# Petition for Rehearing — Arizona v. California

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0200%3A43

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Rehearing
- **Published:** January 1, 1962
- **Citation:** 370 U.S. 930

## Text

>

*

; 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 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0200%3A43. Public record. Not legal advice.