. 367 (1929).

21

lution of an interstate stream.” More recently, -

this Court entertained the bill of complaint in an

original proceeding by the State of Nebraska

against the State of Wyoming to have determined

the rights of the two. States in the waters of the

North Platte River.” :

Moreover, Arizona’s Bill of Complaint presents >

issues concerning the interpretation of the Gole- _-.. /,

rado River Compact, an interstate agreement. —

Such questions of compact construction are fed-

eral in nature, and if the suit is otherwise within

this Court’s jurisdiction, are properly to be de-

‘termined by this Court.” Since this is a suit by

one State against another State—and thus within

_ the Court ’s original jurisdiction—the issues of

interpretation of the Compact are properly before

it.” 3 :

From these authorities it is manifest that this

Court has accorded judicial cognizance to contro- —

versies between States involving issues of the

character presented by ‘Arizona in its Bill of

(omplaint. In. addition, however, to those deci-

10 Missouri v.llinois, 180 Us 5. 208 (1900). . aE

1 Nebraska v. Wyoming, 295 U. S. 40 (1935), 325 U. S.

589 (1944); see also J'exas v. New Mewico, 343 U. S. 982,

order entered December 23, 1952, No. 9 Orig. (1952).

12 West Virginia ew rel. Dyer v. Sims, 341 U. S. 22 (1950) ;

Kentucky v. Indiana, 281 U. 5. 1638 (1930) ; Hinderlider v.

La Plata, Co., 304 U.S. 92 (1987). 7 |

13 See Kentucky v. Indiana, 281 U.S. 163 (1930). In Part

LV, infra, we discuss the reasons for taking jurisdiction of

the present controversy. :

22

sions, are those regarding the controversy which

the State of Arizona seeks permission to bring

before this Court for settlement. Those decisions

are considered in some detail in the section which

follows.

Il. REVIEW OF EARLIER DECISIONS OF THIS COURT

RESPECTING THE CONTROVERSY BETWEEN THE STATES

OF ARIZONA AND CALIFORNIA o

The: earlier decisions respecting Arizona’s ef-

forts to have this Court resolve the long-standing

controversy to which Arizona’s Bill of Complaint

relates and which California has expressed its de-

sire to have determined on its merits, .and the

factors giving rise to them, will be reviewed in the

order in which they were rendered by this Court.

_ . Mn October 13, 1930, Arizona filed an original

Bill of Complaint against the then Acting Séere-

tary of the Interior, Ray Lyman Wilbur, and the

other Colorado River Basin States of California,

Nevada, Utah, New Mexico, Colorado and Wyo-

ming.’* Among other things, the Bill challenged

the constitutionality of the Boulder Canyon Proj-

ect Act.” Arizona likewise prayed that the

Secretary of Interior and the other named de-

fendants _. permanently enjoined from carrying

out the provisions of the last-mentioned Act. All

of the defendants moved to dismiss Arizona’s

* Arizona v. California, 283 U. S. 423 (1931).

_ * Act of December 21, 1928 (45 Stat. 1057), 43 U.S. C.

617 et seq.

23

Bill on the grounds that: (1) the United States,

not joined in the proceeding, was an indispensable

party ; (2) the Bill did not present a ease of which

this Court would take judicial cognizance; (3) the

action of the defendants would not invede vested

rights of Arizona or its citizens; (4) the Bill did

‘not state facts which constituted a claim against

any of the defendants.

Mr. Justice Brandeis, speaking for the Court,

took judicial notice of the navigable character of

the Colorado River ‘and declared’ the Boulder

Canyon Project Act to be constitutional. Con-

tinuing, the opinion declared that Arizona could

not successfully contend that there was an actual

or threatened invasion of its rights. In that con-

nection, Mr. Justice Brandeis observed: ‘When

the Bill was filed, the construction of the dam

[Hoover Dam] and reservoir had not been com-

_menced. Years must elapse before the project

is completed.”’* In the light 01 those facts, Ari-

zona’s Bill was ‘‘dismissed without prejudice to

an application for relief in case the stored water

1s used in sucly away as to interfere with the

enjoyment by Arizona, or those claifhing under it,

of any rights already perfected or with the right

of Arizona to make additional legal appropri-

ations and to enjoy the same.’’”

Since that dismissal, immense changes have

transpired in the Lower Basin of the Colorado

16 Arizona v. California, 283 U.S. 423, 463 (1931).

11 Arizona v. California, 283 U. S. 423, 464 (1931).

24

‘River. Reflecting that fact are the allegations -

contained in the motion of which this brief is in

support.* There, in some detail, are reviewed the

structures which have, with minor exceptions,

been constructed since that dismissal. A stream

which in a state of nature fluctuated with great

violence is now a stream subject to virtually com-

plete regulation. Hoover Dam and the other

structures on the main channel have effectuated

that control with the attendant drastic change in

the regimen of the stream. 0

Following the dismissal of the action reviewed

above, Arizona, on February 14, 1934, moved for

leave to file in this Court an original Bill to per-

petuate testimony in actions arising out of the

Boulder Canyon Project Act it would commence

in the future against the State of California.”

In its opinion, the Court observed that’ while no

Bill to perpetuate testimony had been previously

filed with it, there is no reason-why it did not

have jurisdiction to entertain such a bill ‘‘in aid

of litigation pending * * *, or to be begun

here.””® The Bill, however, was dismissed for

there was no showing that the testimony involved

was competent or niaterial evidence.

At the time that the opinion just discussed was

entered, sharp conflict arose over the proposed

** Motion on Behalf of the United States of America for

Leave to Intervere, par. X.

*” Arizona v. California, 292 U, S, 341 (1934).

* Arizona v. California, 292 U.S. 341, 347, 360 (1934).

25

construction of Parker Dam,” now an integral

part of: the development of the Lower Basin of

the Colorado River. That conflict culminated in

the United States having recourse to this Court

to enjoin Arizona’s interference with the com-

pletion of the structure in question.” The com-

- plaint, however, was dismissed by reason of its

failure to declare authority for the construction

of the dam. Congress subsequently granted the

required authority.

' Continuing its effort to have reviewed its claim |

to Colorado River water, Arizona, on November

25, 1935, moved this Court for leave to file a bill of

’ complaint which in substance sought an equitable

apportionment of the rights to the use of the -

waters of the stream in question among the States

of the Colorado River Basin.” In dismissing

Arizona’s motion, this Court reviewed at length

‘the status occupied by the United States regard-

ing the Colorado River. Emphasiz.s was the fact

that no decree equitably apportioning the rights

to the water as prayed was possible without de-

termining the rights of the United States. Such

an apportionment, declared the Court, ‘‘could not

be determined without ascertaining the rights of

the United States to dispose of that wa-

ter * * * without challenging the disposi-

- 21 Motion on Behalf of the United States of America for

Leave to Intervene, par. X.

22 United States v. Arizona, 295 U. S. 174 (1935).

3 Arizona Vv. California, 298 U.S. 558 (1936).

tions already agreed to by—the Secretary’ $ con-

tracts with/the California corporations, and the

provision as well of Sec..5 of the Boulder Canyon

Project Act that no person shall be entitled to the

stored water except by contract with the Secre-

tary [of the Interior].” * Declaring that those

matters -pertaining to the United States could .

not be determined in a proceeding to'which it was

not a party, the Court denied Arizona’s motion

since the bill of complaint ‘‘could only be dis-_

missed because of the absence of the. United |

States as a party.”* : (

As this review shows, the State of Arizona has

been repeatedly unsuccessful in securing judicial

cognizance by this Court of the controversy which

it asserts in its Bill of Complaint. But many

elements which previously militated against that

hearing are no longer present. In the succeeding

‘section, certain of those factors are discussed.

Il. PRESENT LEGAL STATUS AND DEVELOPMENTS

WHICH HAVE BEARING UPON THIS COURT’S

JURISDICTION — ms

Since this Court denied Arizona’s motion for

leave to file a bill of complaint for the equitable

apportionment of the Colorado River,* drastic

and far-reaching changes have come about. Not

the least of those changes are the willingness of

** Arizona v. California, 298 U.S. 558, 571 (1986).

* Arizona Vv. California, 298 U.S. 558, 572 (1936).

6 298 U. S. 558.

©

6 y . ot 7 . s - *

. . . f *

wd / /*

27°

the United /States to intervene and the willingness

of the State of California that the long-standing

controversy be resolved tn its merits. . |

Quite aside, however, frorh the revised attitude |

of the United States and_ California, other

changes of significance have transpired. Arizona

~ jhas ratified the Colorado River Compact and has

y contracted for water with the Secretary of the

Interior under the terms of that Compact and

the Boulder Canyon Project Ast.” __

Great impounding dams have been constructed

in the main channel of the Colqrado River and.

large diversion works have been constructed

which withdraw annually from the stream* mil-

lions of acre-feet of water.“ Arizona charges

that in th yon 1951 there was diverted by the

claimants to water in the State of California a

quantity of water exceeding the 4,400,000 acre-

feet and that_anticipated diversion for 1952 will

She greater than the quantity previously diverted.

Arizona, in its Bill of Complaint, charges those

diversions to be in derogation of its rights.”

Moreover, there exist diversion works in Cali-

_ fornia capable of an annual draught on the river

27 Motion on Behalf of the United States of America for

Leave to Intervene, par. VI; par. XI. :

8 Motion on Behalf of the United States of America for

Leave to Intervene, par. X.

2 Arizona v. California, Pending Bill of Complaint, par.

XXVI.

= ; ; Pe 3

asia -~ ¥ —

plaint relates solely to the Lower Basin. ~Simi-

larly, the Motion of the United: States is limited

to that area. : \

Under the Compact and the Bouldar Canyon

Project“Act, each Basin is proceeding to develop

‘its respective areas in reliance upon that—alloca-

tion. It is significant, however, that the’ Lower

Basin of the Colorado River has developed far

more rapidly than the Upper Basin.

- The aggregate of the claims of rights to the

use of water in the Lower Basin of the Colorado

River greatly exceeds the firm quantities of water

available to it.. Otherwise, stated, the 8,500,000

acre-feet accorded to the’ Lower Basin is: in-.

sufficient to meet existing claims.’ Further de-

velopment of consumptive uses of the Lower

Basin of the Colorado River may not safely

proceed until the long-standing dispute to which |

this suit pertains is resolged. Mr. Justice

Brandeis in an earlier phase of: this controversy

summarized as follows the charges then made: by

Arizona respecting the need for a determination

of rights in the Lower Basin: ‘The cost of in-—

stalling the dams, reservoirs, canals, and distribu-

tion works required to effect any diversion, will

be very heavy; and financing on a large scale is

indispensable. Such financing will be impossible

unless it clearly appears that, at or prior to the

_ time of constructing such works, vested rights

to the permanent use of the water will be ac-

31

quired.” That statement reveals.the true char-

acter of the ‘controversy here presented. For in ®

the light of the present controversy, there can be

no certainty in the Lower Basin respecting claims

to vested rights to the permanent use of water

from the Colorado River for consumptive

purposes.” a ,

» . It is recognized that this Court is reluctant to

take and determine interstate water controversies

“unless the dispute is important, a judicial solu-

tion appears preferable, and other means of

settling the controversy are, as a matter of

reality, unavailable.” But it :is. likewise sug-

gested that this case falls within the criteria for

assuming jurisdiction which the ‘Court has “

hitherto applied. Fer example, there is here’

presented every element which caused the Court

to assume jurisdiction of another recent contro-

versy involving an interstate stream.” Those

factors were alluded to in the opinion in the

‘following manner: | | a

[1] ‘“‘A genuine controversy exists.”’ Mani-

festly, Arizona’s pleading, the long-standing con-

tentious struggle between ‘the conflicting States,

and the interests of the United States, resolve

8° Arizona V. California, 283 U \S. 423, 459 (1931).

8 Motion on Behalf of the United, States of America for

Leave to Intervenue, par. VIII. we

% See West Virginia ex rel. Dyer v. ms, 341°0. S. 22, 27

(1950).

8° Nebraska v. Wyoming, 325 U. S7589, -608 (1944).

4

a.

32 *,

any deubt regarding - the, _peseneo of tite e

controversy. Z a |

[2] “The States: have not been able ‘to settle '

their differences by compact.’’ That fact is in-

disputable in the present instance and it would

appear .futile to remit the parties to further

negotiation.”

[3] ‘‘The areas involved.are arid or semiarid.

Water in deperidable amounts is~essential to the

maintenance of the. vast. agricultural enterprises

established on the various sections of the river.”’

With greater emphasis that statement could have

been written respecting the Lower Basin of the

Colorado River.

[4] ‘The Kendrick Project Slainly j is an exist- ©

“ing threat to senior appropriators downstream.”’

With respect to this element of a present threat

as a factor in determining the existence of a

. justiciable issue, reference is made to these facts:

Diversion works in California are capable of

diverting 8,000,000 acre-feet; Arizona has taken —

initial steps to construct the Granite Reef Proj-

ect; there has been guaranteed annually to Mex-

ico 1,500,000 acre-feet; large claims are asserted

on behalf of the Indians whose rights are ex-

cluded from the operation of the Colorado River

Compact ; contracts have been entered into by the .

‘© Motion on Behalf of the United States of America for

Leave to Intervene, par. VIII.

“ Arizona v. California, Pending Bill of Complaint, par.

XXI.

et

Secretary of the Interior for the delivery of

8,462,000. acre-feet annually;“ sharp. conflict

exists over the interpretations to be placed upon

the Colorado River Compact and the basic laws

upon which the Lower. Basin of the Colorado”

River has been and is now being developed. |

Those contentious elements must be viewed

_ against the background of an available supply of

~ . 8,500,000 acre-feet apportioned to the Lower

Basin. In the light of those: factors, it is re-

spectfully submitted that there is present a far

~ more. acute situation in the Lower Basin of the

Colorado River than that which prevailed in the

Nebraska v. Wyoming case conterning which this

., Court took judicial cognizance.

In still another case, jurisdiction was assumed =~

by this Court over a controversy between States

involving an interstate stream where the aggre-

gate of the claims to water from the stream was

found to exceed the supply available in the

stream.® Respecting that case, this Court coni- |

mented: “‘* * * where there is not enough

water in’ the“¥iver to satisfy the claims asserted

against it; the situation is not basically different

“~-from that where two or more persons claim the

right to the same parcel of land.” “ In the present

case, numerous and varied claims are made whieh

exceed the quantity of water available to the

42 Motion on Behalf of the United States of America for

Leave to Intervene, par. XI.

48 Wyoming ¥. Colorado, 259 U. S. 419 (1922).

“ Nebraska v. Wyoming, 325 U. S. 589, 610 (1944).

\

34

Lower Basin under the Colorado River Compact.

The entire economy of the Lower Basin of that

stream is directly and immediately affected by the

manner in which the present conflict is resolved.

Few cases of this character have presented more

complex questions in greater need of determina-’

_ tion.” 6 ;

Finally, the be to jurisdiction which this Court

found in the earlier suit “—the indispensability

of the United States—has been removed. The

United States is willing, if permitted, to inter-

vene in the litigation and to file a petition for

intervention seeking a declaration of its rights

and obligations. That bar being rémoved, there is

full jurisdiction of Arizona’s suit against Cali-

fornia and the other defendants.” ‘There is no

question, of course, that the Court has original

jurisdiction of a claim or suit by the United

States against a State.”

‘This case fully meets the standard laid down by Mr.

Justice Holmes, speaking for the Court, in Missouri v.

Illinois, 200 U. S. 496, 521 (1905) : “Before this Court ought

to intervene the case should be of serious magnitude, clearly

and fully proved, and the principle to be applied should be

one which the court is‘prepared deliberately to maintain

against all considerations on the other side.”

“4 298 U.S. 558 (1936).

‘7 See Arizona v. California, 298 U. S. 558, 572 (1936) ;

Texas v. New Mexico, 343 U.S. 932; order entered December

23, 1952, No. 9, Orig. (1952).

« United States v. California, 332 U. S:.19 (1947) ; United

States v. Louisiana, 338 U. S. 806 (1949), 389 U. S. 699

(1949) ; United States v. Texas, 338 U. S. 806 (1949), 339

U.S. 707 (1949).

?«

.

35

@ ——s CONCLUSION

apeciay this Court is respectfully re- .

quested to grant the motion of the United Sta es

to intervene, permitting it to file its pleadings

in intervention after the defendants named in

Arizona’s Bill of ii a —_ filed stheir re-

sponsive pleadings.”

‘Respectfully submitted;—

JaMES P. McGRANERY,

Attorney General.

Watrer J. Cumines, Jr,

Solicitor General.

DECEMBER _ , 1952. ae ,

49 See Motion on Behalf of the United States of America

for Leave to cinta p. 16, note 14.

$5

U S$ GOVERNMENT PRINTING OF TICE: 198?