# Motion on Behalf of the USA — Arizona v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion on Behalf of the USA
- **Published:** January 1, 1962
- **Citation:** 370 U.S. 930

## Text

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

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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
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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

\

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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?

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0200%3A03. Public record. Not legal advice.