Brief Opposing the Motion of the Defendants — Arizona v. California

STATE OF ARIZONA,

vs.

STATE OF CALIFORNIA, PALO VERDE IRRIGA- =—

TION DISTRICT, IMPERIAL IRRIGATION DIS- —...

TRICT, COACHELLA VALLEY COUNTY WAT-

ER, DISTRICT, METROPOLITAN WATER DIS-

TRICT OF SOUTHERN CALIFORNIA, CITY OF =—_—|—

LOS ANGELES, CALIFORNIA, CITY OF SAN

DIEGO, CALIFORNIA, AND COUNTY OF SAN

DIEGO, CALIFORNIA,

- UNITED STATES OF AMERICA,

STATE OF NEVADA,

Complainant, eg

aw. y

BRIEF OF THE STATE OF UTAH OPPOSING THE

MOTION OF THE CALIFORNIA DEFENDANTS —

TO JOIN THE STATE OF UTAH ASA

PARTY TO THIS ACTION.

E. R. CALLISTER

- _ Atterney Gener,

of the State of bal

State Capitol Building,

Salt Lake City, Utah

Assistant Attorney General dé

of the State of Utab, 54

State Capitol ee

Salt Lake City, Utah _ se Sie

Attorneys for the Respondent

Rtate at Thich Ser. :

a

CONTENTS —

INTRODUCTORY STATEMENT es Nee

STATEMENT OF THE ISSUES RAISED ........

SUMMARY OF ARGUMENT ...............-.

POINT 1. A DECREE DETERMINING THE

PRESENT CONTROVERSY CAN BE EF-

FECTIVE IN THE ABSENCE OF THE

STATE OF UTAH ALTHOUGH A PARTY |

TO THE COMPACT ....... ere FOU en ere.

POINT 2. UTAH IS NEITHER A NECESSARY

NOR AN, INDISPENSABLE PARTY FOR

THE REASON THAT THEY SHARE IN- |

TERESTS IN THE LOWER BASIN ..........

POINT 3. ABSENCE OF UTAH AND THE

- §TATES OF THE UPPER DIVISION DOES

NOT PRECLUDE AN EFFECTIVE INTER- °

PRETATION OF THE ENACTMENTS AND |

- COMPACTS KNOWN AS LAW OF.

THE RIVER UPON THE GROUND THAT ~

THOSE ABSENT STATES A

PARTY BENEFICIARIES TO ”

" UTORY ENACTMENTS OR STATUTORY

OS ee. SNe ee

POINT 4. THERE IS NO JUSTICIABLE CON-

TROVERSY EXISTING BETWEEN RE-

SPONDENTS AND THE UNITED STATES .

REQUIRING THE PRESENCE OF RE-|

SPONDENTS AS PARTIES TO-, THIS |

A Pca \

CONCLUSION ........ Loto integer

Co

CON TENTS—Continued i

CasES AND AUTHORITIES CITED

Page

Alabama v. Arizona, 291 U. S. 286, 291, 54 S. Ct. i

Rs ee ee 11 |

Arizona v. California, et al., 283 U. S. 423, 463, 464,

i omy ES 4 os eee a 11

Colorado v. Kansas, 320 U. S. 383, 88 L. Ed. 116

at p.\124....... Sk! eae ree 7,11, 13, 16, 19, 21

Connecticut v. Massachusetts, 282 U. S. 660, 669, F

ie ee ee eerie 11,21 J

Kansas v. Colorado, 206 UV. S. 46, 51 L. Ed. 956, f

Us ee oe ae, Sos g |

Missouri v. Illinois, 200 U.S. 496, 521, 26 S. &4.

268, 270. =: ee ere ae ee OES 11,20 F

Nebraska v. Wyoming and Colorado, 325 U. S. 589, ae

eee eS 4

Nebraska v. Wyoming, 295 U. S..40, 55 S..Ce. f :

Re a 10, 13, 15, 16 }

Nebraska v. Wyoming, 296 U. S. 553, 56 S. Ct. 369.. 106

Nebraska v. Wyoming, 325 U. S. 589, 591-2, 65 S.

Ce 1352, 1338 ..... cee Nar RED se ee rae 10,20 &

New Jersey v. Sargent, 296 U. S. 328, 338, 46 S. Ct.

ee NO 2 ee Rie. oH

New York v. New Jersey, 256 U. S. 296, 309, 26 S. - 2

i ig 11

North Dakota v. Minnesota, 263 U. S. 365, 374, 44

a GS. See. SSRN ENE are pot an at is:

\ U.S. v. Appalachian Power Company, 311 U. S. 377,

423--61-§; C0299, 306. 2... ee wee 11

Washington v. Oregon, 214 U. S. 205, 218,'53 L. |

Ed./ 969, 971, 29 S. Ce. 631 ........ te ee 16, 20.

Washington v. Oregon, 297 U. S. 517, 522, 56 S.

Es tb pk he ties ee eR 11

CONTENTS—Continued

Bitts, HearINGs AND DocuMENTS ; pS

; | Page *: *

aah: Sieh COMME, «06 ee: ee

eybss, thnk Cone... 6.06 eee 3

Hearings on H. R. 4449, page 697, Serial No. 11 be-

fore Irrigation and Reclamations Subcommittee

of the House Committee on Interior and Insular

Affairs, 83rd Cong....-..--:4-----+-> Wei ae 4

INTERSTATE Compacts

Colorado River Compact;‘H. Doc: 717, 80th Cong.,

2d Sess., A17 (19489 or

Me a aie Le ee 4

Wi ca ieee oe

Wet TN oe i ir ex ee 12

Upper Colorado River Basin Compact (63 Stat. 31) .. 13, 18

STATUTES

Boulder Canyon Project Act (45 Stat. 1057) ........ ‘17

California’s Self-Limitation Act, Ch. 16, Calif. Stat-

utes, 1929, p. 38 Mean ahh ER Fe ET 6, 17, 18

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1954

No. 10 Original

STATE OF ARIZONA,

Complainant,

vs.

_ STATE OF CALIFORNIA, PALO VERDE IRRIGA-

TION DISTRICT, IMPERIAL IRRIGATION DIS-

TRICT, COACHELLA VALLEY COUNTY WAT-

ER, DISTRICT, METROPOLITAN WATER DIS-

- TRICT OF SOUTHERN CALIFORNIA, CITY OF

LOS ANGELES, CALIFORNIA, CITY OF SAN

DIEGO, CALIFORNIA, AND COUNTY OF SAN

DIEGO, CALIFQRNIA,

| Defendants.

UNITED STATES OF AMERICA,

| Intervener,

STATE OF NEVADA,

Intervener.

BRIEF OF THE STATE OF UTAH OPPOSING THE’:

M@TION OF THE CALIFORNIA DEFENDANTS:

TO JOIN THE STATE OF UTAH ASA |

PARTY TO THIS ACTION.

INTRODUCTORY STATEMENT

On July 15, 1954, the present motion was filed by the

California defendants, ,asking the joinder. of the States of

2

Utah, New Mexico, Colorado, and Wyoming. On October

26, 1954, this court granted those four statés leave to file

briefs responsive to that motion.

While the motion is ‘unanimously opposed by those fF

states respondent to it, their respective briefs must deal

with slightly divergent considerations since their positions, f

differ, to a limited extent, under the Colorado River Com-

pact, (Exhibit A, Arizona’s Bill of Complaint) herein-

after referred to as “Compact.” While all four respondents

are “States of the Upper Division” (Article II (c), Com- f

pact) the states of Utah and New Mexico lie partially with- [

in the Lower Basin (Article II (9) Compact) and are, to }

the extent that parts of those states lie in areas naturally |

draining into the main stream of the River below Lee Ferry’, }

states of the Lower Basin. ; —

Since Utah denies that they are either necessary or in-

dispensable parties by virtue of interests éither as a state of |

the Upper Division or as a:state lying in part in the Lower |

Basin, it is her election to file a separate brief and to traverse, |

separately and affirmatively, the contentions that Utah is a >

necessary party under either characterization; however, |

Utah does join in and subscribe to all the factual state- |

ments and references, and all the legal arguments and cox

clusions contained in the briefs of the other respondent\)

states, Colorado, New Mexico and Wyoming.

STATEMENT OF THE ISSUES RAISED

On January 19, 1953, the State of Arizona was granted

her Motion for Leave to File a Bill of Complaint against

the several California defendants. In the Bill £44 pursuant

‘Although Utah will show that this interest in terms of percentage .

of flow is infinitesimal, Infra page 16.

3

to that Order Arizona asked this court to determine three

issues:

(1) Is the State of California limited to the

annual beneficial consumptive use of 4,400,000 acre

feet of the waters of the Colorado River System ap-

portioned to the Lower Basin by the Compact?

(2) In what manner is “beneficial consump-

tive use” of the waters of the Colorado system in the

Lower Basin to be measured?

(3) How are evaporative reservoir losses from

Lower Basin mainstream impounding facilities to

be charged?

(See Arizona’s Motion for Leave to File Bill of Com-

plaint and Bill of Complaint, Par. XXII, page 25.)

In response to this Motion and to the Bill of Complaint,

California raised three additional questions:

-

(a) Is Arizona a party to and bound by the

Colorado River Compact? 3

(b) May Arizona be a beneficiary under the

California Limitation Act?

(c) What are the priorities of contract be-

tween the United States and water users in the

Lower Basin?

It may clearly be seen from the issues thus drawn that

the only purpose of the action was the determination, as

between the two states in the Lower Basin, Arizona and —

California, of the water use to which each’ respective siate

is entitled under the Colorado River Compact, the California

Limitation Act, and the various other enactments constitut- _

ing the Law of the River. —

Pending before the 83rd Congress were two measures,

S-1555 and HR-4449, which were companion bills to

4 .

authorize the Upper Basin Stosiige Project consisting of a

reclamation program for storage of waters in the Upper

Basin of the Colorado River. On January 26, 1954, in a

hearing before the Irrigation Subcommittee of the House

Committee on Interior and Insular Affairs, Mr. Northcutt

Ely, counsel for the defendant State of California, appeared

before the Subcommittee asking it to defer any action upon

the bill then being considered until after a determination of

the issues raised by the present controversy. (See Hearings

on H.R. 4449, pagé 697, Serial No. 11 before Irrigation and

Reclamation Subcomiiittee of the House Committee on In-

terior and Insular Affaixs, 83rd Cong.) This Subcommittee

rejected Mr. Ely’s arguments favoring deferral of the

measure and the bill came dangerously, insofar, as defend-

ants were concerned, close to passage but failed of enact-

ment due to early adjournment of the Congress.

On April 5, 1954, in answer to a petition of the United

States to intervene in the within action, the State of Cali-

fornia had summarized the controversy (see Answer of

California defendants to Petition in Intervention on behalf

of the United States of America, page 67) which summary §

we paraphrase as follows: ~

(I) The quantities of water in controversy;

Arizona seeks to quiet title to the consumptive bene-

ficial use of 3,800,000 acre feet per annum of the

waters of the Colorado River System—California as- ©

serts a right to the beneficial consumptive use in Cali- ©

fornia of 5,362,000 acre feet per annum; Nevada

seeks to quiet title in herself to 539,100 acre feet per

annum. The states differ in their definition of ‘‘bene-

ficial consumptive use.” |

(Il) The ultimate issues; does the United

States have rights “as against the parties to this cause,”

(meaning those parties at the time California re-

5

sponded to the United States’ Petition). Is Arizona

entitled to a decree quieting title to 3,800,000 acre

feet per annum? Is California entitled to a decree

permitting the beneficial consumptive use of 4,400,-

000 acre feet per annum plus one-half of the surplus

waters unapportioned by the Compact and the rights

awarded California by contracts between the. United

States and the defendant public agencies of and

including California?

While California now contends, in her analysis of the

issues raised, that these questions.may not be effectively de-

termined without concurrently determining the rights and

obligations of the Upper Division states, nevertheless, the

actual analysis by California of the issues in the lawsuit on

April 5, 1954, in no. way extended to any of those states

not then parties to the action. California’ s only reservation

on that question was a general statement that decisions on

those points would affect absent states. (p. 75, California’s:

Answer to United States’ Petition) «

On July 15, 1954, however, California filed the present

motion to make the statés of the Upper Basin and of the Up-

per Division parties to this action, attempting materially to

broaden the scope of this suit beyond their previous analysis

of the necessary issues.

SUMMARY OF ARGUMENT

The State of Utah is neither a necessary nor an in-

dispensable party for the reason that they are a.

party to the Compact.

The State of Utah contends that this is not an action to

determine any rights of Upper Basin States; that this is #d¢

an action in which the rule, requiring all parties to a litigated

6

contract to be present in the action, is applicable for the

/ feasons that:

(1) ‘That rule is not available against a sove-

reign state in the absence of present or imminently.

threatened injury, of which there i is. none alleged or

in fact in existence; and

(2) This is not an action based primarily upon

the Compact.

T he State of Utah is neither a necessary nor an in-

dispensable party by reason of its interest in the

Lower Basin.

For their share of the waters of the Lower Basin the

State of Utah looks to, and is satisfied with the recagnition.

of their rights by, the State of Arizona, with whom they

are presently negotiating for a compact. The inclusion of

Utah as a party to this action would effectively and absolute-

ly preclude consummation of any such apportionment by

agreement, the medium through which all inter-state mat-

ters or disputes should be resolved.

The State of Utah is neither a necessary nor an in-

dispensable party as a beneficiary of California’s

Self-Limitation Act.

The only dispute in this action is the question whether

or not Arizona is a beneficiary, or entitled to rely upon, that

Act. ag

Utah is neither a necessary nor an indispensable

party by reason of the claims of the United States.

The State of Utah is a party to the Upper Colorado

River Basin Compact by which it has been agreed that uses

by-the United States in the State of Utah ; — as in all other

-

Upper Basin states — will be charged as a use by the State

of Utah. |

The purpose and motive of the present motion by

the California defendants are improper and ought

not to be entertained.

. ARGUMENT

The State of Utah will seek to answer the contentions

of the State of California in the order of their appearance in

California’s Motion: A

POINT i

A DECREE DETERMINING THE PRESENT

CONTROVERSY CAN BE EFFECTIVE IN

THE ABSENCE/OF THE STATE OF UTAH

ALTHOUGH A PARTY TO THE COMPACT.

In California’s brief supporting her motion to join,

numerous decisions /jare collected which hold, admittedly,

that in actions upon contracts, decrees construing the terms -

thereof cannot be entered unless all parties thereto are pres-

ent in the action. These decisions are all applicable in their

own peculiar set of facts but California cites no cases—and

there are none—holding that the indispensable or even the

necessary party rule is applicable with respect to compacts

between states as quasi-sovereigns. It is respectfully sub-

mitted that in this case neither the issues nor the facts even

closely approximate the burden required of the state which

asks relief against another state. The extent of that burden

is announced in Colorado v. Kansas, 320 U. S. 383, 88 L.

Ed. 116 at’p. 124: | a

“Not ev ety matter which would warrant resort

to equity by one citizen against another would just-

8s ¥

ify our interference with the action of the state, for

the burden on the complaining state is much greater §

than that generally required to be borne by private

parties. Before the court will intervene the case

must’ be of serious magnitude and fully and clearly |

proved. And in determining whether one state is

using or threatenirig to use more than its equitable |

share of the benefits of a stream, all the facts which

create equities in favor of one state or the other must |

be weighed as of the date when the controversy is [

mooted.” - 3

In that case an attempt was made by Kansas to show |

injury resulting from a material increase in the river deple-

tion by Colorado of the Arkansas River since the adjudica- f

tion of Kansas v. Colorado (206 U. S. 46, 51 L. Ed. 956, 27 ;

‘S.Ct. 655) in which a bill brought by the state of Kansas |

was dismissed because Kansas was not entitled to “present |

relief;” it being expressly reserved, however, that: the dis- |

missal was without prejudice to the right of Kansas to initi- 7

ate new proceedings “whenever it shall appear that through F

a material increase in the depletion of the waters of the |

Arkansas River by the defendants, the substantial interests of |

Kansas: are: being injured to the extent of destroying the |

equitable apportionment of bénefits between the two states” |

(206 U. S. at page 117-118). That case was decided in 1907 F

and Kansas claimed in 1943 that the condition of the 1907 |

decree: had been fulfilled, ie. injury to the substantial in- 7

terests of Kansas by Colorado uses in excess of those occurring |

in "1907. Zid

It might be said that. those two states, since the 1907 F

decision, were operating under a “decree of the court” sub- f

ject t6 a reopening at a future time when present injury |

existed. An attempt to reopen that decree was denied Kan- |~

sas upon the lack of sustaining the burden that Kansas was |

presently injured by Colorado depletion of the Arkansas 2

; cn

9

River. It might be contended that the two states, operating

under a decree of the court which indicated a formula for

equitably apportioning the benefits of the stream, were

operating under.a governing instrument similar to the Com-

pact under which signatory states of the Colorado River

Compact are presently operating, and that although injury

was threatened the court would still refuse to make a definite

apportionment of the river in either second feet or acre feet

in the absence of a showing that a state was presently in-

-jured by exces depletion of the waters of the river.

‘California cites at the conclusion of her motion the case.

of Nebraska v. Wyoming and Colorado, 325 U. S. 589, 89

L. Ed. 1815. Colorado, in that case, made a motion that

they be dismissed and California cites, as favorable to their

position, the refusal of the court to grant that motion.

However, the decision expressly says, 325 U. S. at 609:

“Out-of-priority diversions by Colorado have

had an adverse effect downstream. * * * This

alone negatives the absence of present injury” (Em-

phasis added).

Further, on page 1827 (325 U. S. at 610):

“Colorado v. Kansas, 30 U. S. 353, 88 L. Ed. 116,

64 S. Ct. 176, is not opposed to this view. That case

turned on its special facts. It is true that an ap-

portionment of the waters of an interstate river was

denied in that case. But the downstream state (Kan-

sas) did not sustain the burden of showing that since

- the earlier litigation between the states there had been

_ a material increase in the depletion of the river by

Colorado. * * * We held that in those circum-

stances a plain showing was necessary of increased

depletion and substantial i injury that would warrant

(ae. Se

10

California at page 51 of her brief further contends that

“all parties having interests in the Colorado River System

waters must be joined.” This statement is not in accord with

previous rulings of the United States Supreme Court. In

Nebraska v. Wyoming, 295 U. S. 40, 55 S. Ct: 568, an

action by Nebraska seeking equitable apportionment of the

waters of the North Platte River, the defendant Wyoming

moved to dismiss under her contention that the State of

Colorado was an indispensable party having an interest in

the North Platte River System, and in whose absence the

controversy could not be effectively settled. This court at

295 U. S. page 43, stated:

“The contention is without merit. Nebraska

asserts no wrongful act of Colorado and prays no

relief against her. We need not determine whether

Colorado would be a proper party or whether at a

later stage of the cause pleadings or proof may dis-

' + close a necessity to bring her into the suit.’

By a subsequent amendment Nebraska alleged that

- Colorado “by diversions of water from the river for irriga-

tion purposes * * * fare} depriving Nebraska of

water to which she is equitably entitled” (Nebraska v.

Wyoming, 325 U. S. 589, 591-2,:65 S. Ct. 1332, 1338).

Upon the basis of the amended complainit the court joined

Colorado as a party. Nebraska v. Wyoming, 296 U. S. 553,

56 S. Ct. 369. 7

A thorough analysis of the voluminous pleadings filed

herein discloses absolutely no allegation that injury is threat-

ened either by or to the State of Utah either as a state of the

Upper Division or as a state of the Upper Basin entitled to

limited participation in the ““ccommon-fund” of waters. al-

located by the Colorado River Compact to the Lower Basin.

No such allegation—under the actual facts—could i in good

faith be made. -

rs]

11

In numerous decisions this court has held that declara-

tory decrees, determining rights to interstate or local waters

which have not yet béen and which nzay never be appropri-

ated, are not available’ to any state. New Jersey v. Sargent, |

269 U. S. 328, 338, 46.5. Ct. 122, 70 L. Ed. 289; Arizona v.

California, et al., 283 U.S. 423, 463, 464, 51S. Ct. 522, 529;

Colorado v: Kansas, 320 U.S. 383, 393, 394, 64S. Ct. 176, 181,

88 L. Ed. 116, 120; that adjudication of rights to interstate

waters must be founded on an existing justiciable contro-

versy. Arizona v. California, et al., 283 U. S. 423, 463, 464,

51 §. Ct. 522, 529; that alleged injury must be presently

threatened and of’ serious magnitude and not merely some-

thing feared to occur at some future time. Missouri v.

+ Illinois, 200 U. S. 496, 521, 26 S. Ct. 268, 270; New York v.

| New Jersey,.256 U..S. 296, 309, 26 S. Ct..268, 270; North

Dakota v. Minnesota, 263 U. S. 365, 374, 44 S. Ct. 138, 139;

Connecticut v. Massachusetts, 282 U. S. 660, 669, 51 S.

Ct. ‘286, 289; Alabama v. Arizona, 291 U. S. 286, 291, 54

S. Ct. 399, 401; Washington v. Oregon, 297 U. S. 517, 522,

56 S. Ct. 540, 542; and that to pre-determine the rights of

different sovereignties pregnant with future controversies is

beyond the judicial function; that the court’s jurisdiction

is limited to concrete legal issues presented in actual cases

and not abstractions, U.S. v. Appalachian Power Company,

311 U. S. 377, 423, 61-$. Ct. 299, 306.

‘It must be emphasized that the Colorado Rivett\Com-

pact, the Compact now sought to be construed by the states

of Arizona and-California, and which Compact, it is alleged

by California, canriot be effectively construed without the

» presence of all states signatory thereto, was never intended

to divide the water use among either the states of the Upper

’ Basin, the states of the Lower Basin, the states of the Upper

Bivision, or the states of the Lower. Division. It is, on the

contrary, a compact dividing only the water as between one

\

¥s 12

entity, the Upper Basin, and a second entity, the aia

Basin.

The division of the waters apportioned to either basin t

as between the states of that*basin is a matter entirely out-

side the scope ‘of the Compact.

This litigation involves only the right to the use of the

wwaters of the Colorado River System after the same have

passed Lee Ferry, Arizona, or which originate on tributaries

in the Lower Basin.’ (And Utah, as will be shown in the |

Argument under Point 2 herein, is not involved ‘in any |

dispute—much less a justiciable controversy—over her share |

of those waters characterized as “Lower Basin” waters.)

None of the parties to the action (Arizona the plaintiff, the

California defendants, nor the intervenors Nevada-and the

United States) has questioned the right of the Upper Basin

states to the beneficial consumiptive use of 7,500,000 acre

feet of the water‘of the Colorado River System. °

An examination of the issues as analyzed by either the

State of California or the State of Arizona and a study of the

contentions of the State of Nevada and the United States

fail to disclose any allegation or even any inference that the |

Upper Basin states separately or collectively threaten any |~

injury to the Lower Basin states. None of the states present- |

ly parties to the action seeks the enforcement of the Com-

pact against any states of the Upper Basin. There jis no in- a

jury of which they could complain. As has been said here- |

tofore, .the Compact apportions 7,500,000 acre feet per

annum to each Basin. The present beneficial consumptive

uise in the Upper Basin is but approximately one-third of

that apportionment under Article III (a) or about 2,500,000 F

acre feet. It is not in keeping with the practice of this Court

to entertain an action against a state even where a contract

is involved when any breach can occur only in the remote

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future, if at all. The time when the Lower Basin may have

its day in Court will be the time when, if ever, the Upper

Basin states’ use exceeds that figure some three times greater

than their present use. To determine those questions in-

volving hypothetical situations which may arise in the future

would be palpably unfair to the states of the Upper Basin

who are entitled to a decision on none other than actual

controversies in fact in existence.

On pages 31 to 5%, inclusive, California’s brief sets forth

various questions of interpretation of the Compact which,

it is contended, the respondent states ought now to be fe-

quired to litigate. We concur with and join in the seriatim

treatment of these points by the States of Colorado and

Wyoming, who have ably disposed of each...We wish to add,

however, that irrespective of the final determination by this

Court of any of those interpretation questions, there still

is no violation by the State of Utah or the Upper Basin of

any of the terms-of the Compact; no diversions in excess

of those granted the respondents under the Compact; and

therefore, no justiciable issue either upon the pleadings or

upon the facts. Nebraska v. Wyoming, 295 U. S. 40, 55

S. Ct..568, Colorado v. Kansas, 320 U. S. 383, 88 L. Ed. 116.

Since it was never intended that he-Counpect divide

the waters of the Colorado River between states, but only

between basins, this action can only be a Lower Basin dis-

pute since they have failed to negotiate by Compact for a

division of their apportionment. This the Upper Basin has

done, and their apportionment among themselves of ~water

usé, and their resolution of many of the questions California

now would require them to litigate, were approved by Con-

gress (63 Stat. 31). The full text of this Compact appears |

as Appendix 30, Vol. II Appendixes to California’s Answer.

In Summary ender California’s Paragraph I, the State

of Utah denies that no decree determining the meaning and

14

effect of the Colorado River Compact can be effective in the

absence of all parties to that Compact and contends that Utah

is neither indispensable nor necessary; that Utah on the con-

trary cannot be made a party to this action for the reason >

that injury is neither threatened to nor by the State of Utah.

POINT 2

UTAH IS NEITHER A NECESSARY NOR AN

INDISPENSABLE PARTY FOR THE REASON

THAT THEY SHARE INTERESTS IN THE

LOWER BASIN.

The State of Utah concurs in Arizona’s Bill of Com-_

plaint, page 19, para. XIII, line 18, and page 21, para.

XVII (a). Utah also expresses concurrence in the alle-

gation of Arizona in response to California’s motion to join

the states of Colorado, New Mexico, Utah and Wyoming

found on page 7, para. XII. These references to which Utah

subscribes and by which Utah is satisfied that their interests

in the Lower Basin are recognized, read as follows:

Arizona’s bill of complaint:

Para. XIII, line 15 (page 19):

““The United States also agrees to deliver to Ari-

zona from Lake Mead storage one-half of the unap-

propriated surplus, subject to the availability thereof 3

to Arizona under the Compact and subject to what-

ever rights Nevada, New Mexico and Utah may be

determined to have therein” (Emphasis added).

a

Para. XVII (a) (page 21):

““(a) Subject to the availability of water un-

der the Compact and the project act and subject to

the rights of the states of New Mexico and Utah,

15

Arizona has the right to take and divert from the ©

Colorado River System annually so much water as

may be necessary for the beneficial consumptive use

in Arizona of 3,800,000 acre feet * * *” (Em-

phasis added).

Response of Arizona to California’s: motion to join

Colorado, New Mexico, Utah, and Wyoming:

Para. 8 (page 5):

“Complainant alleges that the only uses of water

from the Colorado River System by the State of

Utah in the lower basin are on the Virgin River with-

in that state and the complainant is presently en-

gaged in negotiating a Compact with that State re-

specting such uses, and that there is no dispute ex-—-

isting between complainant and the state of Utah”

(Emphasis added).

Certainly Arizona seeks no relief as against the Upper

Basin generally or against the State of Utah specifically. Cal-

ifornia seeks no relief against the State of Utah either as a

state of the Upper Basin having an interest in the “common

fund” of water in the Lower Basin or as a state both of the

Upper Division and of the Lower Basin.: In neither Cali-

fornia’s affirmative defenses to Arizona’s complaint nor in

their traverse to the allegations of Arizona or to any other

party may be found any contention seeking or demanding re-

lief to the State of California against the State of Utah as

either a state of the Upper Basin or as'a state of the Lower

Basin. Without such an allegation—and no such allegation

could in good faith be made—there is nothing in the plead-

ings nor in the provable facts to be determined which can

possibly disclose a necessity to bring Utah into’ the suit.

Nebraska v. Wyoming, 295 U. S. 40, 55 S. Ct. 568.

The interests of the State of Utah in the waters of the

Lower Basin are certainly de minimus. Their maximum —

—————

16

rights and claims to the waters of the Lower Basin do not

equal in nonce even 24 percent of the water allocated

by the Compact to the Lower Basin exclusive of surplus or,

unappropriated water. Clearly applicable here is the state-

ment of this court in Colorado v. Kansas, 320 U. S. 383, 88

L. Ed. 116 at page 124:

~ |

“Before the court will intervene the case must

be of serious magnitude and fully and clearly proved.”

7&

Unquestionably there is no alleged wrongful act of the

State of Utah and no prayer for relief against that state such

as is required by the doctrine of Nebraska v. Wyoming, 295

U. S. 40, 55 S. Ct: 568. Certainly this is the precise situa-

* tion of which this court was speaking in Colorado v. Kansas

(320 U. S. 383, 88 L. Ed. 116), when it held that the

Supreme Court would not intervene in actions between

sovereign states in matters best settled by compact. Decisive- ~

ly should they refuse to intervene where it appeared that »|

thé matter might be amicably settled by mutual agreement |

or diplgmatic relations between the states. (See also Wash-* ©

ington v. Oregon, 214 U. S. 203, 218, 53 L. Ed. 969, 971, 29

S. Ct. 631.) - To draw the State of Utah into this dispute

upon the ground that they. are presently interested but

neither injured nor <4reatening injury in a controversy be-

tween the States oi.“ idifornia and Arizona with respect to

vested in those other states would be absolutely to preclude

the possibility of an amicable settlement of Utah’s rights by

compact and by negotiations. This contention fits squarely

within the rule announced in Colorado v. Kansas (320 U.S.

383, 88 L. Ed. 116), where this court said, 320 U. S. at

page 392: D

“The reason for judicial caution in sdpaticasad

the relative rights of states in such cases is that, while

we have) jurisdiction of such disputes, they involve

17

the interests of quasi-sovereigns, present complicated

and delicate questions, and, due to the possibility of

future change of conditions, necessitate expert. ad-

ministration rather than judicial imposition of a hard

and fast rule. Such controversies may appropriately

be composed by negotiation and agreement, pursuant

to the compact clause of the Federal constitution. We

say of this.case, as the court has said of interstate dif-

ferences of like nature, that such mutual accommoda-

tion and agreement should, if possible, be the medium

of settlement, instead of invocation of our adjudi-

catory power’ (Emphasis added).

POINT 3

ABSENCE OF UTAH AND THE STATES OF

THE UPPER DIVISION DOES NOT PRE-

CLUDE AN EFFECTIVE INTERPRETATION

OF THE ENACTMENTS AND COMPACTS

KNOWN AS THE LAW OF THE RIVER UP-

ON THE GROUND THAT THOSE ABSENT .

STATES ARE THIRD PARTY BENEFIC-

IARIES TO THOSE STATUTORY ENACT-

MENTS OR STATUTORY COMPACTS.

_ The statutory compacts to which reference is made by

California in their motion are the Boulder Canyon Project

Act (45 Stat. 1057) and the California Self Limitation Act

(Ch. 16, Calif. Statutes, 1929, p. 38). These acts are set

out at length at pages 9 to 31 in Appendixes to California’s

Answer to Arizona’s Bill of Complaint on file herein. The

State of Utah adopts the argument of the States of Colorado

and Wyoming in their brief concurrent hereto, without re-

iterating their arguments to this point.

It may be said, for purposes of continuity and integra-

tion of this brief, that, the crux of this particular dispute is

18

whether or not Arizona is entitled to place reliance upon the

California Self Limitation Act adopted as a condition to ful-

fillment of the Boulder Canyon Project Act (which author-

ized the construction of Hoover Dam,) for the reason that

Arizona delayed ratification of the Colorado River Compact.

This is purely an intra-basin problem betweef California

and Arizona and does not involve either an obligation of the [

Upper Basin or of any other states. It does not involve Utah §

as a Lower Basin participant because the question is solely

whether Arizona may place reliance on the Limitation Act. |

California does not allege that the Upper Basin states

or the State of Utah, New Mexico or Nevada are no longer

beneficiaries to the Act or that any duties are imposed upon [|

any of those states or that Basin by reason of their character- |

ization as such beneficiaries. .

POINT 4

THERE IS NO JUSTICIABLE CONTRO-

VERSY EXISTING BETWEEN RESPOND-

ENTS AND THE UNITED STATES REQUIR-

ING THE PRESENCE OF RESPONDENTS AS

PARTIES TO THIS ACTION.

The State of Utah concurs in the more amplified treat- |

ment given this point in Colorado’s brief.

We only add that the United States intervened, as we

comprehend their Motion and Petition in Intervention, to

secure the water use rights of its agencies, instrumentalities,

or wards; at least insofar as the Upper Basin States are con-

cerned. To this point in California’s Motion, the complete |

answer is that by Article VII of the Upper Colorado River

Basin Compact, (63 Stat. 31, Vol. 2, Appendix 30, Cal. Ap-

pendixes to the Answer) it has been agreed that those uses

19

by the United States shall be, as to the Upper Basin, charged

as a use by the state in which such use is made .

Here again, California is attempting to inspire de-

termination by litigation. of a problem already settled by

negotiations and Compact. This again illustrates California’s

ostensible purpose to defeat,the doctrine that this Court will

not permit invocation of its jurisdiction over a state when

the matter should and can be [and indeed this particular

problem has been] settled through the medium of accom-

modation and agreement. Colorado v. Kansas (320 U. S.

383, 88 L. Ed. 116).

CONCLUSION

After Arizona had been granted leave to file a Bill of

Complaint in this action, after the issues had been joined

by an Answer, a Reply, and a Rejoinder, after two petitions

to intervene had, after response by the parties, been granted,

and after a Special Master had been appointed, this motion

by. the California defendants was filed.

It was also filed after counsel for the movant had urged

deferral of Congressional authorization of the Upper Colo-

rado Project until issues in the pending action between Cali- |

‘fornia and Arizona could be settled”. The body before whom

this argument was developed apparently’ rejected the logic

presented, by a recommendation approving the project. The

granting of the present motion would be a tangible encour-

agement for the re-assertion of that same argument. We

respectfully submit that this motion is c..’culated to delay

both the pending litigation and the proposed project.

Whatever the movants’ purpose might be, we further

contend that they have not and cannot assert a ground upon

which any relief against the State of Utah may be granted.

*See Hearings before Subcommittee on Irrigation and Reclamation,

House Committee on Interior and Insular Affairs on H. R. 4449, p. 697.

: 20

THE STATE OF UTAH AS AN UPPER BASIN STATE

uae

As this and the concurrent briefs of respondents to this

motion have demonstrated, this is a dispute gavolving waters

apportioned to the Lower Basin. The Compact under which

California seeks to join the absent states as “parties to a

contract” never has had as any of its purposes, the distribu-

tion of waters between states within a Basin; therefore the

numerous questions isolated by the California defendants

which pertain to such a distribution between them and the

other present parties cannot come under the aegis of the

Compact. In other words, this is not a suit upon the Com-

pact.

The only suit which could be brought under the Com-

pact would be for the determination of inter-hasin rights

and obligations. ° No allegations charge any violation of the

Compact by the Upper Basin. No such allegation could in

good faith be made. Present injury must be alleged”.

UTAH AS A STATE ENTITLED TO PARTICI-

PATE IN THE LOWER BASIN.

The State of Utah has a limited right of participation

in the Lower Basin waters. They are now negotiating with

Arizona for a distribution of their share by Compact. For

this court to assume jurisdiction over Utah under that situa-

tion would be contrary to this court’s holdings that matters

between states should be settled by negotiation and.Com-

pact’; that a justiciable disputed issue must be in existence’;

_ "Nebraska v. Wyoming, 325 U. S. 589, 89 L. Ed.~1815.

“Washington v. Oregon, 214 U. S. 205, 218, 53 L. Ed. 969, 971, 29

S. Ct. 631.

*Missouri v. Illinois, 200 U. S. 496, 521, 26 S. Ct. 268, 270.

-

21

or ind doer thocabetigg!" . of serious magnitude’; and fully

and clearly proved’. :

We respectfully contend that the State of Utah should

not be joined as a state of the Upper Basin or as a state en-

titled to participate in the waters of the Lower Basin, and

that the.,motion of the California cekenesarte should be .

denied.

aaiiscaines v. Massachusetts, 282 U. S. 660, 669, 51 S. Ct. 286,

289. ‘ ;

"Colorado v. Kansas, 320 U. S. 383, 88 L. Ed. 116, 124.

"Ibid.

Respectfully submitted,

E. R. CALLISTER,

Attorney General e

of the State of Utah,

State Capitol Building,

Salt Lake City, Utah

£ KEN CHAMBERLAIN,

Assistant Attorney General

of the State of Utah,

* State Capitol Building,

Salt Lake City,-Utah

Si Attorneys for the Respondent

State of Utah.