Exceptions to the Report of the Special Master — Arizona v. California

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TABLE OF CONTENTS

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IN THE &

Supreme Court of the United States

Ocrozer TERM, 1960

No. 9 Original

S

STATE OF ARIZONA,

- Complainant,

vs.

STATE OF CALIFORNIA, PALO VERDE IRRIGATION DIS- |

TRICT, IMPERIAL IRRIGATION DISTRICT, COACHELLA

VALLEY COUNTY WATER DISTRICT, THE METROPOLITAN

WATER DISTRICT OF SOUTHERN CALIFORNIA, CITY OF

exe DIEGO CITY OF SAN DIEGO, AND COUNTY OF

‘Defendants, m

UNITED STATES OF AMERICA and STATE OF NEVADA,

m Interveners,

STATE, OF NEW MEXICO and STATE OF UTAH, é

Parties.

a

~ Exceptions to the Report of the Special Master and

Recommended Decree on File Herein, Dated

December 5, 1960, Filed by, Defendant, The

__ Metropolitan Water District of Southern Calj-

fornia, on Its Behalf and on Behalf of Its Co-

Defendants, The City of Los Angeles, and in 4

_ Department of Water and Power, The City o

San | and The divested of San —_—

February 27, 1961

_—

INTRODUCTION. //

The defendant, The Metropolitan Water District of -

Southern California, is a public and-municipal corpora-

tion of the State of California. Its corporate area is

situated on the coastal plain of ‘Southern California ex-

tending frora (and iricluding a part of) Ventura Coun-

ty to the Mexican border, a distance of. 180 miles.’

A large number of municipalities, including the City of

Los Angeles (population 2,500,000), the City of San

Diego (population 575,000), and a substantial part of

the County of San Diego-are within the boundaries

of, and are served with Colorado River water on a

wholésaie basis by, the Metropolitan Water District.’

- The population of the Metropolitan Water District in

1956. was 6,423,000. (It is now about 7,000,000).

; ‘Its assessed valuation, in 1956, was $9,674,000,560.*

(It is now $13,820,731,775), about one-half of total

“assessed valuation of the State of California... All |

~ available local-water-sources_have long since been fully

developed and put to use. To sustain its present de-

velopment and population, and to provide for its in-

evitable growth, the Metropolitan Water District is de-

1Calif. Ex. 447 (Map showing constituent cities and municipal-

ities—present and potential areas, and MWD distribution system

as of 1941-57, Tr. 9,395), and Tr. 9,495-500 (Elder).

2Ibid,

5Calif. Ex. 527 (Economic Analysis—Population © 1900-75,

Tr. 9,395), Table 1, Tr. 9,784-92 (Dunn). 7

*Calif. Ex. 479 (Tabulation showing comparison of assessed

valuation and area of constituent entities of MWD, Tr. 9,395),

Tr. 9,658-61 (McKinlay) ; Calif. Ex. 527, noté 3 supra, Table 9,

Chart 9; Tr. 9,812-14 (Dunn). ~

SCalif. Ex: 480 (Tabulation ogg tes comparison of assessed

valuation .of property taxable for purposes within MWD

and State of California from 1929/30 to 1956/57, Tr. 9,395).

cn A

_ pendent upon water agreed to be delivered to it under

contracts with the United States (1931-1934) made

under the Boulder Canyon Project Act.®

Municipal water, requirments must be anticipated,

and provisions made for continuous supply for a ra-

pidly expanding population. Existing use, as of any —

given time, doe’ not indicate’ requirements. Public of--

ficers in' charge of water supply must look at least ten |

years into the future in providing municipal water ‘sup:

plies.’ aoe

-The Metropolitan Water District rights to the use of

Colorado ‘River water, both appropriative® and those

derived by contract under the Boulder Canyon Project

Act,*-are junior to established “present perfected rights”

Ariz. Ex. 38 (Water Delivery Contract: United States and

MWD, April 24, 1930) Tr. 251) ; Ariz. Ex. 39 (Amended Water

Contract: United States and MWD, September 28, 1931, Tr:

252); Ariz. Ex. 40 (Water Delivery Contract : United States and

City of San - Diego, hye 15, 1933, Tr. 252); Ariz. Ex. 41

(Merger, San_Diego Water Delivery Contract with MWD, Tr.

253); Ariz. Ex. 42 (Assignment, San Diego to MWD, March

14, 1947, Tr. 253), and Tr. 9,721-22 (Mr. Howard). ,

*Tr. 9,828 (Morris).

8Calif. Ex. 426 (Application for appropriation by MWD, No.

6406, August 14, 1929, Tr. 9,395) ; Calif. Ex. 431 (Application

for appropriation by MWD, No. 6840, December 1, 1930, Tr.

9,395); Calif. Ex. 430 (Application by MWD, No. 6406, 4th

Amendment, of September 26, 1947; and PERMIT No. 7641,

. issued January 6, 1950, Tr. 9,395) ; Calif. Ex. 435 (Application

by MWD, No. 6840, 4th Amendment of September 26, 1947;

and PERMIT No. 7642 issued January 6, 1950, Tr. 9,395) ;

Calif. Ex. 439 (Application by MWD, as successor to City of

San Diego, No. 4997, 3rd Amendment of September 26, 1947;

and PERMIT No/7640 issued January 6, 1950, Tr. 9,395) ; and

‘

°

6

Calif. Ex. 68 MWD Chart—chain of title of appropriative rights, -

°

Tr. 6,894, 9,487), Tr. 9,482-87 (Mr. Howard).

‘9See note 6, supra. |

pn ASD

as of 1929. Under an agreement made in 1931,° em

* bodied in the water delivery contracts with the United

States made by the Secretary of the Interior under the

Boulder Canyon Project Act, such rights are junior to

old agricultural rights on the river. It follows that,

in the event that the conclusions in the pending Report

of the Special Master be sustained, the District would

suffer the major damage resulting from errors of law

appearing in the Report and Recommended Decree. In

fact, under water supply conditions, revealed by the evi-

dence but ‘as to which the Special Master erroneously

declines to make findings," the application of the prin-

ciples asserted by the Report would result in complete

elimination of the District’s water supply from the Col-

orado River. |

’ Counsel for the defendant, the Metropolitan Water

District, have co-operated with the State’s Attorney

General in the preparation of exceptions and objections

to the Special Master’s Report and Recommended De-

- cree, and join therein. Because it appears in this cause,~

and has been considered by the Special Master, as a

separate ‘defendant, and has a special interest in

the outcome of the pending litigation, the Metropolitan

Water District, on behalf of itself, and on behalf of

its co-defendants and constituent agencies, the City of

Los Angeles and its Department of Water and Power,

the City of San Diego and the County of San Diego,

herewith files additional exceptions to the Special Mas-

Bs me. ee (Seven-Party Priority Water _Agreement, —

August 18, 1931, Tr. 242)- =

| 11Report pp. 99-102, 146.

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|

ter’s Report on file herein, dated December ‘5, 1960, |

on grounds hereinafter set out. 49)

The erroneous conclusions adverse to the defendant,

the Metropolitan Water District, are not separately

stated as findings and conclusions in the Report, but

are in large part merged in the text of the Report and»

reflected inv the Recommended Decree. Consequently,

the following exceptions relate to the ultimate conclu-

sions hereinafter specified and to all incidental deter-

_ minations involved in reaching such ultimate conclu-

sions.

Specification of Errors and Exceptions

Exception No. 1:

The Special Master errs in all holdings, determina-

tions, and conclusions supporting, the proposition that

the contract’? entered into in, 1931 by the United States,

acting through the Secretary of the Interior under the

Boulder Canyon Project Act, and the defendant, the

- Metropolitan Water District, providing for delivery to

the District from storage in the reservoir created by

Hoover -Dam (Lake Mead), water up to a fixed quan-

tity, and providing for “permanent service” (subject to

the Colorado River Compact™* and the Boulder Canyon

Project. Act), which contract was relied upon by the de-

fendant, the Metropolitan Water District, in constructing

the Colorado River Aqueduct, is subject to impairment

12Ariz. Ex. 39 (Amended Water Contract: United States and

MWD September 28, 1931, Tr. 252). F

1345 Stat. 1058 (1928), 43 U.S.C. Sec. 617¢ (1958) ; Report,

p. 379, Appx. 3. : 3

‘14Ariz. Ex. 1 (Colorado River Compact, Tr. 214) ; Report, p.

371, Appx. 2. ek

—o— *

and defeat in. whole or in part.by acts of a later Secre-

tary of the Interior in 1944,"* which acts the Special

Master erroneously holds to constitute an apportionment |

of the use of water to other states.’* *™*

Exception No. 2:

' The Special Master errs in holding that the Con-

gress “imposed” a limitation on use of. water of. the

Colorado River in California’; and in failing to recog-

nize that the Boulder Canyon Project Act” and the Cali-

fornia Limitation Act’® constitute a compact betweenthe

United States and’ the State of California voluntarily

entered into, ‘consensual in character, and subject to in-

terpretation under the law of contract: |

Exception, No. 3: 3

The Special Master errs in holding that the references

in the Boulder Canyon project Act (first paragraph of

Section 4(a)), and the ‘garage: language in the-

California Limitation Act, to “waters apportioned to

the lower basin. States by paragraph (a) of Article

IT of the Colorado River. compact””” (by definition.

water in the Colorado River System, including its tribu-

14aA riz. EX. 32 (Water Delivery Contract between United

States and Arizona, Feb. 9, 1944, Tr. 248) ; Report, p. 399, 7

, Appx. 5.

1*Report, pp. 150-54, 221-28, 313-14.

158A contract dated Feb. 15, 1933 between the City of San

Diego and the United States ( Ariz. Ex. 40), similar in character

to the Metropolitan Water District contract Sinig Ex. 39), has —

been assigned to the Metropolitan Water District (A riz. Ex. 42),

and is subject to the same exception set forth in Exception 1.

See also, note 6, supra. .

16Report, p. 165.

1TReport, p. 379, Appx. 3

8Arix, Ex. 14. '(Califorriia Limitation Act, 1929, Tr. 232) ;

. Report, p. 397, Appx. 4.

~ Report, pp. 180-83.

2°Report, p. we 3 at p. 382; Report, p. 397 at p. 398.

\

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taries) do not carry their literal meanings but instead

mean the first 7,500,000 acre-feet of “mainstream” v

water (exclusive of tributaries) available for use in the

lower basin from Lake Mead and the river below Lake

Mead.” f

Exception No. 4:

The Special Master further errs in holding that the

references in the Boulder Canyon Project Act (first

paragraph of Section 4(a)), and in the corresponding

language of the California Limitation Act, to “excess

or surplus: waters unapportioned by said .compact’”

do not carry their literal meanings, but instead, mean

water available for use in the lower basin from the

_ mainstream (exclusive of tributaries), in excess of the

first 7,500,000 acre-feet so available.”

Exception No. 5: 3

The Special Master errs in defining the “main-

stream” as “water stored in Lake Mead and flowing in

the mainstream below Hoover Dam’™ and in treating

.the river above Lake Mead as a “tributary”.**

Exception No. 6:

The Special Master errs in determining that the right

of increase of use permitted to the lower basin by Ar-

_ticle III(b) of the Compact” constitutes an apportion-

ment of use of water with the same legal effect as”

~. the apportionments made by Article III(a)*" and that,

.

- *1Report, pp. 167-85.

22Report, p. 379, Appx. 3 at p. 382; Report, p. 397 at p. 398..

eport, pp. 168-70; 194-200.

24Report, p. 173, 185.

*5Report, p. 202. -

*6Report, p. 371,-Appx. 2, at p. 373.

27] bid.

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if the California Limitation Act derives its meaning

from the Compact, California is excluded from parti-

cipating in the use of water referred to in Article

III(b).”

Fassia Be No. 7:

\4 ‘The Special Master’ errs in holding that the Colorado

: River ‘Compact, ‘the doctrine cof equitable apportion-

: “ment, and the law of appropriation are all irrelevant

"ite ‘the allocation of such water among the three states

(Arizona, Nevada, and California ).”

a

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Exception No. 8:~

The Special Master errs in holding, (a) that in the

Boulder Canyon’ Project Acct, the Congress intended

to or did delegate to the Secretary of the Interior the

authority to allocate*® (apportion) by a formula un-

related to water supply, among the three states of the

lower basin having access thereto, use of the water

from the mainstream of the Colorado River (defined

as Lake Mead and the mainstream below Lake Mead)

in perpetuity and on a parity regardless of use, time of

use, or priority based on use (except as to present per- ©

fected rights as of 1929),* and (b) that the succes-

sive Secretaries of the Interior by a series of contracts

intended to or did so apportion such use of water in

perpetuity or on a parity.”

28Report, pp. 169, 194-96.

2°Report, p. 138.

8°The Report uses the terms “allocate” and “apportion”_an

their derivatives interchangeably.

81Report, pp. 151-54, 173, 221-22, 233, 236. 2

‘82Report, pp. 201-27, 237-47, 313-14, 162.

.

inlet

Exception No. 9:

The Special. Master erroneously ‘concludes (a) that

the beneficial consumptive use of 7,500,000 acre-feet

per annum apportioned in perpetuity to the upper basin

by Article III(a) of the Colorado River Compact (sub-

ject only to the covenants of paragraphs (c), (d), and

(e) of Article III of the Compact) constitutes a “ceil-

ing on appropriations”, and is irrelevant to the deter-

mination of the pending controversy; (b)-that the -

dependable water supply of the lower basin, hence the

effect of the Recommended Decree, is not determinable

within useful limits of accuracy ;** and (c) that the de-

pendable water supply available for consumptive use in

the lower basin is irrelevant to the resolution of the

issue in this suit.> _

Exception No. 10:

(a) The Special Master errs in holding that Ari-

_ zona did effectively ratify the Colorado River Compact

in 1944,%°

(b) The Special Master further errs in holding that

the California Limitation Aet is operative and “binding

-on the State of California, despite his holding that

Arizona effectively ratified the Colorado River Com-

pact in 1944.3" :

33Report, pp. 140-42, 113-15, 147, 149.

34Report, pp. 102-25.

s5Report, pp. 99-102. 7

36Report, pp. 166-67. pers peepygyF * Sy

37Report, pp. 164-66. - : :

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Exception No. 11:

The Special Master errs in holding that the “Con-

tract dated February 9, 1944, between the United States

and the State of Arizona”*® constitutes an apportionment

in perpetuity of use of water of the Colorado River

‘to Arizona by a formula unrelated to water. supply

and on a parity with contracts made in 1930-34 with

users of water from the Colorado River in California.“

\ : 7

7

Exception No. 12:

The Special Master errs in holding that the provi-

sions of the Arizona and the Nevada Coritracts* dim-

inishing deliveries to Arizona and Nevada, : espectively,

of water from Lake Mead in the quantity that upstream

diversions in those states diminish the flow into Lake

Mead, are inyalid.” Paes

Exception No. 13:

The Special Master errs in holding that the ca

tract provisions referred to in Exception 12 are separ-

able and can be invalidated without invalidating the

said contracts in their entirety.” £

Wherefore, the defendant, The Metropolitan Water

District of Southern California, respectfully requests

that this Court reject the Report of the Special Mas- °

88Ariz. Ex. 32 (Water Delivery Contract between United States

and Arizona, Feb. 9, 1944, Tr.-248) ; Report, p. 399, Appx. 5.

39See note 6, supra.

"Report, pp. 221-37.

*1Report,-p. 399, Appx. 5, Sec. 7(d) ‘at p. 401; seins p.

409, Appx. 6, Sec. 5(a), at p. 410.

“Report, pp. 201 and n, 62; 204-210, 237-47.

‘8Report, pp. 207, 210.

—-il—

‘ter and Recommended Decree on file herein, and that

in any decree entered herein, the right of this defend-

ant to use of water of the Colorado River evidenced

by its water delivery contracts with the United States

and by appropriation under State law, andéstablished

by application of: such water to beneficial use with dili-

gence considered in relation to the magnitude of the

project, be recognized and protected with a priority as

against uses initiated later in time or. not now in ex-

istence, subject to-the Colorado River Compact, the

Boulder Canyon Project Act, and the California Limi-

tation Act if the latter be held to be ‘still operative.

Respectfully submitted,.

THE METROPOLITAN WATER DISTRICT

OF SOUTHERN CALIFORNIA

JAMEs H. Howarp,

_ Special Counsel,

CHarR Es C. Cooper, JR.,

General Counsel,

H. KENNETH HUuTCHINSON,

Deputy General Counsel,

FRANK P. DoHERTY;

Special Counsel,

od