Brief Opposing Motion of California — Arizona v. California

“STATE OF ARIZONA, Complainant, ee

V8.

STATE OF CALIFORNIA, PALO VERDE TRRIGA. -

TION DISTRICT, IMPERIAL IRRIGATION DIS-°:

TRIOT, COACHELLA VALLEY COUNTY WATER —

DISTRICT, METROPOLITAN WATER DISTRICT —

OF SOUTHERN CALIFORNIA, CITY OF LOS AN-

GELES, CALIFORNIA, CITY OF SAN DINGO,

CALIFORNIA, AND COUNTY OF SAN DIBA,

CALIFORNIA, Defendants. :

UNITED STATES OF AMERICA, latereaias?

STATE OF NEVADA, Intervenor, pa _

BRIEF OF THE STATE OF COLORADO AND THE say :

Or WYOMING OPPOSING THE MOTION OF T

STATE OF CALIFORNIA TO JOIN THE STATES OF

- SEBaAbo AND WYOMING AS PARTIES TO THIS

‘Does W. Dunpan

ertonney General of the State of

Colorado

State Capitol Building

Denver, Colorado :

- ‘Harri CHILsoNn

_ Special Assistant Attorney General

; 815 First National Bank. -

Mienais for the State Of

@olorado and the Coloradu -

‘ - Water Conservation Board

Mowasn B. Brack. ai

Peete. General of the State of .

yg soe Capitol Build,

ng

Cheyenne, Wyoming

Bm gees emt gy BG Cao,

SUBJECT INDEX

STATEMENT OF THE QUESTIONS PRE-

REINS TIEED watncninnisntscenissbondrssnshctabihiaacgilon esasceticastianasnise

Ae Oe Ue EOE RRA Ce csisisassivicstienenecansivccantuies

I.

II.

ITT.

IV.

PURPOSE OF PRESENT ACTION.....000..

PURPOSE OF CALIFORNIA’S MOTION......

MOTION DOES NOT ALLEGE EXISTENCE

OF JUSTICIABLE CONTROVERSY................

PURPOSE AND BACKGROUND OF COLO- .

RADO RIVER COMPACT ..ssQissscssrssnesnee

SUMMARY OF ARGU MENT..........cccssscccsssscsosesecssesssees

ARGUMENT:

I.

Il.

Ii.

THE ISSUE IN CONTROVERSY IN THE

PRESENT ACTION IS THE DIVISION OF

WATER USE IN THE LOWER BASIN,

TO WHICH RESPONDENTS ARE NOT

NECESSARY OR INDISPENSIBLE PAR- °

ee ee

THERE IS NO JUSTICIABLE CONTROV-

ERSY REQUIRING OR JUSTIFYING THE

INTERPRETATION OF THE COMPACT AS

TO ANY RIGHTS OR OBLIGATIONS OF

SREERR MIEN APIROE RNS sbiisnieiecinasniathnsanicsiineonmimeaprannnnianees

DISCUSSION OF THE PARTICULAR

QUESTIONS OF INTERPRETATION

RAISED BY CALIFORNIA UNDER

ARGUMENT II, PAGE 31 OF HER>

EERERMINE - siscssscsneisceasiidiniechivesbinbinsaromeenlanselbtiagaaaae

THE RESPONDENTS ARE NOT NECES-

SARY PARTIES TO A DETERMINATION

OF ve CONTROVERSY BETWEEN ARI-

m Do bo ee

q

11

15

19

ENTS+AS PARTIES TO THIS ACTION........ 32

Se ETRE sicesscrssiswnreovesnarsnesvinsseansnniorisccnguesonens 36

&

TABLE OF AUTHORITIES

CasEs

Ala. v. Ariz., 291 U.S. 286, 291 ; 34:8. Ct. 399, 401...... 18, 32

Ariz. v. Calif., 283 U. S. 423, 51 S. Ct. 522................ 12, 18, 28 ©

Ariz. v. Calif., 292 U. S. 341, 54 S. Ct. 735...............00008 12

Ariz. v. Calif., 298 U. S. 558, 56 S. Ct. 848.0... 12

Colo. v. Kans., 320 U. S. 383, 64 S. Ct. 176..............c000 17, 31

Conn. v. Mass., 282 U. S. 660, 51 S. Ct. 286................ 18, 32

Mass. v. Mo., 308 U.S. 1, 60 S. Ct. 89.0... ecseneeees 18

Miss. v. IIl., 200 U..S. 496, 26 S. Ct. 268........... cesses 18.

Neb. v. Wyo., 295 U.S. 40, 55 S. Ct. 568.0... ccsssseeee 27

Neb. v. Wyo., 325 U. S. 589, 65 S. Ct. 1332........... eae

Neb. v. Wyo., 296 U. 8. 553, 56 S. Ct. 869 ...ccccccsssssses Q7

N. Y. v. Ill, 274 U. 8. 488, 47 S. Ct. 60L......cccccccssssssseee 18

N. ¥. v. N. J., 256 U. S. 296, 26 8. Ct. 268...........<....000. 18

N. Dak. v. Minn., 263 U. S. 365, 44 S. Ct. 138.000.0000... 18

ii.

SUBJECT INDEX (ContinvEp)

— >. ‘ ‘PAGE

ZONA AND CXLIFORNIA UNDER THE

BOULDER CANYON PROJECT ACT AND

THE CALIFORNIA SELF - LIMITATION

smi 28

VI. THERE IS NO JUSTICIABLE CONTROV-

ERSY EXISTING BETWEEN RESPOND-

ENTS AND THE UNITED STATES RE-

QUIRING THE PRESENCE OF RESPOND-

a <4

iii.

TABLE OF AUTHORITIES (Cowtinvep)

CASES

: PAGE

U. S. v. Appalachian Power Co., 311 U. S. 377, 61

RR I er ecicscieh cil eadcassacissanasadcsaisavnchanbiomesieunice _18

U.S. v. W. Va., 295 U. S. 463, 55 S. Ct. 789............18, 34, 35.

Wash. v. Ore., 297 U. S. 517, 56 S. Ct. 540 ..cccccsssssseen 18

STATUTES AND COMPACTS

Boulder Canyon Project Act (45 Stat. 1057)............ 13, 28, 29

Calif. Self-limitation Act (Ch. 16, Calif. Stats., 1919,

MI i tchicchahAasdlabslncssinheinsscecasimnanendighonaesngineacaesteebs 5, 28, 29

Colo. River Compact: 5, 6, 30

BE Tle citaciccisea i ocaasuainaiacios 8

I ctisaantapcnsieacczbascibinlieesNcvenigiaubinnnimtsbninacsaetcs 8

SAE ils indsna pohausha tnoonaaneduossobieesiRagachodeebtimeabaeonionis 7

Sait ck ui taaestibeiibaiinsesditinasbtesdoleammaneictandibeidtbide 7

Rr I We Palit henacn senscitqeapunbiionectchscinnd 8, 16, 20, 23, 24

() Seana sebaieinaenauicateebcdmnaiia 14, 15, 24, 25

i eeiceaccp apicinsisasacsespeseliidindeitiniadhmanisaes woes 20, 21

i sclctsdsilubaslciccacehecaeassnchitnsetsiobeniauinictinse 16, 20

ETT SOAS te A OO EOE DT 16, 20

I i ccedieiceinccs sheesh cnalitieesten denen ciascone 20, 25

HEBEL OR COA eae ORE ORE 20, 25

Ba Us ich tinicacassaibddasadlaiciend-apucidihcegnapioienenanininleesonitin 20, 33

a Me aii acaih chains haicnca'“cacbiteniesinsanlonsenaivacs 20, 21

Upper Colo. River Compact (63 Stat. 31) : 5

i eines ait aisscaadinctlesamincesiinn ceitindighgeanassiains 25

yas | = anes seepopnnieinebsnneonetcuspslisennenshasoninnenetsites 12, 33

oe

iv.

CONGRESSIONAL HEARINGS AND OTHER -

DOCUMENTS —

f

a ‘Sub. Com., U. Ss. Senate, goth h Congress,

2d Sess., S. J. ,

Pages 19, 20... _ EREDAR Fn net 15 |

en es -entssssesonneeec 4, 94, 26

oS eaten eee arcu 12 |

gercrrrceeeeessseeeen

‘Hearings, Sub. Com., H. R. 80th Cong., 2d Sess.,

H. J. Res. 225; H. J. Res. 226; H. J. Res. 227;

H. J. Res. 236; and H. R. 4097 (p. 214)............ 14 |

Hearings, Sub. Com., U. S. Sen., 83d Cong., 2d Sess., |

S. 1555 °

PUI III s.iShiitrehchhctescaccaenilasibntan dats Uiniteashindpoionenenioebinséass 8

RI INTE hciectseciepsvaaloscibiguatonpiacisihcteihanbavesitiniitebabanusdssuadans 37

Hearings, Sub. Com., H. R., 83rd Cong., 2d.Sess.,

H. R. 4443; H. R. 4449; H. R. 4463 (p. 192)...... 36, 37 |

: (p. 697)... 36 |

icon Dam Documents, 2d Ed., 1948, p. 22................ 12

Hoover Dam Documents, 2d Ed., 1948, p. A50............ ~ 1

2

IN THE

Supreme Court of the United States

October Term, 1954 S .

No. 10 Original

STATE OF ARIZONA, Complainant,

VS.

STATE OF CALIFORNIA, PALO VERDE IRRIGA- |

TION DISTRICT, IMPERIAL IRRIGATION DIS-

TRICT, COACHELLA VALLEY COUNTY WATER

DISTRICT, METROPOLITAN WATER DISTRICT

OF SOUTHERN CALIFORNIA, CITY OF LOS AN-

GELES, CALIFORNIA, CITY OF SAN DIEGO,

CALIFORNIA, AND COUNTY OF SAN DIEGO,

CALIrORNIA, Defendants.

UNITED STATES OF AMERICA, Intervenor,

STATE OF NEVADA, Intervenor.

BRIEF OF THE STATE OF COLORADO AND THE STATE

OF WYOMING OPPOSING THE MOTION OF THE

STATE OF CALIFORNIA TO JOIN THE STATES OF

COLORADO AND WYOMING AS PARTIES TO THIS

ACTION , \

Because their interests in this matter are identical,

the States of Colorado and Wyoming join in this brief.

For convenience of refcrence, they will be referred to

herein as ‘‘Respondents.’’

STATEMENT OF THE QUESTIONS PRESENTED

_ California, by her motion, seeks to make respondents

parties to this action. The motion presents four questions

for determination, only three of which are applicable to

alien

respondents. The remaining question is directed to the

interests of the States of Utah and New Mexico as Lower

Basin States, and is applicable only to the States of Utah

and New Mexico. The three questions presented and ap-

plicable to respondents are: °

1. Are the rights and obligations of respondents

under the Colorado River Compact in issue in this

action, and if so, is there a justiciable controversy

existing upon which respondents’ rights and oblig-

ations thereunder can be adjudicated? |

(See paragraph I, page 2, California’s motion).

2. Are the respondents parties in interest in the

Boulder Canyon Project Act and the California

Self-Limitation Act, and if so, is there a justiciable os

controversy existing upon which respondents’ in-

terests therein may be adjudicated?

(See paragraph III, pages 3 and 4, California’s

motion). .

3. Is there a justiciable controversy existing between

the respondents and the United States, requiring

determination in this action?

(See paragraph IV, page 4, California’s motion).

STATEMENT OF THE CASE

I. PURPOSE OF PRESENT ACTION.

The present action was brought to divide, between

the States in the Lower Basin, | the water use to which the

Lower Basin of the River is entitled under the Colorado

River Compact.

THE COLORADO RIVER COMPACT DOES NOT

AND WAS NOT INTENDED TO DIVIDE THE WATER

USE OF EITHER THE UPPER BASIN OR THE

LOWER BASIN BETWEEN THE STATES WITHIN

EITHER BASIN.

The division of water use between the States of a -

basin is a matter outside the scope of the compact. This

:

2

principle has been recognized by all seven of the Colorado

River States and the United States.

The Colorado River Compact divides water use only

between two areas, designated as the Upper Basin and

Lower basin.

Respondents are located in the Upper Basin.

California and Nevada are located solely in the Lower

Basin, and Arizona, although having a small area located

in the Upper Basin, is located principally in the Lower

Basin.

Respondents have no rights in the water use allotted

to the Lower Basin by the Compact.

The States in the Upper Basin, including respondents,

by agreement, have divided the water use allotted to the

Upper Basin between the States in the Upper Basin.

Unlike the Upper Basin, the Lower. Basin States have

been unable to agree upon a division of the water use al-

lotted to the Lower Basin by the Compact.

Consequently, this action was commenced by Arizona

against California to accomplish a division of the water

use in the Lower Basin by judicial decision.’ Nevada in-

tervened to have adjudcated her rights to the use of water

allotted to the Lower Basin by the Compact. The United

States intervened to protect its rights and those of its in-

strumentalities and wards to the use of waters in the Lower

Basin.

Arizona seeks no relief as against the Upper Basin

or respondents.

Nevada seeks no relief as against the Upper Basin

or respondents. |

The United States seeks no relief as against the if

per Basin or respondents.

Neither Arizona, Nevada, nor the United States: bias |

asserted that the respondents are necessary or indispens-

—_4—- ce

able parties to a diterednition ofthis action.

Of the present parties to this action, California, iad

California alone, asserts that. respondents are necessary

or ‘indispensable parties to this action.

II. PURPOSE OF CALIFORNIA’S MOTION

California, by her motion to make respondents par-

ties, seeks to expand the action beyond its original pur-

~ pose of dividing water use in the bower Basin, to one in-

cluding thé adjudication of interbasin rights and obliga-

tions, including the rights and obligations of the respond-

ents and the other Upper Basin States under the Com-

pact; and also to adjudicate the respective rights of re-

spondents and the United States to the use of waters of

the Colorado River. :

III. MOTION DOES NOT ALLEGE EXISTENCE OF |

JUSTICIABLE CONTROVERSY

California, by her motion, alleges three reasons why

respondents are necessary or indispensable parties.

1. That there are in controversy in the present ac-

tion many issues or interpretation of the Com-:

pact, and that these issues of interpretation af-

fect the rights and obligations of respondents.

(See paragraph I, page 2,,California’s motion).

9. That the meaning and effect of the Boulder

Canyon Project Act and the California Self-

Limitation Act are in controversy in this action,

and that the issues of interpretation affect the

rights and obligations of respondents. ,-,

_ (See paragraph III, ait 3 and 4, California’s

motion). —

3. That the claims of the United States in this ac-

tion affect the rights and obligations of respond-

ents.

(See paragraph IV, gia 4 California’s motion).

wall

There is no allegation in the motion that respondents,

by any acts or ‘ommissions, are depriving California or

any other party to this actfon, of any rights claimed un-

- der the Compact or otherwise; there is no allegation that

respondents are violating the Colorado River Compact,

the Boulder Canyon Project Act, or the-California Self:

Linfitation Act.

California’s motion, and brief i in support thereof, are

premised on the assumption that at>some time in the fu-

ture a fact situation may arise, which may create a con-

troversy, which may require the interpretation of inter-

basin rights and the rights and obligations of respondents.

IV. PURPOSE AND BACKGROUND OF COLORADO

RIVER COMPACT

To understand the position of respondents, a°brief +

resume of the background and purposes of the Colorado

River Compact is necessary.

The Colorado River rises in the State of Colorado

and flows through western Colorado and thence into Utah

and enters Arizona near its northeast-corner. For approxi-

mately 145 miles it forms the boundary between Arizona

and Nevada, for 235 miles it forms the boundary between

Arizona and California, and for 16 miles the boundary

between Arizona and Mexico. Its drainage basin encom-

passes portions of the seven States of Colorado, Wyoming,

Utah, New Mexico, Nevada, Arizona and California.

The source of most of the waters of the river is in

the Upper Basin of the River, located principally in Colo-

rado, Wyoming, Utah and New Mexico.

The river, in its natural state, has great fluctations

in flow, not only in the same year, varying with the sea-

sons, but from year to year.

Before construction of Hoover Dam, which impounds

water in Lake Mead, floods caused great damage, partic-

ularly in the Lower Basin of the river. Prior to the negotia-

- ee =

tion of the Colorado River Compact in 1922, there was a

demand in the Lower Basin of the river, and particularl®

in Southern California, for: the construction of a large

storage reservgir in the Lower Basin of the river, for

flood control and to accumulate waters during high flows

of the river for use during low flows, to provide a firm

water supply.for power production, ‘irrigation and other

uses. -

At the same time, Southern California desired the

construction of an All-American Canal to serve the Im-

perial Valley, to replace the canal then serving the Valley,

which was located in part in Mexico.

To accomplish these purposes, California urged Con-

gress to construct a, large storage reservoir on fffé river

in the Lower Basin and to build the All-American Canal.

The States in the Upper. Basin of the river, realizing

that with the construction of these projects, development

of the use of waters of the river in the Lower Basin would

increase more rapidly than in the Upper Basin, insisted

that the Upper States be given some protection. The Up-

per States feared that prior large scale development of

the use of the waters in the Lower Basifi, would give rise

to a claim that later use in the Upper Basin could not in-

terfere with an:existing economic development in the

Lower Basin, based on the prior use in that Basin.

As a result of this situation, the Colorado River

Compact was negotiated (H. Doc. 717, 80th Congress,

2d Sess., p. A17, 1948). The full text of the Compact is

set forih at pages 1-8 of the Appendixes filed herein by

California in connection with her answer. Its fundamental

underlying premise is to protect the Upper States in their

future development and use of the waters of the river,

while at the same time permitting the Lower States to ©

proceed with immediate development and use. Thus, the /

first major purpose of the Compact, as stated in Article

I of the Compact, is ‘‘to provide for the equitable divi-

sion and apportionment of the use of the waters of the

Colorado River system.’’

&

eh. the. Compact, the river basin was divided irfto _

wo basins, denominated the Upper Basin and°the Lower

Basin, with the division point at Lee Ferry, a point on

the river just South of the Utah-Arizona border. The

principal protection. to the Upper Basin is; found in

Article III(a), which provides: V

? ‘‘There is hereby apportioned from the Colorado

~ River system im perpetuity to the Upper Basin and

to the Lower Basin respectively, the exlusive bene-

ficial consumptive use of 7,500,000 acre feet of water

\ per annum, which shall include all water necessary

for the supply of any rights which may now exist.’’

(Emphasis ours).

We call the Court’s attention to-the fact that the

foregoing apportionment does not apportion or divide the

water use between the individual states of either basin,

but only as between the Upper and Lower Basins of the

rivers

The Upper Basin contains those areas from which

waters naturally drain into the Colorado River system

above Lee Ferry, plus areas of the Upper Basin States

located without the drainage area but which shall be

served by waters diverted above Lee Ferry. The Lower

Basin is the area from which waters naturally drain into

the Colorado River system below Lee Ferry, plus the parts

of the Lower Basin States without the drainage. area

which shall be served by waters diverted below Lee Ferry.

(Article II(f) and (g) Compact).

Colorado and Wyoming are located solely within the

Upper Basin. California and Nevada are located solely

within the Lower Basin. New Mexico and Utah are located.

in part in the Upper Basin and in part in the Lgwer Basin,

but their prinicipal interests are in the Upper Basin. Ari-

zona is located in part within the Upper Basin and in part

within the Lower Basin, but her principal interests are in

the Lower Basin. (Articles II (f) and (g) Compact). |

me eo ae

3

' Recognizing these interests, the Compact divides the ©

States into two political groups, termed States of the

Upper Division, which includes Colorado, New Mexico,

» «Utah and Wyoming, and States of the Lower Division,

‘:, which includes, Arizona, California and Nevada. (Article -

~ TI (e) and (d) Compact).

After the Compact was negotiated and it became effec-

tive, Hoover Dam was authorized and constructed. The All-

American Canal was authorized and constructed. The Low-

er Basin obtained the facilities of flood control, storage

and the All-American Canal which it desired, and did pro-

ceed with its immediate development and use of the waters

in the Lower Basin. In addition, to aid water use and de-

velopment in‘the Lower Basin, Parker Dam, Davis Dam

and other water storage and use facilities have been con-

structed in the Lower Basin, , |

/

‘As was anticipated, the development and use of the

waters of the river in the Upper Basin has been far less

rapid than in the Lower Basin.

The present beneficial consumptive use in the Upper

Basin is but about one-third of its apportionment under

Article III (a) of the Compact, being approximately 2,500

000 acre feet of the 7,500,000 acre feet apportioned (see

Hearings before the Subcommittee on Irrigation and Rec-

lamation of the Committee on Interior and Insular Affairs,

United States Senate, 83rd Congress, Second Session, on

S. 1555, page 286). The unused portion of the Upper Basin

apportionment is flowing into the Lower Basin and will

continue so to flow until Upper Basin use increases to the

amount, of its apportioned share.

& : a me EEK

-« SUMMARY OF ARGUMENT

I. As to the questions of interpretation of the Com-

pact raised by the motion, respondents contend:

A. The present action is one to divide water use in

the Lower Basin. The Compact does not and was not in-

tended to divide water use within a basin. The division of

water use within a basin is. outside the scope of the Com-

‘pact. Consequently, this is not an action on or to enforce

the Compact, but rather to determine an issue outside the

scope of the Compact. The fact that respondents are parties

to the Compact does not require their presence to deter-

mine the present issue, which is not within the scope of the

Compact. :

~

4 be

B. There is no justiciable controversy existing be-

tween respondents and California, or any other party to’

this action, requiring or permitting the interpretation of

or adjudication of respondents’ rights and obligations “un-

der the Compact. Respondents’ rights and obligations

under the Compact cannot be interpreted or adjudicated

in the absence of an existing justiciable controversy. There

_ is no allegation or assertion that respondents are violating

_the-Compact or depriving California, or the Lower Basin,

or any of the parties to this action, of any rights which

they claim under the Compact./ Respondents are not. re-

quired to submit™¥@ an adjudi¢ation of their rights and

_ obligations under*the Compact/ in the absence of an exist-

ing justiciable controversy, and upon dssumed or hypo-

thetical facts. |

II. As to the questions of interpretation. of the Boul-

der Canyon Project Act and ‘the California Self-Limitation

Act, respondents contend: |

A. The present controversy involving the Boulder

Canyon Project Act -and/ the California Self-Limitation

Act relates solely°to a dispute between Arizona and Cali-

fornia, over the division of water use in. the Lower Basin.

Respondents have no rights in the water use to which the

. /

om

&

conics.

Lower Basin is entitled under the Compact. Respondents

have no rights or obligations involved in this controversy,

_ and are not necessary parties to any controversy concern-

ing these Acts.

B. The rights and_obligations of ‘icant 3 if any,

under the Boulder Canyon Project Act and the California

Self-Limitation Act cannot be adjudicated until such time

as there is a justiciable controversy existing between the

respondents and some Lower Basin State, requiring such

adjudication. There is no allegation in the motion that

respondents are depriving California, or any other party

to this action, of any ‘rights which they claim under these

Acts. There being no allegation of the existence of a jus-

ticiable controversy, respondents cannot be required to

submit to an adjudication of their rights or obligations.

III. As to the claims of the United States in this

action, respondents contend: |

A. The United States has made no claims against and

~ geeks no relief in this action against respondents. In the

absence of such claims by the United States against re-

spondents, there is no issue between the United States and

the respondents to be determined in this action, =" to

which the respondents are necessary parties.

te ‘) ‘ B. There is no allegation of the existence of any jus-

, ticiable controversy between the respondents and the

United States, Neither California nor the Unitéd States

allege that the respondents are depriving the United States

of any rights which it claims. The fact, if it be a fact, that

at some time in the future, under some circumstances, a

justiciable controversy may arise between the respondents

and the United States, is not. a valid ground for the ré-

quirement of the presence of respondents to the present

action.

rado River Compact,’’ subject to

water under the Colorado River Compact.’’ (See page 30,

pes ae

ARGUMENT |

I. THE ISSUE IN CONTROVERSY IN THE PRESENT

ACTION IS THE DIVISION OF WATER USE IN

THE LOWER BASIN, TO WHICH: RESPOND-

ENTS ARE NOT NECESSARY OR INDISPENS-

ABLE PARTIES. | | :

That the issue in this: action is the division of water

use in the Lower Basin is clearly apparent.

Arizona, -by her complaint, prays for a share of the

water use ‘‘apportioned to the Lower Basin by the Colo-

“the availability of such

Arizona’s complaint).

Nevada, in her petition for intervention, prays for an

adjudication of her share of the'water use apportioned to

the Lower Basin by the Compact. (See page 25 of Nevada’s

petition for intervention). 7 |

California, in her answer to Arizon’s complaint, asks

for no affirmative relief, but alleges by way of affirmative

defenses that her claims to the béneficial consumptive use

of water in the Lower Basin are superior to those of Ari-

zona, and at page. 2 of her answer states:

‘‘This controversy centers on the desire of Ari-

zona to secure a right to the use of water for the

Central Arizona Project, which has not been author-

ized by the Congress. She seeks to obtain water for

that project by taking it from the existing and oper-

ating California projects.”’

It is equally. clear that the Colorado River Compact

does not, and was not intended to divide the water use of

either the Upper or Lower Basins.

/

The Colorado River Compact Commission, which ne-

gotiated the Compact, deliberately avoided any attempt to

allocate waters between the States.

~~

8 Ve

i 3—

‘During the public hearings and business meet- :

ings of the Commission, it became apparent that any ~

attempt to allocate waters individually to the several

states would be a protracting and probably unsuccess-

ful undertaking. Participants have stated that the ne-

gotiations would haye broken up but son Hoover’s

proposal: that the Commission limit i

Lower Basin, leaving to each basin the future internal

allocation of its share.’’

(The Hoover Dam D cuments, Second Edition, .

1948, published under H. R. 391 of December 4, 1947,

page 22). 7 LG

**The Colorado River Compact does not attempt

to divide the water of the river between individual

* states.”’ ;

(The Hoover Dam Documents, supra, page A50).

The Upper Basin States have, by Compact, agreed

upon a division between themselves of the water use allot-

ted to the Upper Basin by the Colorado River Compact.

This agreement is the Upper Colorado River Basin Com-

pact, which was negotiated by the Upper Basin States with

the consent of Congress. (See 63 Stat. 31,-Appendix 30,

Article VII). - a |

Since the -—Lower Basin States have been unable to

agree upon a division of the water uses in the Lower Basin,

several attempts have been made to determine the division

by litigation. (See Arizona vs. California, 283 U. S. 423,

51 S. Ct. 522; Arizona vs. California, 292 U. 8. 341, 54 S.

Ct. 735; Arizona vs. California, 298 U. S$. 558, 56 S. Ct.

848; Hearings before a Subcommittee of the Committee on

Interior and Insular Affairs, United States Senate, Hight-

ieth Congress, Second Session, on Senate Joint Resolution

145, being a resolution authorizing commencement of an

action by the United States to determine interstate water

rights in the Lower Colorado River Basin).

The latest of these attempts is the present action in-

: efforts: to a\

division of water between the Upper Basin and the |

pe RRR TORT Tey ~ ae

le

\ stituted by the State of Arizona gainst the State of Cali-

fornia, and in which the State of Nevada and = United

States have intervened.

The principle that\the division of water use within a —

basin is solely an issue between the States of the basin, ~

and not requiring the acquiescence or participation of the

States of the other basin, was first recognized by the par- _

ticipants in the negotiation of the Compact, as we have |

shown above.

The same principle was later recognized by the United

States Congress in the Boulder Canyon Project Act of

December 21, 1928, (45 Stat. 1057), wherein, in the second

paragraph of Section 4 (a) of that Act,~the States of

Arizona, California and Nevada were: “Gaithorized to enter

into an agreement for the division of the Lower Basin

water use, and with no requirement that the Upper . Di-

vision States acquiesce in or be parties thereto.

This same principle was also recognized by the Upper

Basin States and the United States in the negotiation of

the Upper Colorado River Compact, which divided the

water use of the Upper Basin, and which Compact was

consented to by the United States Congress..Congress and

the Upper Division States did not consider that.the Lower |

Basin States were necessary parties to that Compact, and

so far as we are informed, the Lower Basin States have not

contended that the Upper Basin Compact is invalid because

/ the Lower Basin States are not parties thereto.

This same principle was recognized by the State of

Caiifornia in 1948. At that time, the State of California

was urging the passage by Congress of the so-called Mc-

Carran Resolution, which would have required the Attor-

ney General of the United States to institute litigation for

, the purpose of determining the division of the water uses

‘ in the Lower Basin. At the hearings on the McCarran

: Resolution in the Senate, the Assistant Attorney General

of the State of California stated as follows:

eblis

‘‘Thus, the focal peint of the proposed suit is the

determination of the rights of the Lower Basin States

among themselves, under, and not in derogation of,

the disputed documents which constitute the law of

tle river. There is no need to go further. NO DIS-

PUTES OR PROBLEMS REQUIRING PRESENT

DISPOSITION ARE BELIEVED TO EXIST’ BE-

TWEEN THE UPPER BASIN AND THE LOWER

BASIN. There is no need to determine the division of

water among the Upper Basia, States, They have for

nearly two years been engaged in negotiation of a

compact for that purpose, and it is believed that this

effort will be effectual.’’ (Emphasis ours).

‘‘The ‘three major issues discussed by Mr. Ely

and Mr. Howard directly relate to the division of the

Lower Basin water. HENCE THE UPPER BASIN

STATES ‘ARE NOT DIRECTLY CONCERNED

AND NEED NOT BE MADE PARTIES.”’ (Empha-

sis ours). (Hearings before the Senate Subcommittee

of the Committée on Interior and Insular Affairs,

United States Senate, Eightieth Congress, Second ° |

Session, on S. J. Res. 145, at page 129).

The same statement was made at the House hearings.

(See Hearings before Subcommittee No. 4 of the Com-

mittee on the Judiciary, House of Representatives, Hight-

ieth Congress, Secona Session, on H. J. Res. 225, H. J.

Reg. 226, H. J. Res. 227, H. J. Res. 236, and H. R. 4097, at

page 214).

Attorney General of the State o

The: three major issues referred to by the Assistant

Sy hd in these hear-

ings are briefly:

Le

1. By what method shall the beneficial ctanatapiive

use of water in‘the Lower Basin be measured?

2.. Are the waters referred to in Article. III(b) of

_ the Compact apportioned water or ‘‘excess or

surplus’’ water and unapportionedt,

i mAs T RG

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AWN NGL DIS Milena SF

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8. How are evaporation losses from the Lower Basin

mainstream storage reservoirs to be charged in

the Lower Basin? :

(See pages 19 and 20 of Hearings before a Sub-

committee of the Committee’ on Interior and

Insular Affairs, United States Senate, Hightieth

Congress, Second Session, on S.J. Res. 145).

These are the same three issues presented by Ari-

zona’s complaint in the present action, which are found

in paragraph XXII, at pages 25 and 26 of Arizona’s

- complaint, which are:

1. Is the water referred to and affected by Article

III(b) of the Colorado River Compact appor-

tioned or unapportioned water?

2. How is beneficial consumptive use to be measured?

3. How are evaporation losses from Lower Basin

mainstream reservoirs to be charged?

Respondents respectfully submit that the purpose of

and the issue in this action is the division of water use -

in the Lower Basin; that this is an issue solely’ between

the States of the Lower Basin, and does not require’ the

presence of respondents for its determination.

Ye

Il. THERE IS NO JUSTICIABLE CONTROVERSY

REQUIRING OR JUSTIFYING THE INTERPRE-

TATION OF THE COMPACT AS TO*ANY RIGHTS

OR OBLIGATIONS OF RESPONDENTS.

California raises many questions of interpretation |

of the.Compact which she says should be determined in

this action.

Before proceeding to discuss these questions in de-

tail, we point out: |

Pin ©

a

=

A. BY ARTICLE III(a) OF THE COMPACT, THE

UPPER SIN IS APPORTIONED ‘‘THE

EXCLUSIVE~BENEFICIAL CONSUMPTIVE

USE OF 7,500,000 ACRE FEET OF WATER

PER ANNUM.”’

THE UPPER BASIN’S PRESENT CONSUMP-

TIVE USE IS ABOUT 2,500,000 ACRE FEET,

OR ABOUT ONE-THIRD OF THE APPOR-

TIONMENT. THERE IS NO ASSERTION

THAT THE UPPER BASIN IS EXCEEDING

ITS RIGHTFUL USE UNDER THE COM-

PACT. 1S le ge

B. THE COMPACT, BY ARTICLE III(c), III(d) |

AND III(e), IMPOSES CERTAIN OBLIGA- |

TIONS UPON THE UPPER BASIN AND THE —

UPPER DIVISION STATES. BUT CALIFOR- —

NIA DOES NOT ASSERT ANY VIOLATIONS |

OF THESE OBLIGATIONS.

C. NOR’.DOES CALIFORNIA ASSERT THAT

THE UPPER BASIN OR THE UPPER DIVI-

SION STATES ARE VIOLATING THE COM-

PACT IN ANY RESPECTS.

D. THERE IS NO CONTROVERSY EXISTING

- BETWEEN THE UPPER BASIN AND LOWER

BASIN. |

GENERALLY, THE QUESTIONS OF INTER-

PRETATION RAISED BY CALIFORNIA ARE

BASED ON THE PREMISE THAT AT SOME

TIME IN THE FUTURE, A FACT SITUA-

TION MAY ARISE WHICH MAY CAUSE A

CONTROVERSY TO EXIST, THE DETER-

MINATION OF WHICH MAY REQUIRE AN

4“ INTERPRETATION OF THE COMPACT.

Respondents strenuously object to any attempt to

determine their rights under the Colorado River Compact,

ee eee ?

REE Li NE tart tk CER RS lt AOD Me wl Pe pla aba hee mM

tl cn

until such time as they are accused of'a violation of the

Compact, or until such time as they-are accused of some

act which deprives some Lower Basin-State of some right

which that State claims that it has by virtue of the Com-

pact.

Here the Upper Division States have been accused

of no violation of the Compact whatsoever.

The respondents also strenuously object to being made

parties to this litigation for the purpose of interpreting

the rights of the respondent States under the Compact

on some theoretical or imagined fact situation, which

could only occur many years in the future, and with no

assurance that the suppositious controversy would ever

exist. ’

t

- Respondents further urge that they are entitled to

have their rights under the Compact determined at the

time that an actual justiciable controversy exists, and to

have the interpretation of the Compact made with rela-

tion to an existing controversy and an actual fact situa-

tion. The position of the respondents in this respect is

not without support by decisions of this Court. This Court

has said:

‘‘Not every matter which would warrant resort.

to equity by one citizen against another would justify

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 par-

ties. 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

threatening ‘to use more than its equitable share of

the benefits of a stream, all the factors which create

equities in favor of one state or the other must be -

weighedxas of the date when the controversy is

Colorado vs. Kansas, 320 U.S. 383, 393, 394, 64

g -S. Ct. 176, 181. eB

niiion:

The Court will. not grant ‘relief against a state

unless the complaining state shows an existing or

presently threatened injury of serious magnitude.

Missouri vs. Illinois, 200 U.S. 496, 521, 26 S.

Ct. 268, 270; New York vs. New JersH,

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

Dakota vs. Minnesota, 263 U.S. 365, 374,

44 S. Ct. 138, 139; Connecticut vs. Massa-

chusetts, 282 U.S. 660, 669, 51 S. Ct. 286,

289; Alabama vs. Arizona, 291 U.S. 286,

291, 54 S. Ct. 399, 401; Washington vs.

Oregon, 297 U.S. 517, 522, 56 S. Ct. 540,

542..

A potential threat of injury is insufficient to

justify an affirmative decree against a state. The

Court will not grant relief against something feared

to occur at some future time. °

Alabama vs. Arizona, supra.

The judicial power does not extend to the deter-

mination of abstract questions.

New York vs. Illinois,. 274 U.S. 488, 47 S. Ct.

661; United States vs. West Virginia, 295

® U.S. 463, 474, 55 S. Ct. 789, 793.

The Court will.not give advisory opinions or

pronounce declaratory judgments. Its jurisdiction will

not be exerted in the absence of, absolute necessity.

Alabama vs. Arizona, supra; Arizona vs. Cali-

fornia, 283 U.S. 423, 464, 51 S. Ct. 522, 529;

U. S. vs. West Virginia, supra; Massachu- _

setts vs. Missouri, 308 U. S. 1, 60 S. Ct. 39.

To predetermine, even in the limited field of water

power, the rights of different sovereignties pregnant

with future controversies, is beyond the judicial func-

tion. The courts deal with concrete legal issues, pre-

sented in actual cases, not abstractions,

U.S. vs. Appalachian Power Company, 311 U.S.

377, 423, 61.S. Ct. 291, 306.

PBL AR Mad Ke

47

ENE aie Rade TT aay ta pS aibt take

BERS LAU

—19—

California does not attempt to allege any facts con-

stituting the existence of a justiciable controversy with

respondents, nor would any such attempt be justified.

California does-not and cannot contend that the uses in

the Upper Basin are in excess of its rights under the Com-

pact. California does not and cannot contend that re-

- spondents, or the Upper Division States, are evading their

obligations to the Lower Basin under the Compact.

As we shall presently show, each and every interpreta-

tion of the Compaét sought by California, involving the

rights and obligations of respondents, is based upon the

assumption that at some time in the future, a situation or

condition may arise which may require adjudication.

Under paragraph II of her brief, pages 31 to 53, Cali-

fornia sets forth the various questions of interpretation of

the Compact which she desires that respondents be re-

quired to litigate in this action. We will proceed to discuss

these questions and show in each instance that there is no

justiciable controversy upon which respondents can be re-

quired to litigate these om

DISCUSSION OF THE PARTICULAR QUESTIONS OF IN-

TERPRETATION RAISED BY CALIFORNIA UNDER -

_ ARGUMENT IIL PAGE 31 OF HER BRIEF.

California states, ‘‘THE FOUR STATES OF COLO-

RADO, NEW MEXICO, UTAH AND WYOMING ARE

NECESSARY PARTIES TO THIS ACTION BECAUSE

THEY ARE PARTIES TO THE COLORADO RIVER

COMPACT, THE MEANING AND EFFECT OF

WHICH ARE IN CONTROVERSY IN THIS CASE,

AND NO DECREE CONSTRUING THAT AGREE-

MENT CAN BE FULLY EFFECTIVE WHICH DOES

NOT DETERMINE THEIR RIGHTS AND OBLIGA-

TIONS AS WELL AS THOSE OF THE PRESENT

PARTIES.”

p———

Under ‘‘A’’, page 31 of her brief, California statés

that respondents have certain obligations under Articles

o

os —20—

ITI(c), III (d) and III(e) of the Compact, and certain

_ rights under Articles III(a), II(e), I11(f) and III(g) of

the Compact, and that?respondents have rights and obliga-

tions under Articles VII and VIII of the Compact.

' There is, however, no allegation by California that

respondents, or the Upper Division States, are exceeding

their rights or evading their obligations under these

various articles of the Compact, to the injury of California |

or the Lower Basin. a

In the absence of such,an allegation, there is no justici-

able controversy upon which respondents’ rights and ob-

ligations under these articles of the Compact can be adju-

diciated.

Under Argument II ‘‘B’’, pages 32 to 35 of brief,

California discusses her controversy with Arizona over the

waters of the Gila River, which is purely a lower basin

dispute. As to respondents’ interest therein, California |

states at page 34 of the brief, “The States of the Upper Di-

vision, in the calculation of their obligation under Article

III(c), are thus directly affected by the question of

whether or not the uses on the Gila River and other Lower

Basin tributaries are accountable under Article III(a).”’

Article III(c) has to do with the obligation of the

Upper Division States in case there is a shortage of water

to supply Mexico under the Mexican Treaty.

In other words, California says that should the time

come that the Upper Division States are required to furn-

ish water at Lee Ferry to supply a deficiency to Mexico ,

under Article III(c), that it may then be to the advantage ©

of the Upper Division States if California is right in her

interpretation of the Gila River controversy:

California does not allege that there now exists a-

shortage in the supply to Mexico under the treaty and that

the Upper Division States are refusing to — their

obligation unaer Article III(c). | \

| ad

2?

‘ . 3

ee

4

4

— , poe

What California says in effect is that at some ‘time

in the future there may be a shortage of.water to Mexico,

and that at that time the Upper Division States may refuse

to recognize their obligation under Article III(c), because

they may not agree with California on the Gila River dis-

pute.

The facts are that the Upper Division States are now

consumptively using bit approximately 2,500,000 acre feet

of their apportioned 7,500,000 acre feet; and that under the

present uses there is more than sufficient water to satisfy —

the Mexican needs from the unused portion of the Upper

Basin’s share alone.

Under Argument ‘‘(©”’’, (page 35 -of brief, California -

raises the question that Article VIII of the Compact, pro-

viding ‘‘present perfected rights to beneficial use of

waters of the Colorado River system are unimpaired by

this Compact’’, means unimpaired as t> quality as well as

quantity. Att om of page 35 of ner brief, California

says, ‘‘If is a question of fact, to be developed at the trial,

what effect the increased utilization of water in the Upper

‘Basin will have upon the concentration of salts‘in the resi-

due reaching Lee Ferry.’’

This, we believe, is typical of California’s entire posi-

tion of attempting in this case to determine not only all

possible questions of interpretation that may arise in the

future, but also to attempt to try in advance questions of

fact which may hereafter arise. —

We may reasonably assume from California’s state-

meat which we have just quoted, that if the Upper Division

- States are made parties, California will produce testimony

at the trial that increased use of water, in the Upper Basin,

may affect the quality of the water reaching Lee Ferry,

and therefore, this Court should then determine that there

can be no future development in the Upper Basin because

the-quality of the water might be affected. <

There is no present allegation that the present uses

—22— %

in the Upper Basin are depriving California of a quality

of water to which she claims she is entitled under her inter-

pretation of the Colorado River Compact. Nevertheless,

because the Upper Basin may, at some time in the future,

make such increases in its use in some manner which might

affect the quality of the water, the Upper Division States

are now to be brought into Court to try this issue upon

conjecture and opinion. We submit that states should not

have their rights to water, which are their very life blood,

determined on any such hypothetical and conjectural as-

sumptions. Should the time come that water uses.in the

Upper Basin do affect rights which California claims to

have under the Compact, then and only then should such

issues be determined.

Under.Argument “‘D”’, (page 36 of brief), California

discusses the manner of measurement of beneficial con-

sumpuve use. California contends that it should be meas-

‘ured by one’method, and Arizona contends it should be |

measured by another.

The respondents are not concerned at this time with

what particular method is used to divide the water use in

the Lower Basin. As to the division of the waters within -

a particular basin, the particular method of, measurement

is a matter for those states themselves to determine. |

If and when a controversy arises between the two basins

as to what method of measurement shall be used to deter- ,

mine inter-basin rights and obligations, that question can

then be determined. ° The question will not arise in the

foreseeable future. ‘ ‘

California states, at the top of page 38 of her brief,

that if her method of measurement is used. for inter-basin

purposes, the Upper Basin will have between 300,000 and

500,000 acre feet less of eonsumptive.use than if the Ari-

zont method is used. A

Yet, as we have pointed out heretofore, the Upper

Basin consumptive use is only about 2,500,000 acre feet,

t

|

: |

or |

and its apportionment is 7,500,000 acre feet. Under either

method of measurement contended for, the Upper Basin _.

use is well within the apportionment. }

When Upper Basin consumptive use approaches, the

Upper Basin apportionment of 7,500,000 acre feet, then and

not before, there may exist a justiciable controversy upon

which to litigate the question of what method of mheasure-:

ment of consumptive use shall be used in determining inter-

basin obligations. At this time, there is no such contro-

versy. Admittedly the Upper Basin is well within its ap-

portioned use, whichever method of measurement is used.

Argument ‘‘E”’ (page 39, California’s brief). Under

this argument, California discusses the matter of how salv-

age water is to be charged. What we have said with re-

gard to Argument ‘‘D’’ likewise applies to this argument.

At some time in the future, an interbasin controversy may

arise over the question of how salvage waters are to be

charged. At the present time, this is an intrabasin contro-

.- versy between -Arizona and Califorsia, It only becomes

important to the Upper Basin when the Upper Basin uses

or the Lower Basin demands raise the question.

There is not now any controversy between the two

basins over this question, for irrespective of how salvaged

waters are to be charged, the Upper Basin use is well with-

in its apportionment under the Compact. ~

Argument ‘‘F’”’ (page 41 Brief). California contends —

that the Upper Basin uses-are limited to a maximum of

7,500,000 acre feet in a given year under Article III(a) of |

the Compact.

California does not allege that the Upper Basin uses

have in any year exceeded 7,500,000 acre feet. California,

in effect, contends that at some time in the future,’ thé Up-

per Basin may so develop its use, that it might seek to-

beneficially consume more than 7,500,000 acre feet of water

‘in one year, and that if this did: happen, it would be con-

trary to California’s interpretation of the Compact, and

therefore, this Court should now determine this question.

\

-

“ts

- = sd

«4

sill ce

Until the time arrives that the Upper Basin use ex-

ceeds 7,500,000 acre feet in any one year, there is.no justici-.

able controversy upon which the Court should make an

interpretation.

Argument ‘‘G’’ (page 43, California brief). Under

Argument ‘‘G’’, California states that the Upper Basin

States are interested i in the question of how rights may be

acquired in waters surplus to those specified in Article

III(a) and Article III(b). California says rights may be

obtained by her in such surplus by appropriation. Cali-

fornia does not assert that the Upper Basin is depriving

her of any such waters she claims by her appropriation

theory. What California does say is that the Upper. Basin,

at some time in the future, may attempt to use more than

its apportioned 7,500,000 acre feet, and that if and when

that time arrives, the Upper Basin use of the excess over

7,500,000 acre feet is subject to California’s prior uses.

/It is again necessary to point out that the Upper Basin

uses are but approximately one-third of its apportionment.

' Yet, California-would have the Upper Basin States litigate

an issue now which, if it ever arises, can only arise many

years in the future and after the Upper Basin has increas-

ed its use to an excess of 7,500,000 acre feet.

Argument “‘H’’ (page 45, California brief). Under

this argument, California discusses the question of whether

the waters mentioned in ‘Article III(b) are apportioned.

or unapportioned waters. _

In the pe place, III(b) water is*water allocated

solely to. the Lower Basin, and respondents have no rights

therein. In the ‘second place, in 1948, California repre-

sented to the United States Congress, in the McCarran

hearings heretofore mentioned, that this issue is a contro-

versy between Arizona, California and Nevada, and that

the respondents were not necessary parties to its determin-

ation.’ (See Hearings before a Subcommittee of the Com-

mittee on Interior and Insular Affairs, United States Sen-

ate, Hightieth Congress, on’S. J. 145, page 129, supra).

—I95—

_ With this we agree. er

However, California, in her argument, in effect says

that if her contention is correct, that the waters are un-

apportioned, and if III(b) waters are surplus waters, and

if after October 1, 1963, either basin shall have reached its

total dee siaraa? consumptive use, and if at that time a

III(g), and if the Upper Basin receives an additional ap-

portionment, that then it may be to the advantage of the

Upper Basin 7f III(b) water is construed as unapportioned

~~ water, and therefore the Upper tae has an interest in

this controversy.

Upon such a speculative and conjectural statement,

California is seeking to make the ver Division States.

litigate their rights. | aa

There is no controversy existing at this time between

the Upper and Lower Basins on this point. No contro-

_ versy, in any event, could exist prior to October 1, 1963,

which by Article ITI(f) is the earliest date when the matter

of further apportionment can be considered. :

No justiciable controversy exists between respondents

and California on this question. °

Argument “IT (page 46 of -brief). California says

that the Upper Division States are affected by the contro-

versy between California, Arizona and Nevada over the

charging of reservoir evaporation losses on Lower Basin

reservoirs. n

This obviously is a Lower Basin scinkvoversy. The |

respondents are not interested i in how California, Nevada’

and Arizona charge the reservoir losses in | the Lower

Basin.

The Upper Baaik States, by the Upper Colorado River

Compact, ‘charge the reservoir losses in the Upper Basin

among the Upper Basin States as a consumptive use under

- the Colorado River Compact. (Article V, Upper Colorado

River. Compact). a:

oo

The apportioning of tha : reservoir - losses i in the Lower

Basin is purely a Lower Basin problem. The respondents

are not necessary parties to a determination of this issue, |

-—__ and the State of California, in the McCarran hearings, |

: a States Congress that the Upper |

Basin States directly concerned and need not be |

|

—

made parties to the. litigation to determine “this issue.

With this we agree. (See Heariigs before a Subcom-

* mittee of the Committee on Interior and Insular Affairs,

United States Senate, Kightieth Congress, Second Session,

. on S. J. 145, page 129, supra).

ee een, ves

Certainly, there is no allegation of any justiciable .

controversy existing between California ond respondenté |

over this question.

bi me em

* Argument ‘‘J’’ (page 48 of brief). The claims of the

United States mentioned in Argument ‘‘J’’ of California’s

p brief will be hereinafter discussed.

Argument ‘‘K’’ (pages 48 to 53 of brief). California

argues that because the respondents are signatories to the

compact, they must be joined in this action . That is ex-

actly contrary to the position taken by the State of Califor-

nia in the McCarran hearings heretofore cited.

We repeat that California, and California alone, takes

the position that the respondents and the Upper Division

- States are necessary parties.

—— ee

This action to divide the water use in ‘the Lower |

Basin is a pe action to enforce the Colorado River Com-

pact. This is an action to determine a question which was

purposely eliminated from” the Compact. The Compact

does not and did not intend to divide the water use between

the individual states within a basin. This action to divide

the water use in the Lower Basin i is not an action to enforce

the Compact, but an action to determine rights which exist.

outside of the scope of the Compact.

It is also contended by California, at page 51 of her

brief, that —" of the = ‘** All parties hav-

+.

a

ing interests in Colorado River system waters must be

joined.’’ -This Court has held otherwise. In the case of

Nebraska vs. Wyoming, 295 U. S. 40, 55°S. Ct. 568, Ne-

braska instituted an original proceeding in this Court

against Wyoming, seeking an equitable apportionment of

the waters of the North Platte River. Wyoming filed a

motion to dismiss, one of the grounds of which was that

the State of Colorado was an indispensable party because

the North Platte rises in Colorado and drains a consider-

able area therein. In other words, Wyoming contended

that Colorado, having an interest in the North Platte

River System, was an indispensable party to the contro-

versy between Nebraska and Wyoming. This Court said,

at page 43, of the U. S. Report:

‘*The contention is without merit. Nebraska as-

serts 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 disclose a necessity

to bring her into the suit. It suffices to say that upon

the face of the bill she is not a necessary party to the

dispute between Nebraska and Wyoming concer ning

‘the respective priorities and rights of their citizens in

the waters of the North Platte River. "

Later Nebraska amended her complaint, mere that

Colorado,

‘‘By diversions of water from the river for irri-

gation purposes were violating the rule of priority of

appropriation in force in the three states and depriv-

ing Nebraska of water to which she was equitably en-

titled.”’ Nebraska vs. Wyoming, 325 U. 8. 589, 591

592, 65 S. Ct. 1332, 1338.

Upon these allegations the Court joined Colorado as

a party. Nebraska vs. Wyoming, 296 U. S. 553, 56 S. Ct.

369.

Following the rule laid down in the Nebraska vs. Wyo-

. 2

>

Be

——— |

ming cases, respondents state that California asserts no

wrongful act of Colorado or Wyoming in the present case,

nor does California allege that respondents are depriving

California of any waters of the river to which she is en-

titled. In the absence of such allegations, respondents are

not. necessary parties to this action to divide water use in ©

the Lower Basin.

Nor did this Court alter t. is rule in the three Arizona —

vs. California cases cited at page 51 of California’s brief.

However, this Court, in one of these cases, Arizona

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

529, re-affirmed the rule that adjudication of rights to

interstate waters must be founded on an existing justici-

able controversy. This Court said:

&

es

‘‘There is no occasion for determining now Ani-

zona’s rights to interstate or local waters which have

not yet been, and which may never be appropriated.

New Jersey vs. Sargent, 269 U. S. 328, 338, 46 S. Ct.

122, 70 L. Ed. 289. This Court cannot issue declaratory

decrees.’’

Ill. THE RESPONDENTS ARE NOT NECKES-

“SARY PARTIES TO A DETERMINATION

F THE! CONTROVERSY BETWEEN ARI-

(“Oa AND CALIFORNIA UNDER THE ©

BOU R CANYON PROJECT ACT AND ©

THE CALIFORNIA SELF-LIMITATION |

ACT. —

At page 58 of her brief, California states “THE

FOUR ABSENT STATES ARE NECESSARY PAR-

TIES TO THIS ACTION IN THEIR CAPACITY AS

THIRD PARTIY BENEFICIARIES OF THE STATU-

TORY COMPACT BETWEEN THE UNITED STATES

_ AND CALIFORNIA EVIDENCED BY THE BOULDER

CANYON PROJECT ACT AND THE CALIFORNIA

LIMITATION ACT.”’

ra

)

—29—. ~

The Boulder Canyon Project Act (45 Stat. 1057) and

the California Self-Limitation. Act (Chapter 16 Calif.

Stats. 1929, p. 38), relate to the division of water use in the

Lower Basin. These Acts are set forth at pages 9 to 31

in Appendixes to California’s answer filed herein.

The Boulder Canyon Project Act, which authorized the

construction of Hoover Dam, provided in Section 4(a) that

no construction should be commenced until one of two con-

ditions had been performed:

1. That all seven Colorado River Basin States ratify

the Colorado River Compact; or -

2. If all seven States fail to ratify the Compact in

six months, then it must be ratified by six of the

seven Basin States, including California, and Cali-

fornia, by legislative act, agree ‘‘for the benefit

of the States of Arizona, Colorado, Nevada, New

; Mexico, Utah and Wyoming”’ to limit her bene-

ficial consumptive use of water from the Colo-

rado River, for use in California, to 4,400,000 acre

feet of the water apportioned to the Lower Basin

by Article III(a) of the Compact, plus not more

than one-half of the excess or surplus waters un-

apportioned by the Compact, and such uses to

be subject to the Compact.

Arizona did not ratify the Compact in the six months

period. The other six States, including California, did

ratify the Compact, and California did pass the legislative

act limiting her uses as provided for in the Boulder Can-

yon Project Act. This legislative act of California is

commonly referred to as the California Self-Limitation

Act.

California contends that Arizona is not entitled to any

benefits under the California Self-Limitation Act. Her

_ Position is set forth at pages 60 and 61 of California’s

answer to Arizona’s complaint as follows:

—30—,

‘« Arizona, in this action, seeks to establish alleged

rights dependent upon that State’s participation asa

party to the Colorado River Compact as a Seven-State

Compact, and also seeks to establish alleged rights as

a third party beneficiary of the said Statutory Com-

pact. Arizona has not herein, or otherwise, offered

to do equity and to waive any rights as such third

party beneficiary, or by such waiver, or otherwise, to

place California in the same position in its relation to

Arizona as that which California would have occupied

with respect to contractual or other rights to the use

of waters of the Colorado River system, had the Legis-

lature of the State of Arizona approved and ratified

the proposed Colorade River Compact as a Seven-

State Compact prior to June 25, 1929. Arizona can-

not, as of February 24, 1944, and thereafter, be per-

-mitted to assert, to her advantage, and to California’s

detriment, rights allegedly derived from, and depend-

ént upon, both the Colorado River Compact and the

Statutory Compact.’’ (See pages 60 and 61 of Cali- —

fornia’s answer to complaint).

This is purely a dispute between Arizona and Cali-

fornia, and the controversy relates solely to the division of

the water use in the Lower Basin. This dispute has no ap-

plication to inter-basin rights ‘and obligations, nor does

California allege that respondents have committed any

act or omission which deprives California of any rights

which she claims under these two Acts. Neither does Cali-

fornia point out in what respect the Acts create any rights

in or imposes any obligations upon respondents.

California argues that merely because respyu:" ents are

named as beneficiaries in the Acts, they are necessary: part-

ies to this dispute.

This respondents deny.

Whether Arizona is or is not entitled to the benefits of

this Act is a matter of no moment to respondents.

g

°

a

The question of whether the division of the use of the

waters to which the Lower Basin is entitled under the Com-

pact is affected by the Limitation Act, affects no rights or

obligations of respondents. Respondents’ rights and obli-

gations remain the same no matter what the division of

water use may be in the Lower Basin.

The mere fact that respondents are named as bene-

ficiaries in the Acts“does not create in respondents any

interest in how those Acts may affect the division of water

use in the lower Basin.

The mere fact that respondents are named—in these

Acts is not and should not be sufficient to involve respond-

ents in this litigation, in the absence of any allegation that

a justiciable controversy exists between respondents and

California, involving the interpretatidn of respondents’

rights and obligations thereunder. There is no such alle-

gation. The respondents have been accused of no wrongful

act or omission which deprives California of any right she

claims.

Also, Arizona’s claims under adit Acts, do not affect

respondents, for Arizona admits. by her complaint that her

claims to water use are subject to the Colorado River Com-

pact and the availability of water under said Compact.

(See prayer, p. 30 Arizona complaint).

‘‘Not every matter whieh would warrant resort

to equity by one citizen against another would justify

our interference with the action of the state, for the

burden on the complaining state is much greater than

generally required to be borne by private parties.

Before the court wll intervene the case must be of

serious magnitude and fully and clearly proved.’

Colorado vs. Kansas, 320 U. S. 383, 64 S. Ct. 176,

181.

‘‘The governing rule is that this Court will not as-

sert its extraordinary power to control the conduct of

one state at the suit of another unless the threatened

ae

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invasion of rights is of serious magnitude and estab-

lished by clear and convincing evidence.”’ .

Connecticut vs. Massachusetts, 282 U. 8S. 660,

669, 51 S. Ct. 286, 289.

The Supreme Court’s jurisdiction ‘‘in respect of

controversies between states will not be asserted in the

absence of absolute necessity.’’

Alabama vs. Arizona, 291 U. S. 286, 291, 54 S.

Ct. 399, 401.

v

dt is respectfully submitted that respondents have no

interests in issue in this dispute, and its determination

does. not require the presence of respondents as parties

thereto.

Iv.° THERE IS NO JUSTICIABLE CONTRO.

VERSY EXISTING BETWEEN RESPOND-

ENTS AND THE UNITED STATES RE-

QUIRING THE PRESENCE OF RESPON-

DENTS AS PARTIES TO THIS ACTION.

At page 61 of her brief, California states: ‘‘THE

FOUR ABSENT STATES ARE NECESSARY PAKR-

TIES TO THE ADJUDICATION OF THE CLAIMS

OF THE UNITED STATES TO THE WATERS OF

THE COLORADO RIVER SYSTEM.’’

We have carefully read the petition in intervention

filed herein by the United States of America. Nowhere

in the petition do we find any: claim of the United States

against the Upper Division States or the Upper Basin or

the respondents. ,

The United States makes certain affirmative claims

to water use in the Lower Basin, and asks the Court to

quiet the title of the United States of America in its right

as asserted in the petition against the adverse claims of

the State of Arizona and the “alifornia defendants. (Page

42, United States Petition of Intervention).

The United States has not requested that the Upper

oe

Division States be made parties to this proceeding on the

ground that they are necessary parties to the determina-

‘tion of the rights of the United States in the waters in the

Lower Basin.

The United States has treated this action ‘as one to

determine the rights to the use of water in the Lower Basin

of the river.

There is no allegation in the petition for interv@ntion

of the United States or California’s motion, that the Upper

Division States are now impairing, or are presently

thréatening to impair, or interfere with any rights which

the United States claims in the waters of the river.

There is no justiciable controversy existing at this

time between the Upper Division States and the United

States of America. :

So far as any claims of the United States to the waters

of the, river in the Upper Basin, the Upper Basin has made

provision in the Upper Colorado River Compact as fol-

lows:

| ‘‘The consumptive use of water by the United

States of America or any. of its agencies, instrumen-

talities or wards shall be charged as a use by the State

in which the use is made; provided, that such consump-

tive use incident to the diversion, impounding, or con-

veyance of water in one State for use in another shall

be charged to-such latter State:?’

(Article VII, Upper Colorado River Compact,

supra).

9

| California again-enters the realm of speculation and

conjecture. At page 64 of her brief, she in effect says that

at some time in the future, the United States: may make

some claim for Indian or other uses, which may be so

large that there may not be sufficient water in the river

to supply those claims and the uses contemplated by the

Compact, including the use apportioned to the Upper

Basin. Soyhe

ke

WEY BH Borns,

ait

If and when that time arrives, we assume these ques-

tions may be the subject of litigation to which all the

States may be parties. At the present time no such situa-

tion evists. Consequently, there is no present justiciable

controversy between the: Upper Basin and the United

States.

The present action is directed to a division of the wat-

ér use in the Lower Basin under present conditions, and

not on some condition or situation which may exist at some

time in the future.

In an action brought by the United States against the

State of West Virginia, to determine differences of opinion

over the waters of a river, this Court said:

‘‘But there is presented here, as respects the

State, no case of an actual or threatened interference

- with the authority of the United States. At most, the

bill states a difference of opinion between the officials

of the two governments...... There is no support

for the’contention: that the judicial power extends to

the adjudication of such differences of opinion. Only —

when they become the subject of controversy in the

constitutional sense are. they susceptible of judicial

determination. See Nashville, Chattanooga ‘and St.

Louis R. Co. vs. Wallace, 288 U. 8. 249, 259, 53 S. Ct.

345, 77 L. Ed. 780, 87 A.L:R. 1191. Until the right

Ge CT eS ee tae ~— ee ee ee

asserted is threatened.with invasion by the act of the.

State, which served both to define the controversy and

establish its existence in the judicial sense, there is no

question presented which is justiciable by a Federal

Court. See Fairchild vs. Hughes, 258 U. 8. 126, 129, 130,

42S. Ct. 274, 66 L. Ed. 499; State ex rel Texas vs In-

terstate Commerce Commission, 258 U: 8. 158; 162,

42 S. Ct. 261, 66 L.Ed. 531; Commonwealth of Massa- —

chusetts vs. Mellon, supra, 262 U. S.°477, 483.485, 43 -

S. Ct. 597, 67 L. Ed. 1078; State of New Jersey vs.

‘ 35.

Sargent, supra, 269 U:'8. 328, 339, 340, 46 S. Ct. 122,

70 L. Ed. 289.” United States vs. West Virginia, 295

U.S. 463, 473, 474, 55'S. Ct. 789,-793.

, Respondents respectfully submit there is no justiciable

controversy. existing between the’United States and re-

spondents requiring respondents? / presence as parties to

this action. i ;

ww

ace

V. CONCLUSION

The opposition of the respondents to being parties to

this action is more than mere reluctance to engagé in ex-

pensive and prolonged litigation. Water is the lifeblood

of the Upper Basin. Without it, growth and development

ceases. The last major source of water available for the

growth and development of the Upper Basin is the water

use apportioned to the Upper Basin from the Colorado

River by the Colorado River Compact. |

- It is of paramount importance, therefore, that the -

states in the Upper Basin be not required to adjudicate

the Upper Basin’s rights under this Compact upon specu-

lative, assumed and imagined statements of fact, which, if

they ever arise, can only arise in the distant future. *

These States are entitled to have their rights under

the Compact interpreted in the light of an existing set of

facts, creating at the time of the interpretation a justiciable

controversy, so that the interpretation of the rights of

these States can be made in the light of the facts then exist-

ing. aut ; |

The Upper Division States are now attempting to ob-

tain from the United States Congress an authorization for

a basin-wide development to utilize a modest portion of the

7,500,000 acre feet of consumptive use apportioned to the

Upper Basin. This proposed project would utilize the

beneficia] consumptive use of an estimated 1,700,000 acre

feet per annum, which added to the present beneficial

consumptive use of 2,500,000 acre feet, would make a total —

of but 4,200,000’ acre feet of the 7,500,000 acre feet appor-

tioned to the Upper Basin. (See Hearings Beforé the Sub-

committeee on Irrigation and Reclamation of the Commit-

tee on Interior and Insular Affairs, House of Representa-

tives, 83rd Congress, Second Session, on H. R. 4449, H. B.

4443, and H. R. 4463, page 697). |

Moreover, the period of construction of the works to

bring this development to fruition will take an estimated

thirty-three years. (See Table following page 192 of the

pk eae nies hn Sdoettecir Sint

ar

Hearings in the House of Representatives referred to .

above).

In the meantime, the growth and development in the

‘ Upper Basin is outrunning the waters now available. Any

delay in the development of’ water use in the Upper Basin

is a matter of very great moment to the Upper Division

States. The inclusion of the Upper Division States as

parties to this litigation will be urged by opponents of,

development? in the Upper Basin, as a reason why Con-

gress should delay the authorization of development until

the conclusion of the litigation. In fact, such argument

has already been made before’ the Highty-third Congress

of the United States by a representative of the State of .

California. The Assistant Attorney General of the State

of California, Mr. Ely, in testifying before the United

States Senate on the proposed plan for development in

the Upper Basin said:

‘‘The meanitig of the Document (Colorado River |

Compact) is now in controversy in the Supreme Court,

in respects which affect the measure now before-you.’”

(See Hearings Before the Subcommittee on Ir-

rigation and Reclamation of the Committee

on Interior snd Insular Affairs, United

State Senate, 83rd Congress, Second Ses-

sion, on S. 1555, page 587). :

As we have shown, there is no justiciable:controversy

in issue in the present action involving the rights and obli-

gations of the respondents under the Compact.

The division of the waters to which the Lower Basin

is entitled under the Colorado River Compact can be made

in this litigation without the appearance of the respond-

ents herein. Calforhia, and. California alone, urges the

necessity of the Upper Division States as necessary par-

ties, and yet California, in-1948, represented to the Legis-

lative branch of the United States Government that there

oo

on

was no dispute or problem requiring present disposition

between the Upper Basin and the Lower Basin. California

admitted at that time that the same issues which Arizona

has raised by her complaint, were the only issues requir-

ing adjudication to' determine the rights of the Lower

Basin States among themselves; and that the Upper

‘Basin States were not directly concerned and need not

be made parties to the litigation. &

fas

We respectfully submit that the motion of California

should be denied.

Respectfully submitted,

Duxe W. Dunbar

Attorney General of the State of

— Colorado

State Capitol Building

Denver, Colorado

HatTFIELD CHILSON f

- Special Assistant Attorney General

215 First National Bank

Building ©

Denver, Colorado

Attorneys for the State of |

Colorado and the Colorado «

) Water Conservation Board

owarp (B. Back ;

Attorney General of the State of

Wyoming «

‘State Capitol Building

Cheyenne, Wyoming

Attorney for the State of.

Wyomiug °