Petition for Rehearing — Arizona v. California

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*

; Office - Sepreme Court, 25.

_ LIBRARY duugrees

SUPREME COURT. u.gt] ~ JAN 3 1956

IN THE

Supreme Court of the Anited States

October Term, i 1961

No. Original. |

STATE OF ARIZONA, Complainant,

VS.

STATE OF CALIFORNIA, PALO VERDE IRRIGA-

TION DISTRICT, IMPERIAL IRRIGATION

DISTRICT, COACHELLA VALLEY COUNTY

WATER DISTRICT, METROPOLITAN WATER

DISTRICT OF SOUTHERN CALIFORNIA,

CITY OF LOS ANGELES, CALIFORNIA, CITY

OF SAN DIEGO, CALIFORNIA, AND COUNTY

OF SAN DIEGO, CALIFORNIA,“Defendants.

UNITED STATES OF AMERICA, Intervener.

STATE OF NEVADA, Intervener.

6

Petition for Rehearing of Decision Denying Motion |

to Join the States of Colorado, New Mexico, Utah

and rene

(See List of Attorneys on Inside Cover)

Press or Byron S. Apams, Wasuincron, D. C.

* CONTENTS

Page

Inquiry to Solicitor Generat requested, under

Rule 58(3):

Are the claims which the United States

pleads for water for Indian use, satisfaction

of contract obligations, treaty requirements,

navigation, flood control, and other federal

purposes, restricted to the waters available -

to the Lower Basin under the Colorado

* River Compact, or are they claims against

the waters of the entire Colorado River

ONAN kos ecuseWasaukceaeeee eee ae

Court’s previous inquiry to Solicitor General. .

I. Federal Indian claims are pleaded eaiba ist

-the River,’’ not against ‘‘Lower Basin

NN = i os Soe cae a .

II. Has- the United States, by constructing

Hoover Dam, appropriated the ‘‘surplus”’

unapportioned by the Colorado River Com-

DOGT os vena abun dea esa nee wukee dese aes

IIf. Federal treaty claims are clearly ‘‘against

the River,’’ not merely against ‘‘Lower

TG WU ic vaca cones ee eki cect

IV. The Federal requirements for flood control

and navigation, like those for the Mexican

‘Water Treaty, are ‘‘against the River,’’ not

merely against ‘‘Lower Basin waters’’......

COMMON cine eke vs tenes ives bebsdasanuwaps

The Government’s silence here, and before

the Special Master, is ‘‘leaving the contro-

versy in such a condition that its final termi-

13

ii Contents Continued

Page

. nation may. be wholly inconsistent with equity

and good conscience.’’ Are the Federal

- ¢laims ‘‘against the River’’ or against only

_ **Lower Basin waters’’?

Certificate required by Rule 58 ................ 14

TABLE OF CASES AND AUTHORITIES CITED

CasEs °

Alabama v. Tgwxas, 347 U.S. 272 (1954) .,...... 7

Arizona v. California, 283 U.S. 423 (1931)... RF 10, Se

Arizona v. California et al., 298 U.S. 558 (1936)..

Ashwander ‘v. Tennessee Valley Authority, 207

REL Ry EEO sores sds eo Rb arene ken ee< 7

Federal Power Commission v. Oregon, 349 U.S.

ee ENE ay ad koh ce eno kes areev eens eee 5, 12

First Iowa Hydro-Electric Corp. v. Federal

Power Commission, 328 U.S. 152 (1946) peeces 12

Hinderlider v. La Plata River and Cherry Creek

Ditch Co.,°304 U.S. 92 (1938) ..... cee ceees 5, 8, 12

Missouri v. H olland, 252 U.S. 416, 434 (1920).... 9

Nebraska v. Wyoming, 325 U.S. 589 (1945)...... 7

Oklahoma v. Texas, 258 U.S. 574 (1922)......... 13

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,

BE MD oho cease ngs ce ueeuvese's 10

Pennsylvania v. Wheeling and Belmont Bridge

Co.,:18 How. 421 (US.. 1856)... oc iicesccssceee 12

Sanitary District of Chicago v. United States, 266 2

SIE 8 EE as ek eid d nbs CONES RTO TNO 10, 11

Shields v. Barrow, 17 How. 130 (U. S. Si 5 50% 13

South Carolina v. Georgia, 93 U.S. 4 (1876)...... 12

Texas v. New Mexico, No. % Original (Oct. Term

WOOD Fide sccceessccsccue: -wesccvecgeaeseess 5.

United States v. Appalachian Power Co., 311 U.S.

EES: MAIS 6h 5s os wie bs 4 dg abo 088 Mice 7, 10, 12

United States v. California, 332 U.S. 19 (1947 Wee

\

f Contents Continued iii

| : Page

United States v. Chandler-Dumbar Co., 229 U.S.: - :

SS AUIS) sack sa ccetevbns Mcnrasa es ei

United States v. Gerlach Livé Stock Co., 339 US.

TA TEOOOD 5 ihn bao eee ea ears tl

United States v. Louisiana, 339 U.S. 699 (1950).. 11

United States v. Powers, 305 U.S. 527 (1939).. 6

United States v. River Rouge Improvement Co.,

a ee ee he ee cess 8

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

CT oe Es ee a rh ees 8 7

United States v. Texas, 339 U.S. 707 (1950)..... 11

United States v. Wmams, 198 U.S. 371 (1905).... 6

Washington, Department of Game and Fish v.

Federal Power Commission, 207. F. 2d 391 (9th :

Cir. 1953), cert. demed, 347 U.S. 936 ‘ag 12°

Winters v. United States, 207 U.S. 564 (1908)... 5

Wisconsin v. Illimois, 278 U.S. 367 (1929) ....... 11

ConsTITUTION AND TREATIES /

Constitution of the United States, Article I,

ae «TAPS ae rk are a rae Gg te os a ae

Mexican Water Treaty, U.S. renty Ser. No.

994, 59 Stat. 1219 (1945) As Pa bane oes oni

MEER cabkd habits ns GaN i eew obs cade cea®

5 INTERSTATE ‘COMPACTS AND STATUTES

TO NR eer ois aan Ear a Fait firs 8, 4

SR Sargeant ern Piney aogier 6

BOC. 6 posvcncivccccccsscvcceveercsecss 10

Colorado River Compact, H. Doc. 717, 30th Cong

EE SOE 5 05-0 v8 e533 825 ekvue eee 3

We ae AE og whe cin keane (Jib seraniene 3

PSS 2 a" OS er me eae re errr re 3

EEE cca passer evsenehivessaevrcee 4,9

i ee Contents Continued

ee tre oe oe +5

Revised Rules of thé Supreme Court of the

United States:

eds Sates Ie Raab eeu hiek 600s 14

: OD bors 53 Al ok fd. Ks 6 hb bdo 0 aa io 00° « 2

Documents anp REGULATIONS

91 Cona. Rec. (1945)

MUP PMN CL toe i bet ds ccs ebb i sicerstecess crs 9

, Code of Federal Regulations

See EU se be rociebecccinennsiee 10

‘Briers aND PLEADINGS

leniens on Behalf of the United States as

Amicus Curiae, Texas v. New Mexico, No.‘9

Original, October Term 1951, filed April 16,

a 1 oe eee seed babe sev hess

IN THE

Supreme Court of the United States

—e 6)

October Term, 1955 een?

No. 10 Original..

STATE OF ARIZONA, Complainant,

VS.

STATE OF CALIFORNIA, PALO VERDE IRRIGA:

TION DISTRICT, IMPERIAL IRRIGATION

‘DISTRICT, COACHELLA VALLEY, COUNTY

WATER DISTRICT, METROPOLITAN WATER

DISTRICT OF SOUTHERN CALIFORNIA,

CITY OF LOS ANGELES, CALIFORNIA, CITY

OF SAN DIEGO, CALIFORNIA, AND COUNTY

OF SAN DIEGO, CALIFORNIA, Defendants.

UNITED STATES OF AMERICA, Intervener.

STATE OF NEVADA, Intervener.

2

Petition for Rehearing of Snihiten Denying Motion

_ to Join the States of Colorado, New eee oi Utah

and Wyoming

? .

.. PETITION FOR REHEARING .

The per curiam’ decision of ‘December ol 2, —,

denies our motion to join Coloiado and Wyoming,

and grants the motion to join Utah and New

Mexico as parties ‘‘only to thevextent of their

interest in Lower Basin waters. -

The motion to join was ‘decided. in“the absence

of any brief or argument by the United States, ~

which is by far the major’ claimant.

We respectfully petition fot rehearing; .nd ask

that the Court, under Rule 58 (3) of this Court,

request the Solicitor General of the United States

to reply to this petition, and, in so doing, to answer

this question:

INQUIRY TO SOLICITOR GEWERAL REQUESTED

Are the claims which the United States

pleads for wate? for Indian use, satisfaction |

of contract obligations, : treaty. requirements,

navigation, flood control, and other federal -

purposes, restricted ta the waters available .

to the Lower Basin under the Colorado River

Compact, or are they claims against the waters

of the entire Colorado River System ?

COURT'S PREVIOUS INQUIRY TO —-

GENERAL _.

The Clerk of the Court, on October 15, 1952,

wrote the Solicitor General, saying, inter alia:

‘‘T have been directed by the Court to re-

quest you to state your views as regards juris-

diction.”’

-<s?

3

The Government’s motion for leave to intervene

(December 31, 1952) and Petition of Interven-

tion (December 8, 1953), followed. To our eyes,

the Petition is a plain claim of paramount

federal powers “against the river’’, not merely

‘‘Lower Basin waters’. Unfortunately, the Gov-

ernment’s silence here and before the Special

Master has created a situation which should be

clarified before final disposition of the joinder

motion.

If the Government, now or later, confirms that

any of its claims are against the waters, of the -

entire Colorado River System (there is no reason

to believe that the Government will contend other-

wise), then all seven States are necessary to their

adjudication. It is better to know that now rather

than later. ‘‘A decree could not be framed with-

out the adjudication of the superior rights asserted

by the United States.’’ Arizona v. California, et

al., 298 U.S. 558, 572 (1936). P

But if the Government’s reply should be that

the federal interests are limited to ‘‘Lower Basin

waters’’, however defined,* that answer would be

~ ‘ oD

* The expressiow ‘‘Lower Basin waters’’ used in the

Court’s per curiam. decision of Deeember 12, 1955, is not

found in the Colorado River Compact or the Boulder Canyon

Project Act. Does it mean the 7,500,000 acre-feet per an-

“num, ‘the use of which is apportioned to the Lower- Basin

by Article III (x) of the Compact? The added 1,000,000

acre-feet of consumptive use covered by Article III (b)?

The 75,000,000 acre-feet per decade guaranteed by the States

of the Upper Division in Article III (d)? The additional de-

’ ©

*

2 .

” ws

.

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4

_ineonsistent with the following claims made or

necessarily implied in its Petition of Intervention:

I. FEDERAL INDIAN CLAIMS ARE PLEADED

“AGAINST THE RIVER”, NOT AGAINST

“LOWER BASIN WATERS”

The Petition of Intervention claims 1,747,250

acre-feet per annum of diversion rights, of which

' 1,556,250 acre-feet are in Arizona (Petition, Par.

XXVII, p. 23, Appendix II-A, pp. 56, 57), and

denies that these are subject to the Colorado River

~ Compact (Par. XXXIV, p. 34), demes ‘that

Indian uses are chargeable to the Basin and State

in which they are located (Petition, Par.

XXXVII, pp. 37, 38), and specifically alleges that

Indian rights‘‘are in no way subject to or affected

by the Colorado River Compact.’’ (Petition, Par.

XXXVIT, p. 38.) (Emphasis supplied) If that is

so, they are not subject to the Compact’s division

of the Colorado River System into Basins. In a

motion ‘“‘for determination of questions of law”’

filed here October 20, 1955, denied November 7,

1955, the Government said, ‘‘If the Indian claims

are held to be ‘against the river’ as distinguished

from the Lower Basin as defined by the Colorado

River Compact, that conclusion would have far-

reaching effect upon the interests of all the States

liveries required by Article III (c)? The ‘‘unapportioned

excess or surplus’’ of which the Boulder Canyon Project

Act permits California to use one-half? It seems clear that

the federal claims are not restricted to waters fitting any of

these descriptions.

=)

in the Colorado River Stream System.” Has it

changed its view?

In Texas v. New Mexico, No. 9 Original, this

Court now has under review a report of a Special

Master on the relation of the Indian claims onthe

Rio Grande to the claims of Texas and New

Mexico. The ‘Rio Grande Compact, there liti-

gated, contains an exemption of Indian rights

~ (Art. XVI) which is modeled on that in the Colo-

rado River Compact (Art. VII). In an amicus

brief filed April 16, 1952, in Texas v. New Mexico,

the United States contended, ‘‘In the absence of

authority from Congress, the Compact could not

bind the United States or its wards, the Pueblo

Indians. The consent of Congress to the states

entering into the Compact was not a consent to

be a party bound by the Compact. Cf. Hinder-

lider v. LaPlata Co., 304 U. 8S. 92, 109.’ On Octo-

ber. 17, 1955, the Court requested the Department

of Justice to again state its position on the in-

dispensability of the United States as a party to

the Rio Grande controversy.

Indian claims now asserted by the Government

on the Colorado are at least aaa A times larger

than on the Rio Grande.

In Federal Power ‘Commission v. Oregon, 349

U. 8. 485 (1955), the United States asserted and

the Court recently sustained federal water rights,

based on Indian ownership of riparian lands, in

contravention of statutes of Oregon. See Winters

v. United States, 207 U. S. 564 (1908); United

6:

States v. Powers, 305 U. S. 527 (1939); Umted

States v. Winans, 198 U. 8. 371 (1905).

The States of the Colorado River Basin cannot —

safely assume, in the teeth of the Government’s

Petition of Intervention here, that federal Indian _

“claims on the Colorado are softer and less exten-

sive than those asserted on ‘the Columbia, the

ae River and the Rio Grande.

Does the Government here claim 1,747,250 acre-

feet of diversion rights in addition to the ‘‘ Lower

Basin’”’ waters referred to by the Court?. If so,

where is this water to come from, except the

waters of the entire System? Does it claim

1,556,250 acre-feet in Arizona as part of the

3,800, izona claims, or im,addition thereto?

If in addition, how ¢a is- quantity’ possibly be

supplied out of ‘‘Lower Basin waters’’?

II. HAS THE UNITED STATES, BY CONSTRUCTING

HOOVER DAM, APPROPRIATED THE “SURPLUS”

UNAPPORTIONED BY THE COLORADO RIVER

COMPACT?

Section 5 of the Boulder Canyon Project Act

directs that no person shall have the right to use

water stored by Hoover Dam except by contract

with the Secretary of the Interior.

The question here is whether the United States,

by construction of Hoover Dam, has appropriated

the surplus waters of the Colorado River System

as against all seven States and may lawfully

dispose of their use by contract. The United

°

{2

7

Gt

States was held indispensable in Arizona v. Calt-

fornia, 298 U. S. 558, 571-72 (1936), because ‘‘a

decree could not be framed without the adjudi-

eation of the superior rights asserted by the

United States.’’ One of the ‘‘superior rights’’ so

asserted was thus described by this Court, after

tabulating the California contracts: (p. 570.) —

‘‘Without more detailed statement of the

facts disclosed, it is evident that the United

States, by congressional legislation and by

acts of its officers which that legislation au-

thorizes, has undertaken, in the asserted ex-

ercise of its authority to control navigation, to

impound, and control the disposition of, the

surplus water in the river not already ap-

propriated.’”*

Cf. Arizona v. California, 283 U: 8. 423, 456-58, |

(1931) ; Ashwander v. Tennessee Valley Author-

ity, 297 U. S. 288, 328-30 (1935) ; United States v.

Appalachian Power Co., 311 U. 8. 377, 423-24, 426

(1940); United States v. Chandler Dunbar Co.,

229 U. 8. 53, 72, 73 (1913) ; United States v. San

Francisco, 310 U. S. 16, 29, 30 (1940) ; Alabama v.

Texas, 347 U. S. 272, 273 (1954) |

The Colorado River Compact does not allocate

this: ‘‘surplus’’, leaving that to a later compact.

*In Nebraska v. Wyoming, 325 U. S. 589, 629-631, 639-

640 (1945), Government contracts under the Warren Act

(36 Srav. 925) for delivery of water stored by federal proj-

eects were recognized and excepted from the final apportion-

ment of ‘‘natural flow’’ among the States.

8

(Art. ITI (f), (g).) But such a later compact

would require anew the consent of Congress. (Con-

stitution, Art. I, Sec. 10.) Thus such an appro-

priation by the United States of surplus which is

explicitly excluded from the effect of the present

compact, if valid now, cannot be divested without

the consent of Congress to a suppositional new

compact, and the Government’s right is good until

so divested. Cf. United States v. River Rouge Im-

_ provement Co., 269 U. S. 411, 420 (1926). The

United States denies that ‘‘all’’ its rights are sub-

ject to the present compact. (Petition, Par.

XXXIV, p. 34., Cf. Hinderlider v. LaPlata

River and Cherry Creek Ditch Co., 304 U.,S. 92,

109° (1938). If not ‘‘all’’, then which ones?

III. FEDERAL TREATY CLAIMS ARE CLEARLY

“AGAINST THE RIVER”, NOT MERELY AGAINST

“LOWER BASIN WATERS”

Article 10 of the Mexican Water Treaty (Treaty

Series 994) guarantees Mexico 1,500,000 acre-feet

per annum ‘‘of the waters of the Colorado River,

from any and all -sources’’. Senate Reservation

‘“(e)’? to that Treaty withholds power from

the Secretary of State and the International

Boundary and Water Commission ‘‘directly or

indirectly to alter or control the distribution of

water to users within the territorial limits of

any of the individual States,’’ but it omits

the Secretary of the Interior from the Pro-

hibition. This omission was deliberate, to en-

able the Secretary of the Interior to operate: all

federal dams in all seven States so as to perform

9

the guaranty to Mexico. An amendment to include

that officer in the prohibition was rejected for that

very reason. See Senate debate on consent to

ratification: 91 Cone. Rec. 3373-81, (April 16,

1945, 79th Cong., 1st Sess.). The protocol of No-

vember 14, 1944, to the Treaty is in accord. (Treaty

Series 994.) Of. Missouri v. Holland, 252 U. S.

416, 434 (1920).

The treaty burden, in terms, rests upon the

whole system, not the Lower Basin. Article

III(c) of the Compact, Article 10 of the Treaty,

say so. ,

The Government’s Petition of Intervention

(Par. XIII, p. 12, Par. XXVIII, p. 24) does not

limit its treaty claims to ‘‘Lower Basin waters’’;

- it denies that these rights are subject to the Colo-

rado River Compact. (Par. XXXIV, p.34.) Cali-

fornia’s answer to that petition (Par. 44°(b) (2),

p. 51) alleges that the federal treaty claims are

against all seven States of the Colorado River

Basin, not merely against the Lower Basin. Does

the United States assert otherwise?

IV. THE FEDERAL REQUIREMENTS FOR FLOOD.

CONTROL AND NAVIGATION, LIKE THOSE FOR

THE MEXICAN WATER TREATY. ARE “AGAINST

THE RIVER”, NOT MERELY AGAINST “LOWER

BASIN WATERS” —

The federal navigation and flood control servi- —

_ tudes, like that imposed by the Treaty, cut across

‘the Compact, indifferent to its division of the

System into Basins.

-10

-

As to navigation and flood control, Congress, in

the Boulder Canyon Project Act (Act of Decem-.

ber 21, 1948, 45 Stat. 1057) directed that the

reservoir created by Hoover Dam ‘‘shall be used:

First, for river regulation, improvement of navi-

gation, and flood control; second, for irrigation

and domestic uses and satisfaction of present per-

fected rights in pursuance of Article VIFI of said

Colorado River Compact; and third, for power.”

(See. 6) This Court has already held that this

““specific statement of primary purpose in the act

governs the general references to the compact.’’

Arizona'v. California, 283 U. 8. 423, 456 (1931).

(Emphasis' supplied )

There is thus no division into Upper Basin and

‘‘Lower Basin waters’’ so far as paramount fed-

eral powers are,concerned..-As between those

powers and one“State or seven, ‘‘This is not a

controversy between equals.’’ Sanitary District of

Chicago v. United States, 266 U. S. 405, 425

(1925). See Oklahoma ez rel. Phillips v. Guy F.

Atkinson Co., 313 U.S. 508, 512, 525-26 (1941);

United States v. Appalachian Electric Power Co.,

311 U.S. 377, 426-27 (1940).

The Government claims the right to utilize the

full capacity (38,000,000 acre-feet) of all its

reservoirs for all federal purposes. (Petition, Par.

XXX, p. 25; Appendix I, p. 43.) The power

claimed and exercised (millions of acre-feet may

be released from Hoover Dam to the Gulf under

the flood control mandate: see 33 C.F.R. § 208.80

4

rr

we

= {)

11

requiring 5,350,000 a¢re-feet of vacant capacity

in Lake Mead to be/available by January 1 of

each year) is the/ power to withhold from

use, or release to /the ocean and destroy, the

corpus of the water. It has nothing to do with

the consumptive uge of water, as apportioned by

the Compact. Cdmpare Sanitary District of

Chicago v. United) States, 266 U. 8. 405, 425, 426

(1925), and Wisdonsin v. Illinois, 278 U. S. 367,

415 (1929), with) United States v. Gerlach Inve

Stock Co., 339 U. S. 725, 737 (1950). It is more

like the guarants of the corpus of 1,500,000 acre-

feet per year made to Mexico by Article 10 of the

Treaty. (Treaty Series 994.)

California’s janswer to the Government’s Peti-

tion of Intervention (Par. 44 (b) (4) p. 52) al-

leges that the Government’s claims in the interests

of flood control and navigation are against all

seven States./ The seven are on an equal footing

with respect to paramount federal powers. United

States v> Texas, 339 U. 8S. 707, 715-17, 719,

720 (1950) ;|United States v. Louisiana, 339 U.S.

699 (1950) ;|United States v. California, 332 U.S.

19, 31 (1947). Does the United States here con-

tend otherwise ? D

Is the Colorado, alone of all the river systems

of the country, one in which the adjudication of

the rights/of the United States for treaty, navi-

gation and flood control functions tan be re-

stricted to the River’s ‘‘Lower Basin waters,’’ in

gonsequence of the consent of Congress to an inter-

state compact?

12

Does the United States now so limit the plenary

powers in aid of navigation and flood control which

it asserted, and sustained, ‘‘without conforming

to. the police regulations of a state,’’ in Arizona

v. California, 283 U. 8S. 423, 451 (1931) ? Nothing

in its pleadings here so suggest. ‘The Govern-

ment, it can be predicted, will contend here, as it

has done successfully before, that its constitutional

functions cannot be limited by ‘the legislation of

any State, e.g. Federal Power Commission v.

Oregon, 349 U. S. 435, 445 (1955); First Iowa

Hydro-Electric Coop. v. Federal Power Commis-

sion, 328 U.S. 152, 181, 182 (1946); United States

v. Appalachian Electric Power Co., 311 U. 8. 377,

404, 405, 426, 427 (1940); Washington Dept. of

Game and Fish v. Federal Power Commission

207 F. 2d 391, 395, 396 (9th Cir. 1953), cert.

| denied 347 U.S. 936 (1954), nor by any concert of

States by Compact, Pennsylvania v. Wheeling and

Belmont Bridge Co., 18 How. 421, 433 (U.S. 1856) ;

South Carolina v. Georgia, 93 U.S. 4, 8, 9 (1876), .

and that by consenting to the Compact the Con-

gress has not enthroned it as a federal statute,

Arizona v. California, 283 U. 8. 423, 456 (1931).

Cf. Hinderlider v. LaPlata River and Cherry

Creek Ditch Co., 304 U. 8. 92, 109 (1938).

Piecemeal litigation involving great water sys-

tems and many. states, with delayed fuses on fed-

eral issues, is not in the interest of anyone.

13

CONCLUSION

The Court properly denied the Government’s

motion of October 20, 1955, ‘‘For determination

of questions of law,’’ including some of those

above stated. But this does not solve the problem.

When the United States intervenéd, this became,

as to the federal claims, a suit by the United

States against the States. Oklahoma v. Texas, 258

U.S. 574, 581 (1922). The Government, in fair-

ness to the States it has sued, ought to tell the

Court, instead of asking to be told, whether its

own claims are ‘‘against the river’’ (a possibility

which it suggests), or against only ‘‘Lower Basin ~

waters’’ (the Court’s expression in the decision of

December 12, 1955). The question of whether

seven States or five are necessary parties turns on

the answer. The lack of that answer is ‘‘leaving

the controversy in such a condition that’ its final

termination may be wholly inconsistent with

equity and good conscience.’’ Shields v. Barrow,

17 How. 130, 139 (1855). The provisions of Su-

preme Court Rule 58 (3), providing for a reply

to a petition for rehearing if directed by the Court,

afford an appropriate channel for obtaining it.

The question of the source and extent of the Gov-

ernment’s water rights on the Colorado is one of

the gravest questions in the case. All seven States

are necessary parties to the decree which decides

-what Federal rights exist, determines their mag-

nitude and whether they are subject to the Com-

pact, and distributes the burden which they im-

pose.

yr

14

The Government’s silence, although doubtless

based upon a desire to remain neutral as between

the contending States, places the Court, the Spe-

cial Master, and these defendants in an intoler-

able position, because the Government is an affirm-

ative claimant, asserting rights adverse to those

of the States, and far exceeding theirs. As to its

own claims, it cannot be neutral. Are the federal

. ¢elaims ‘‘against the river” or against only ‘‘ Lower

Basin waters’*?

CERTIFICATE REQUIRED BY RULE 58

This petition is presented in good faith, and

not for delay.

a

NortHcutt Ey

Special Assistant Attorney

_ General, State of

California

Respeetfully submitted,

¢

e

(See names of counsel on page following.)

at

NA

ta

For the State of California

EDMUND G. BROWN,

Attorney General of "the

State of Califo

600 State Building,

San Francisco, California,

NORTHCUTT ELY,

ROBERT L. McCARTY,

Special Assistant Attorneys General,

1200 Tower Building,

Washington 5, D. C.,

PRENTISS MOORE, ™

Special Assistant Attorney General,

417 South Hill Street,

Los Angeles 13, California,

GILBERT F. NELSON,

Assistant Attorney General,

CHARLES E. CORKER,

HOWARD I. FRIEDMAN,

BURTON J. GINDLER,

JAMES B. McKENNEY,

JOHN R. ALEXANDER,

Deputy Attorneys General,

909 South Broadway,

Los Angeles 15, California,

ELY, McCARTY AND DUNCAN, -

CHARLES F. WHEATLEY, JR.,

Of Counsel,

1200 Tower Building,

, Washington 5, D.-C.,

For Palo Verde Irrigation District

FRANCIS E. JENNEY,

458 South Spring Street,

Los Angeles 13, California,

For Imperial Irrigation District

HARRY W. HORTON,

Chief Counsel,

R. L. KNOX, JR.,

101 Law Building,

El Centro, California,

For Coachella Valley County

Water District el

EARL REDWINE,

3610 8th Street,

Riverside, California,

°,

15

For the Metropolitan Water

District of Southern California

JAMES H. HOWARD,

General Counsel,

CHARLES C, COOPER, JR.

Assistant General Counsel,

‘DONALD M. KEITH,

Deputy General Counsel,

ALAN PATTEN,

Deputy General Counsel,

FRANK P. DOHERTY,

306 West 3rd Street,

Los Angeles 13, California,

For the-City of Los Angeles

ROGER ARNEBERGH,

City Attorney,

GILMORE TILLMAN,

Chief Assistant yf ‘Attorney

for Water and Power,

JOHN 8H. MATHEWS,

Deputy City Attofey,

207 South Broadway,

Los Angeles 12, California,

For the City of San Diego

J. F. Du PA

City Attorney,

SHELLEY J. HIGGINS, %

- Assistant City Attorney, ”

.. Civie Center,

‘ San Diego, California,

~ 'T. B, COSGROVE,

1031 Rowan Building

Los Angeles 18, California,

For /the County'of Sen Diegp

JAMES DON KE

District Attorney,

Court House,

San Diego, California.