Brief in Support of Exceptions of the US — Arizona v. California
Supreme Court brief1962
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INDEX
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Special Master’s ete. Sis ohh alc iicademennnn
Jurisdiction Iola elaine ith be elect dtetllnen nsiisiicosiinienss
i SRD TLE MEE TE oe TOT
Statutes and compact involved--.._-__---------_____-..
. PointsIandII. In making allocations of waters from
Lake Mead among Lower Colorado River Basin
States, the Secretary of the Interior is authorized to
make deductions.to compensate for upstream con-
sumptive use in Arizona and Nevada of water which
would otherwise flow into Lake Mead___--_.-_-__-
Point III. Relative rights intrastate to the delivery
of Colorado River waters, in terms of quantity and
priority, are governed by the terms of the delivery
contracts made under authority of the Project. Act
and by applicable federal law. rather than by)
SA TON sisi nmemnciniangin senipeniammiaiianpenanigrenipansceanbaa
A. The statements in the Report and the provision
~ Of the recommended decree respecting ap-
plicability of State law to the determination
of relative rights intrastate to use the Boulder —
Canyon Project waters are unnecessary to the
recommended. decision and should be elimi-
B. By Section 5 and other provisions of the..
Boulder Canyon Project Act the Secretary
of the Interior is given broad powers in the
administration and disposition of the project _
water supply, including the power, by con-
tract, with water users, to make all appropri-
_ate provisions respecting quantities of water
to be delivered to different users and the con-
" ditions on and under which deliveries will be
595248—-61——__1 : (x) ™
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aot
21
ere
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P i
Argument—Continued
Point I1I—Continued
% C. Section 18 of the Project Act does not limit
« the broad authority conferred on the Secre-
tary of the Interior by Sections 1 and 5 to
operate the Boulder Canyon Project and to
_ contract for storage and delivery of the proj- pags
ect water supply 34
Point IV. The Nevada water delivery contract does not
exhaust the authority of the Secretary of the Interior
under Section 5 of the Boulder Canyon Project Act
to contract further for the use of impounded water
within the State of Nevada or to apply unused water
to use on federal projects___—- 48
Point V. The United States is entitled to use on its
wildlife refuges waters salvaged in devélopment of _
the refuge areas without regard to priorities estab- ,
lished by creation of the refuges_.........--...-.- 51
a
Conclusion BOE ESET SS EL ESD ots OES Oe Pa ee 53
REN ES PEST TY REC eee EC I OR 54
C'TATIONS : yi,
Arizona v. California, 283 U.S. 423..--------- 25, 36, 37, 40-
Baltimore National Bank v. Tax Commission, 297 U.S.
EE ERS a eee ~ 40
Camfield v. United States, 167 U.S. 518_-----.-.----- 39
Federal Power Commission v. Niagara Mohawk Power -
Corp., 347 U.S. 239_-..- A OA - 46
Federal Power Commission v. Oregon, 349 U.S. 435_ 25, 88, 39
First Iowa Cooperative v. Federal Power Commassion,
328, U.S, 153.....-. il adeilinialeidipiandiintiehiptanbopperihahines 38, 44
Fourco Glass Co. v. Transmérra Corp., 353 U.S. 222... 40
Gibson v. Chouteau, 13 Wall. 92...------------.----- 39
Ginsberg & Sons v. Popkin, 285 U.S. 204_--...------ 40
Hunt v. United States, 278 U.S. 96_.-- icine ae
Ickes v. Fow, 300 U.S. ees, Garo 8 i ea 43
Ironstone Ditch Co. v. Ashenfelter, 57 Colo. 31._..._- 52
Ivanhoe Irrigation District v. McCracken, 357 U.S.
(Sa Sarcalelieoat in aa otrestotoa 18, 25, 26, 37, 38, 40, 41, 42, 44
; Maas, In re, 219 Cal. 422, 27 P. I peiensnscaicienessciscnsn 37
- MacEvoy Co. v. United States, 322 U.S. 102_-.----- 40
McCullouch v. Maryland, 4 Wheat. SE aR ei ee
Nebraska v. Wyoming, 325 U.S: 589_.------.-.------ 42, 52
le)
ul
Cases—Continued Page
Oklahoma v. Atkinson Co., 313 U.S. 508_______.____ 24, 38 -
Pacific Live Stock Co. v. Lewis, 241 U.S. 440________ 37
Pomona Land & Water Co. v. Sen Antonie W ator Co, Ae
TE Spin cbiennnutinbinhtnitastedehehen a4 iss 52
Reno v. Richards, 32 Idaho een aes a. 52
Tacoma v. Taxpayers, a See 38
United States v. Appalachian Power Go, 311 USS.
Pil nnsisninebenennssbdumnditibadaeiti cg os 25, 38
United States v. Chandler-Dunbar Co.,229 U.S. 538... 46
United States v. Gerlach Live Stock Co., 889 U.S.
Ee OREN NE ome EAT OO ey MUO RED ID 25, 41, 46
United States v. Grand River Dam, Authority, 363
Ee dee SORES nd COnER RS ery PMN AE 25, 38
United States v. Oregon, 295 U.S. 1 39
United States v. Rio Grande Irrigation Co., 174 US.
ig Ee RS EOE TRE NE ILE Nid 25, 39
United States v. Twin City Power Co., 350 U.S. 222. . 46
Utah Power & Light Co., 243 U.S. 389_..---_-_______ 39
Vineyard Land & Stock Co. v. District Court, 42
NOW. BATE Fine, Bc iphailg sian niet 37
Washington v. Oregon, 297 U.S. 517_-..----______ 52
Winters v. United States, 207 U.S. 564____________ 25, 38, 39
Constitution and statutes:
U.S. Constitution:
ie es We OO Ra i 25
Art. VI, a REET RIE OOP I EID 37
Act of August 13, 1914, 38 Stat. 686, ry 8, 43 US.C.
NR De Ee E its ineoisis 33
Act of May 25, 1926, 44 Stat. 636, 43 U.S.C. 423-4239. 33
Act of September 2, 1958, 72 Stat. 1726________ 21, 28, 81, 47
Sec. Dcvceimsinienainanmimuaiimmitianig . -- 25, 29, 34, 39, 47
‘A HD) ptoase : -.---- 9, 11, 18, 20
Sc NE EIST ME ME RR Ee ae 23. 6,
10, 14, 15, 24, 26, 27, 29, 81, 82, 84, 40, 42, 46, 47, 48,
49, 50, 51.
Wie Oia ee 26, 27, 46
sig i, Nn RE OO Se jiisnaditbaiatcioe 35
tg, Bh OTN EEN PETE a 32
OR. Diictinatcmusin 5, 18, 34, 35, 36, 89, 40, 41, 44. 46 47
a ent
Ei)
ee a
j
Constitution paid statutes—Continued
IV | |
a
, Federal Power Act of J une 10, 1920, 41 Stat. 1063, ch.
285, et seg. | Page
Sec. 9, 16 U.S.C. 802___------ gra th hoes has (44, 45, 46
Sec. 27, TBO, Cc 40, 41, 44, 45, 46
Reclamation Act of June 17, 1902, 32 Stat. 388, et seg. :
Sec. 5, 43 U.S.C. 481, 439-__ Sic j-- " 32
Sec. 8, 43 U.S.C, 872_---.--.------ 88, 40, 41,42, 44,46
Sec. 10, 43 U.S.C. 378_-_--------- dnacewadan, 00, 98/
a Ge Bn she aeiie dk oe!
40 Tia ON 2 Sh A oe ee %
61° Bhat: 0082 scssccs neste cnn cpenapalons §/ i
49 USO: Uli k Meuse Y gy
Oe WBA Wits ct tetccacsiacccgns ~-------~/ a
Upper Colorado River Basin Compact, 63 Stat. 31, }
PivGieks + Vii 2 oe eas py ios
California Limitation Act, hak of March 4, 1929, fh.
16, 48th Sess., Statutes and Amendments to/ the
Codes, 1929, pp. M2) eA i 2.107
Miscellaneous : ne
30-Am. Juir., Irrigation, sec. 8, P: |; See ae sbi its 8T
69 Cong. Ree. : Rad Gah Hers:
00D 2c ca SS PARA O17
sii, _— SPN DO A ES SCL AOE Soe ot
I eae Cee Tak 5 HO) o7
ng Seer eet een aa perth Mle $6
70 Cong. Rec. 593___--_----------- ney Ap eee 35
H. Doc. 415, 80th Cong., 1st Sess___-/_-.--_-- if ae
' ELR. 5778, 70th Cong., 1st Sess.=.-/_-----.__-_---- 26,35
— HR. i Ae See Ao) ve 35]
i Fi SF ea ee BP BP Sal Hag Bea 35
H: Rept. 1657, 69th Cong., 2d Sess. p. at AL Ee ee ae
Hutchins, Law of Water ad 8 in the West, pp.
OOS @- 5a ss2ssccsccccccbstsssccncce lf 52
Kinney, Irrigation and Water Right (2d ed) vol. 8,
3° ee Fe, ee en once nn 31
Wiel, Water Rights in the Western States (8d ed.) vol.
" 2, sec, 1184, p. 1097 eee ce, ESS a,
pik: i es ‘ / ‘ ni y |
a Sh ak
& the Supreme Gourt of the Gnited States
OctoBER TERM, 1960
No..9 ORIGINAL
State oF ARIZONA, COMPLAINANT
v.
STATE OF CALIFORNIA, ET AL.
BRIEF IN SUPPORT OF EXCEPTIONS OF THE UNITED STATES,
INTERVENER, TO THE SPECIAL MASTER’S REPORT AND
RECOMMENDED DECREE
SPECIAL MASTER’S REPORT
The report of the Special Master dated Deckmber 5,
1960, was received and ordered filed by this Court on
January 16, 1961 (364 U.S. 940).
JURISDICTION
This is an original case in which the jurisdiction
of this Court rests on Article III, Pa 2, of the
Constitution.
‘QUESTIONS PRESENTED
1. Whether in making contracts with the States in -
the Lower Colorado River Basin for the storage of
water in, and the delivery of water from, Lake Mead
the Secretary of the Interior is authorized-to make
deductions for upstream consumptive use in Arizona
; (1)
a
2
and Nevada of water which would otherwise flow into
Lake Mead.
. 2. Whether the Secretary of the Interior may de- |
liver water pursuant to contracts under the authority |
of the Boulder Canyon Project Act without regan
for State law. '
3. Whether the contract entered into by the Secre- [7
tary of thé Interior with the State of Nevada exhausts |
his authority under Section 5 of the Boulder Canyon |
Project Act so that he may not contract further for the |
use of impounded water within the State of Nevada or }%
@ se such water for federal projects. Q. ,
4, Whether water salvaged on wildlife’ refuges may :
be used there without regard to priorities otherwise |
applicable. |
STATUTES AND COMPACT INVOLVED
The relevant statutes are the Boulder Canyon Proj- }
ect Act, 45 Stat. 1057, 43 U.S.C. 617; the California
Limitation Act, Act of March 4, 1929, Ch. 16, 48th §
Sess., Statutes and Amendments to the Codes, 1929, |?
pp. 38-39, both of which are set forth in appendices |)
to the Special Master’s Report at pp. 379 and 397, [F
respectively. Also involved is the Colorado River §
Compact signed at Santa Fe, New Mexico, November j
24, 1922, set forth in an appendix to the Special Mas-
ter’s Report beginning at p. 371.
STATEMENT 3
This litigation was commenced by Arizona in 1952
by. a, bill of complaint against California and seven
of its agencies, asking for an adjudication of Ari- &
zotia’s rights to-the use of the waters of the Colorado
AG
8
River. The United States, Nevada, New Mexico, and
Utah became parties either by intervention or by
order of this Court (344 U.S. 919; 347 U.S. 985; 350
U.S. 114, rehearing denied, 350 U.S. 955). ‘The pres-
ent Special Master was appointed on October-10, 1955
(350 U.S. 812). After pre-trial proceedings, exten-
sive hearings were conducted, briefs were exchanged,
a draft report was submitted and commented on both
in writing and at oral argument, and the ‘present re-
port was filed. All of the parties except Utah filed
exceptions to this report in February, 1961; and it is
the consideration of these exceptions which is now be-
fore this Court. |
| SUMMARY OF ARGUMENT
A. Our first two exceptions, which are here treated _
together, concern the question of whether Arizona and
Nevada are to be charged with consumptive use of
water upstream from Lake Mead, or whether their full
allocations may be taken from Lake Mead and from
the mainstream below without regard to the extent
that they may have lessened the amount of water flow-
ing into Lake Mead. It is the position of the United
States that the authority of the Secretary of the Interior
‘under Section 5 of the Boulder Canyon Proj ect Act
té contract for the jstorage and delivery of water
includes the authority to make appropriate adjust-
ments for upstream use. 'The Special Master rejected
this position, holding that the only power of physical
control, and therefore the gnly ‘authority to contract,
existed with respect to the water in Lake Mead and
_ the mainstream below Lake Mead.
4
’ e& * &§
The provisions of:the. Boulder Canyon Project Act,
when read in the light of its history, indicate an
intent to authorize the Secretary of the Interior to' |
divide the mainstream waters available in the Lower
.Basin. Hoover Dam was constructed to impound and
‘regulate those waters. This purpose would be im-
paired by permitting Arizona and Nevada to make |
diversions upgtream without a corresponding reduc, |
tion in their entitlements to stored water.
* The Special Master’s rejection of this proposition
rests in part on a theory that to make adjustments
for upstream uses wold impair the permanency of
the Secretary’s contracts in ‘violation of the Project
Act and also in violation of State law. But, as the
United States understands the effect of making such
_ deductions for upstream use, existing contract rights
would not be curtailed. > Either the _ upstream uses
would be subject to prior contract, or, if they are prior,
would result in authority to the Secretary to limit the
quantity’ of water to be allocated by contract to less
than the full amounts In either event, no existing
contracts would lose their required permanency.
We believe that this interpretation gives added
certainty to the allocations under the Project Act and
would give some protection to California’s established
projects.
B. Our: third exception Helntbe to the extent that
Congress has subjected the authority of the Secretary
of thé Interior. under the Boulder. Canyon Project
Act to State law. Although-the Special Master re- |
fused to pass upon the legality of rights of the United
States to make deliveries under contracts it has made,
~j
5
he did include in his findings a statement that rights
under those contracts would be subject to. internal
State law. This position is also refieéted in his rec-
ommended decree. We urge that these conclusions
should be disapproved.
As we read the Project Act, the en tea is given
full authority to build a dam, store mainstream water,
and deliver it to users under contracts to be executed.
by him. We believe that this affirmative authority
is not limited by a requirement that he comply with
State law. This is in accord with general principles
under which the United States may perform its func-
tions without regulation by the States. It is also in
accord with decisions of this Court with respect to
the authority granted the federal government in com-
parable statutes dealing with the use of water where
it has been held that control of the operation of these
federal projects shall rest entirely in the Secretary.
And it is in accord with 59 years of administrative
practice underthe reclamation laws.
The countervailing argument is that by-Section 18
of the Project Act Congress subjected the authority
of the Secretary to State law. Both the legislative
’ history of this section and the interpretation of com-
parable provisions \of the Reclamation Act and the
Federal Power Act indicate that Section 18 does not
mean what the Special Master believed.
C. Our fourth exception takes issue with a single
sentence in the Special Master’s report in which he
held that the Nevada contract, unlike the Arizona .
contract, contemplated that the State should subdivide
the allocation among users. Our position is that Sec-
595248—61——_-2 $
ere aaa
A i lt Naw ROR et NN nN 2 te onan, a
rer ened te aw snccencentepeeet « : ae
tion 5 of the Project Act requires that deliveries from
Lake Mead be made to users only pursuant to con-
tracts with the Secretary of the Interior. Insofar as
the contract with Nevada contemplates use by Nevada,
it may fulfill the requirements of Section 5. With
tespect to other users, -we urge that the language of
the Nevada contract does not show an intent to depart
from the procedure required by Section 5 of the
Project Act and followed in Arizona and California,
D. Finally, we excepted to the failure of the Spe-
cial Master to recognize the right of the United State’. .
to use on its wildlife refuges water reclaimed by
federal work on those refuges. Our position here is
simply predicated on the theory that he who reclaims
water may use it. ait bateora yyodire
ARGUMENT |
‘In large part the United States supports the Special
Master’s Report as filed. However, we have filed
five numbered exceptions which deal with specific sec-
tions of the report and the recommended decree. Al-
though the fundamental conclusions in the report and
major provisions of the decree do not depend upon the
resolution of these issues, they are sufficiently signifi-
cant to make it appropriate to have noted the excep-
tions and to file this brief in support of them. How-
ever, we anticipate that our answering brief in re-
sponse to the exceptions of the other. parties will deal
tére directly with the principal issues in the case on
which we support the report.
Since our Mxceptions I and Ii are closely related,
we shall combine our argument in support of them
7
under a single heading, but will continue to number
the points here to correspond with the numbers given
-the exceptions. at
POINTS I and II
IN MAKING ALLOCATIONS OF WATERS FROM LAKE MEAD
AMONG LOWER COLORADO RIVER BASIN STATES, THE SEC-
RETARY OF THE INTERIOR IS AUTHORIZED TO MAKE DE-
DUCTIONS TO COMPENSATE FOR UPSTREAM CONSUMPTIVE
USE IN ARIZONA AND NEVADA OF WATER WHICH WOULD
OTHERWISE FLOW INTO LAKE MEAD
\
Our Exceptions I and IL are specifically addressed
to the Special Master’s definition of the term “main-
stream” as excluding water above Lake Mead (Re-
port, pp. 173, 183, 185, 225, 226, 316-321; Recom-
__mended_Deeree, p. 345) and to his disapproval of pro- —
visions in contracts between the Secretary of the In-
terior and the States of Arizona and Nevada which
condition the amount of water to be delivered there-
under on the amount of depletion of the flow into Lake
Mead by upstream uses in these States (Report, pp.
° 237-247, 226-228).
*Article 7(d) of the Arizona contract provides as fellows:
“The obligation to deliver water at or below Boulder Dam
shall be diminished to the extent that consumptive uses now
or hereafter existing in Arizona above e Mead diminish
the flow into Lake Mead, and such anAton shall be subject
to such reduction on account of evaporation, reservoir and
river losses, as may be required to render this contract in con-
formity with said compact and said act.” (Report, p. 401,
App. 5.) )
Article 5(a) of the amended Nevada contract contains this
language: 7
- “Subject to the availability thereof for use in Nevada under
the provisions of the Colorado River Compact and the Boulder
8
In broad terms, the issue on both of these excep-.
tions is whether the Special Master was correct in
construing the authority of the Secretary of the In-
terior as limited to water to be taken from Lake Mead
or from the mainstream below Lake Mead without
consideration of upstream uses. We urge that the
Boulder Canyon Project Act authorizes the Secretary
of the Interior to take into consideration all con-
sumptive use of water in Arizona and Nevada which
would have flowed into Lake Mead if it had not been’
used within the Lower Basin. -
A brief discussion of the’ geography involved is
necessary to understand these exceptions. For the
convenience of the Court a slightly altered copy of
—the map which California attached to its exceptions
is attached as an appendix. The dividing line between
the Upper and Lower Colorado River Basins is lo-
cated at Lee Ferry, near the northern boundary of
Arizona. From there, the river flows for 275 miles
before it reaches the upper limits of Lake Mead, the
reservoir formed by Hoover Dam. During much of
the distance the Colorado River traverses. -between
Lee Ferry and Lake Mead there are deep canyons
which make diversion of the .waters impractical.
Canyon Project Act, the United States shall, from stora in
Lake Mead, deliver to the State each year at a point or po1..is
to be selected by the State and approved by the Secretary, so
much water, including all other waters diverted for use within -
the State of Nevada from the Colorado River system, as may
be necessary to supply the State a total quantity not to exceed
Three Hundred Thousand (300,000) acre-feet each calendar
year. Said water may be used only within the State of Ne- .
vada, exclusively for irrigation, household, stock, municipal,
mining, milling, industrial, and other like purposes, but shall
not be used for the generation of electric power.” (Report, pp.
420-491, App. 7.)
9
However, there are areas where, by the building of
extensive facilities, the waters could be diverted, and,
in fact, one of the possible points for diversion for the ——
proposed Central Arizona Project lies in this area. |
Also in this reach of the river, aboye Lake Mead: but
below Lee Ferry, the river is joined by several tribu-
taries, principally the Little Colorado River (Arizona
‘and New Mexico) and Johnson and Kanab Creeks
(Utah and Arizona). The Virgin River (Nevada,
Utah, and Arizona) flows into Lake Mead. The parts
of Arizona, Nevada, Utah, and New Mexico drained
by these tributaries are included in the Lower Basin
’ of the Colorado River system. 1t is obvious that con-
impounded there subject to delivery under contracts
entered into by the Secretary of the Interior.
The United States has asserted that, under a
proper construction of the Boulder Canyon Project:
Act, the Secretary is required to consider uses in Ari-
~ gona and Nevada from the mainstream above Lake
Mead and from tributaries entering the mainstream
between Lee Ferry and Lake Mead. Thus we would
include in the waters to be distributed to California,
Arizona, and Nevada pursuant to Section 4(a) of the
Project Act not only waters impounded in Lake
Mead, but also all water which would have reached
the mainstream above Hoover Dam except for con-
sumptive uses in Arizona and Nevada. The Special
Master disagrees, holding that the Secretary may con-
sider only the waters which are actually impounded
in Lake Mead and are taken therefrom or from the
mainstream below. F
o>
10
Under the terms of the Colorado River Compact,
' the consumptive use of part of the waters of the
Colorado River system was divided between the Up-
per and Lower Basin States. ' Since the effectiveness"
of this Compact depended upon Arizona’s appreval,
which was not forthcoming, the Project Act was made
dependent on a modification of the Compact and Cali-
fornia’s adoption of a Limitation Act accepting a
4,400,080 acre-foot limitation on its use of the initial ©
7,500,000 acre-feet of mainstream water available an-
nually for the Lower Basin. According to the Special
Master’s interpretation, the limitation also permits
the consumptive use in California of not more than
one-half of these waters annually available in excess
of 7,500, 000 acre-feet. As the Special Master
found, the Project Act contemplated the contro] and
use of “‘substantially all the water of the mainstream’”’
(Report, p. 153) and the distribution of this water
under contract by the Secretary of the Interior. It
would frustrate this purpose if some of the States-
could avoid the Project Act allocations by taking the
water prior to its entry into Lake-Mead. |
Section 5 of the Project Act specifically authorizes
the Secretary of the Interior “under such gerieral
regulations as he may prescribe, to contract for the
storage of water in said reservoir and for the delivery
thereof * * *.” To be effective such contracts may
reasonably require that the uses of water of the main-
stream above the dam and the tributaries feeding it
should be accounted for in allecations of the water
in storage. Unless the Secretary’s authority
is read in this manner, there is a serious flaw in his ©
\
+
ihe "
otal Bury, ‘
il
authority to make the distribution among the Lower
Basin States. |
The Special Master’s conclusion that the waters
contemplated by Congress in enactment of Section
4(a) of the Project Act are mainstream waters is
based on the legislative history, reyiewed at pp. 173
to 200 of the Report, which clearly so indicates. His
conclusion that the aggregate waters from which Cali-
fornia’s share is to be derived do not include waters
taken. from the mainstream or the tributaries above
_ Lake Mead—that the waters contemplated by Con-
gress in the enactment of Section 4(a) of the Project
Act are only those which actually arrive in Lake Mead
or in the mainstream below Hoover Dam—is predicated
——primarily on this reasoning: _
* * * The Project ee was esnemened primarily
with the construction and operation of Hoover
Dam, and most of its provisions relate to this
basic purpose. Hoover Dam gives the United
States physical control over the water stored in
Lake Mead and over the use of substantially all
of the water in the mainstream below, but it
does not enable the United States physically to
control the use of water from the mainstream
_above Lake Mead. Consistently with this
physical fact, the provisions of the Project Act
do not purport to govern the mainstream above
Lake Mead. Section 5 authorizes the Secre-
tary of the Interior to contract for the delivery
of. water stored in Lake Mead at points which
may be agreed upon along the Lake and the
mainstream below; that section specifically ap-
plies only to water 3 in Lake Mead and to water
released therefrom. Also Sections 6 and 8 of
the Project Act apply in terms to water con-
12
trolled ma “ae United States: by means of
Hoover Dam. “*
Sectio 4(a) must “he interpreted within the
context just described. -Consistent with the
- other provisions of the Project Act, I interpret
Soi 4(a), as applying only to Lake Mead
and/the mainstream below. * * * [Report, p.
183. See also p. 173.] .
/:
This analysis, however, overlooks the previously de-
termined ° fact @hat Congress authorized a project
which it “realized * * * would impound substantially
all the.water of the mainstream * * *.’’ (Report, p.
153; emphasis added.) It appears to attribute to
Congress a disregard for anything which might hap-
pen above the reservoir to. frustrate or partially to_
frustrate the purposes. of the dam. Such disregard
for the successful accomplishment of the purposes of
the project should not be implied simply from the fact
that Congress gave the Secretary of the Interior
specific instructions with respect to the operation of
the dam and the delivery of waters stored thereby, and
spoke otherwise in terms of water “controlled by the
United States.”* It is more reasonable to ‘conclude
* .. that when Congress authorized the construction of a
- # At page 114 of the Report, the Special Master states that no
new projects in either the Lower or Upper Basins which would
affect Lower Basin mains#eam supply can be constructed without
‘congressional action or acquiescence. While’ we agree with this
statement and that the authorities cited support it, nevertheless —
we think that when Congress (1) authorized the consirzction of
Hoover Dam, which it realized would impound substantially all
of the mainstream waters, and (2) authorized the Secretary of the
Interior to contract for the storage of such waters and the delivery
thereof, it did not contemplate that the contracts the Secretary
might make pursuant to that authorizaton might be defeated by a
future determination: by Congress to divert, or permit the di-
“i :
/
13
dam capable of impounding and controlling “sub-
stantially all the water of the mainstream” and en-
trusted the operation of that structure to the Secre-
tary of the Interior, Congress intended that the
Secretary should do everything reasonably within his
broad powers to assure that the waters of the tribu-’
taries and mainstream.above the dam would not be in-
tercepted before reaching the reservoir.
At pp. 160-161 of the Report the Special Master has
very properly declared:
Clearly the United States may construct a dam
and impound the waters of the Colorado River,
a navigable stream. Arizona.v. California, 283
U.S. 423 (1931); see United States-v. Twin
~~ version of, the mainstream waters before they reach-Lake Mead.
The words of this Court in Jvanhoe Irrigation District v. Me-
Cracken, 357 U.S. 275, 299-300, respecting the Central Valley
Project would seem to be equally applicable to this suggestion
concerning’ the Boulder Canyon Project :
“* * * It would be a physical impossibility to withdraw the
acilities. As for the possibility of discrimination in the ad-
ministration of those facilities, it seems farfetched to foresee
the Federal Government :‘turning its back upon a people who
had been benefited by it’ and allowing their lands to revert to
desert.'°- The prospect is too improbable to figure in our de-
cision.” \ ;
“2° (footnote, 857 U.S. at 300] Senator Gore (then Repre-
sentative) gave’this compelling answer to these trepidations
in 1947; ‘I cannot conceive of a Government that would spend
$384,000,000 building one of the great reclamation-irrigation
projects of the world and suddenly because some evil agent
of Government had gotten into a bureau, turning its back upon
a~people who had’ been benefited by it and who in turn had :
greatly benefited the Nation by production of food stuffs and :
wealth. I just do-not conceive of the United States as being that’ 3
kind. * * *” Hearings before the Subcommittee of the House
Committee on Appropriations on the Interior Department Ap-
propriation Bill for 1948, 80th’ Cong., 1st Sess, 737.” - 3
595243—61—_-3 i
9
2 See
ete
Z
: ae :
~ G | . \ P
’ £4
City Power Co., 350 U.S. 222 (1956); United
States v. Chandler-Dunbar Co., 229-U.S. 53
(1913) ; United States v. Rio Grande Irrigation
| Co., 174 U.S. 690 (1899). Clearly, also, once
\, J the United States impounds the water and
4 thereby obtains physical custody of it, the
United States may control the allocation and
use of unappropriated water so impounded.
Ivanhoe Irrigation District v. McCrackén, 357
U.S. 275 (1958) ; United States v. Gerlach Live
Stock Co., 339 U.S. 725 (1950). * * *
It is just as clear that in making contracts for the
+———— storage and delivery of water which it has impounded
the United States may properly attach conditions re-
_ quiring those with whom it contracts and othérs sub-
ject to their control not to interfere with water which
would otherwise reach the reservoir. And it is equally
clear that in Section 5 and the general scheme of the
‘Project Act Congress has authorized the Secretary
so to condition the contracts he makes. P
The Special Master has’ cited three principal rea-
sons for his conclusion that Article 7(d) of the Ari-
zona, contract and Article 5(ay of the Nevada con-
tract, to the extent they make the quantities of water
deliverabie from Lake Mead dependent upon the ex- .
. tent of depletions in the respective States of inflow
* into Lake Mead, are not authorized by the Project
Act and are therefore not enforceable. He says these
provisions— oe | ,
(1) “are contrary to the command of Sec-
_ .. tion 5 that ‘contracts respecting water for irri-
; gation and domestic uses shall be for permanent
service * * *,’” ;
~~
15
(2) “viclate Section 18 [of the ai jee
Act];”’ and
(3) “result in an allocation of nisiobitronaty -
‘water totally out of harmony with the limita-
tion on California contained in Section 4(a).’’.
1 (Report, p. 237.) } .
There is no inconsistency, between these contract
- provisions and the “perraanent service” requirement
of Section 5 of the Project Act. As the Report recog-
nizes, pp. 152, 162-168, 202, the Secretary of the In-
terior was ne no compulsion to contract With Ari-
zona and Nevada for the delivery of any particular
quantities of water. What he has contracted for is
the delivery from Lake Mead
(1) to Nevada of. so much water, “including all
other waters diverted for use within the State of Ne-
vada from the Colorado River system, as may be
necessary tp supply the State a total quantity not to
exceed Three Hundred ‘Thousand (300,000) acre-feet
each calendar year.’’ (Report, p. 420, App: 7.)
(2) for use in ‘Arizona of the-quantities specified i in’
paragraphs (a) and (b) of Article 7 of the Arizona
contract, less the amount by which consumptive uses
above Lake Mead shall diminish the flow into -Lake
Mead (paragraph (d), Article 7 ). CO pp. 400-
401, App. 5.)
‘We do not understand anyone to contend that at
the present time the amounts of water which the
Secretary of the Interior has contracted to deliver for
uses in Arizona and.Nevada, respectively; when added
to existing upstream appropriations, exceed the
‘amounts allocable to those states. Thus there is no
impediment to the fulfillment of both the contracts
\
8
g ®\
16
and the upstream appropriations as they presently
exist. However, if there should be an overage in
the’ future, the permanence of the Secretary’s con-
tracts would not be impaired If the contrat rights
preceded in time the upstream appropriations, the
Special Master recognizes (Report, Pp. 41) that under
the law of both States the contract rights would be
senior. Thus there would not be »ermitted any diver-
sion upsiream that would interfere with the senior
contract use and thus there wouid be no occasion for
any reduction of deliveries under the contracts and
no impairment of their permanence. If, on the other
hand, new upstream appropriations should precede
the execution of contracts for the full allocations to
these States, then the Secretary would be authorized
>to refuse to entef’ into contracts for the full allot-
ments. Although this would reduce the quantity of
water. which the Secretary would contract to deliver,
it would not affect the permanency of contracts al- -
ready made.
The flaw in the Special Master’s conclusion is the
assumption that upstream uses under new appropri-
ations would cut into deliveries under existing con-
tracts. This is not required either under the State
_law, as interpreted by the Special Master, or by the
provisions of the contracts themselves. Certainly the
uirement ‘for permanency was not intended to per-
mit a State to increase its allotment by contracting
for the delivery of water from Lake Mead and then | ’
proceeding to duplicate its share by withdrawing from’ ’ |
the source of that water. The. United States in con=_|
tracting with a State does its part’to meet the perma-
nency requirement as to. the State when it agrees to
BEM Si
17
wolteer a specified quant ity of stored water for use
in the State unless the State elects to take or to per-
mit its citizens to take its allotment upstream from
the reservoir. oath t 4
The Special Master / ‘errs in suggesting (pp. 239-
240), that the provisions in question “generate new
causes of uncertainty.” On the contrary, they are
designed to protect against the very real uncertainty
which would arise if the Secretary were to contract
for delivery of water from storage without regard to
how far the amounts of, water available for storage
might be affected .by upstream depletions. “It is to be
emphasized that the contracts under discussion are
contracts with the respective States, designed prima-
rily to allocate waters for use within those States;
they are not definitive contracts for the delivery’ of
specified quantities for specific projects. The States
have the choice of having additional projects to be
served with stored water or of foregoing them in favor
of additional upstream projects. As a consequence,
the aggregate water supply for the entire Boulder
Canyon Project, including uses in California as well
, as those’ in Nevada and Arizona, is made more, and
not less, certain. The hazard of impairment of
the Project water supply by uncontrolled depletions
upstream from the dam is removed. With such de- .
pletions taken into account in making commitments
for delivery from Lake Mead, the principal uncer-
tainty as to supply remaining results from the forces
of nature.
The Special Master’s conclusion that Articles 7(d)
‘Sf the Arizona contract and .5(a) of the Nevada
18
contract violate Section 18 of the Project Act, is
equally unsound. Section 18 provides that nothing
in the Project Act— _
‘shall be construed as interfering with such
rights as the States now have either -to the
waters within their borders or to adopt such
policies and enact such laws as they may deem
necessary with respect to the appropriation,
control, and use of waters within their borders, -
except as modified by the Colorado River com-
pact or interstate agreement.
Apparently the Special Master again construes the
contract as requiring rights to delivery under con-
tract!to be terminated by later upstream appropri-
ations.’ He states that this is a flagrant violation of
Section 18 and a dictation to Arizona and Nevada of
priorities within those States. However, as we point
out above, the contract provisions do not require a
termination of rights because of subsequent appro-
priations. Thus this ohjection is merely an alterna-
tive method of stating the first stated objection and
falls for the same reason.
As a third reason cited in the report for the con-
clysion that, the Article 7(d) and Article 5(a) pro-
- visions are illegal, the Special Master states that
enforcement of these provisions would result in an
allocation of mainstream water out of harmony with
the limitation on California imposed by Section 4(a)
of the Project Act (Report, pp. 241-247). In expla-
nation, he.supposes total releases from Hoover Dam
to permit consumptive uses of 7.7 million acre-feet in
*We set forth what we believe to be the correct interpreta-
tion of Section 18, infra, pp. 34-87.
19
California, Arizona, and Nevada in a year when Ari-
zona’s diversions from the Little Colorado deplete the
flow into Lake Mead by .1 million acre feet.
Under the interstate apportionment established
by the Section 4(a) limitation on California
and the delivery contracts with Arizona and
Nevada, of the first 7.5 million acre-feet of
mainstream consumption, Arizona would be
‘allocated 2.8 million acre-feet, California 4.4,
and Nevada .3. Of the .2 million acre-feet
constituting surplus, Arizona and California
would each be allocated one-half. Thus to
California would be apportioned a total con-
sumption of 4.5 million acre-feet for the year
. In question. She could not consume more than
this amount because of the Section 4(a) limi-
tation, which is based on mainstream consider-
ations only. To Nevada would be apportioned
a total consumption of .3 million acre-feet, and
she could not utilize more than this since that -
constitutes her full contractual allotment. To
Arizona would be apportioned a total con-
sumption of 2.9 million acre-feet. But if
Article 7(d) of her contract were applied in
this situation, the Secretary’s delivery obliga-
tion of 2.9 million acre-feet would be reduced
* by the amount of the depletion of the flow into
Lake Mead, and Arizona could consume only a
total of 2.8 million acre-feet from the main-
stream. Thus, although 7.7 million acre-feet
were released for consumption within the three
states for the year, only 7.6 million acre-feet
could be utilized under the statutory and
contractual limitations. 100,000 acre-feet of
water released for consumption could not be
used. [Report, pp. 242-243.]
3
20
We do not agree with this conclusion. We suggest
that the 100,000 acre-feet of Little Colorado deple-
tions is part of the total mainstream supply avail-
able for allocation. This is necessary to achieve Con-
gress’ purpose to impound and regulate ‘‘sub-
stantially all the mainstream water’’ and to
accomplish the interstate allocation established by the.
Section 4(a) limitation on California and the delivery
contracts with Nevada and Arizona. _We urge the
Court to adopt this view. =
The Special Master states at pages 5 243-244 of his
report that charging the States with upstream uses, as
provided by Articles 7(d) and 5(a), presents prob-
lems of measurement since, ‘‘for example, 100,000
acre-feet of consumptive use on the Little Colorado
will result in a depletion of the flow into Lake Mead
by a substantially smaller quantity of water.” It is.
appropriate that Arizona and Nevada should be
charged only to the extent such upstream uses actually
deplete the mainstream supply available for division
between the three States. There is no incompatability
between such measurement of the upstream uses and
the measurement of Lake Mead and downstream uses
by diversions less returns. It is to be remembered
that the Article 7(d) and 5(a) provisions have been
imposed as conditions upon the deliveries for use in
Nevada and Arizona of stored waters in order to
protect the common supply available for downstream
division. It should not be necessary for*the Secretary
to charge those States, against their shares of the
common supply, with a greater quantity of usage than
that quantity by which the upstream uses deplete the
common supply.
—z—X————— eee
21
The task of measuring upstream depletions of the
flow into Lake Mead would present an additional, but
by no means impossible, complication. The measure-
ment at downstream points of depletions of flow by
upstream diversions is based on concepts and stand-
ards which receive rather general acceptance in the
engineering profession today. (Ariz. Exs. 65 and
4.4 654; Upper Colorado River Basin Compact, Article
VI, 63 Stat. 31.) Any problems in administration of
the 7(d) and 5(a) contract provisions (Report, p. 246)
would be relatively slight in comparison with the com-
plications which might well be involved in case of suit
« by California to protect itself against ‘‘undue deple-
tions on the tributaries and the mainstream above
Lake Mead * * *.’’ (Report, p. 247.)
The adverse effect upon California’s established
projects of the ruling with respect to the Article 7(d).
and 5(a) contract provisions ought not<to be imposed
in the absence of a clear requirement therefor in the
controlling statute or its legislative history. We be-
lieve no such requirement exists.
POINT III
RELATIVE RIGHTS INTRASTATE TO THE DELIVERY OF COLO-
RADO RIVER WATERS, IN TERMS OF QUANTITY AND PRI-
ORITY, ARE GOVERNED BY THE TERMS OF THE DELIVERY
° CONTRACTS MADE UNDER AUTHORITY OF THE PROJECT
ACT AND BY APPLICABLE FEDERAL LAW RATHER THAN
BY STATE LAW
The United States urged the Special Master to de-
termine its right to deliver water to’ Boulder City,
Nevada, under the Act of September 2, 1958, 72 Stat.
595243—61—__4
22
1726, and to the several mainstream federal reclama-
tion projects and to nearby lands and users under a
variety of contracts which have been made respecting
such deliveries. ~He has declined to make such de-
terminations for these stated reasons:
The relevant issues for such a decision have not
been tried and it woula be impossible to deter-
mine here all of the relevant rights and priori-
ties under the applicable state laws which
would affect a project’s water rights. Further-
* more, persons who are the most concerned. with
this decision are other users or potential users
in the states, who are not parties to Chis suit.
[Rept. 218, and see 303. ]
__ We do not agre t the relevant issues were not
tried; that it would be impossible in this litigation to
determine the right of the United States to deliver the
waiers: contracted for or otherwise committed to the
several contracting districts and other users; or that
there are others not party to this case who are either
indispensable or necessary parties to such determina-
tion. However, in the interest of expediting a conclu-
sion to this litigation, we have not taken exception to
the Special Master’s refusal to rule now on these
issues.
However, while the Special Maier declined to
‘make the determinations sought in this respect, he did |
' state ‘‘* * * that state law governs intrastate rights |
and priorities to water diverted from the Colorado
River.’’ -(Rept. 216; 303.) And he further de--
clared that ‘‘How much water a particular project —
or user may receive out of a state’s total apportion-
ment as against other users in the state who also have
ee aT
- 23
or may in the future obtain delivery contracts with
the Secretary of the Interior must be decided under
State law.’”? (Rept. 218.) This view is reflected in
the recommended Decree (Art. II(C)(1)), which
would enjoin the United States, its officers, attorneys,
agents and employees from releasing water for “any
use or user in violation of state law” except as other-
wise provided in the recommended Decree and except
as federal statutes otherwise specifically direct.
(Rept. 350.) We have excepted to the quoted state-
ments appearing on pages 216 and 218 of the Report,
the expressions on pages 217-218 in support thereof,
and the’ quoted portion of the recommended Decree, —
as inconsistent with the Special Master’s primary
holding, unnecessary to the decision of this case and
in error. | |
A. THE STATEMENTS IN THE REPORT AND THE PROVISION OF THE
@ RECOMMENDED DECREE RESPECTING APPLICABILITY OF STATE LAW
TO THE DETERMINATION OF RELATIVE RIGHTS INTRASTATE TO USE
THE BOULDER CANYON PROJECT WATERS ARE UNNECESSARY TO
THE RECOMMENDED DECISION AND SHOULD BE ELIMINATED
Since the-Special Master has declined to rule on
- the rights, intrastate, of the United States to deliver
- water to those agencies and other persons with whom
contracts have been made,‘ the statements in the Re-
port respecting the applicability of State laws to such
rights and the rights of users under such contracts
are not necessary to the recommended decision.” This
is likewise true as to the language of Art. II(C) (1)
‘The direction to the Secretary of the Interior by the Act
of September 2, 1958, 72 Stat. 1726, to deliver water to Boulder
City, Nevada, is treated by the Master as the equivalent of a
contract. (Rept. 303.)
24
of the recommended Decree (Rept. 350) which would
enjoin the United States, its officers, from releasing
water for ‘‘any use or user in violation of state law.’’!
It is submitted that, for the reasons hereinafter set
forth, this language in the Report and the related pro-
vision of the recommended Decree are erroneous. <Ac-
ceptance of the Report by the Court without cor-
rection of-the error might be prejudicial, both to the
United States and those with whom contracts have
been made, in future litigation to determine the mat-
ters upon which the Special Master has declined to
_ Tule. It-is accordingly urged that the material re-
ferred to be purged from the Report and the recom-
mended Decree.
B. BY SECTION 5 AND OTHER PROVISIONS OF THE BOULDER CANYON
PROJECT ACT THE SECRETARY OF THE INTERIOR I8 GIVEN . BROAD
POWERS IN THE ADMINISTRATION AND DISPOSITION OF THE PROJ-
ECT WATER SUPPLY, INCLUDING THE POWER, BY CONTRACT WITH
' ‘WATER USERS, TO MAKE ALL APPROPRIATE PROVISIONS RESPECTING
QUANTITIES OF WATER TO BE DELIVERED TO DIFFERENT USERS
AND THE CONDITIONS ON AND UNDER WHICH DELIVERIES WILL
BE MADE | zs
- The Boulder Canyon Project Act was enacted by
Congress in valid exercise of its powers (1) to con-
trol the navigable waters of the United States for the
purposes of commerce, including, inter alia, the con-
trol of floods, improvement of navigation, power pro-
duction, and watershed and river development, Okla-
5 We believe that if this provision of the recommended decree
is to be retained it should be revised to prohibit the violation
of the provisions of applicable law. Certainly as far as the
United States itself is concerned, it is not theoretically pos-
sible for it to violate State law in a field where federal law
is dominant. The suggested modification would recognize any
State law which might be applicable by adoption as federal
law.
el
25 |
homa v. Atkinson Co., 313 U.S. 508; Arizona v. Cali-
. fornia, 283 U.S. 423; United States v. Appalachian
Power Co., 311 US. 377; (2) to-promote the general -
welfare through large-scale projects for-reclamation,
irrigation, and other internal improvement, United
". States v. Gerlach Live Stock Co., 339 U.S. 725; Ivan-
hoe- Irrigation District v. McCracken, 357 U.S. 275;
and (3) to dispose of and make all needful rules and
regulations respecting the territory or other property
belonging to the United States. Constitution of the
United States, Article. IV, Section 3, Clause 2. And
see United States v. Grand River Dam Authority,
363 U.S. 229; Winters v. United States, 207 U.S. 564 ;
Federal Power Commission v. Oregon, 349 U.S. 435;
Umted States v. Rio Grande Irrigation Co., 174 U.S.
690. 7 ~ ; :
In broad language, Section 1 of the Act (Repbrt,
p. 379, App. 3) authorized the Secretary of the In-
terior to construct, operate and maintain the Project,
including Hoover Dam; Imperial Dam, and the All-
American Canal system* “for the purpose of con-
trolling the floods, improving navigation and regulating -
the flow of the Colorado River, providing for stor-
age and for the delivery of the stored waters thereof
for reclamation of public lands and other beneficial
uses exclusively within the United States, and for the
generation of electrical energy as a means of making
* Additional works and projects, such as Parker Dam, Davis
Dam, the Gila Reclamation Project, the distribution system and
appurtenant flood control works for the Coachella Division, All-
American Canal System, Boulder Canyon Project, have since
been authorized to supplement and be integrated with the
works originally authorized. See, ¢.g., 49 Stat. 1039; 61 Stat.
628; H. Doc. 415, 80th Cong., 1st Sess.
id
26
the project herein authorized a self-supporting and
financially solvent undertaking * * *.’’ |
‘With respect to the storage and —— of the
project water. supply, Section 5 (Ré¢port, p. 384,
* App. 3) specifically authorizes the Secretary “to con-
tract for the storage of -water * * * and for the
delivery thereof at such points on the river * * * as
may be agreed upon, for irrigation and domestic
uses * * *.” That section further provides, inter
alia, as follows: —
Contracts respecting water for irrigation and
domestic uses shail be for permanent service
_——~and shall conform to paragraph (a) of section
4 of this-Aet._No person shall have or be
entitled to have the use-for_any purpose of
the water stored as aforesaid except by contract __
, made as herein stated.’
In light of the constitutional background for the
Project, the language of Section 5 is clearly designed
to and does vest in the Secretary of the Interior, as
an element of project operation, full authority to con-:
tract with users of project waters and to specify the
quantities to be delivered to various users and relative
priorities as between them.’ The Section 5 contract
authority is substantially unlimited insofar as the
* The provisions of Sec. 5, and of Sec. 6 hereinafter referred
to, clearly constitute reasonable conditions and limitations on
the use of federal funds, federal property, and federal
privileges. Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275.
* The views expressed by opponents of the Act during the de-
‘bates in Congress support this analysis of the Section 5
language, H.R. 5773, 70th Cong., 1st Sess.,,.December 5, 1927,
contained language substantially as enacted in the. first para-
_ graph of Section 5 of the Act. During the debate in the House _
t
27
project water supply is concerned except for (1) the
requirement that contracts shall be “for pe ent.
service and shall conform to paragraph (a) of section
4,” and (2) the provisions of Section 6 prescribing ;
priorities as between the various —_ purposes
enumerated in Section 1.°
regarding H.R. 5773, Mr. Douglas of Arizona, while 5 cared in
opposition to the bill, stated : |
“The bill further provides for congressional amendmen of
State water codes. Further than that, it vests in the Secre-
tary of the Interior complete and absolute control over the
waters of the Colorado below Boulder Dam.” (Cong. Rec., Vol. ©
69, p. 9623.)
During the same discussion, Mr. Colton of Utah stated in
opposition to the bill:
“You are saying that you are going to take it [water] away ~
from the States and place it in the Federal Government, and
Section 5 of this bill asserts that very principle. It provides
that the Secretary of the Interior shall have control of all of
the water stored in the reservoir and its delivery to any part
of the river below.” (Cong. Rec., Vol. 69, p. 9648.)
Mr. Colton. later remarked, after quoting the first taieg of
Section 5: Ae,
“If that does not give him sbebbute control of this ati or if
it does not seek to. ive the Secretary of the Interior absolute
control of this water, I cannot understand the “English
language ; and, gentlemen, that is exactly what we are object-
ing to.” ‘Gend: Rec., Vol. 69, p..9649.)
The proponents - of the bill made no response to this
interpretation.
* Section 6 (Report, p. 387, App. 3) provides as follows:
“That the dam and reservoir provided for by section 1 hereof
shall be used: First, for river regulation, improvement of navi-
gation, and flood control; second, for irrigation and domestic
uses and satisfaction of present perfected rights in pursuance
of Article VIII of said Colorado River compact ; = third, for
power. * * #9)
The requirement for satisfaction of “present seatentad rights”
is dealt with at pp. 307-312 of the Report. And see p. 161.
The broad discretion of the Beatelary i in the matter
of making delivery contracts is recognised at page
215 of the Report: x
.* * * T inter pret the Boulder Canyon Project
Act as empowéririg the Secretary of the In-
terior to contract’ for delivery ‘of mainstream
water to states and to individual users, whethem
pr ivate or public.. Thé Project Act-does not’
require or -even suggest that thé delivery con-
tracts must be made only with states. It is cer-
tainly within the discretion of the Secretary,
. under the Project Act, to contract directly with
individual users in the various states for the
delivery of water. * * *
This holding accords with th@ — statements at
pages 152-153:
The Act itself. élearly reserves to the United
States broad powers over the water impounded
in Lake Mead and delegates this power to the
Secretary of the Interior, as agent éf the
United States. He is specifically authorized
to impound the water of the Colorado River
in Lake Mead and to exercise custody over
the water so impounded through his .control,
management and operation of the dam and
reservoir. No user, whether it be a state or
an individual, may receive the impounded water
unless the Secretary, by contract, agrees to
release it for delivery to that user. Nothing in
the Act purports to require the Secretary to
agree, to deliver specific quantities of water to
any particular state or user, except that Section
6 requires him to satisfy water rights perfected
as of. June 25, 1929. [fn.] On the contrary,
the Act clearly contemplates that water uUn-
~~
/ -
/
j
/
j
f
Py
29
appropriated as ‘of, that date is to be made
available for use within a state only if, the
Secretary, within his discretion, contracts for .
the delivery of the water to that state. In
short, no contract, no water; * * *. [Empha-
sis added; fn. omitted.] ‘
And at page 216.appears this language:
i In other words, the Secretary has agreed
fas with the State of "Arizona that he will deliver
a certain amount of water to Arizona users,
but he has reserved to himself discretion to
“s decide with which users he will contract. This ©
being the case, the Secretary is free, subject to
statutory limitations, te contraet with users in
Arizona qualifying under the reclamation law
for delivery to them of certain amounts of
water out of the total amount allocated to
Arizona. This is precisely what the Secretaty .
has done in the contracts which are before us
in this case.
Pursuant to the broad authority conferred by See-
tions 1 and 5 of the Project Act, the Secretary early
in the life of the Praject Act made contracts with a
number of agencies within the. State of California, in-.
corporating in each the so-called Seven-party agree-
ment. This agreement specifies the quantities of
Colorado River water which the several agencies may
receive and the relative priorities as between them.
(See, e.g., Article (6) of the contract of February
7, 1933, between the United States and the Palo Verde
Irrigation District, Report, pp. 424-429, App. 8.)
The amounts and priorities so specified were ‘‘in
accordance with the recommendation of the Chief of
the Division of Water Resources of the State of
30
California’’ (Report, p. 424), but there has never
been a determination that they accord in all respects
with California law. Regardless of the recommenda-
tion of the Chief of the Division of Water Resources,
the rights of the several agencies party to those con-
tracts to receive, and of the United States to deliver,
‘water in aceordance with the specified quantities and
priorities, do not come about by application of state
law—they are a matter of contract between the
United States and the agencies except as the Project
Act provision for satisfaction of ‘‘present perfected:
rights”? (Report, pp. 307-312) may require a differ-
ent order of delivery.
Also. under the broad guthority vested in him to
contract:for use and disposition of the Project water
supply, the Secretary has made contracts with a
water users association and four irrigation districts in
Arizona, each of which provides for the delivery of
so much water as may be ordered and ‘‘reasonably
required and beneficially used’’ within the particular
project area, subject only to availability of the water
under the Colorado River Compact and applicable
federal laws.” (Report, pp. 212-214.) There are
also Batstanding water right application contracts
with the individual non-Indian landowners in the Res-
ervation Division of the Yuma Project in California
(Report, p. 212). These water right application con-
tracts generally provide for the delivery of either
*° These contracts make no provision as to, relative priority.
Presumably, then, the rule of ratability would’ ‘apply as between
them except as the Project Act requirement for satisfaction
of “present perfected rights” establishes u different order. See
infra, pp. 32-34. ‘
31
a specified quantity of water or so much as may be
required to irrigate the lands to be served, subject
to a limitation that the amount to be delivered, shall
not exceed an ‘‘equitable proportionate share * * *
of the water actually available at the time for all
of the area being watered from the same source of
supply, such proportionate share to be determined by
‘the project manager.’ (Cal. Ex. 380; emphasis
added.) The Secretary has also made a number of
special contracts for the delivery of water through
the facilities of the Yuma, Yuma Auxiliary, and
Gila Reclamation Projects, for use outside the proj-
ect areas. (Rept. 214; Ariz. Ex. 163 and 165.)
Each of them specifies water quantity and, without
regard to the Arizona law relating to priority of
appropriation, provides, in accordance with applicable
federal law (43 U.S.C. 521; 43 U.S.C. 523), that
the use of water thereunder shall be subordinate to
the use of water on the respective project areas.”
The Special Master has found each of these con-
tracts valid with the exception of one special-use con-
tract which he has found violateS the “permanent |
service’’ requirement of Section 5 of the Project Act
(Report, p. 218). He has also found that the Act of
“A more recent demonstration of exercise by the Secretary
of his broad authority to contract with respect to the dis-
position of project water, and in so doing, to determine rights,
quantities and priorities, intrastate, is to be found in the con-
. tract of November 12, 1959 between the United States and:
the City of Yuma. By this contract, executed subsequent to
the conclysion ‘of the evidence before the Master, the Secre-
tary .contracted to deliver a specified quantity of Colorado
River water to the City of Yuma but assigned such contract
a priority subsequent to all earlier Arizona contracts.
ae
32
September 2, 1958, 72 Stat. 1726, providing that the
Secretary of the Interior shall supply Boulder Can-
yon Project water to Boulder City, Nevada, effects
a valid commitment to the use of Boulder City of a
part of Nevada’s entitlement under that state’s
amended contract with the Secretary. (Report, p.
303.) | |
But in addition to the broad authority to make con-
tracts respecting water deliveries which is extended to
the Secretary by Section 5 of the Project Act, Sec-
tion 14 provides: 3
This Act shall be deemed a supplement to the
reclamation law, which said reclamation law
shall govern the construction, operation, and
management of the works herein authorized,
except as otherwise herein provided.
Ever since the Reclamation Act was enacted in
1902 (32 Stat. 388), the rights of landowners to re-
ceive and use the waters developed by a federal
reclamation project have been derived under and
determined by contracts made with the United States
in pursuance of applicable federal law.” As noted
% Section 10 of the Act (32 Stat. 390, 43 U.S.C. 373) con-
ferred on the Secretary of the Interior broad authority “to
perform any and all acts and to make such rules and regulations
as may be necessary and proper for the purpose of carrying
the provisions of this Act into full force and effect.” Section 5
(32 Stat. 389, 43 U.S.C. 431, 439) required that entries upon
public lands to be irrigated’ by project works bein compliance
with the homestead laws and required that at least half the ir-
rigable lands of each entry be reclaimed. Section 5 also pro-
vided that “No right to the use of water” developed by the
. project. works “shall be sold” for a tract exceeding 160 acres to
any one landowner and that, inter alia, “no such right shall per-
manently attach until all payments therefor are made.” For-
feiture of rights for failure to make stipulated payments was
aie
=
33 | a
supra, p. 31, the water right application contracts on
the Yuma Project, one of the earliest projects built
under authority of the Reclamation Act, establish the
rule of ratdPility on an acreage basis in case of short-
age in the project water supply. (Cal. Ex. 379.)
Later applications on the same project expressly pro-
vide that the proportionate share of each landowner
should “be determined by the project manager.”’
(Cal. Ex. 378, 380; Ariz. Ex. 168.) The water-right
applications on the Salt River Reclamation Project
jikewise provided for. The proviso to Section 8 (32 Stat. 390,
43 U.S.C. 372) provides: “That the right to the use of water ac-
. quired under the provisions of this Act shall be appurtenant to
the land irrigated, and beneficial use shall be the basis, the
- measure, and the limit of the right.” ”
Further evidence of the retention and exercise by the United
States, acting through the Secretary of the Interior, of its power
to control the acquisition: and definition of rights to receive and
use the waters of a federal reclamation project is to be found
in many of the subsequent acts of Congress relating to such
projects. (See 48 U.S.C., chapter 12.) E.g., the Act of
, August 13, 1914, 38 Stat. 686, Section 8 (48 U.S.C. 440)
Pal
authorized the Secretary to-make general rules and regulations |
governing the use of water in the irrigation of the lands within
any project and to impose specified requirements respecting the
areas under each water-right application or‘ entry to be re-
* claimedewithin three and five irrigation seasons and to provide
for continued compliance with such requirements. “Failure on
the part of any water-right applicant or entryman to comply
with such requirements shall render his application or entry
subject to cancellation.” And the Act of May 25, 1926, 44 Stat.
636 (43 U.S.C. 423-423¢), established a procedure for ex-
clusion from an éstablished project of lands found to be un-
productive and provided that “the water right formerly appur-
tenant to such permanently unproductive lands shall be disposed
of by the United States under the reclamation law * * *.”
(48° U.S.C. 423.) °
ese ee
&
a
in evidence here contain a similar provision. (U.S.
Ex. 31.)
The rule of ratability so frequently applied in the
34
making of contracts for disposition of a reclamation
project water supply differs greatly from State laws
of prior appropriation. But it is consistent with the
broad authority of the Secretary of the Interior “to
perform any and all acts and to make such rules and
regulations as may be necessary and proper for the |
purpose of carrying the provisions of this Act into ~
full force and effect.’’ (43 U.S.C. 373.) And the
practice which the Secretary has followed. and which
- we believe he is authorized to continue to follow in
the making of contracts relating to the storage and
delivery of the Boulder Canyon Project water supply,
including the fixing, intrastate, of particular quanti-
ties and velative priorities, is equally consistent with
the broad /authority conferred by Sections 1 and 5 of
the Projept Act.
©. SECTION /18 OF ‘THE PROJECT ACT DOES NOT LIMIT THE BROAD
AUTH CONFERRED ON THE SECRETARY OF THE INTERIOR BY
SECTIONS 1 AND 5 TO OPERATE THE BOULDER CANYON ‘PROJECT
AND TO CONTRACT FOR STORAGE AND DELIVERY OF THE PROJECT
WATER) SUPPLY
In eoncluding that “state — governs intrastate
rights and priorities to water diverted from the Colo-
rado age the Special Master relies primarily upon
Section 18 of the Project Act. That section provides
Nothing herein shall be construed as interfer-
ing with ‘such rights as the States now have
- either to the waters within their borders or to
adopt such policies and enact such laws as they
may deem necessary with respect to the ap-
propriation, control, and use of waters within
35
their borders, except as modified by the Colera-
do River compact or other interstate agreement.
But the first thing to note about this language is its
reference »to “‘such rights as the States now have.”’
Although the Report does not discuss the significance
of this language, it was explained when the amend-
ment which became Section 18 was proposed.
During the discussion in the Senate regarding H.R. -
5773, which the House had approved with amend-
ments, Mr. King of Utah offered as an amendment
language identical with Section 18 as enacted. Mr.
Johnson of California, a proponent of the bill, then
stated :
Mr. President, with the understanding that
the verb relates to the present—the rights they
now have to do all of the things that sub-
sequently follow—I have no objection to the
amendment. [70 Cong. Rec. 593.]*
Other proposals which were much more appropriately
worded to accomplish the intent which the Special Master
attributes to Section 18 were not accepted.
The House Committee on Irrigation and Reclamation ap-
pended a draft of a substitute bill to its report on H.R. 9828,
the second version of the third Swing-Johnson Bill. Contained.
in this draft was the following provision: -
“Sec. 8(a) All appropriations of water from the Colorade
River, incident to or resulting from the construction, use, and
operation of the works herein authorized, shall be made arid per-
fected in conformity with the laws of those states which may
or shall have approved the Colorado River compact ratified m
section 12 of this act.” (H. Rept. 1657, 69th Cong., 2d Sess.,
p. 382.)
Neither H.R. 9826 nor the substitute draft were enacted into
law. However, much of the language in the substitute draft
reappeared in the bill which finally became the Boulder Canyon
This emphasis on the word ‘“‘now” makes plain
that Section 18 was intended to do no more than-pre-
serye whatever rights the States of the Lower Basin
theft had to use, and to regulate the use of, waters
thén subject to their jurisdiction. But these States-
were then and, we submit, are now without right or
authority to use or regulate the use of*the waters of
the Colorado River as against the exercise by the
United States of its right and power to use and con-
trol the use of such waters for constitutionally au-
ber purposes. :
The Colorado River is a navigable stream and the
Boulder Canyon Project was authorized and con-
structed in valid exercise of the commerce power
(Arizona v. i 283 U.S. 423) and other fun-°
damental powers of the United States under the Con-
stitution. Supra, pp. 24-25.
In 283 U.S., at pages 451-452, the Court said:
The United States may perform its functions
without conforming to the police regulations of
a state. Johnson v. Maryland, 254 U.S. 51;
Hunt v. United States, 278 U.S. 96. If Con-
gress has power to authorize the construc-
tion of the dam and reservoir, Wilbur is under
vegies 1 a obligation to submit the plans and specifica-
~ tions to the state Engineer for approval. * * *
This holding with respect to the Arizona law which
purported to require submission of the plans and
specifications for Hoover dam to the State Engineer
Project Act, but Section 8(a) of the substitute draft was
omitted.
And see 69 Cong. Rec. 10467.
37
for approval was but the inevitable consequence of
the supremacy clause of the Constitution (Art. VI,
Cl. 2) as it has been construed and applied by this
Court since the decision of McCulloch v. Maryland,
4. Wheat. 316, in 1819. The laws of the several
States relating to the appropriation, control and
use of water which the Special Master says con-
trol quantities of and priorities for project water
~ intrastate are police regulations like that provision of
the Arizona_law. considered in the first Arizona, . *
California decision.”* }
Applying the same principles i: in Ivanhce Irrig. Dist.
v. McCracken, 357 U.S. 275, 295, after upholding the
constitutional authority of the United States to con-
struct and operate the great Central Valley Reclama-
tion Project in California, the Court said:
The lesson 01 these cases is that the Federal
Government may establish and impose reason-
able conditions relevant to federal interest in
the project and—to the over-all objectives
thereof. Conversely, a State cannot compel use
of federal property on terms other than those
prescribed or authorized by Congress. Public .
Utilities Comm’n of Californa.v. United
. States, 355 U.S. 534 (1958). Article VL of the
Constitution, of course, forbids state encroach-
ment on the supremacy of federal legislative
action.
% Vineyard Land & Stock Co. v. Di. trict Court, 42 Nev. 1,
171 Pac. 166, 173, 174 (1918); Pacific Live Stock Co. v. Loisle,
241 U.S. 440, 448, 449 (1916); Jn re Mass, 219 Cal. 422, 424,
27 P. 2d, 373 (1933); Kinney, /rrigation ‘and Water Rights
(2d ed.), vol. 3, sec. 1341, pp. 2428, 2429; Wiel, Water Rights
m the Western States, (3d ed.), vel. 2, sec. 1184, p. 1097; 30
Am. Jur.. Irrigation, sec. 3, p. 851.
The Court’s opinion in First Iowa Coop. v. Fed-
eral Power Commission, 328 U.S. 152, is especially
pertinent:
The [Federal Power] Act leaves to the
States their traditional jurisdiction subject to
the admittedly superior right of the Federal
Government, through Congress, to regulate in-
terstate and foreign commerce, administer the
public lands and reservations of the United
_ States and, in certain cases, exercise’ authority
under the treaties of the United States. * * *
[328 U.S. 171.] 0
The detailed provisions of the Act providing
for the federal plan of regulation leave no room
‘—or need for conflicting state controls. * * *
* * * * *
It is the Federal Power Commission rather
than the Iowa Executive Council that under our
constitutional Government must pass upon
these issues on behalf of the people of Iowa ©
as well as on behalf of all others. [328 U.S.
181--182. ]
See also Tacoma v. Taxpayers, 357 U.S. 320; United
States v. Appalachian Power Co., 311 U.S. 377;
Oklahoma v. Atkinson Co., 313 U.S. 508.
Equally applicable are the decisions of this Court
respecting the States’ lack of authority to impose con-
ditions upon.the use by the United States of its
property.” See Ivanhoe Irrigation District v. Me-
15 We’ do not argue the question of federal ownership of the
right= to use the waters of the Colorado River or the unappro-
priated rights to use the waters of the tributaries. But see:
United States v. Grand River’ Dam Authority, 363 U.S. 229;
Winters v. United States, 207 US. 564; Federal Power Commis-
sion v. Oregon, 349 U.S. 485. Since the contracts for the stor-
39
Cracken, supra, p. 37; Gibson v. Chouteau, 13 Wall.
92; United States v. Rio Grande Irrigation Co., 174
U.S. 690, 703; Winters v. United States, 207 U.S. 564;
Utah Power & Light Co. v. United States, 243 U.S.
389, 404; United States v. Oregon, 295 U.S. 1; Cam-
field v. United States, 167 U.S. 518; Hunt v. United
States, 278 U.S. 96. In Federal Power Commission
v. Oregon, 349 U.S. 435, 445, where the jurisdiction
of the Federal Power Commission rested upon the
- fact that the project involved would be located on
Oo
reserved lands of the United States, the Court said:
To aliow Oregon to veto such use, by requiring .
the State’s additional permission, would result
in the very duplication of regulatory control
precluded by the First Iowa decision.
Statutory language which merely preserves “such
rights as the States now have’’ cannot be construed
as a grant to the States of any part of the federal
government’s authority to control the operation of its
own projects. Freedom of the States to enact laws
does not compel the conclusion that the Secretary of
the Interior is bound by those laws.- Language more.
clear and definitive than that of Section 18 is neces-
sary to warrant the conclusion that “Congress has
specifically declined to give the Secretary of the In-
terior authority to deliver water to users within a
age and delivery of waters impounded by Hoover dam involve
the use of federal funds, federal properties and federal
privileges in the sense of physical facilities, and because the
Project is authorized in part “for reclamation of public lands”
(Project Act §1), decisions respecting the States’ lack of au-
thority to control the use of federal property are applicable.
s)
40
state in disregard of the state’ s water law.” _ .
port, p.-217.)
The second thing to note about then 18 is its gen-
erality in- contrast with the specific ‘contracting au-
thority granted by Section 5. Of course, it is always
held that the specific language of a statute qualifies the
general language thereof and not vice versa. Ivanhoe
Irrigation District v. McCracken, supra; Fourco Glass
— Co.'v. Transmirra Corp., 353 U.S..222, 228-229; Mac-
Evoy Co. v. United States, 322 U.S. 102, 107; Gins-
berg & Sons v. Popkin, 285 U.S. 204, 208; Arizona v.
‘ California, 283 U.S. 423; Baltimore National Bank v.
Tax Commission, 297 U.S. 209, 215. That Section 5~ |
specifically authorizes the making of water delivery |
contracts on such terms as the Secrétary deems appro-
_ priate, except as his discretion may be limited by other
specific provision, is demonstrated in subdivision B,
supra, of this part.
Finally, there is to be noted ‘the similarity of Section
18 to Section 8 of the Reclamation Act of 1902 ” and
Section 27 of the Federal Power Act.”
* The language of this section pertinent to this consideration
is as follows:
“That nothing in this Act shall be construed as affecting or
intended to affect or to in any way interfere with the laws of
‘any State or ‘Territory relating to the control, appropriation,
use, or distribution of water used in irrigation, or any vested
right acquired thereunder, and the Secretary of the Interior, in
carrying out the provisions of this Act, shall proceed in
conformity with such laws * * *,.” (June 17, 1902, chy 1093,
§ 8, 32 Stat. 390, 43.U.S.C. 383.) a5
*“That nothing herein contained shall be construed as
affecting or intending to affect or in any way to interfere with
the laws of the respective States relating to the control,
s ey
41
The Special Master suggests that Section 8 of the
Reclamation Act, together with the fact that the
Project ‘Act’ is denominated “as a supplement” to
reclamation law, ‘‘buttress” . the conclusion “apparent
from the plain language of Section 18: itself, that
state law governs rights and priorities among intra-
state users.’’ (Report, p. 218.) But the fact is that
_ poth Section 8 of the Reclamation Act and Section 27
_of the Federal Power Act have been construed by
this Court as not having the effect which the Report
would attribute to Section 18 of thg Project Act.
In its decisions respecting the meaning of Section
8 of the Reclamation Act, this Court has distinguished
between the acquisition of rights to use water for a
reclamation project and the operation of the project.
This was clearly set forth in Ivanhoe Irrigation
District v. McCracken, 357 U.S. 275. As to acquisi-
tion of rights, the Court said at page 291:
As we read § 8, it merely requires the United
R States to comply with state law when, in the
construction and operation “of a reclamation
project, it becomes necessary for it to acquire
water rights or vested interests therein.”
appropriation, use, or distribution of water used in irrigation or
for municipal or other uses, or any vested right acquired
- therein.” (June 10, 1920, ch. 285, § 27; 41 Stat. 1077,,16 U.S.C.
821.)
1®In this sense § 8 his been construed as meaning that if,
in the construction or operation of a reclamation project, the
United States impairs rights recognized under State law,
compensation must be paid without regard to whether the
rights would be valid as against the United States under federal
law. United States v. Gerlach Live Stock Co,, 3389 U.S. 725.
‘
. | v
4 ™
« é
yas : zs NS i
Y > . eee
© eae > \ ‘\ >
x - ~~?
‘ ¥
> -
: Ce Pa eo
“ 5 * OO eT
But’ the operation of federal reclamation projects
was excluded from any effect by Section 8 by —
statement (td. at 291-292) :
But the acquisition of water rights must not
be confused with the operation of federal proj-
ects. As gthe Court said “in. Nebraska v.
Wyoming, supra, at 615: “We do not suggest
that where Congress has provided a system of
- regulation for federal projects it must give
_ way before an inconsistent state system.” * * *
We read nothing in § 8 that compels the United
States to deliver water en conditions imposed
by the State.
We submit that the Special Master has overlooked
this: distinction in his reliance on Section 8 and the
“eases cited.” g see
** Regardless of what the: language in Jvanhoe may indi-
cate respecting the effect of § 8 as to the relative rights between
a reclamation project and other users within the same State,
that is not the question with which we are here concerned.
Hére, under §5 of the Project Act, “No person shall have
or be entitled to have the use for any purpose of the water
stored as aforesaid except by contract made as herein stated.”
It is the relative rights of users under contracts made in
accordance with this requirement with which we are con-
cerned. There is no question, and there can be none under
the Boulder Canyon Project Act, Tespecting the rights of per-
, Sons who <are not participating in the project water supply
in accordance with the Project Act. In Nebraska v. Wyo-
ming, 325 U.S. 589, 615, the Court made the same distinction
that it made in / eankae’ on indicated in the quotation. in the
text. Moreover, the Court in its discussion of §8 there was
not considering the problem -we are confronted with here—
that of whether relative rights within a federal project to
use the project water supply are governed by State law or by
the contracts which have been made in pursuance of applicable
federal law. The question t was one of title as between the
United States and the project landowners. And while under
——,
@ @ Z 6 =
SIS. J rte . y 43 : 2
The contracts which the Secretary has made with
the reclamation projects, lands bordering reclamation
projects and special users, are for the purpose of
disposing .of or allocating the impounded Colorado®
« River waters.. The power of the Secretary to deter-
mine, without threat of veto by State authorities,
the quantities and. priorities of the water to be de-
the particular facts of that case the Court—held title to the
projet water supply was not in the United States, we think
the following excerpts fairly indicate the true intent of the
holding:
“# * * The water right is appurtenant to the land, the
owner of which is the appropriator. * * * Indeed §8 of the
Reclamation Act provides as we have seen that ‘the right to
the use of water acquired under the provisions of this Act
shall be appurtenant to the land irrigated, and beneficial use
shall be the basis, the measure, and the limit of the right.’
* * * We intimate no opinion whether a different procedure
might have been followed so as to appropriate and reserve to
the United States all of these water rights. No such attempt
was made. * * * [In this case, it is to be noted, an entirely
different procedure has been followed. The United States has
not followéd State prescribed procedures to appropriate the
Boulder Canyon Project water supply.] The rights so ac-
quired are as definite and complete as if they were obtained
by direct cession from the federal Government. Thus even
if we assume that the United States owned the unappropriated
rights, they were acquired by the landowners in the precise
_Manner contemplated by Congress.” (325 U.S. 614-615.)
And in Ickes v. Fox, 300 U.S. 82, without discussing the
holding. as to title to the project water rights, it is even more
plain that the determination of title in the project landowners
was based, not on State law, but rather on contracts made
under federal reclamation law. At page 95 the Court. said:
“Appropriation was made not for the use of the government,
but, wnder the Reclamation Act, for the.use of the land owners;
and by the terms of the law and of the contract already”
referred to, the water-rights became the property of the land
owners * * *.” (Emphasis added})
-
- 44 ' a
livered is as essential-to efficient and effective oper- -
ation intrastate as his power to select the persons
to whom the water will be supplied. Therefore, as ||
these contracts pertain to the operation of the Boulder |
Canyon Project, it is clear under the decision in Ivan-
hoe that there is nothing in $8 of. the Reclamation
Act; or in §18 of the Project Act, to preclude the
Benteines from delivering water in the amounts and
priorities as determined under the contracts, without
regard to state laws relating to appropriation, control
and use of water. ! :
Sections 9(b) and 27 of the Federal Power Act _ |
were construed in First Iowa Cooperative v. Federal |
Power Commission, 328 U.S. 152. The issue before
the Court was whether under the Federal Power
Act a power company, as a condition precedent to
the issuance of a federal license to construct, operate,
and maintain a power project in navigable waters, .
had to prove to the Commission that it had met the
requireme f the laws of Iowa. This Court held °
that it x au required to do so as this would give
the state a veto over the federal project. At page
164 the Court said: j ac.
-_** *-Such a veto power ‘easily could. dnettoy
the effectiveness of the Federal Act. It would
subordinate to the control of the State the
“‘comprehensive”’ planning which the Act pro-
vides shall depend upon the judgment of the
Federal Power Commission or other representa-
tives of the Federal Government.
® ¢
ka 45
After ho¥fing that Section 9(b) ® of the Act does
not ,require compliance’ with State law, the Court *
observed that Section 27 (328 U.S. at 175) :
‘*-* * expressly “saves’’ certain state laws re-
lating to property rights as to the use of water,
so that these are not superseded sel the terms
of the Federal Power Act.
And it. further explained the effect of that section
by this statement (id. at 175-176) :
The effect of § 27, in stein a ‘abs laws
from supersedure, is limited to laws as to the
control, appropriation, use or distribution of
water in irrigation or for municipal or other
uses of the same nature. It therefore has pri-
mary, if not exclusive, reference to such pro-
prietary rights. The phrase “any vested right
acquired therein’’ further emphasizes the appli-
eation of ‘the section to property rights. * * *
. other words, the Court considered Section 27
to be an expression of Congress’ intention not to
exercise its full power to pre-empt the navigable
waters oféthe United States without regard to rights
0 Section 9(b) provides:
“That. each applicant- for—a license hereunder shall submit
~ to the commission—
+ s pl» * * *
_ . “(b) Satisfactory evidence that the applicant has complied
with the requirements.of the laws of the State or States within
which the proposed project is to be located with respect to bed
and banks and to appropriation, diversion, and use of water
for power purposes and with respect to the right to e
in the business of developing, transmitting, and distributing
power, and in any other business necessary ‘to effect the pur-
poses of a license under this act.” June 10, 1920, we 285, § 9,
41 Stat. 1068; 16 U.S.C. pea
&
. «
to the use thereof recognized under state law. See .
_ Federal Power Commission v. Niagara Mohawk Power
Corp., 347 U.S. 239, and, as to Section 8 of the Recla-
mation Act, Umted States v. Gerlach Live Stock Co.,
339 U.S. 725. Cf. United States v. Chandler-Dunbar
Co., 229 U.S. 53; United States v. Twin City Power
‘Co., 350 U.S. 222.
Similar meaning is to be given to Section 18 of the
Project Act. Seetion 18, like Section 87, “saves”
such rights as the States then had to waters subject
to their respective jurisdictions and to enact laws re-
lating thereto, but without extending such saving to all
vested rights recognized by the States ;” but Section 5,
like Section 9, is not limited or controlled by State law
simply because Section 18, as Section 27, ‘‘saves” cer-
tain rights of the States. Similarly, though Congress
by Section 18 has “‘saved” the right of the States to
enact laws_respecting waters subject to their jurisdic-
tion, there is nothing, either in Section 18 or. Section
5, which requires that users under contracts made
with the Secretary of the Interior be “under no dis-
ability to receive such water undér the applicable
state law.’’ ° | |
We are not unmindful that the language to which
we object in Article II(C)(1) of the recommended
Decree is qualified by the words ‘except as federal
statutes may otherwise specifically direct.’’ And we
realize that at page 217, note 83, the Special Master
"The limit: of the Project Act’s recognition of wht might
have ‘qualified as state’ recognized vested rights to -use the
mainstream waters ‘is the: $6 requirement for “the satisfaction
of “present. prefected rights.” Report, pp.307-312, 161.
47
has disclaimed any intention to pass on the question
‘whether ofher federal statutes such as the Gila Project
Reauthorization Act, 61 Stat. 628 (1947), supersede
state law in particular cases.” But we are also aware
that, notwithstanding the specific direction by Congress
to the Secretary of the Interior by the Act of Septem-
ber 2, 1958, 72 Stat. 1726, to deliver water to Boulder
City, Nevada,” the.Special Master apparently does
not consider this statute any more ‘*specific” than he
appears to consider Section 5. For at page 303 of
the Report he declares: ‘Boulder City’s priorities are
to be determined in the same manner as those of all
other Nevada users, under Nevada law, * * *.”
(Emphasis added.) |
We respectfully submit that under Sections 1 and
5 of the Project Act the Secretary of the Interior is
expressly authorized to make contracts for the storage
ot water in Lake Mead and: for*the delivery of such
water for the purposes specified in the Act; that this
authority of necessity includes authority to contract
for the storage and delivery of specific quantities and
~ for the order in which the contracts of the various
users will be: satisfied; and that there is nothing in
Section 18 of the Project Act which can be construed
as taking from the Secretary and vesting ‘in State
agencies any part of the authority so conferred on the
Secretary. ,
2 Section 9 d) of the Act provides that if the requirements
of the municipality shall at any time exceed 3,650 gallons a
minute « the / Secretary may furnish whatever additional water
and: whatever ddditional carrying capacity rad be needed.
48 : eu
POINT IV
THE NEVADA WATER DELIVERY’ CONTRACT DOES NOT EX-
G HAUST THE AUTHORITY; OF THE SECRETARY OF THE
INTERIOR UNDER SECTION 5 OF THE BOULDER CANYON
PROJECT ACT TO CONTRACT FURTHER FOR THE USE OF
DELCURDED WATER WITHIN THE STATE OF NEVADA OR
if! TO APPLY UNUSED WATER TO USE ON FEDERAL PROJECTS
At page 210 of thp Report the oe Master
stated:
_ It should be noted that the Nevada contract,
unlike the Arizona contract, does not require
additional subcontracts between each water
user and the Secretary of the Interior. On the
contrary, the State of Nevada is free to de-
termine who shall use the water, subject only ‘a
to the Secretary’s approval of the points of :
diversion. .
The United States has acwuptid to this an urges that
the language of the reeummended decree, referred to
in the footnote, should not be construed to imple-
ment it.”
23 Article II(B) (6) of the Recommended Decree in the Spe-
cial Master’s Draft Report (p, 309) stated that water appor-
tioned for consumptive use in a state but not consumed
“aohether for the reason that users therein do not have delivery
contracts for the full amount of the state’s apportionment, or
that they’cannot apply all of such water to beneficial uses * * *.”
(Emphasis added.)
might be released by the Secretary of the Interior for use in
other States. Nevada, in commenting on the Draft Report,
proposed that the provision emphasized in the language quoted
be amended so as to give recognition to Nevada’s contention
that the requirements of Section 5 of the Project Act are fully
satisfied by Nevada’s amended contract insofar as uses of
stored water in that State are concerned. The United States
49
Article 5(a) of the contract, as amended January 3,
1944 (Rept. p. 420, App. 7), provides that, subject to
availability of the water for use in Nevada, the United
States shall annually deliver to the State from storage.
in Lake Mead—
so much water, including all other waters di-
verted for use within the State of Nevada from
the Colorado River system, as may be necessary
to supply the State a total quantity not to ex-
. ceed Three Hundred Thousand (300, 000) acre-
feet each calendar year. * * * [Emphasis
added. | ) Sg fe:
In our view this contract, like the Arizona contract,
is effective to allocate for use in the State the quantity
of water therein specified, in accordance with the plan
for interstate allocation of mainstream water contem-
plated by the Project Act. But only to the extent
that Nevada itself may qualify as a user of water does
it satisfy the requirement of Section 5) that no person
shall have or be entitled to have the use of the stored
water except by contract made as stated in that sec-
tion. Uses in Nevada made by others than the State
continue to be governed by that requirement and, as
demonstrated in part III, supra, the validity of such
uses and the extent of the rights therefor must depend
upon their recognition by contracts with the users
opposed this proposal during the argument before the Special
Master August 17-19, 1960. Article II(B)(8) (which is the
counterpart of II(B) (6) -in the earlier draft) of the Recom-
mended Decree reads:
“* * * whether for the reason that delivery ecbibghienl for the
full amount of the state’s apportionment are ‘not in effect or
that users cannot apply all of such {water to beneficial
uses * * #7 Rept, p. 349.) :
oe -.
al a | he ae er |
made by the Secretary in conformity.with all of the
Section 5 requirements. While Nevada may make
recommendations to the Secretary respecting: the:
making of contracts with users in that State, the pro-
visions of Section 5 do not authorize or permit the
substitution of State regulation for the discretion
which the Project Act eae the Secretary to
exercise.
Be submit that aie statement at page 210 of the
Report\to which we have excepted is in conflict with
the pro isiohs of Section 5. We submit further that
it does not give proper meaning to the language of
Article 5(a) of the contract underscored in the quota-
tion above. If that language is read to mean what
it says, the -contract will not only be given literal
meaning, but the conflict with Section 5 of the Act,
which the Master’s interpretation engenders, would
be eliminated.
The underscored language babii from the agree- |
ment to deliver ‘‘to the State” all other diversions for ‘|
use within the State. Such exclusion preserves the |
Secretary’s authority to contract with users in Ne-
vada and precludes the possibility of an attempted
waiver of the Section 5 requirement for contracts
with all users. . It likewise constitutes an. effective
reservation of fhe United States’ general power to
provide, within the unused part of Nevada’s alloca- {
tion, for uses on federal projects within Nevada.
(Rept., 257-266; 292-294 ; 297; 303). So construed, it |
dis plain that the ‘amie of Article 5(a) of the con-
tract providing for delivery “to the State” is but a
shorthand way of saying, as in the Arizona contract
~ » use on federal projects in that State.
51
(Rept. 400, App. 5): “The United States shall de-
liver * *.* water * * * for * * *-use * * * in ag
vada | * * bal ”?
We have shown in Point ITI, swpra, that there is no
basis in the Project Act, or in the decisions of this
Court, for concluding that the Secretary of the In-
terior is subject to the control of Nevada in delivering
water from storage in Lake Mead. The State of Ne-
vada is not “free to determine who-shall use the wa-
- ter.” Nor is it free to determine the priority of the
various water users under such contracts as may be
madé. These matters rest within the discretion of the
Secretary of the Interior in exercising his authority
to make contracts disposing of waters of the Colorado
River impounded by Hoover Dam.*
The Court is requested to reject the veniiialons at
page 210 of the Report, above quoted, and to make
clear that Article II1(B) (8) of the Recommended De-
cree, if it is approved by the Court, does not impair.
either the authority of the Secretary to contract with
users in Nevada;under Section 5 of the Project Act
or the general power of the United States to apply
unused waters within the Nevada apportionment to
Ey
3
ee POIN iT V
. THE UNITED STATES IS ENTITLED TO USE ON ITS WILD-
LIFE REFUGES WATERS SALVAGED IN DEVELOPMENT OF
THE REFUGE AREAS WITHOUT REGARD TO PRIORITIES
ESTABLISHED BY CREATION OF THE REFUGES
With respect, to the Havasu Lake National Wild-
life Refuge and the Imperial National Wildlife
a
52
Refuge, both on the mainstream oi the Colorado
River, the United States proved that the change in
and control of the vegetation which will be effected
by the development, of these refuge areas will result
in water consumption Jess than that which presently
ocecurs in the overflow and undeveloped areas where
the refuges are_ presently located, (Tr. 15,691;
15,694; 15,753; 15,759-60.) The Special Master
omitted to make the Findings of Fact proposed by the
United States reflecting this salvage of water, and
further omitted to provide in the Conclusions of Law
and Recommended Decree that water salvaged by the-
United States from the mainstream of the Colorado
' River may be used by it on federal mainstream Wild-
life Refuges without limitation by the priority dates
decreed for the respective refuge areas.
It is a fundamental maxim of water law that*the
right to use the portion of stream flow salvaged by
means of artificial improvements belongs to the one
making the improvements. Hutchins, Law of Water
: Rights in the West, pp. 361, ff. Decisions in support
of this proposition have been rendered by a number
of the Supreme Courts of the western States.“ Rec-
ognition of the salvage doctrine is to be found also
in the decisions of this Court. Washington v. Oregon,
297 U.S. 517, 522-23; Nebraska v. Wyoming, 325 U.S.
589, 618-9. } |
“For example, Pomona Land & Water Co. v. San Antonio
Water Co., 152 Cal. 618, 623-624 (1908); Reno v. Richards, 32
Idaho 1, 6, 12-13 (1918); Zronstone Ditch Co. v. Ashenfelter,
57 Colo. 31, 43-44 (1914).
rh.
x
: . 53
The application of this principle in this case will not
disarrange the allocation or priority schedule recom-
mended by the Special Master. Quantities and pri-
orities of water rights for the mentioned Refuges are
provided by Article II, Subdivision (C), paragraphs
(2)(g) and (2)(h), of the Recommended Decree
(Rept.,. pp. 352-353). Recognition of the additional
basis. of right, the right to use water salvaged by the
development of these Refuge areas without limitation
by priority dates,,would in no way increase the
quantities used beyond those presently specified in
the Recominended Decree. We believe there should
be added to each of the paragraphs of the Recom-
mended Decree last above noted a proviso to the fol-
lowing effect: :
Provided, That to the extent the water used on
such Refuge shall be salvage water resulting
from development of /Ahe refuge area, such
water may be used without regard to such
priority dates. |
CONCLUSION.
For the foregoing reasons it is respectfully submitted
that the exceptions filed by the United States should
be sustained.
| ARCHIBALD Cox,
Solicitor General.
Joun F. Davis,
_ ‘Assistant to the Solicitor General.
Davip R. WARNER,
WALTER KIECHEL, JR.,
WakRREN WISE,
Attorneys.
May, 1961.
U.S. GOVERNMENT PRINTING OFFICE: 1961
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