# Brief in Support of Exceptions of the US — Arizona v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0200%3A66 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Support of Exceptions of the US - **Published:** January 1, 1962 - **Citation:** 370 U.S. 930 ## Text a “fi Pri} is hae a Fite. yo Ee >» = or a 7 " 7 = y My . ° +. , bf Vv : SO Rear TIES, 7) 2 SABRE ° = es mo hy Se a =o ‘ted INDEX a 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) ™ fs © if aot 21 ere xe 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 . 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