DUGAN v. RANK

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Argument of Cox

Justice Hugo L. Black: H. P. Dugan et al., Petitioners versus Everett G. Rank. Number 51, Claude E. Rowe -- City of Fresno rather, Petitioner versus California et al. and Number 115, The Delano-Earlimart Irrigation District et al., Petitioners versus Everett G. Rank et al.

Mr. Cox: May it please the Court.

This is one of three cases here on certiorari to the Court of Appeals for the Ninth Circuit, all growing out of a single action brought against the United States and officials of the Bureau of Reclamation.

The central issue is whether the action in all its aspects is in reality, a suit against the United States barred by sovereign immunity.

Our position is that it is such an action and is so barred and that the plaintiffs have a remedy for damages under the Tucker Act in a suit in the Court of Claims but they're not -- but they're not entitled to this action for a specific relief under the doctrine of the Larson case and Malone and Bowdoin.

The justices, who were on the Court at the time of the Gerlach and Ivanhoe cases, will recall the complexity and grandeur of the Central Valley project.

The north half of the Central Valley in California, the Sacramento Valley, has a surplus of water.

The south half, the San Joaquin Valley, has a shortage of water.

The purpose of the project, the essence was to improve the use of water in both halves of the valley, but also particularly to bring surplus down to the water hungry regions in the San Joaquin.

For present purposes, there are only two units of the project that are important to us.

Both were the key units in the sense.

The San Joaquin River rises in the Sierras in the area just south of the Yosemite and then flows southwesterly and breaks through the mountains here at Friant.

Then it continues on, flowing a little bit more to the west and then take a sharp bend up to the northwest and it -- in the delta area, it joins the Sacramento and the two flow out through the Golden Gate to the sea.

The first unit that we're concerned with is the Friant Dam which was built right here where the river breaks through the mountains and behind which is Millerton Lake, a storage reservoir.

Extending from that dam north is the Madera Canal and south the Friant-Kern Canal, which transports water to regions that otherwise, would be shortage areas.

And they take, when the dam is close, all or virtually all the water of the San Joaquin.

The Irrigation District which are the petitioners in the third case to be heard today are the districts that are furnished by these two canals, one runs about 50 miles and the other about 150.

Now closing the Friant Dam and diverting the water via the canal would of course unless something else was done, cut off the irrigation water available to the lower San Joaquin Valley.

To take care of that, we have the second significant unit in the project here, the Delta-Mendota Canal which runs from the Delta where it hooks on to the Sacramento River, comes to the pumping plant of Tracy and is then raised and closed by gravity down here to a place called Mendota Pool.

There it is released and flows back up north again and water these lands, which previously received water of the San Joaquin River.

Unknown Speaker: [Inaudible]

Mr. Cox: No.

There are maps in the briefs.

Unknown Speaker: [Inaudible]

Mr. Cox: I should think we could a quickly -- we've tried certainly as quickly as we can give, yes.

And I think there's another that I'm sure I can obtain copies of that are somewhat easier than the brief.

It was --

Unknown Speaker: [Inaudible]

Mr. Cox: It certainly will, yes, except for getting it reproduced if we have to.

We left -- which way to do it.

We will try to get it reproduced and then return this along with the reproduction.

You will notice of course that since the Delta-Mendota Canal comes only to Mendota pool, this would mean that if Friant Dam were closed completely, this area on which I've marked with red running from Friant Dam down to Mendota Pool would be without water and that is the area that we're concerned with in this case.

The diversion of the natural flow at the San Joaquin having made no provision from those lands in the red area, gave rise to a problem that the Reclamation Bureau and the United States of course have to face.

Some of the water rights in that area, indeed, most of the water rights in that area were required under state law.

We entered into contracts either buying the rights or contracts to supply them with water or agreed a partial arrangement to supply some water and to make some payment.

A minority of the land owners and the United States were unable to grip -- to agree and this suit resulted.

The water rights asserted by the plaintiffs were of three kinds, some of the plaintiffs whose land actually along the river claimed riparian rights which California still recognizes to a degree.

The United States has always acknowledged some interference with those riparian rights.

It claims to have taken them to the extent that there is interference and it denies the full amount of the interference that the plaintiffs claim.

Some of the plaintiffs claim what are known as overlying rights to the underground waters which they claim were fed by the San Joaquin River.

They were mostly in this area, south of the river, barely reaching to the City of Fresno.

The United States, for the most part, denies that it has interfered with the overlying rights to the extent that they have been impaired, again, we claim to have taken it.

Some of the plaintiffs -- I might -- I should say too that the City of Fresno has been spoken off for the most part as being in the category of the owner of overlying rights.

Finally, some of the plaintiffs claim appropriative rights that is to say they are not neither overlying land owners nor riparian but they claim to have taken water and put it to beneficial use in time to have acquired rights under California water law.

The action was brought by the plaintiffs against the --

Unknown Speaker: [Inaudible]

Mr. Cox: Oh yes, subject to only one -- subject to one possible qualification and I don't -- we don't have enough facts to say how much the qualification it is, but some of them may now be barred by the statute of limitation, although most of them have already brought their suits and were not barred by the statute, but I wouldn't want to say that there was nobody who might be barred by the statute.

But we acknowledge to the extent we'd interfered that there clearly -- we were clearly bound to recognize the rights under state law to that extent, if we have to take them, we couldn't just wipe them out, and that that gave rise to an obligation to pay.

So the real issue here isn't one of the obligation to pay, it's to whether they can tie up the project as a way of asserting their rights.

The action was brought against officials of the Reclamation Bureau to seek what is called a physical solution of the plaintiff's originally riparian rights.

Under California law, a riparian or overlying owner who can show that other people on the stream are interfering with the natural flow of the water, may obtain a decree restraining interference with the flow of the stream unless the junior appropriator at his own expense make some physical arrangements which will protect the superior right of the riparian owner to water to a reasonable extent.

For example in the present case, which is as good as an example of a physical solution as any, the District Court enjoined the operation of Friant Dam.

They said you can't use Friant Dam and required the Reclamation Bureau to release all the waters of the San Joaquin River unless the United States build a series of 10 more dams and operated them in the manner that the District Court required, describing the dams in great detail even down to gantry trains and the size of rails of the train should run on and so forth, and it provided that there should be a specified flow of water over the last dam.

The individual defendants when the suit started, moved to dismiss upon various grounds, but especially on the ground that the action was in reality, one against the United States barred under the doctrine of the Larson case.

When that motion was denied, the officials made a number of answers, including answers on the merits but they preserve the position which we insist upon here at all times that this was an unconsented to suit against the United States.

The District Court found against the reclamation official, both on the question of jurisdiction and on the merits.

It entered a decree which as I have said, enjoined the operation of Friant Dam, enjoined the transfer of water through the Madera and Friant-Kern Canals unless the United States which it recognized would have to go in, chose to build 10 additional dams on the strip of the river down the Gravelly Ford at an expense of somewhere around a million dollars.

I must now I think for the purposes of clarification, turn to a second aspect of the case in the District Court.

The City of Fresno was one of the plaintiffs in the original action seeking protection of what Fresno said were her overlying rights to the underground waters alleged by her but denied by us as coming from the San Joaquin.

At this stage when Fresno came in, the United States was joined as a defendant or at least attempted to be joined because the United States never appeared.

In addition, Fresno filed a separate complaint and intervention against both the Reclamation Bureau officials and the United States seeking a declaratory judgment that her right to take additional water from the San Joaquin River from the natural flow was superior to any rights of the United States to the waters of the San Joaquin because we had acquired assignments of rights to the waters of the San Joaquin from the State of California.

Third, Fresno sought a declaratory judgment that the United States was obliged to furnish Fresno with water from Millerton Lake behind Friant Dam at the price of 350 an acre foot, although the price charged to all other municipalities for water under the Central Valley project is higher and ranges up but not above $10 of acre foot.

The District Court gave judgment against the Untied States on both these claims for a declaratory judgment.

The Court of Appeals reversed, as to the United States, holding that there was an unconsented suit against the United States and the City of Fresno by the petition in Number 51, the second case to be argued today, brought that ruling here.

With respect to the original suit, the Court of Appeals affirmed the judgment in favor of the riparian overlying owners so far as the individual defendants were concerned.

It held it was not an action -- really an action against the United States because it fell within the exception which permits its said suits against officers of the United States where they are acting outside of the scope of their authority and committing a tort against the plaintiffs.

Justice Potter Stewart: Is Fresno a plaintiff in that suit?

Mr. Cox: Fresno is a plaintiff in that suit.

So that Fresno really has three claims.

It has -- it's in common with all the overlying owners and riparian owners.

It has its claim that it's entitled to a declaration that it has a right to appropriate water out of the natural flow ahead of any rights of the United States.

Justice Potter Stewart: And that's Number 51 here?

Mr. Cox: That's Number 51 here and it has a declaration which is also in Number 51 that it's entitled to water at 350 an acre foot.

Justice Potter Stewart: Right.

Mr. Cox: The -- on the Reclamation Bureau's petition to which I'm going to address myself now, we submit that the courts below both erred in failing to dismiss the action as an unconsented to a suit against the United States.

Certainly, it is such a suit in every substantial respect.

The Bureau officials were sued only to control their action as officers of the United States.

The complaint sought not damages, but an injunctive decree, granting specific relief.

Under the decree, either Friant Dam must stand idle, the great works unused, no water flowing either north or south through the Madera Canal or the Friant-Kern Canal and no water supplied to the Irrigation District or else, under -- excuse me.

Unknown Speaker: [Inaudible]

Mr. Cox: If you agree with this in this position, there is nothing left to decide.

Unknown Speaker: [Inaudible]

Mr. Cox: Oh -- well, we would have a -- we would have essentially the same position but the reasoning is a little different.

In 51, we claim, it's a suit against the United States and indeed we think it's obviously is and the question there is whether the only question so far as I can see is whether the United States has given its consent.

There is an argument that the United States has consented to be sued and I suppose that if that argument is good, it really takes care of 31 too.

So I guess that the Court has to decide a minimum of two points.

One whether Larson and Malone and Bowdoin are decisive in that general principle, and second, whether Section 206 (a) of an Act of 1950 known as the McCarren Amendment, gives consent to suits against the United States.

I was saying that the decree that this suit was in substance against the United States either it expends itself on these key units of the Central Valley project and prevents its operation or in the alternative, it compels the United States and this is submitted to build 10 more dams on the river which have not been approved by the Reclamation Bureau and which have not been authorize and for which no money has been appropriated by Congress.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Cox: The order -- in a suit against United States, there's no such case, no such case.

As among private parties in California law there's present, but I know of no case anyone near this.

Justice William O. Douglas: You mean to say that if the Government is putting up a dam that will flood my house that I'm without any remedy to stop me from doing it unless they condemn it?

Mr. Cox: I think that when they put up the dam and flood the house, they have condemned it.

Justice William O. Douglas: That means, if -- if they take no measures to acquire the land within the project.

Mr. Cox: The very effect of putting up -- well, if the project is unauthorized, if the Reclamation Bureau --

Justice William O. Douglas: No, it's authorized.

Mr. Cox: Well, if it's authorized then as in the Gerlach case --

Justice William O. Douglas: I mean the government -- the government official never convey as trespasser.

Mr. Cox: Well, if he is authorized he can't be a trespasser, no.

I think that --

Justice William O. Douglas: So there's no such thing as a suit again -- against an official under the Government.

Mr. Cox: There's no such -- there's no permitted suit against an official of the Government acting within his authority.

That seems to me to be the lesson --

Justice William O. Douglas: Why isn't the Government can -- the Government has -- the Government is much more powerful than an individual that they can condemn, can't they?

Why don't they condemn?

Mr. Cox: Well, the Government -- the Government when it builds the dam cuts off the rights does condemn as it did in Gerlach.

That was the holding of the Court in Gerlach.

Similarly in many flowing cases, the Government when it erects a dam or locks and it flows the land behind, that flowing constitutes a taking then and there and an action will lie for it.

Justice William O. Douglas: Under the Tucker Act.

Mr. Cox: Under the Tucker Act, yes.

This at far is a remedy, but at the same time, it permits --

Justice William O. Douglas: If a person --

Mr. Cox: -- the Government to go forward with the work.

Justice William O. Douglas: Yes.

If a person is timely in his suit and so on.

Mr. Cox: Well the – true, but the Dickenson case I think indicates that there is no -- there is no barring of this cause of action if there is genuine uncertainty or lack of knowledge as to whether there really has been an occasion and it would seem to me that the same was true here.

Justice William O. Douglas: If --

Mr. Cox: If a man could show that in the --

Justice William O. Douglas: Do you think it is doubtful that there was a taking here?

Mr. Cox: Well, you see, the essence have -- I think there was clearly some taking and the -- and we -- there was no taking by judicial proceeding.

It was the kind of taking that there was in the Gerlach case and there was clearly some taking.

Now there is some dispute and has been from the beginning as to just how much of this underground water was affected by the closing of Friant Dam.

We don't say there was a taking to the -- as to those parts which we claim were not affected.

On the other hand, we say anything that was affected was clearly taken just as it was in the Gerlach case and that the issue as to where that line is cannot be tried out in a suit to interfere with the operation of the project because we think these officials clearly acted within their authority as between principle and aging when they constructed the dam.

Justice Hugo L. Black: The trail court [Inaudible]

Mr. Cox: The trial court held that there was no taking.

Justice Hugo L. Black: What about the Court of Appeals?

Mr. Cox: The Court of Appeals held we had authority to take but that there was no taking.

The Court of Appeals said that there could be no taking unless one were more precise in telling the plaintiffs exactly what had been taken.

Now we say as to that that it doesn't matter whether there was a taking or not.

Well, we really say three things Mr. Justice Black.

We say first that there was a taking and we think that if you look at the case in terms of could anyone in this area sue the United States for a taking under the Gerlach case the answer would unquestionably be yes, and that if there was a taking for that purpose, it was a taking for the purposes of our case.

Second, we say that it doesn't matter whether there was a taking or not or exactly how much was taken at this day because of the doctrine of the Larson case and Malone and Bowdoin, because here certainly, these defendants were acting within the scope of their authority.

They were -- I think the confusion arises from the term acting within the scope of their authority.

It's possible for example to say that well, the officer in the forest service that no officer of the forest service is authorized to take somebody else's land and to oust them from possession and to claim under avoid these.

If one has it as a known and indisputable truth that he is taking land that belongs to someone else and that he knows that and knows the deed to be void and then I suppose he is acting outside the scope of his authority.

Justice William O. Douglas: But those cases --

Mr. Cox: But of course --

Justice William O. Douglas: -- sudden rise.

Mr. Cox: That's right.

I was simply using this for illustrative purpose, but he is authorized to determine what land he thinks belongs to the United States in his best judgment.

That's what the United States sets him up to do, and when he makes that decision of whether he is right or wrong does not destroy his authority and that's the reason that the action for rejectment wouldn't lie in the -- in Malone and Bowdoin, similarly in the Larson case.

I take it that everyone would agree that Larson, the war assets administrator wasn't authorized to sell called as A, and then knowing he'd sold it to A and the title had passed, he is obligated to make delivery to sell it to B, but on the other hand, he was authorized to superintend the administration of contracts and to interpret them and provided he acts in his good judgment and perhaps not capriciously, his decision is not placed outside his authority because --

Justice William O. Douglas: I don't suppose the land cases were at a special place in this Court's decision in protection of the leac -- I brought for instance the --

Mr. Cox: Well, it would seem to me that --

Justice William O. Douglas: Do you think that's vulnerable when --

Mr. Cox: I'm not -- I think it's very -- it's gone very largely in a case where an action rely under the Tucker Act and that Malone and Bowdoin shows there is no special protection for land cases and the Larson case that dealt with chattel.

Now here, in this situation, the officers of the court below held, were authorized to take these any water rights necessary or to take any land necessary for this project.

They were also certainly authorized to operate the dam and to interfere with the natural flow where it didn't interfere with anyone's rights.

Those were judgments that they were empowered to make.

Whether they made some mistake in them, may have resulted in their committing a tort but it did not deprive them of the authority to act.

And really, the holding of the Court below and the plaintiff's argument it seems to me, comes down into a contention that this special category of cases still exists that an officer of the United States may be enjoined when he has been committing a common law tort.

Justice John M. Harlan: Mr. General what --

Mr. Cox: But that --

Justice John M. Harlan: Excuse me.

Mr. Cox: I was just going to say that that category of case was held nonexistent in Larson that that is not ground for suing an officer of the United States and that if there could be any doubt after Larson as apparently there was because the Fifth Circuit in the Bowdoin case and the Ninth Circuit in this case rendered inconsistent decision, they were set straight in Bowdoin so far as the Fifth Circuit is concerned.

Frankly, I can't believe that the Ninth Circuit would have decided this case it did had Malone and Bowdoin been available to it at that time.

Yes sir.

Justice John M. Harlan: My question is going to be what has happened in the physical construction of this project --

Mr. Cox: Well, it didn't --

Justice John M. Harlan: -- during the pendency of this suit.

Mr. Cox: The --

Justice John M. Harlan: Is it all been stopped?

Mr. Cox: No.

There was a period when it was operated under consent decrees.

The Friant Dam was built.

The water districts are being served.

In the point of fact, the Government's arrangement with some of the owners of between Friant Dam and Gravelly Ford, the area we're concerned, because we acquired all of these rights below -- below Gravelly Ford, the Government entered into an arrangement with a number of owners, saying that it would let them specified quantities of water up to 5-cubic feet a second regularly and it entered into arrangements with them to build channels, but encompass to make other things.

So as a result of the settlement a cert -- with the people who aren't here, a certain amount of water has been going down.

We think indeed that this is hardly disputed and the Court found against us, we think indeed that's enough to take care of all the riparian rights.

The owners of overlying rights are still pumping water.

The water table is going down in their view and in the District Court's view.

This is a result of what we've done with Friant Dam.

In our view, it isn't the result of that at all.

Of course, we can't argue that issue here and I mentioned it only to find out what we're objecting to is trying that issue not in the Tucker Act suit where it belongs but in an action that plainly expends itself on the property and treasury of the United States.

Now I would like to --

Justice Hugo L. Black: (Voice Overlap) was included within the project is approved by the Congress wasn't it?

Mr. Cox: This is within the project disapproved by the Congress.

This specific incidents, were described during the '50s, the exact reference is there in my brief.

Justice Hugo L. Black: All that (Voice Overlap)

Mr. Cox: Two of the Congress and the Congress voted appropriation to make settlements with those fellows that we've settled with downstream.

They know exactly what we were doing.

Justice Hugo L. Black: As I remember it, it was in Ivanhoe, wasn't it?

I don't know if that --

Mr. Cox: Yes sir.

Justice Hugo L. Black: Didn't we discuss the Friant Dam and there's none in which (Voice Overlap)

Mr. Cox: You have to mention it both in Ivanhoe and particularly in Gerlach because you remember in Gerlach where it's right down here on San Joaquin.

Justice Hugo L. Black: Mr. Jackson just where it could get.

Mr. Cox: In summary, because I'm afraid I jumped around a bit.

Let me simply state the three objections to the decree of the narrative judgment of the Ninth Circuit that I've tried to refer to.

First, we think there was a taking and that will prevent issue of being argued by the Irrigation District and it may be that in the Fresno case, I'll have some time to refer to it.

Second, we say even if there wasn't to take, even if there's uncertainty as to what was taken and what was interfered with and what wasn't interfered with at all that the action is in Reality One against the United States because the gist of the claim is that this was a tort and we deny the tort, that's an issue that can't be tried out, we say, in this kind of action.

And cert --

Justice Potter Stewart: And if it wasn't -- if it was a tort, would the Court of Claims have jurisdiction?

Mr. Cox: Not if it was simply a tort.

Justice Potter Stewart: Because it's not -- it's clearly not within the Federal Tort Claims Act.

Mr. Cox: Clearly not in the Federal Tort Claims Act.

Justice Potter Stewart: And it's not within the Tucker Act, is it?

Mr. Cox: If it's so little of a tort is not to amount to a taking, yes.

I --

Justice Potter Stewart: So whether the --

Mr. Cox: -- find it very difficult if there was such a thing to tell you the truth, Mr. Justice Stewart. I think either we did one -- either we took or we didn't affect it at all, but I think in theory if there is a zone in between which the Government has never been very successful in Tucker Act cases in arguing that there was and I'm quite correct in my judgment, if there is a zone in between, there would be no remedy.

Justice Potter Stewart: No remedy --

Mr. Cox: That would be the (Voice Overlap)

Justice William J. Brennan: Your position --

Mr. Cox: But we're not arguing that -- we're not arguing that Tucker Act should be so narrowly construed here.

We're objecting to the specific relief.

The third point if I might take the 30 seconds, the third point that we say is that both the majority and dissenting opinions in Larson, say that even where an officer has been acting outside its authority that if the decree would compel affirmative action by the United States or expend itself upon the property of the United States, then the action for the injunction will not lie and we think this case falls for reasons stated in our brief from that category.

Justice William J. Brennan: I understand Mr. Solicitor to say your position is there was a taking or there was no one --

Mr. Cox: Yes sir.

Justice William J. Brennan: -- I find it's difficult to find something short of a taking call it to Court or something else.

Mr. Cox: That's right.

Justice Hugo L. Black: You took some water and then what?

Mr. Cox: We interfered with some flow of water or we didn't interfere with it, one or the other.

Justice Byron R. White: And if there was no taking, there were no grounds for an injunction.

Mr. Cox: There was no ground for an injunction.

Of course that took --

Justice Byron R. White: -- and that ignition.

Mr. Cox: Right and that that's the proper place without interfering with the --

Justice Potter Stewart: Not on these laws.

Mr. Cox: Right.

Argument of Claude L. Rowe

Mr. Claude L. Rowe: Yes Honorable Court.

You have, I believe, presented to you a large green brief by the City of Fresno in which most of the acts of Congress, involving the Central Valley project are listed.

At the start, I would like to make a correction and state that we do not agree with the map before this Court.

This so-called river from that point down here does not exist and I --

Justice Potter Stewart: I missed that.

I'm sorry.

Mr. Claude L. Rowe: What did you say?

Justice Potter Stewart: I missed what you just said, could you repeat it?

Mr. Claude L. Rowe: I said the San Joaquin River according to the -- well, what I just said that this river from there to here does not exist and that will come up in the State's argument at a setting position, the map is incorrect.

Now, I know --

Justice Tom C. Clark: Mr. Rowe, what do you mean it doesn't exist in this position?

Mr. Claude L. Rowe: Well, I will show you.

There is no such stream from here to this square nor from the square to this other so-called lake and if it is not out of line to -- it just does not exist.

It never existed as a natural channel.

Now that is shown by Exhibit 6 opposite page 86 of the green brief, I don't know whether it's proper to mention the Chief Justice's name.

His name appears on the cover of that bulletin that that map was printed on.

So I think that's -- if it's proper to mention his name, I think that's pretty good evidence that the stream does not exist as a natural stream.

Justice Hugo L. Black: What brief is that in?

Mr. Claude L. Rowe: That is in the green brief, the large green brief --

Justice Hugo L. Black: What number of case -- which number of case?

Mr. Claude L. Rowe: 51.

Justice Hugo L. Black: 51.

Mr. Claude L. Rowe: Yes.

Justice William O. Douglas: I don't know what you mean as a natural stream?

Mr. Claude L. Rowe: Well --

Justice William O. Douglas: Is there a bed of river there?

Mr. Claude L. Rowe: No.

In other words, this was put in, I think, in an effort to avoid the [Inaudible].

It is our position -- this is the Kern River, the Kern River terminates in Buena Vista Lake.

There's no natural water way from there to Larry Lake.

There's an artificial waterway, but this indicates it's a natural stream and it therefore possibly the Kern River is in the watershed at the San Joaquin.

They also attempted to connect that to the San Joaquin.

I would like to point out a map as Exhibit 2, opposite page 16 of the green brief which was prepared for the District Court in the decision below and that map prepared by the United States Bureau of Reclamation does not show any stream from Buena Vista Lake to Larry Lake.

Now, that will -- I think that point may become important later in the argument.

Justice Hugo L. Black: Why?

Can you tell us in words?

Mr. Claude L. Rowe: Yes.

In California, according to the fundamental war, the county of origin and watersheds of origin are to receive all necessary water before any water is exported out of the watershed or the county of origin.

Now Fresno lies in Fresno County which is bounded by the stream on the south and by the San Joaquin on the north.

The act of Congress of October 14, 1949 specifically requires the Bureau of Reclamation and the Secretary of the Interior to recognize the county and watershed of origin acts in the operation of the Central Valley project.

Part of the City of Fresno's complaint is based upon -- it is in the county of origin of the San Joaquin River and in the watershed of the San Joaquin River where this water originates so that under state law and under the Act of October 14, 1949, Fresno and these landowners and the watershed of the San Joaquin has specifically been given water to the extent of their needs before the Secretary can attempt to import that water out of the county and watershed of origin.

Now the District Court found that the Larry County which lies down to Fresno County and Kern County down here was not in the watershed of the San Joaquin River.

I do not believe that was stately appealed, it may have been.

But the District Court so found that the Kings River here, they were at one time two inland seas, one here and one here that the Kern River drains into Buena Vista Lake and stops, that these other rivers into Larry and Kern County, drain into the Larry Lake.

Due to levies of Buena Vista Lake and an artificial channel, waters had been forced to run into Larry Lake and by levies here have been forced maybe twice in one hundred years to run into the San Joaquin River.

Justice Tom C. Clark: There's a bed there then.

Mr. Claude L. Rowe: What did you say?

Justice Tom C. Clark: There's a riverbed there.

Mr. Claude L. Rowe: The riverbed -- there is no riverbed.

There is an artificial channel.

There are some slews and an artificial channel, but in determining a watershed, I believe under the law, a watershed is determined by natural channels that you cannot put yourself in the watershed by digging a ditch over into another watershed.

Justice Tom C. Clark: It comes in below gravity pool isn't it?

Mr. Claude L. Rowe: What did you say?

Justice Tom C. Clark: I'm not sure I can sit too well, thus the Kern River come into San Joaquin according to the map?

Mr. Claude L. Rowe: This is the Kern River, Your Honor.

Justice Tom C. Clark: No.

I know.

Mr. Claude L. Rowe: That is Buena Vista Lake.

Justice Tom C. Clark: On up north there.

Trace it on up north.

Mr. Claude L. Rowe: Well --

Justice Tom C. Clark: Then it goes right on into San Joaquin below Gravelly Ford, doesn't it?

Mr. Claude L. Rowe: Yes.

Justice Tom C. Clark: Gravelly Ford.

Mr. Claude L. Rowe: Yes.

The law is also clear.

I think that a watershed in this area is not, assuming that is true, a watershed down here is not in the watershed of the area above the junction.

Justice Tom C. Clark: I don't understand about your claim now but perhaps I'm wrong.

Mr. Claude L. Rowe: Well, I don't know whether the Government does or not.

I think the --

Justice Tom C. Clark: I get your point though.

Mr. Claude L. Rowe: In other words --

Justice Tom C. Clark: That is origin point.

Mr. Claude L. Rowe: I -- they first come out and said that they were powered to take the water from the City of Fresno and County of Fresno's watershed and even though they needed it and were entitled to it, both under state law and the acts of Congress, they should take it out here, I think they've abandoned that position, maybe not.

They now, under the authorities, they're attempting to come in you might say the backdoor and claim they're in the watershed.

They have relied on State Bulletin 29 which is one of the bases of the Central Valley projects when the State of California took it over.

And that bulletin as quoted in my reply brief to the Government and to the districts that the districts agreed to that point.

The Government didn't raise it in their brief, state that the Kern River watershed is into Larry and Kern County that the watershed of the San Joaquin is in Fresno County, but I point that out.

Now the government did not raise that point.

Justice Tom C. Clark: I had one question.

Mr. Claude L. Rowe: Yes.

Justice Tom C. Clark: I was not clear in your brief.

I didn't -- it's not clear to me on this point.

You'd meant that the federal government can take this water from Fresno?

Mr. Claude L. Rowe: No.

Justice Tom C. Clark: I didn't think you do.

Mr. Claude L. Rowe: My -- or our position is this.

The State of California, by the decisions of the Supreme Court of the State of California and by two statutes, give protection to the county and watershed of origin that by the Reclamation Act of 1902, the Government must proceed in accord with state laws in their operation of the reclamation projects.

But to clear that up beyond all doubt, Congress on October 14th, 1949, the Act is quoted in my brief, specifically enjoined the Secretary of the Interior to proceed and conform to all California County of Origin and Watershed Protective Act.

So therefore, our position, they cannot take and under the Youngstown Sheet and Tube case if the Secretary is unauthorized, an illegal taking is not an act of the Government and there cannot be damages.

There is no Tucker Act.

Justice John M. Harlan: This is statutory and not a constitutional argument?

Mr. Claude L. Rowe: That's a statutory argument.

That is why I point those facts out.

Justice Tom C. Clark: The Federal Act, is it your precedent to irrigation projects or to domestic projects?

Mr. Claude L. Rowe: That is another question.

The Federal Act, the 1937 Act puts domestic use and irrigation use on an equal footing.

The Act of 1939 contains a provision which I do not think is material in this case for the reason that as the California Water Rights Board found, the districts are getting so much water, they're about to become water logged.

Now that was the decision of the California Water Rights Board which has never shown any particular friendship for Fresno, but that Act says, the 1939 Act says that the Secretary may not give water to a city if it would injure the irrigation features of the project.

If the Act is involved the city's position is that that Act is unconstitutional that it was put through by the powerful [Inaudible] because as shown by Senate Document 113, referred to in the brief, the Central Valley project provides for dams on every river in the State of California.

If there is a government dam now in Friant on to San Joaquin, there's a government dam on the Kings River.

There's a government dam being constructed on the [Inaudible] Tule.

There's already one on the Kern.

Now, those are army projects, the last ones but they're all under the final plan of the Government and it's our position that in view of Secretary Freedman's statement that we now have 50 million acres, too much agricultural land in this country and that there will be 50 million acres of excess agricultural land as late as 1980 that a city should not be destroyed by an act of Congress that it would violate the Fifth Amendment to say that human beings shall be deprived of their sole source of supply in order to grow surplus crops for the Government which is the Government is paying some 5 million or billion dollars a year and even if there was not a surplus that one may -- matter came to growing crops or giving water to the citizens of California that Congress did not deprive the citizens of California of water.

Now, we claim that if there is a shortage of water that -- that Section 9 (c) is unconstitutional, we ask this Court as they did in the reapportionment cases, the farmers controlled all the legislatures.

Their lobbies were so powerful.

They control the Congress.

The cities had to come to this Court to get a fair deal and we ask this Court to give the City of Fresno and the other city of the nation a fair deal from that powerful lobby.

Now --

Justice John M. Harlan: You think that reapportionment cases dealt with water rights?

Mr. Claude L. Rowe: No, we are different but I think it did deal with the power of the agricultural group as against the city but the political power and I'm not against a farmer if I have to be a farmer myself, but as well as I hope an attorney but I do think that this Court did justice in that case to something that it would have been impossible to get through Congress or the legislature.

Now we're not such an orphan child as possibly counsel would have us believe or might have you believe.

I don't think he said we were.

There is a -- going back to this map, let's go for a minute, it might be well to point out the -- as opposing counsel did, the excess water in the Sacramento Valley, Sacramento River has a toll of 17,100,000 acre feet a year, the San Joaquin, 1,751,000 acre feet per year.

There's another point that in the course of nature before Friant Dam in this area and the Court has so found and the Bureau of Reclamation has admitted 211,000 acre feet use to seep into this area in the course of nature the law -- before Friant Dam.

Since the flow has been cut down, water levels have dropped as far as a 100-acre -- 100 feet in four years, the Court -- District Court so found.

In the City of Fresno, they dropped over 35 feet.

Justice John M. Harlan: What do you say the Government's basic position that this is an unconsented suit Mr. Rowe?

Mr. Claude L. Rowe: I didn't understand, Your Honor.

Justice John M. Harlan: I say, what are you -- are you going to address yourself to the Government's basic argument?

Mr. Claude L. Rowe: Yes, yes.

Justice John M. Harlan: I'm just wondering what you're going to say.

Mr. Claude L. Rowe: Alright.

Now as to the Government's argument, our position is not entirely unsustained by legal authority.

This Court, in approving the Court of Claims in the Gerlach case, held that the Central Valley project was to give water to the six counties including Fresno.

This Court has also approved or cited with approval the decision of the District Court, on this case on the motion to dismiss.

That was done in United States versus Gerlach, 339 U.S. 725.

In other words, the District Court in this case, their first decision has been cited with approval by this Court and going further into the Government's claim or position, the Court of Claims has ruled that the area from Friant Dam to Gravelly Ford Canal under the Central Valley project was to be served with water.

If you will read the answers of the various defendants, practically all of them ask that the District Court make a physical solution.

The State of California first asked that the District Court construct five check dams to make the water seep out.

The Government admitted the possibility of four check dams.

The plaintiffs asked 10 -- 14 check dams in order to bring the water to their pumps.

The Court allowed 10.

Now we're not going to argue with the Government on whether a physical solution is proper.

The Government approved the principle or this Court has approved the principle of a physical solution when it affirmed the Court of Claims case in Gerlach Live Stock Company versus the United States.

That case is cited in full in our brief and I don't know whether it's proper to read the statement, read a few statements as you go along to emphasize the point or not.

Justice Hugo L. Black: Probably you might be just as well assumed if we might [Inaudible] with much interest.

Mr. Claude L. Rowe: Well, I know that you will read it and I -- after reading your calendar, I know that the time of this Court, I don't see how they get through their calendar.

Justice Arthur J. Goldberg: Mr. Rowe, it's been pointed out in the appendix --

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: -- presumably specific in relation with the 1949 Act you say --

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: It's been compelled to that in the Government of United States.

Mr. Claude L. Rowe: Compelled the Government?

Yes.

In the appendix that page 16 --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Well, it's two paragraphs.

I attempted to quote the entire Act where they brought the -- they reauthorized the Central Valley projects to include the American River here.

They make this statement --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: It dates back to 1935, but as shown by United States, the Court of Claims case, there had been certain amendments to the project.

Justice Arthur J. Goldberg: This is the section we're now referring to.

Mr. Claude L. Rowe: That is one section.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: Now would you point out there where it applies in the argument?

Mr. Claude L. Rowe: Alright.

Nothing contained in this act shall be construed by implication or otherwise as an allocation to water in the studies for the purpose of developing plans for disposable water as herein authorized.

The Secretary of the Interior shall make recommendations for the use of water in a court where state water laws, including but not limited to such laws giving priority to the counties and areas of origin for present and future needs.

Now that same act reauthorizes in the first chapter, the Act of August 26, 1937 which puts domestic and irrigation upon the equal bar.

We also rely upon the Act of June 17th, 1902, the Basic Reclamation Act which requires as I read the Act.

Justice Tom C. Clark: Where is that one now?

Mr. Claude L. Rowe: The page you want?

Justice Tom C. Clark: The last page or the last one you just said was --

Mr. Claude L. Rowe: The Act of August 26, 1937 appears at page 14 of the supplement.

It uses the word second for irrigation and domestic uses in referring to the Central Valley project.

It simply reauthorized that Act, but I am relying on a specific, as I interpret it, congressional mandate to the Secretary of the Interior in the Act of October 14th, 1949 to give priority to count -- to quote, “giving priority to the counties and origin -- of origin or present and future needs, also to the basic Reclamation Act of June 17th, 1902 which appears at page 6, the summary or appendix of the green brief in which -- that nothing in this Act shall be “nothing in this Act shall be construed as affected 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 and irrigation or any vested right acquired there under and the Secretary of the Interior in carrying out the provisions of this Act shall proceed in conformity with such laws.

My view is that that would require irrespective of the Act of 1949, the Secretary to recognize California County and Watershed of Origin acts.

Justice Byron R. White: How could he recognize to what you presented?

Mr. Claude L. Rowe: How should he?

Well, he should recognize it by the opinion of the Court of Claims in this which was affirmed by this Court putting Fresno in the area to receive water under the Central Valley project.

Justice Byron R. White: For -- at what price?

Mr. Claude L. Rowe: I will --

Justice Byron R. White: Is that right or wrong?

Mr. Claude L. Rowe: At a price which is not unreasonable.

I'm going to quote a decision of this Court --

Justice Byron R. White: Do you -- you don't claim that the Act that you rely on either 1949 presents to the Secretary in charge in Central Valley water.

He may presently come to the water.

Mr. Claude L. Rowe: Yes.

Well, we take the position that under the county of origin, we're entitled to have a sufficient amount run down the river.

However, we do not press that.

We're willing to pay for the water out of the Central Valley project if we can get it.

Justice Byron R. White: Your only argument with the Secretary [Inaudible]

Mr. Claude L. Rowe: No, it is not.

I might state this at the City of Fresno, I was going to that, has -- pumps from the under ground.

It has a capacity from the underground of 30,000 acre feet of the year -- a year.

Right now, it is pumping over 60,000 acre feet.

The Bureau of Reclamation officials, very honest engineers, admitted that the city should not pump more than 30,000 acre feet.

Those same engineers said that that the city was -- should have 100,000 acre feet of supplemental water.

Now all that we're asking in this case is that under the Act of 1949, our engineer said we needed more, but was ask as a minimum that the city and Fresno -- that the city get at least 100,000 acre feet out of the project before it's taken out of the county and watershed of origin and we will pay a price which is not unreasonable.

Justice Byron R. White: But the -- and what did the Secretary say?

What does the Government say?

Mr. Claude L. Rowe: Well --

Justice Byron R. White: That if it would occur, it depends on it so we can do what [Inaudible] is that their charge?

Mr. Claude L. Rowe: Their charge and --

Justice Byron R. White: [Inaudible]

Mr. Claude L. Rowe: No, they will not sell.

They have given us --

Justice Hugo L. Black: How much --

Mr. Claude L. Rowe: I might bring this out up until 1944, the City of Fresno was doing fine and we could have gotten water but there was a gentleman by the name of Mr. Bock who came in there and he decided that Fresno should get no water.

Justice Potter Stewart: Is he the termite expert?

Mr. Claude L. Rowe: Yes, he is.

I didn't mean to bring that out.

Justice Potter Stewart: You did bring it out in your brief.

Justice Hugo L. Black: You did.

Mr. Claude L. Rowe: Well, I didn't -- did I say a termite expert?

Justice Hugo L. Black: You certainly did.

You sure did.

Mr. Claude L. Rowe: I did?

I apologize.

Justice Potter Stewart: Somebody there in the brief.

Mr. Claude L. Rowe: I --

Justice Hugo L. Black: You've said it under someone (Voice Overlap)

Mr. Claude L. Rowe: Well, he was not an engineer I might say.

Justice Hugo L. Black: Does that follow because he's a termite expert, he wants to deny it?

Mr. Claude L. Rowe: Well, he was not an engineer.

So the City of Fresno attempted to get Mr. Krug and Mr. Spraws and Mr. Bock.

Mr. Bock was the ring leader, he ran California, to get them at least 100,000 acre feet of water.

It got so bad finally that is pointed out in my brief. Congress took by saying that no man who was not an engineer could receive its salary, took them off a payroll.

They finally were taken under the Bureau, the Secretary and the other two gentlemen in 1953 and I will say this to the credit of the Bureau, since then, they have come in and given us a contract for 60,000 acre feet of water at $10 and they were fair enough to do this.

The engineers who built both their dams Grand Tule, they put in there that the price and other terms of that contract would be subject to final determination of this point.

I think that's being pretty fair and that gets down to the question of the price of water and --

Justice Byron R. White: How about the amount of water, is that all that you provide with them?

Mr. Claude L. Rowe: Well, all unless this Court orders them to give us as being in the --

Justice Byron R. White: Well, if you ask them to serve you more than 60,000 at $10?

Mr. Claude L. Rowe: Yes, we have.

Justice Byron R. White: Even at $10.

Mr. Claude L. Rowe: Even at $10 but we wanted a provision in there that the price could be finally ruled upon by this Court whether $10 was an unreasonable price or not and beyond the power of the Secretary.

Justice Hugo L. Black: Mr. Rowe.

Mr. Claude L. Rowe: Yes.

Justice Hugo L. Black: Your time is up on the other case.

Mr. Claude L. Rowe: Oh --

Justice Hugo L. Black: I hope you're using your time now to your next case.

Mr. Claude L. Rowe: I will use the time on my next case.

Pardon me.

I didn't --

Justice Hugo L. Black: I thought you're up on this.

Mr. Claude L. Rowe: I never --

Justice Hugo L. Black: You can go ahead on your case.

Mr. Claude L. Rowe: Quite so many questions at one time.

Now, I would like to just read you --

Justice Arthur J. Goldberg: I would like to ask you whether --

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Yes, that is in substance.

There is one other feature.

There are two other features.

First, that the owners between Friant and Gravelly Ford received a sufficient water supply.

Now -- then there is another party in this, the Tranquility Irrigation District which appears in this area in agreement.

They're an old, old time irrigation district.

They have received water from the San Joaquin River for it backs up in the Fresno slew and which the Supreme Court of California has held as a bay of the San Joaquin River.

There is no dispute.

The Bureau of Reclamation officials left it alone as they have in the past have given them water on a formula and the Court approved that formula.

And the Ninth Circuit Court of Appeals, I do not think there is any dispute regarding tranquility.

The Ninth Circuit Court of Appeals said there is no longer a dispute.

It is not an issue in this appeal and therefore, we feel that tranquility is entitled to the water.

They're getting it just like the great Bureau of Engineers had analyzed they should get the amount and they of course, get theirs free.

Going back to the City of Fresno and its right to object or to ask for a reasonable rate, this Court has decided that question I believe in Swigart versus Baker, 229 U.S. 187.

In Yuma Water Users Association versus Schlech, 262 U.S. 138 in which this Court ruled on the reasonableness and the legality of the rate for water and the Government was not a party to the action.

The Secretary of the Interior was not a party.

Now we feel that the opposing counsel had not been able to answer those two decisions of this Court.

We take this position beyond that that the determination of whether a rate for water is reasonable or unreasonable like the determination of whether an electric power rate or railroad rate is reasonable or unreasonable, that is a matter for the courts.

Within the bounds of reason, that is a -- in the -- a matter for the administrative agency.

There is Smyth versus Ames, 169 U.S. also backs that up.

The question -- one very good decision of this case, I think, is Hynes versus Grimes, 337 U.S. 86 in which the United States was not a party neither was the Secretary of the Interior, but one of the questions in that case was the Secretary of the Interior having power to license fishing in Alaska, could he charge an unreasonable rate and he had attempted to charge in that rate, money for the welfare projects of the Indians in the reservations.

This Court held that that was beyond his authority.

Here, the Secretary is attempting to charge a profit to the City of Fresno to be used to benefit the farmer.

We think the cases are on all force that that is beyond his power.

That's up to Congress.

Congress and this Court have decided that the rate to be repaid to a Bureau of -- on a Bureau of Reclamation project should be the cost of the project plus cost of operation and maintenance.

Now under the Act of 1939, Congress allowed the Secretary to add an interest charge of not to exceed three and a half percent.

That interest charge, he fixed at two and a half percent.

It is our position in accordance with the decision to this Court that if you put in an exception that limits his powers.

He can't go beyond that.

His powers were limited to repayment, a rate to the city, repayment of the cost to construction, cost of operation and maintenance plus some interest charge.

There's nothing in the 1939 Act or in any Act that gives him the authority to go into the welfare business which is exclusively in the hands of Congress.

Justice Hugo L. Black: Where does he get his authority to facilitate it at all?

Mr. Claude L. Rowe: He gets the --

Justice Hugo L. Black: What Section of the Act?

Mr. Claude L. Rowe: To the cities?

Justice Hugo L. Black: Yes.

Mr. Claude L. Rowe: He gets the authority to sell to the cities under the old Act of 1906.

That's the first Act which allows him to sell two cities and they provided in there and not less than the farmers, not more but they're afraid the cities will get it for less.

Under the Act of 1939 which is cited August 4th, 1939 cited at the index in 14 of our brief.

Justice Hugo L. Black: Index to what, the appendix?

Mr. Claude L. Rowe: Index of the appendix.

He is allowed to charge not to exceed three and half percent interest to the cities.

Now, the irrigation districts admit that from their point of view that for $9000 of capital improvement, the cities are being required -- $9 million of capital improvement allocated to the municipal water part of the Central Valley project.

The city there is being asked to repay $28 million.

Now, at two and a half percent interest over 40 years that means the cost of the project would be increased 40%.

So that under that formula and taking their figures, the city should not pay over some $12,600,000 and not for $28 million, and we go back to --

Justice Hugo L. Black: Is this the only section in which you find the Secretary the power to fix the charge that he makes was limited.

Is this your own interest?

Mr. Claude L. Rowe: Well, also, the decision of this Court in Gerlach, a cattle company case in which the broad statement is made by Mr. Justice Douglas in his opinion that the project shall be repaid over a 40-year period.

There are other acts that require a reasonable and equitable allocation of the cost of the project, but I think the Act of 1939 is fundamental if you read it in accordance with the decision of this Court in the Gerlach case that --

Justice Potter Stewart: In the Gerlach case --

Mr. Claude L. Rowe: Yes.

Justice Potter Stewart: --where was the property of the plaintiff's located?

Was it located along the same stretch between Friant Dam and Gravelly Ford?

Mr. Claude L. Rowe: Well, I really think that -- actually, maybe this green brief will show that.

If you will look at Exhibit 2 of the green brief, the lands in the Gerlach case are --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: That is opposite page 16.

The lands in the Gerlach case are marked very much downstream.

See this area here near the mouth of the Merced River.

Now there are 31 other cases for damages there.

Those cases as you recall where -- for the right to have the water overflow the banks --

Justice William J. Brennan: In miles -- how many miles are they down the stream?

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Finally --

Justice Potter Stewart: Where does that fit onto that map there roughly?

Mr. Claude L. Rowe: Well, that would set under that map -- I would say probably right in here.

Justice Potter Stewart: In the San Joaquin as it goes northward.

Mr. Claude L. Rowe: The Merced River comes in here.

Now right north of the San Joaquin is the Fresno River.

Now the next one up is the Merced.

The Gerlach lands lie just upstream from the junction of the Merced and the San Joaquin.

Justice Potter Stewart: San Joaquin.

Then any of it -- my basic question was that case didn't involve the portion --

Mr. Claude L. Rowe: No sir.

Justice Potter Stewart: -- between Friant and Gravelly Ford.

Mr. Claude L. Rowe: It is not but you did approve the Court of Claims.

Justice Potter Stewart: Yes.

Mr. Claude L. Rowe: And holding there could be a physical solution in holding that the Central Valley project was to furnish water to the six counties which would include Fresno and Mr. Bock attempted to eliminate entirely from the benefits of the Central Valley projects.

And these lands in the Gerlach case were lands who were given damages merely due to an overflow, an uncontrolled overflow.

They were not carried to ditches.

They just deny water and they were wet and this Court ruled that they have never been that high water.

Now in regard to the Gerlach case as I say, the plan, feasibility report of December 2nd, 1935 has been amended by raising the high defiant dam and providing for water.

The owners between Friant Dam and Gravelly Ford which is just about in here, fairly close to Mendota -- oh well here's Gravelly Ford.

Justice Arthur J. Goldberg: Mr. Rowe.

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: Do you submit [Inaudible]

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Yes, yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: I say that he has that power unless they are -- unless his powers are limited by Congress.

The Congress alone can give the right to condemn.

If they have not done it, he has not any power to take by either eminent domain or condemnation.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: That grants a power.

But I think it has to be read with the basic Reclamation Act of 1902 which was repassed in 1956.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Yes, perfect.

Justice Arthur J. Goldberg: Your theory [Inaudible]

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: That's right.

Justice Arthur J. Goldberg: But nevertheless [Inaudible]

Mr. Claude L. Rowe: Well, this is what the Secretary represented to the Congress that he intended to do.

This is in regard now to the rights between Friant Dam and Gravelly Ford.

Justice Arthur J. Goldberg: My basic question is --

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: How can you [Inaudible]

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: No.

I said that the Secretary may take by either eminent domain or condemnation any right authorized by Congress.

Now --

Justice Potter Stewart: Your argument is that this authorization which Mr. Justice Goldberg illustrated is limited.

He may take all property necessary for said purposes.

Mr. Claude L. Rowe: Yes.

Justice Potter Stewart: And that said purposes do not include the statutory power to take water out of that section of the San Joaquin River between Friant Dam and Gravelly Ford for the purpose of building those canals north and south of Friant Dam, isn't that right?

Mr. Claude L. Rowe: This is what the --

Justice Potter Stewart: Because the Reclamation Act directs him to follow state law --

Mr. Claude L. Rowe: And because --

Justice Potter Stewart: -- and because you have the county and watershed of origin.

Mr. Claude L. Rowe: And because you interpret their power by such statements as this “There are certain existing rights downstream from Friant which have to be supplied including the riparian rights on the river between Friant Dam and Mendota pool, water needed for preservation of fish life and water bowl.

It has been determined a 150,000 acre feet of Class 1 water must be reserved to meet these requirements.

Now that is set forth in the record at 2284.

In other words --

Justice Potter Stewart: The Secretary testifying --

Mr. Claude L. Rowe: Mr. Stoner --

Justice Potter Stewart: -- before Congress.

Mr. Claude L. Rowe: Engineer Stoner was testifying for the Secretary --

Justice Potter Stewart: Before the National Committee.

Mr. Claude L. Rowe: -- before the Bureau.

When they come in and say, “That's what we want the money for and we're going to protect these rights there,” I think the people along the river do have rights.

As I say, I think the county of origin flow also protects them.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: If you will notice, I do not see the State of California brief here.

I have a letter that Mr. Moss was not appearing or authorizing anyone and he is the only one, the Attorney General.

He appeared up to a certain time.

I do not see how he could have.

He asked --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Yes, yes.

Justice Arthur J. Goldberg: No reason of [Inaudible]

Mr. Claude L. Rowe: No brief --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Yes.

And I also make the point that the Attorney General came in to the District Court and asked that California be dismissed from this action and the District Court dismissed them and I do not see how he can legally file a brief after that unless it was a mixture, I agree.

I might say that the Governor or the Attorney General first came in on the side of the plaintiffs to eat fish and then there was a change and the Attorney General opposed us.

I admit that opposition.

He then came in and ask to get out of the case and I do not think any appearance after he was dismissed from the case as the legal appearance but you will notice that the Attorney General has no longer come in and opposed us on his last brief.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: I would say so because as I understand the rules of this Court, you cannot come in and file an amicus curiae brief without permission of all parties which we did not grant and without getting the permission of this Court and I may be wrong.

Justice Tom C. Clark: The State can, under our rule or any political body can like the state, a city or a county.

If you're a private individual, you have to --

Mr. Claude L. Rowe: You can assume that the Attorney General, I had a letter, I didn't want to get involved in personalities.

I was going to file Mr. Goldberg and Mr. Veeder and I have fought for about 12 years here.

I have decided I shouldn't try to exclude anybody from arguing this.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: I think the state is absolutely neutral today or they wouldn't be in here.

I -- in closing, I do call your attention to the Grimes' case that the Secretary of the Interior does not have the power to go into the general welfare business of the nation, that has left the Congress.

And he can -- as there -- he could not put a high fish license tax to spend on the welfare of the Indians, these are here made a secondary put a high tax upon the cities to aid the farmers.

If they want to be aided beyond the interest charged then it's up to Congress.

Thank you for your attention.

Rebuttal of Cox

Mr. Cox: Mr. Justice Black, may it please the Court.

I think it might be most helpful if I spent my time treating these cases as run together dealing with three topics.

First, it might be helpful to describe again, exactly what was the judgment that Fresno got in the District Court which is before this Court.

Second, I want to deal with an argument which Mr. Rowe makes in his brief and which impressed Judge Peirson Hall in the District Court although it was rejected by the Circuit Court to which that we had consented.

And third, I would like to deal with the county of origin and watershed statutes.

Now Fresno obtained under the District Court judgment, three things.

First is an allegedly overlying owner.

It obtained an injunction against the Reclamation Bureau of Fisheries and the United States enjoining the operation of Friant Dam as a great work, carrying water north and south.

As to that issue, the United States was dismissed in the Court of Appeals, that is to say the judgment was reversed as to us and the question would be whether we consented and whether the action against the individual defendants can be maintained and I dealt pretty much with the second of those points.

The second thing that Fresno got was a declaratory judgment really against the United States and only the United States in this respect to the effect that its right to make future appropriations of water from the prime -- from the San Joaquin River.

This isn't its right as an overlying -- this is making appropriations out of the river, was superior to any water rights the United States might get in the river and that seems to me clearly and indisputably to be a judgment against the United States and only the United States.

The third thing that Fresno got is a declaration and I guess an injunction saying that Fresno was entitled to water -- it was entitled not to have the natural flow of the stream interfered with unless she got water from the project at 350 and in effect, that seems to me to be a declaration that the United States or somebody must furnish affirmatively property of the United States at this price and I really see no escape from the proposition that that is a judgment against the United States and clearly wants to be dismissed unless we have consented.

Now there is at this stage, really no dispute about Fresno getting water.

Her contract for water from the project covers all the water that Fresno can possibly use within the intermediate to run future.

There is a testimony that Fresno might someday have uses in demands in excess of this contract.

But for the present, as soon as she builds the necessary work, she will get all the water she can use for some time.

Justice Potter Stewart: Is this from the San Joaquin River or is it the --

Mr. Cox: This would be for the pro -- from the project.

Justice Potter Stewart: As of now, Fresno gets its water supply from wells, isn't it?

Mr. Cox: That's right.

But that won't be indefinitely enough.

Justice Potter Stewart: And the -- and the claim is the level of these wells is going down because --

Mr. Cox: Yes.

It wouldn't be enough even if it didn't go down.

It wouldn't be enough even if it didn't go down and her effort to get the declaratory judgment relates to getting water that --

Justice Potter Stewart: From the project.

Mr. Cox: -- wells wouldn't supply from the -- well, either from the natural flow or from the project.

Justice Potter Stewart: Yes.

Justice Tom C. Clark: Are you saying what the project offers to give Fresno, is presently sufficient?

Mr. Cox: As a practical matter, it is for the -- it is for the short for the intermediate run future.

The amounts are covered in the contract.

It's -- and her needs won't exceed those for long.

Justice William J. Brennan: Well, let's see.

This is not only what's offered but what by contract --

Mr. Cox: We've signed the contract to give and that the contract fixing its price of course not subject to the determination of the price by this Court but subject to the decree in this case.

That is to say the price is fixed unless they win this case and then they get whatever -- so they didn't give up any litigation rights they had.

Justice Byron R. White: Mr. Solicitor General, can you tell us what the range of prices is to various municipalities.

I think you mentioned that --

Mr. Cox: They run -- it's a sliding scale.

It isn't that different municipalities get different prices but it depends on a number of factors as to how much water you take when it runs up to 1050.

Fresno would be treated uniformly as I understand it with all other cities taking water from the Central Valley project.

Justice Byron R. White: So there is a formula which when applied --

Mr. Cox: Yes --

Justice Byron R. White: To $10.

Mr. Cox: She wants to get it at the rate that we supply to irrigate it.

The cities, the municipalities are the formula applicable to them that charges a higher rate and I'll show the statutory authority for that --

Justice William J. Brennan: Now tell me Mr. Solicitor.

Is it relevant at all to any one of your three points whether that river existed doesn't it?

Mr. Cox: No sir, no sir.

And this map is intended to have the main feature showing this area.

It was -- it wasn't really made even for the purposes of the case which seem to me would be helpful, but I -- I'm willing to conceive for present purposes that this watershed is a different watershed for this one.

I don't think we need to argue with this one.

Justice Arthur J. Goldberg: And your -- the point about the county of origin is under your position.

Is that --

Mr. Cox: Well, I -- it's -- well our position -- may I postpone answering that question.

I do mean to deal with it, but I think that it would be better to deal with it a little more length than trying to deal with it halfway now.

Since the one common question probably to all three suits is whether the United States has consented to be sued, I want to deal with that first and then I will come to the county of origin and watershed legislation.

Judge Hall said that we had consented to be sued because of the statute that appears on pages 2 and 3 of our brief in Number 51.

That's the City of Fresno case.

You'll note that it provides the consent is hereby given to join the United States as a defendant in any suit for the adjudication of rights to the use of water of a river system or other source or for the administration of such right, where it appears the United States is the owner of or is in the process of acquiring water rights by appropriation under state law and the United States as a necessary party to such suit.

It is our view that that statute has no application because it applies only to a particular class of litigation to the well-known suit in western water law for the general adjudication of all rights in a river system that it does not apply as a reverse to suits by some owners on the stream against the United States to enjoin the United States from interfering with their water rights.

I rely really on three lines of argument.

The first deals with words.

You will note that the statute does not give permission to sue the United States.

It gives permission to join the United States as a defendant and thus implying that there will be other real defendants whose interests are diverse to the United States imply normally other private parties.

This certainly is consistent with the notion of this being a special kind of well known suit.

Second, it speaks of a suit for the adjudication of rights to the use of water -- of a river system or other source.

It's not all suits dealing with the interference of right -- with water rights or alleged trespassory conduct.

It's suits for the adjudication of rights and we think it means all rights to the use of water from a river system.

And then finally over on the top of page 3, it again speaks of a case in which the United States is a necessary party and we think this confirms our reading because of the obvious fairness of not having when the United States has acquired a great many water rights on western streams, of not having the whole class of suits for the general adjudication of rights preceded by the fact that you can't join the United States.

So the statute says, where you have a suit like that, the United States is a necessary party then you can join them.

In addition to the words, we rely very strongly on the legislative history.

In this course of the Senate report describing this bill, the report quotes at some length from the decision of this Court in Pacific Live Stock Company against Oregon Water Board and the passage that it quotes is describing the kind of suit that the statute deals with is described in this way.

All claimants are required to appear and prove their claims.

No one could refuse without forfeiting his claim and all have the same relation to the proceeding.

It is intended to be universal and to result in a complete ascertainment of all existing rights to the end first that the water maybe distributed among all lawful claimants.

Second, that the rights of all maybe evidenced by appropriate certificates and third that the amount of surplus or unclaimed water maybe made available to appropriate it.

Justice William O. Douglas: What page is that?

Mr. Cox: This?

I was reading from page 16 of our brief in Number 51.

Justice William O. Douglas: Thank you.

Mr. Cox: In the -- two of the committee reports that I just quoted as it quoted a prior decision of this Court explaining the kind of suit, there's a test correspondence between Senator Magnuson and Senator McCarran who was the chairman of the committee and author of the bill.

And while I hesitate to read, I think this is so directly in point, I'm going to take liberty.

Senator Magnuson said and he had some foresight.

I visualize the possibility of an individual group, an individual or group having water rights on that stream bringing suit to adjudicate their respective rights thereby preventing the Bureau of Reclamation from going ahead with the -- Hells Canyon project while litigation is in the process pending.

Such action of the part of the appropriators might be taken on their own initiative or might be stimulated by third parties who are opposing this development.

And then he went on and said if that isn't the purpose, we ought to make this clear in the committee report or some similar way by legislative history.

Senator McCarran wrote back S-18, speaking the bill that became the law that I was dealing with, is not intended to be used for the purpose of obstructing the project to which you speak or any similar project and it is not intended to be used for any other purpose then to allow the United States to be joined where in it is necessary to adjudicate all the rights of various owners on a given stream.

This is so because unless all the parties owning on process of acquiring water rights on a particular stream can be joined as party defendants and a subsequent decree would be of little value which fits right in with the words I think.

I agree with you that for the purposes of legislative history the report should show that S-18 is not intended to be used for the purpose of obstructing or delaying Bureau of Reclamation project for the good of the public and water users by the method of which you speak and I'm translating that into legal terms.

I would think that it finally was not intended to be used for the purpose of a suit to manage the way the project is carried on as it's happening here or as to prevent it from being built as to what have happened if we have brought this -- the action had been brought a little earlier.

Third, I would point out that both the Fifth and in a case prior to this one, the Ninth Circuit have interpreted the statute in a way that we contend that it should be interpreted and the Ninth Circuit particularly of course is one familiar with water law and with this kind of problem.

The case to which I refer in the Ninth Circuit unfortunately is not in our brief.

The reference is Nevada against the United States, Nevada against the United States, 279 F.2d 699, 279 F.2d 699 Fifth Circuit case, is in our brief.

Now we have set forth in our brief the respects in which this case fails to be a suit for the general adjudication of water rights.

There are a number of them.

Without taking time, I'll simply going to refer to one and that is that it is perfectly claimed that this decree does not adjudicate any rights as between the various water owners -- well, various water rights owners on the stream.

It simply adjudicates what are alleged to be rights against the United States.

Justice William J. Brennan: Well, how could the Ninth Circuit deal with this problem?

Mr. Cox: It said just exactly what I'm saying now.

It said that for the reasons mentioned in our brief that this was not a suit for the general adjudication of water right.

The most important of those reasons is that Judge Hall in the District Court himself said and I quote from his opinion, “This is not a suit wherein plaintiff seeks to establish for each of them their separate rights [Inaudible] to a given quantity of water as between themselves or as against one another.

And again, this is not -- this suit is not a case where water users either riparian or overlying are seeking to enforce any separate or several rights.

In the findings and conclusions, the judge said, it is not the intention of the Court to attempt to divide the waters of the San Joaquin River between the plaintiffs.

This was plainly a suit against us.

It wasn't for a general declaration of right.

Now, there is only one other thing I need to add on this point.

Even if there could be doubt as to whether this statute gives consent to the kind of suit seeking a physical solution which I don't think there's anybody, even if it could, it certainly doesn't give consent to a suit seeking a declaration of the price that the Secretary shall charge for a project water and it certainly doesn't constitute consent to a declaratory judgment as between the United States and Fresno just the two of them as to future rights through appropriation in the natural flow of the stream.

So that we think that the Ninth Circuit was quite plainly correct on this point in ruling in favor of the United States that it had given no consent to be sued.

Justice Hugo L. Black: May I ask you?

Suppose that the charge if there was, this case was brought based on the fact that the Secretary has somehow arbitrarily taken a surprise that the statute absolutely prevail.

Would that lie?

Mr. Cox: I think that -- I think that there is some possibility that such an action as that would lie.

There are decisions which would seem to sustain -- Swigart and Baker was a case of that kind Justice Black, the one referred to by Mr. Rowe.

There it was claimed that the Secretary had wrongly included the cost of maintenance in calculating the rates that were to be charged for irrigation of water because the maintenance budget and he threatened to cut off the water as I recall it unless the owners pay them.

The suit was allowed to proceed to enjoin the cutting off of the water on the ground that it was a wrongful interference with the irrigators' rights because of the unauthorized act of the Secretary to which that he had not computed according to the statutory formula.

But note that it was -- he had done something, he was alleged to be doing something outside of his authority whereas here -- and the suit wasn't against the United States, whereas here, the judgment is sought against the United States.

It is sought in advance to bind the Secretary as to what he shall do and it doesn't run against anybody threatening to cut off Fresno's water from the project because Fresno hasn't built the system and equipment, it can't take any water from the project.

So that what I'm saying is that if sometime in the future when Fresno were taking water, the Secretary should determine a rate which it was alleged that he had no authority under the statute to determine then I would think that there was at least an argument.

Certainly, they would be under Swigart and Baker that the action could be maintained.

Now the reason I put it, it may quite --

Justice Hugo L. Black: But in any rate -- in any rate that just had to do with your argument, your other argument that the remedy would be if the suit was taken would not be a defense to such a suit?

Mr. Cox: No, no.

I think this is applicable only to Fresno.

Justice John M. Harlan: [Inaudible] agreement that this is an unconsented suit.

What then is the situation?

Mr. Cox: Well, I would think that if it were held that the United States had consented under the statute then I think there are a number of issues which we still would be free to argue and I presume in the Ninth Circuit.

For example, we don't admit for a minute, we think we're plainly right with respect to the rate for reasons that are spelled out in our brief.

Justice John M. Harlan: And so I thought you argued virtually in relation to your consented suit -- unconsented suit there.

Mr. Cox: There are but we don't admit.

Justice John M. Harlan: I understand.

Mr. Cox: And we -- I believe that the point was reserved in the Ninth Circuit.

This is no--

Justice John M. Harlan: Well, putting it more directly, supposing you lose in your immunity position, can this case be reversed or dealt with up here or on the merits or it has to go back to the Court of Appeals?

Mr. Cox: Well, I would think that it would be wiser to have it back to the Court of Appeals.

For one thing, I'm afraid that we haven't given the Court all the materials necessary to decide it up here.

Justice Potter Stewart: We're talking about 51 now.

Mr. Cox: I'm talking about 51 now.

Justice John M. Harlan: Well, if it goes back to the Court of Appeals, they've already decided it?

Mr. Cox: 51?

No, no.

Because the Court of Appeals hasn't decided the merits --

Justice William J. Brennan: Dismissed the United States.

Mr. Cox: Yes.

It has --

Justice John M. Harlan: Alright, I see your point now.

Mr. Cox: It dismissed the United States -- it has decided nothing, Mr. Justice Harlan --

Justice John M. Harlan: Yes.

Mr. Cox: On the merits of Fresno's special claims --

Justice John M. Harlan: Quite right.

Mr. Cox: -- as a city.

Justice John M. Harlan: Quite right.

Mr. Cox: And we would have some arguments in that point.

Justice John M. Harlan: I agree.

Mr. Cox: Now, if I might, I would like to deal with the county of origin and watershed of origin our problem.

If I were representing the plaintiffs, the argument that I might try to make is that the county of origin and watershed of origin statutes of California bind the United States that the United States and its officials were given no authority to make any takings in violation of those statutes and that therefore they did act outside the scope of their authority.

Now, there are -- I'll give answers after lunch.

Print this transcript Transcript: 

Argument of Cox

Mr. Cox: Mr. Justice Black, may it please the Court.

We think there are three answers to the argument that the petitioners in 51 and respondents in 31, the plaintiffs might make with respect to the county of origin and watershed statutes.

The third of the three that I want to develop, I simply mentioned the other two.

The first is that we think that Section 8 of the Reclamation Act when it requires the Bureau to conform to state law is talking about the rights that the Bureau must respect in making a taking.

That is to say, you may not wipe out state right if the right exists by state law, you must take it but you can't override it, and that it does not limit the power of the Bureau and the administration of the project which would include the taking of rights under state law.

This we think is settled by the Ivanhoe case where the Court drew a distinction between the administration of project and the recognition of state rights in acquiring land and water rights of the project.

Second, we think that in any event, the California watershed in county of origin laws have no application to the Friant Dam, Madera Canal and Friant-Kern Canal to that part of this project.

We think that's the two reasons.

In the first place, California did not purport to make its watershed law applicable to the United States until 1951.

And at that time, this project was substantially completed.

Now, we think it exceedingly unlikely that either California or the Congress in enacting the Reclamation Act intended to give the state power ex post facto to control the building and taking of rights for federal projects.

Now, the reference -- now, I invite Justice Goldberg's attention to this particularly.

The references in Mr. Rowe's brief to congressional declarations referring to the state county of origin and watershed laws are very misleading.

If you read the entire statute, these come from the acts making preliminary appropriations for studies, the one on page 16 in his brief is for the American River Unit of the Central Valley project.

Now, for our template in that, well, it's up here some place, way north in any event of the south -- the branch of the San Joaquin we're talking about.

And it speaks of a -- shall make recommendations, this is in making the feasibility report, which precedes construction, shall make recommendations which with respect to that aspect of it deal -- had conformed to the state law.

Our third point, and the one which I really think is dispositive and that I want to take the rest of my time dealing with, is that we think it is very plain that there has been no violation of the state laws.

Once that meaning is correctly understood, that assuming we're required to conform to them, we have conformed to them a 100%.

This requires treating them separately and you will find a great deal of useful information about the state laws even if you don't feel bound by the interpretation, and the opinion of the Attorney General of California which is in 25 opinions of the Attorney General of California beginning at page 8, that's a general discussion, 25 opinions Attorney General of California page 8.

It's not referred – and that's it's in a footnote, it's not in our brief, and it has a great deal of useful background.

Now, it's necessary to talk about these statutes separately and I speak first to the county of origin.

It has no application here at all for these reasons.

California back in the 20s, when water began to be getting short, hit upon a scheme whereby the State would acquire all the water rights theretofore unappropriated because there had been people who had made appropriations.

There had been riparian rights, but California made a filing for everything over and above that.

Then the -- a state official was authorized under certain circumstances to release filings or to assign the State's filing to other people.

And the county of origin statute says, “No priority under this part shall be released, nor assignment made of any appropriation that will in the judgment of the Department of Finance deprive the county which appropriated water, I must have made a mistake but deprive the county of any such water necessary to the development of the county.

But if we speak, it was a limitation on his power to make assignments and it was a limitation that he shouldn't make assignments when in his judgment the water was necessary in the county.

Now, in this case, the United States did get an assignment and even if it hadn't, there would under this statute, be no right that could be asserted here under the county of origin statute because the only thing they would have the right to do would be to go to the Department of Finance and try and get an assignment themselves.

They haven't been able to have done that so that we think that statute is entirely inapplicable.

Now, with respect to the watershed statute, it seems to us that they add absolutely nothing to the case of the riparian and overlying owners for this reason.

The watershed statutes which are as conveniently set forth as anagram at pages 381 and 382 of the light-colored volume of the record, that's the opinion of the Court of Appeals.

Unknown Speaker: [Inaudible]

Mr. Cox: It's, no at Volume 7, that's the light-colored one.

Unknown Speaker: What page?

Mr. Cox: Pages 381 and 382.

Unknown Speaker: [Inaudible]

Mr. Cox: Well, perhaps, Mr. Veeder can give it to me.

I've got a little time left for that.

These statutes, you will note taking Water Code 11460 at the bottom of 381, in the construction and operation by the department of any project under the provisions of this part, a watershed area where water -- wherein water originates, an area immediately adjacent thereto which conveniently be supplied from water there from shall not be deprived by the department directly or indirectly of the prior right to all water reasonably acquired to adequately supply the beneficial needs of watershed.

This applies to the way the State Water Department shall operate its projects.

Now, assuming that it is applicable to the way the United States uprights its projects, which seems doubtful, it's still quite clear that it applies only to people who are hoping to acquire rights in the stream by appropriation in the future and they have the right to go and make a filing intending to show that they can use water.

This is made very clear in the California Attorney General's opinion.

No inhabitant of the watershed of origin becomes possessed of any presently vested title or right to any specific quantity of water as the result of this statute.

As the need of such an indivi -- inhabitant develops, he must comply with the general water law of the State, that is he goes and tries to make a filing in the court.

I'm reading from the opinion of the Attorney General of California, the one that I've referred the Court to a moment ago.

He goes and tries to make filing, he must comply with the general water law of the State both substantively and procedurally to apply for and perfect a water right.

Now none of the overlying and riparian owners that -- may I take the liberty of going out a few minutes, Mr. Justice Black, None of these riparian or overlying owners have gone to make the filing and they have no need to make the filing, because they as riparian owners do have a vested right and the statute deals with people who hope to get rights in the future with the protection of people who don't have any water right at the present time, but who may later want it and the statute has an effort to protect them as in that time.

Now, what protection does it give them?

Part of the answer to that is in Water Code 11461, the first full section quoted on page 382.

In no other way than by purchase or otherwise as provided in this part shall water rights or watershed area or the inhabitants be impaired or curtailed by the department.

But the part gives the Department power to take by eminent domain.

Now, in the opinion of the Attorney General and in the portion that it's quoted by Mr. Rowe, the Attorney General said, “Well, you can't condemn these water rights, any rights under the watershed statute until the inhabitant has gone and made a filing because these are future things and you can't take them away until they inchoate something, has been vested but he goes on and says in the opinion, once it is vested then it can be condemned.

Well now, these people, assuming the statute applies to them at all which is dubious because it's intended to these people over those who have vested rights, at the very least they have their rights are vested, the riparian and overlying owners, and therefore assuming the statute applies to us, we were in a position to condemn them either by eminent domain proceeding or by appropriation of taking, and that to the extent that we interfered at all is what we say we've done.

Justice Potter Stewart: That takes you back to argument number one in your answer, wasn't it?

That that -- that all you had to do was respect property rights in water under state law if that's all the Reclamation Act requires.

Mr. Cox: Yes, except that I suppose it takes me back by two different routes.

The first route is by the route of the Ivanhoe case.

There's the reclamation where it doesn't require to do any more than pay it.

Justice Potter Stewart: Than pay.

Mr. Cox: Now this one says that by state law we're entitled to take.

I don't mean directly but the state law recognizes the power once these rights become vested to take them by eminent domain so that we don't have a case, Justice Stewart --

Justice Potter Stewart: I see what you mean.

Mr. Cox: The second argument -- well -- no, the first argument takes care of the case where the state law might say you can't condemn rights under the county of origin statute, then I would have to rely either on my Ivanhoe argument or my argument that this can't -- doesn't apply to this aspect of the project because it would be retroactive that kind have been intended.

My ultimate rule says that under state law as soon as these become vested, they can be condemned and that either they are vested so they could complete the dam here or the will of the risk, there's been no violation.

I guess it doesn't --

Justice William O. Douglas: [Inaudible]

Mr. Cox: No, we think --

Justice William O. Douglas: [Inaudible]

Mr. Cox: You can interfere with the flow of water.

This is what we're alleged to of -- which what's been alleged to have been done here.

Indeed, it would seem to me that those difficulties, Justice Douglas are a very good illustration of the essential flaw in the argument of the Court of Appeals that we didn't take the steps necessary to exercise our authority to condemn these rights.

Because what -- there's a point about how shutting off the dam of most watersheds affected this underground water.

We say that it didn't affect it at all.

They say it has a tremendous effect on it.

Experts don't write on both sides.

Now, if we were required in advance to describe exactly what we were taking from the defendants so many gallons of water, so many acre-feet of water, we would be in a terrible position.

If they were right and we understate it because our experts understated the amount of damage, then under the theory of the Court of Appeals, the whole project can be enjoined and the physical solutions provided.

On the other hand, if we --

Unknown Speaker: [Inaudible]

Mr. Cox: Oh but --

Unknown Speaker: [Inaudible]

Mr. Cox: Well, but suppose we haven't, suppose we had filed but we undoubtedly would have been if we had chosen to proceed by condemnation whereas to condemn the riparian rights.

We deny that we've affected these overlying rights so that if -- now, that's --

Unknown Speaker: [Inaudible]

Mr. Cox: Well -- and that's what I'm -- that's the point I was trying to make.

Should the whole progress of the federal project be dependent upon whether a District Court finds that we made a mistake in believing our experts rather than believing the other side of experts?

Unknown Speaker: [Inaudible]

Mr. Cox: Well, that seems to me that I am trying to argue that that is what the position that the Ninth Circuit opinion puts us in and I think it does.

Unknown Speaker: [Inaudible]

Mr. Cox: And why -- what was wrong with it?

They didn't say we had to file in condemnation.

They said that we didn't succeed in taking because we didn't state sufficiently exactly what we were taking.

Now, I take it that that means if we didn't strongly been here exactly where the lines led.

There's --

Unknown Speaker: [Inaudible]

Mr. Cox: Well, if --

Unknown Speaker: [Inaudible]

Mr. Cox: Yes.

Yes.

I thought it is.

Justice Potter Stewart: You said that you had to take it all, isn't it -- isn't it about the point if you're going to do it this way.

Now, the partial taking was simply a trespass.

Mr. Cox: I -- and we have to take it all apparently as they would define all --

Justice Potter Stewart: Yes.

Mr. Cox: -- rather than as we would define them.

Justice Potter Stewart: Yes.

Mr. Cox: Now, what is all is something that's uncertain.

Justice Potter Stewart: Subject to an argument.

Mr. Cox: And by of course, basically our point is that that argument should be resolved in the Tucker Act and not by tying up the whole project, that otherwise, and I think this does follow Justice Douglas that otherwise, wherever we made a mistake, wherever our experts didn't guess what the District Court would call, we were subject to an injunction tying up an entire reclamation project until we went and made new filings while they're putting us to make new filings for taking as a simpler way as to have the whole thing settled in a Tucker Act suit.

Unknown Speaker: [Inaudible]

Mr. Cox: Yes.

Yes.

Unknown Speaker: [Inaudible]

Mr. Cox: Well, the State Water Board in a proceeding after the completion of the case of the District Court did find that there was no water left over and above the assignment that California made to us, that's right.

So that there is a point I hadn't well done because it came after the closing of the record, but so far as Fresno was seeking a declaratory judgment that she had rights in the natural flow over and above us, the State Water Board has decided it the other way.

I'm afraid I've extended the liberty that you gave me too far.

Argument of Claude L. Rowe

Mr. Claude L. Rowe: To briefly answer opposing counsel, opposing counsel said that the underground water rights have not been affected, the District Court held that if the Bureau of Reclamation plan were put into operation without check dams, 100,000 acres of land would be destroyed and 200,000 would be damaged.

Nobody ever appealed from that opinion.

It was affirmed by the Ninth Circuit.

There's been no appeal on that point.

So I do not think that it is a proper subject for discussion now.

I'm not -- counsel has been liberal with me.

I made mistakes in some of my quotations but I do point that out.

Now, counsel says that the county of origin should not apply or it does not apply, I might just briefly point out one representation of the Bureau to Congress in that regard.

That is in Senate Document 13, 81st Congress, page 65.

It appears at 146 of the large brief and this is what the Bureau has consistently represented to Congress.

“In addition to respecting all existing water rights, the Bureau in this report has complied with California's county of origin legislation which requires that water shall be reserved for the presently unirrigated lands of the areas in which the water originates to the end, that only surplus waters will be exported elsewhere.”

I think that destroys any thought that there can be a condemnation or taking by eminent domain and it also destroys any contention without interpretation that the Act of 1949 does not apply.

Yes.

Justice Byron R. White: [Inaudible]

Mr. Claude L. Rowe: -- anything.

I did not say that, sir.

I think we're only entitled to pay something that is reasonable when it gets beyond --

Justice Byron R. White: [Inaudible]

Mr. Claude L. Rowe: Yes.

Justice Byron R. White: [Inaudible]

Mr. Claude L. Rowe: Well, I told you under that -- under the theory, we -- the City of Fresno has two rights.

It has the right in my opinion to have the amount they need to run down the river.

The Bureau of Reclamation officials have pointed out it can be pumped over the bank and into the city, however, I told you we're willing to pay for it.

Although we have that right, I think without paying for it provided we go down to the river and get it, we're asking to pay a reasonable amount.

We have a second right under the Central Valley Project Act and wherein the service area as shown by this map, Exhibit 6 put out by the State of California in the 1950s.

And under that, if I have the right to go down and by a post extent, we're entitled to use the government service and -- but we're asking not to be blocked in that by having an unreasonable rate charge.

Now, does that answer your question or --?

If we can get the water we'll pay a reasonable price and a lawful price for it.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes, yes, yes.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: I think that --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Well, let's look at it from a different point of view.

I have shown that since 1950 in the nine years instead of the 183,000 acre-feet, the plaintiff's asked to go down the river under physical solution the Government has actually released 626,000 acre-feet a year.

So that there is water, I have shown that the district may become water logged.

I don't think that the provision in the Act of 1939 saying, “You cannot affect agriculture” would apply but --

Justice Byron R. White: [Inaudible]

Mr. Claude L. Rowe: Alright.

Justice Byron R. White: [Inaudible]

Mr. Claude L. Rowe: Yes, we would.

Justice Byron R. White: [Inaudible]

Mr. Claude L. Rowe: Yes.

I am going to point this out.

We have in our original suit, we set have forth our two applications.

This is the municipal system.

We filed application by -- in the -- about 1930 to appropriate.

The Government has application.

The District Judge we ask that our applications be given priority over the Government on the ground that the Water Rights Board had enacted a delay in administrative procedure.

The Water Rights Board then started to act.

The District Court enjoined their action until he made his decision.

He made his decision stating the District Court did that.

The City of Fresno had priority under the county of origin.

Senate backed the Water Rights Board.

They advertised all the people in the -- along the river came in and I don't know whether out of order, but I wrote for a copy of that decision.

The State Water Rights Board put ten conditions that gave the water to the Government.

First, that they recognize vested rights on the river.

Secondly, that they take care of the City of Fresno at least to the extent of 50,000 acre-feet, Fairfield Water District to the extent of 3,500 feet who were a party at --

Justice Byron R. White: But the state law [Inaudible]

Mr. Claude L. Rowe: No, the Government was given a permit subject to 10 conditions, one that they give the City of Fresno at least 50,000 acre-feet of water or more if the city would get upon.

What did you say?

Justice Byron R. White: [Inaudible]

Mr. Claude L. Rowe: No.

And in their decision, it said, their entire decision is subject to final decision in this Court.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: No.

The United States Bureau of Reclamation Engineer, very honestly and fairly and at great risk, said the City of Fresno and testified needed a 100,000 acre-feet.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Subject to our right to appeal to this Court to get some more.

Yes, yes.

And --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Well, eventually by the year 2000 --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: No, we're really waiting for the final decision in this Court.

We are using between 60,000 and 65,000 acre-feet.

We can safely pump 30,000 and as my brief will show, every 10 years, the City of Fresno increases 46% in population and area.

So it won't take long to use the water.

The Water Rights Board also gave the Fresno Irrigation District water were located in the middle of the Fresno Irrigation District, 86,000 acre-feet but they never gotten that contract and that is in the same area.

Pardon me.

As we said, we feel if there are any other questions.

Alright --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Well, it's set forth in the brief.

I can point it out the city engineers estimate is set forth in this green brief, just a minute.

At page 83, they estimate by 1980 a use of a 111,000 acre-feet, that would be 21,000 acre-feet more than the 60,000, and the 30,000 we can safely pump.

By the year 200,000, we would be shy a 107,000 acre-feet, I mean 2,000, pardon me, [Attempt to Laughter] would be shy 177,000, and that's at page 83, the estimate.

Now, I have pointed out on the reasonable determination of what is reasonable.

The districts admit that we are -- the municipalities are going to have to pay $29,667 -- $29,667,000.

That the cost, construction cost -- that is on construction costs are only $9,091,000.

If you add 2.5% interest that is charged over 40 years, since the money is out for only half of the time, the interest will increase the cost 40% adding that -- added interest cost, would bring up what we should pay to $12,828,000 as against the $29 million charge.

We think the facilities are much less but just to show why we feel are violating the Act of 1939.

Now, on the waiver --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes, I want to say -- I say that I shouldn't be one to complement such a high standing man as the Solicitor General, but he's been extremely fair in his argument and the Bureau engineers had been very fair with us.

And when -- also the -- it may have been the Solicitor that allowed that to go into our contract.

But we think we -- our contract was very fair.

We've shown the dire need of the City of Fresno.

I'll not go into that, page 46 and 47 of the green brief that shows how that off we are, 100-foot drop in four years in areas near us.

Now, on the waiver of immunity, we are standing fundamentally on the theory that even on the case that's cited by the Solicitor, that when an administrative official goes beyond the powers given him by Congress as he's done in our contention by charging profit on top of interest then we are entitled to sue the local official and get justice.

Supposing the Postmaster General would charge 6 cents for the new price in stand, it certainly wouldn't be affecting the United States Treasury if somebody files a suit to get stamps at the rate that the Government has set forth.

So we feel we're entitled to same on the water.

Now, on waiver of immunity, my time is nearly over, I would just like to point out in our -- the city's original complaint, they asked an adjudication between the filings.

The Court decided it had to go through the administrative agency, now which is correct.

The administrative agency gave the Government the filings after complete advertising and if it is proper, I had written to Water Rights Board, I didn't have a copy of the decision if it's proper to offer this decision at this time that just came in air mail from the State Water Rights Board, I will leave it with the Court, these conditions were put in.

There was general advertising and people clear down here because of delta, you can see that delta associations were in, every Irrigation District, everybody was given a chance to come in.

I'll leave that with the Court with that general adjudication.

It was done under California law.

There was no appeal.

There is an appeal provided by the Court to the courts.

The Government didn't appeal.

The city didn't appeal.

We have gone ahead and that appeal has said, “It's up to this Court being the final Court in so many words to decide how much water we're entitled to and at what price and I feel that that goes far beyond the Jennings case or any case cited.

Now, another thing, the Government announced and it's taken by eminent domain except for the exchange here, everything below Gravelly Ford.

There are 238 decisions or rulings by the District Court and all the districts were parties and taking that altogether, I don't think there's any case in existence that will say there hasn't been under those facts, the general adjudication.

It's -- it was advertised, everybody appeared, and I'll submit that to this Court, but we're relying on the Grimes case that you can't -- the Secretary of the Interior, it is Congress and not the Secretary of the Interior that provides for welfare legislation.

Thank you.

Argument of B. Abbott Goldberg

Mr. B. Abbott Goldberg: Yes, Your Honor.

The general position taken on behalf of the districts, is that all the water rights in this case which are necessary for the operation of the project have been taken that by that taking title has vested in the United States, but there is nothing further to do in these cases except you dismissed them in trial.

Now, before going into that general subject, I'd like to pause a moment on the question of the counties of origin and the areas of origin.

As Mr. Cox has pointed out, there are really two different sets of statutes here, the county of origin statute, sometimes talked about is a statute water code -- California Water Code Section 10505 which is a scheme for withdrawing unappropriated water so that it may be used in the development of coordinated water projects.

And assignments of those applications can be made in the discretion at the time of this case, the State Director of Finance, if in his judgment it will not deprive the county of origin of the water necessary for its development.

Such assignments were made in this case bearing the record in Volume 1 at pages 110 to 111.

The more difficult problem is the problem of the so-called watershed protection statutes or area of origin statute which gives a preferential right really to project service.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: We have two briefs, Your Honor.

We have a yellow one which is a reply brief in number 51 and we have a green one which is our opening brief, that's it.

That's it.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: I beg your pardon, sir.

That's it.

Now, the county -- the area of origin statute is really a right to preferential service from state water projects and by preferential service, I do not mean a price preference in any sense.

As developed by the Attorney General of California in the opinion to which Mr. Cox referred, you'll see that the county of origin statute -- excuse me, the area of origin statute or watershed protection statute can be viewed in three different ways.

One, what is its impact on vested rights within these areas of origin.

Well, the answer to that appears in the statute itself.

It says, “In no other way then by purchase or otherwise as provided in this part, this is California Water Code Section 11461 at page 382 of Volume 7 of the record.

The vested rights within the area of origin can be condemned.

There is no restriction in state law on their condemnation.

The next is and this appears in the Attorney General's opinion, the 25 Opinions Cal.

Attorney General, I believe it's at page 22.

Yes, sir.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: No, I used to be an Assistant Attorney General.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: At present, I am Chief Deputy Director of the State Department of Water Resources but my appearance in this case is simply as a member of the bar of this Court representing the 13 irrigation and other districts involved here as if they were my private clients.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: No.

No.

I was not representing the districts.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: No, I am not.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Well --

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: California was in this case and I may say as long as the subject came up through Mr. Justice Goldberg, I urged on Attorney General Moss that the participation be continued, however, for reasons which are his, he declined to participate further.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: No.

No.

Now, as I say, the next element of the area of origin statute which I'd like to mention is the effect that that statute might have as giving a preferential right to appropriate a surplus water to uses within the areas of origin and that I was referring to page 22 of the opinion of the Attorney General 25 Ops. Cal. Attorney General.

Well, the Attorney General then said, when the priority, meaning the inchoate priority of the inhabitants of the watershed of origin, asserted by such an inhabitant, is asserted by such an inhabitant and with its aid, he acquires and becomes vested with a water right in accordance with Sections 1200 to 1800 of the Water Code which is the procedure for applying for a permit and eventually getting a license to divert surplus water, the authority to appropriate such water right may be purchased or condemned by the authority if necessary for the purposes of the project.

So when the inchoate priority becomes vested, it too may be purchased.

However, the situation in which we find ourselves in this case is this.

Fresno undertook to obtain authority from the state to divert water in accordance with its applications which have been referred to by Mr. Rowe and that authority was denied by the State Water Rights Board.

And having had that authority denied by the State Water -- State Water Rights Board, Fresno has no standing to assert it's any preferential use in -- because of its location in an area of origin under that heading.

It has no vested right.

It has no preferential right.

It has no right to appropriate surplus waters.

So what does Fresno have by virtue of its standing in the area of origin and what -- and I relate this to the various statements which the interior officials made -- have made from time to time.

What does Fresno have?

It has a right to project service and that right to project service of course has been given to it through the medium of the contract for 60,000 acre-feet at $10 an acre foot.

Now, there is nothing -- yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. B. Abbott Goldberg: Yes, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. B. Abbott Goldberg: It's vested -- its vested rights, and I will come to this in a moment, its vested rights, if it had any, have been taken by the United States.

It has --

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: In my opinion, it would not, because in my opinion, it's outside the area of influence of the groundwater for San Joaquin but it is conceivable that it would.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: And it has no right now except to the right to project service and that right to project service as far as state law is concerned is not a right to service at any form of preferential prices.

It's simply a right to project service on the same standing as other users.

So in our opinion, the county of origin statute and the area of origin statute have nothing to do with this case any longer, indeed if they ever had anything to do with it and the only question before the Court really is whether these water rights have been taken by physical seizure through the operation of Friant Dam and it is to that subject to which I would like to address the balance of my argument.

Now, the way in which a water right appears to be taken by a seizure, is the same way in which any other use up front, is taken by a physical seizure or right to light or right to air.

It's when the United States demonstrates an intention to subordinate that right to the federal purpose or the public purpose and to proceed to implement that intention and it is not necessary for the implementation of that intention actually that the water right itself – excuse me, that the water itself be seized and then that connection I point to Gerlach because as Gerlach, particularly the opinion in the Court of Claims, but it is reflected in the opinion in this Court at page 755 or 339 U.S.

The taking in Gerlach was held to have been -- to have occurred on October, I think 21st, 1941, at which time the Gerlach plaintiffs were getting just as much water as they have ever gotten.

The taking in that case occurred not because they had been deprived of water, but because the United States had manifested its intention and had implemented its intention by closing Friant Dam to take those rights.

Now, of course the importance of detention of water is that it may be evidence indicating the intent with which the United States has been acting and that is referred to in the leading case on this subject, the Portsmouth-Harbor cases which we have cited in our briefs.

But actually, the intent may be proven not only by physical occupation of the property involved but it may also be approved in a number of other ways, for example by express admission and here, of course, we have a number of expressed admissions.

To take some of them just chronologically, we have the letter from then Regional Director Boke in 1947.

By the way, the record has a misprint, it indicates 1957 which is obviously incorrect, it was 1947 when he wrote to the named plaintiffs in the Rank case and said, it has been indicated by some people that a taking occurred in October of 1941 and if you do not wish to lose your rights, you'd better act on them before the sixth anniversary of that taking date.

Then we have the Rowes' letter which appears in the record in Volume 7 of the record, pages 5 and 6.

Acting Secretary Rowes of the Department of the Interior spelled out again but he decided that the rights be taken by the process of eminent domain.

And then we have the McKay letter of 1953 during the course of this lawsuit where Secretary McKay spelled out in some detail his plan for the operation of the street and those two latter letters set out the McKay letter particularly with some specificity the standard by which the stream will be operated and that standard is that enough water will be led through Friant to have a flow of five cubic feet per second pass the downstream boundary of each holding between Friant and I think it is Gravelly Ford.

Another piece of evidence --

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: I conclude from that letter, sir, that it has been unequivocal in declaration of intention to take such of the plaintiff's rights as our -- in excess of the amounts necessary to maintain the five-second foot flow.

By the way to maintain the five second foot flow, it may take a good deal more than five-second feet through Friant.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Yes, five-second feet passed each user.

This is spelled out in the settlement.

This is the same standard as the settlement contracts.

It's rights at the -- it's five second feet, past the downstream boundary of each holding plus, Your Honor, the right to pump as the water goes past and there is no limitation on that right to pump.

Justice Byron R. White: Well apparently the -- the courts below felt that there's enough of a deprivation over and above that five, second feet -- feet pass each user to warn an injunction.

Mr. B. Abbott Goldberg: The -- the court below -- let's take the District Court first.

The District Court originally held that these rights could not be taken by the exercise of the power of eminent domain that for various reasons, these rights were in the reach between Friant and Gravelly Ford were exempt from taking.

The Court of Appeals held that the rights were not exempted from taking -- excuse me -- then on its opinion on the merits, the District Court somewhat ambiguously indicated that the rights might be taken, but that they had to be taken by the process of judicial proceedings.

Then in the Court of Appeals, it was held that the rights could be taken in this without equivocation and without equivocation that they could be taken by a physical seizure as well as by judicial proceedings.

But that in fact there had not been an exercise of the power of physical seizure and my argument is direct with the proposition that in fact the dist -- the Court of Appeals was in error when it said that the power of physical seizure had not been effectively exercised.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: To my knowledge, no.

I have collected the --

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Alright, let --

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Let's go back a little bit.

What do you mean by hurt?

If you mean by hurt without a water supply entirely, the answer is no.

Nobody has been hurt in the sense that he has been actually deprived of the water supply that his land has been rendered barren but -- excuse me.

If you mean -- if --

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: What -- what is the nature of the harm?

The harm is that the water level may be different than it has been before.

It's only the difference between what would have been say by second -- well actually you better say about 200 second feet going pass Friant in 2000 --

Justice Byron R. White: Quantity of water [Inaudible]

Mr. B. Abbott Goldberg: The quantity of water available to the users would be the same.

Justice Byron R. White: [Inaudible]

Mr. B. Abbott Goldberg: That is right.

Now, it may be harder and I'll come to this in a moment, it may be harder for him to get it out of the river because as the flow is cut down, the river meanders away from the pumps and so on.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Yes, not -- and not at his expense, the Government has consistently offered to bear the expense of deepening wells in the upland if that's the way you want to get it or putting horizontal wells in the riverbed and so on.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Well, there's been the taking of the level.

And that's what the -- I take it that's what the Gerlach people recovered from.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: It promised that the downstream boundary of each of these several hundred holdings in this area down to Gravelly Ford.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Yes.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Yes, yes.

The flow has to be much larger.

It varies with the usage.

Beae in mind that all the riparians in this area are permitted to take all the water they needed.

It may be harder for them to get it, but they're permitted to take all the water that they need for riparian users and indeed so our appropriators.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Yes and as far as the actual flows are concerned, you can get some idea of what's involved.

I made a little tabulation during the irrigation season, took the maximums in June and in the minimums in September and during the last five years, you find that in June, the flows range some place between 5,000 second feet at Friant and 300 at Friant.

And I may say that it was that high at Friant presumably because they were still making flood releases in June or they may have been making a release to satisfy the exchange contract along with Gravelly Ford due to a shutdown for some reasons in the Delta-Mendota Canal.

Now, in September, you'll find that the flows have been as low as 83 feet per second and as high as something in excess of 140.

Now, the reasons why the flows vary in this manner through Friant is that if the irrigation season progresses, there is irrigation in the area largely from the Kings River as they are now indicated in our map and that irrigation causes groundwater to drain into the river so that in some regions of the river, it is a drain rather than a source of supply.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: It had to do with two things, Your Honor.

First of all, may I explain the presence of the physical solution?

The physical solution is a form of conditional decree which is employed in cases where a “would be appropriator” has no power of eminent domain over other users on the stream.

If you have the power of eminent domain, then there is no need for a judicially imposed physical solution.

If you don't have the power of eminent domain, then the California court says, “In order to get the maximum beneficial use out of the water, we will devise a scheme whereby you as a private would be appropriate can take surplus water and provide compensation of appropriate sort to the other users on the stream without affecting their use”.

Justice Potter Stewart: Compensation in terms of water.

Mr. B. Abbott Goldberg: Yes, compensation in terms of water.

It might, however, include compensation in terms of extra payment for deepening the wells.

I don't think it requires compensation in terms of delivering actually so and so many acre-feet out of the stream.

Justice Potter Stewart: Okay.

If the court will say, we'll enjoin its appropriation unless you provide for this.

Mr. B. Abbott Goldberg: Yes, yes.

The typical case is East Bay Municipal Utility District against the City of Lodi.

The East Bay Municipal Utility District is a district serving the area around Oakland and Berkley taking water out of the river, which also serve the small City of Lodi.

And since they were both making municipal users under California law, the East Bay District did not have a right to condemn the city's users and therefore the Court made this physical solution so that both could live.

That's one aspect of the physical solution. Another aspect is as Mr. Justice White says that by putting in these check dams, you would presumably make it somewhat easier to pump from the river --

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: It didn't affect the amount -- you mean affect the amount of water available to the plaintiffs?

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: That is right.

They're still, even without the physical solution, would get all the water they needed plus the element of the inconvenience of getting it from a meandering stream rather than behind these small pool of a check dam.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: That is right.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: I would think it could be measured just as much by changes in the value of the land if the land has the water very readily available presumably it's worth more than if the water is somewhat available with somewhat more difficulty and I take it indeed the plaintiffs felt the same way, I think as they were able to estimate damages, they filed -- they filed their Tucker Act suits in September and October of 1947.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Yes.

Yes.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: That is right.

The -- a third aspect of the physical solution is that the District Court was of the opinion that the existence of the physical solution, the raising of the water levels some -- well, I don't recall what the maximum one of these dams is, but they're not very high say 14 or 15 feet.

But the raising of the water level and the bed of the river would form enough increase in pressure to force more water into the underground and thereby preserve the water level in the area of the underground influenced by the river.

Now, on that --

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: That is in the back -- in the back lying area which I now indicate.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: Our position on that point is that, that the water levels in the back lying area depends not on the amount of water in the river but on the amount of pumping that goes on in that area and well I think I can illustrate it most graphically this way.

We had a geologist on the stand and he was trying to explain this to Judge Hall.

He says, “Your Honor, if you don't control the amount of pumping in the area overlying the groundwater, you're going to have a constantly diminishing ground level no matter how much water you put down the river.

Justice Byron R. White: [Inaudible]

Mr. B. Abbott Goldberg: In the area which the Court thought, there's a large area of dispute from this sense, Your Honor.

There is no question about what the river definitely influences the underground.

Indeed within the plus, the river in the area involved here taking of the upper regions rather deeply entrenched, maybe 200 feet at a maximum.

And in that entrenched area, there is open alluvial soil, the water level in that alluvial soil is just the same for all practical purposes as the water level in the river.

Then you get back a little bit from the river and you'll find the water level is somewhat lower than it is in the river, but nevertheless varies to a degree in accordance with the river and finally as you get further back, there is no perceptible change at all.

Well, based on the study of the groundwater contours, a map of the elevation of the groundwater table, it seems to the conclusion and are still of the conclusion that the area affected by the groundwater -- by the river is a relatively narrow band extending along the uplands along the river.

Now, just how far I -- I really don't recall.

The Court took the position that the movement of groundwater depended not on this groundwater claim or groundwater table but on the fact that Fresno is in the alluvial cone of the San Joaquin River and the District Court set up the hypothesis, groundwater moves from a river to the outermost boundary of the rivers in the alluvial cone.

Fresno was within the outermost boundary of the alluvial cone, therefore, water moves to Fresno.

We have resisted that entirely and one of our firmest objections to the physical solution, Your Honor, is this.

The Court in the physical solution has reserved jurisdiction to alter that solution in the event such alteration becomes necessary and we say that the Court is in effect putting thus in this position and saying, “You've got to make water move against the laws of nature.”

And frankly, I feel we were in the same -- the same situation as Galileo before the Peruvian Inquisition except not only do we have to recamp the heresy or we have to make the earth stop moving around the sun.

Now, we cannot live with the situation of that sort, however, we recognize that - and the districts will be the ultimate authority and recognize that if a court in a proper proceeding for compensation finds that rights are there of people within an area which it believe to be affected by the river operations have been taken.

Like it or not, we will have to pay for it, but it's quite one thing to pay for the right, buy your piece and operate the project and it's quite another thing every summer, you have to get up with the insecurity that, well today, you're going to have to start releasing the full natural flow down the river and start drying up the crops and drying up the industries which are dependent on the service of the canal.

It simply prevents -- this sort of decree simply prevents the rational operation of the Friant.

Thank you.

Rebuttal of Claude L. Rowe

Mr. Claude L. Rowe: To briefly answer Mr. Goldberg that it's merely a matter of dropping the wells a few feet, the Bureau of Reclamation's own engineer specify that in this area prior to Friant Dam from here to Mendota and they kept record for years 211,000 acre-feet procurated from the river out into this alluvial cone.

And you can see it how far, but there's no dispute that 211,000 acre-feet procurated from the river to supply the underground.

Now, when Mr. Goldberg tells you that five-second feet passing down the river is going to make that amount is arithmetic, is slightly erroneous and I don't mean to be criticizing either, but five-second feet means to 2 acre -- a second foot is two acre-feet a day.

Five-second feet would be 10-acre-feet a day and if you ran that all year, that amount would produce 3,630-acre-feet if I'm correct, Mr. Goldberg, circulation for the whole year, 3,600 as against 211,000 acre-feet.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: No five-second feet.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes.

Yes.

But I mean if --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Well, as he did say, it might take a lot more water at Friant but this five-second feet test going down the river at all places, that could mean a very small -- a much smaller amount, 211,000 acre-feet.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes, that's right.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes and remember this, I think he was arguing something that is not before this Court at the present time.

The District Court found that if this plan of five-second feet would be put into operation without check dam and without allowing approximately 186,000 acre-feet to come down back at the check dam to procurate out into the side that 200,000 acres of the land within the alluvial cone and I think that should be pointed out to the Court, it's in Exhibit 2 of the green brief.

It's called a lease line.

The Court found that if the five-second foot theory was put into operation, 100,000 acres of this land would be completely destroyed.

I don't know whether I'm right about the County of Fresno but it does produce --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Is that what --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes, but they've never done that.

They have been during, I don't say they do it just on account of a pendency of this action, but they've been allowing 626,000 acre-feet a year to come down the river.

From 1951 when they finished the Kern Canal up to date.

Now, that would not show this yet in the destruction of a land.

But the Court found that 100,000 acres would be destroyed and my recollection is that the price per acre, run as high as a thousand dollars and it means that the damage to the Government is $100 million as against the cost of the Government approximately 1 million for the check dam.

I'm not going to argue the physical solution.

I -- the State of California, the original Bureau defendants and the Irrigation Districts and the city all ask for it.

Now, if they don't want it, there's a provision in the complaint for inverse condemnation at paragraph four which the District Court has held for damages.

Now, I seriously wonder whether the Bureau engineers want a ruling -- had a physical solution of doubt.

As the Ninth Circuit said, a physical solution isn't for the benefit of the land owner, that's to give an appropriator like the Government the right to give him a substitute service by any means in the most economical and with the less use of water.

In the Gerlach Cattle Company case, 11140 claims that this Board approved the doctrine of physical solution was of which this Court affirmed was approved.

Now, I'm not going to argue the physical solution.

I think down in the heart of the engineers as opposed to theorist in the legal departments maybe myself included, I think they'd be very happy with that cheap physical solution but I can't say that.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Well --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes.

Well, the answer to that is given in Nebraska versus Wyoming a quote from the -- my brief here, the same question this Court asked itself, should we get in to continuous administration of the stream?

And the Court said, “Well, if it's our duty to do it, we should do it.”

Now, that in Nebraska versus Wyoming is cited in this -- in my brief, I'm sorry, I can't just put my finger on this but it's there and there's another case where this Court approved, the Water Master which was continuous.

I know the way I feel, there are a lot of merits in that suggestion.

The Court still going to be in there running it, but the California doctrine of physical solution as set forth in the Lodi case requires the court to take continuing jurisdiction so that he can -- if he can, he can cut the water down.

Now, I can argue if you have a feeling that -- well here, these engineers are running these projects and what does the Court in there for but under the doctrine of physical solution, it does give the Government the right to force a substituted service upon the riparian owner.

And as the Ninth Circuit quoted in their decision, that's an advantage to the Government, that isn't an advantage to the landowner because they can substitute wells, they can substitute check dams.

And if you will notice the check dam idea is in a general way approved by almost everybody.

Mr. Goldberg himself put on evidence that there ought to be five check dams and he cut it down to three when he was trying the case and the Government admitted that might be necessary to put in four or five.

I'm not going to argue the physical solution part because I think there would be a tremendous damage action possible there whenever they cut down this 626,000 acre-feet a year to 60,000.

Justice John M. Harlan: What bearing if any do you think the fact that the Government or the officials, the reclamation officials who had given this election so to speak between taking the injunction and the physical solution, what bearing do you think that that election has if any on the Government's immunity argument?

Mr. Claude L. Rowe: Well, I -- I think it ties into their immunity argument, I think that tends to show a waiver of immunity because even the Secretary at least, it goes to show there wasn't a taking.

They didn't intend to take it.

The Secretary McKay, he says, we go along with the State of California, and plan a physical solution.

Well, if they're going to keep putting water down there, you're not taking something from somebody.

Also, if you'll notice in the Bureau of Reclamation officials' answer, they ask the complaint be dismissed, but in the alternative, they ask the Court to determine what lands are entitled to water, two, the amount of water they're entitled to; and three, to make a decree to give it to them.

Now, as I say, I think somewhere down the line in the lawsuit, the Government should be bound by the standard things.

And if you ask me, I think it's just fairness and logic when they ask the Court to make a determination of how much water should go down the river, they shouldn't be able to later on say on a field, “well, we're immune” from what we ask.

I don't know whether that answered your question or not.

Is there any other that I might attempt to answer?

Justice John M. Harlan: Well, you -- as far as I'm concerned, you haven't dealt with the Government's basic argument at all in any of your appearances.

Mr. Claude L. Rowe: Well, would you tell me --

Justice John M. Harlan: If I may say so.

Mr. Claude L. Rowe: -- which one that is, I will try to do it possibly.

Justice John M. Harlan: I can't argue the case for you, Mr. Rowe.

I'm just suggesting that the Government is here on a one basic point, that they're immune from suit, that although informed, this is a suit against the individuals because of the arguments that they make and what follows in the Larson case that this in effect has an impact on the Government which means that it cannot be sued without its consent and that it isn't -- hasn't given its consent either by virtue of such an aid of Reclamation Act or by virtue of 208 and I haven't heard you address anything to either of those arguments up today, any of those arguments.

Mr. Claude L. Rowe: Alright, I will endeavor to do it.

All of the decisions, first, all of the -- we are suing here an administrative officer under the theory that he is violating and acting in excess of the powers conferred by Congress.

That being true under the Yuma case and the Swigart case dealing with great under the case of the fishing licenses in Alaska under even Lane versus Dollar, that is not a suit against the Government and the official maybe restrained from violating the act of Congress which in my opinion in this case is the Act of 1949 which requires the Bureau to recognize the county of origin legislation.

Now, assuming that isn't true, I haven't tried to press it, but under the Gerlach case, this Court held that when a -- the Government comes in to seek an appropriation of water in a state, they must conform to the state law.

The Government came in.

We originally filed a suit to determine the application between the City of Fresno and their priority in the Government.

That Government came in, the Water Rights Board and the Court referred it to the administrative agency.

The Water Rights Board advertised the entire river as they've done in other decisions on the Sacramento and the American River.

Everybody had a right on that river to come in.

It was tried.

The Government was given the permit to appropriate water subject to two additions that they recognized vested rights, secondly, that Fresno gets at least 50,000 acre-feet of water.

Neither party appealed.

I think that that is a complete adjudication under the Act of 1952.

I don't know what else you could do.

And as I have stated here, if you go on the other theory that everything below Gravelly Ford has been condemned since no water taken by eminent domain except the substitution of water that formally came out of Mendota Pool, if you take that theory, the Government, there were 208 parcels of land, 47 and I – in my view the Government's brief didn't -- have not settled.

The Government owned certain rights.

The districts, all of the districts were parties.

Everybody down to the end of where the water was to flow and you know that that point, remember, it doesn't say a stream system.

There is a second alternative or other source, and that source is Friant.

Everybody from Friant was a party to that litigation.

The District Court, the Government came in and presented evidence that they had bought from Millerton Lake certain reserved water rights which cut into the riparian rights.

They put in evidence that they had purchased water rights shown on the Exhibit A-48A, type of contract.

The riparian owners proved what land was riparian.

The District Court ruled on every specific parcel -- 208 parcels.

It ruled the right of the district and in my view, I will submit it that this -- by this Court whether that's not an adjudication under the Acts of 1952, waiving the Government's immunity under the warning of other source, not complete river system.

So that either under the hearing by the State Water Rights Board which was not appealed or by this determination if you will look in the large volume at A -- in Exhibit A-91A it -- it shows beginning up here – somewhere down here, pardon me, beginning up here with Friant Dam --

Justice John M. Harlan: What volume is this in?

Mr. Claude L. Rowe: That is the printed record from the Ninth Circuit.

Justice John M. Harlan: Alright.

Mr. Claude L. Rowe: Every, the 208 parcels were ruled upon whether the Government had the rights or whether they were riparian rights.

The Government -- the District Court ruled how much water may be used for each of the crops.

I feel that that was a complete adjudication of the rights from another source or other source, Friant.

Now, this Court has held that if all parties had been brought in, the plaintiff has the right to ask that they'd be brought in and then in our brief we've asked that.

Now, the Government counsel can tell me who else we ought to bring in if they're taking everything from Gravelly Ford down or have taken it by eminent domain, we've litigated every district.

We've litigated an entire area.

I would ask this Court permission to bring such defendants in.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: The Court of Appeals --

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: They said it was not that kind of a suit, you're right and we have appealed for that part of their decision.

Now finally, Mr. Goldberg says that these water rights have been taken by eminent domain.

I don't think so.

In the first place, the Act of 1902 and 1949, require the Government to recognize the county or origin.

The Bureau of Reclamation has the whole Congress.

They are recognizing those rights and reserving water, not damages.

Under the Youngstown case, you cannot condemn anything unless authorized by Congress.

And since it wasn't authorized, there couldn't be a taking by condemnation or eminent domain.

Not only that, I think the interpretation of the California agencies is also very helpful.

I would just like to read to and that will conclude my remarks --

Justice Hugo L. Black: [Inaudible] suppose it cannot.

Mr. Claude L. Rowe: Yes.

The Government could if Congress had authorized the taking of the county of origin rights, I would say yes.

Justice Hugo L. Black: Suppose it had authorization.

Mr. Claude L. Rowe: If they have authorized it, I would say that they could condemn but I would agree with the lower court that they have not taken it as yet.

They've not expressed an intension to taking it.

They're letting the water run down the river, they're making compacts and they're recognizing those rights down the Gravelly Ford, but frankly the Government does have the right.

It could condemn them out, county of origin or no county of origin if Congress had limited them from doing it.

Justice Hugo L. Black: [Inaudible]

Mr. Claude L. Rowe: Yes.

They would have a right to sue in the Court of Claims.

Justice Hugo L. Black: [Inaudible]

Mr. Claude L. Rowe: For taking by eminent domain or condemnation.

Justice Hugo L. Black: How do they do that?

Mr. Claude L. Rowe: They do have --

Justice Hugo L. Black: Riparian --

Mr. Claude L. Rowe: Not to take water needed in the county and watershed of origin.

I do not think because by the Act of 1949 which reauthorized the entire Central Valley project, the Government made that clear that the Secretary might not take water needed in the county or watershed of origin.

Justice Hugo L. Black: If they had a chance and suppose they can --

Mr. Claude L. Rowe: Yes.

Justice Hugo L. Black: -- and suppose you sue now.

Mr. Claude L. Rowe: Yes.

Justice Hugo L. Black: And say, you can do it and there's no one depriving you with your right.

Have you not [Inaudible]?

Mr. Claude L. Rowe: Well, there would be a question as Mr. Goldberg has said, possibly the statute could run on it.

Justice Hugo L. Black: Well, that's the statute of limitation.

Mr. Claude L. Rowe: Yes.

Justice Hugo L. Black: Suppose you had them.

Mr. Claude L. Rowe: Well then, if the Government -- if Congress had authorized the taking, there could be a suit where there had been a taking but I agree with the Ninth Circuit that the Government has never indicated in and then -- and to depict these rights between here and there or to take personal right.

Justice Hugo L. Black: You insisted there in taking [Inaudible]

Mr. Claude L. Rowe: They are threatening to, and I think the minute possibly -- this is not criticism if this lawsuit is over.

I think the 620,000 -- 6,000 acre-feet of water that goes down the river will go back to the 60,000 acre-feet that they threatened they got to do.

And then since 211,000 percolated into the ground alone, there would be a taking and if they're authorized to take it, in that case, there could be a suit for damages.

Justice Arthur J. Goldberg: Now, what are you going to say about the Solicitor General's [Inaudible]?

Mr. Claude L. Rowe: No, I think that the reauthorization of the Central Valley project as put in 1937 along with the mentioned protecting county of origin.

I think that that covers the whole Act now.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Claude L. Rowe: No, I'm -- one thing I think he did wrong.

You can't reauthorize, go back to 1937 and reauthorize an Act and say that the Secretary must conform to the county of origin and then say it doesn't apply to the 1937 enactment.

I don't see how you can do it.

Justice Arthur J. Goldberg: How much of the project is completed?

Mr. Claude L. Rowe: The entire project is complete.

The Government has done in addition to the Central Valley project, they have built some dam on the American River.

They have an alternative river project up here but the entire original Central Valley project as set forth in the feasibility report in December 2nd, 1935 is complete.

I think counsel will agree with me on that.

If I may read then, just some interpretations of the law by California people, “As a manner of both state and federal law, it appears that the United States, the Bureau of Reclamation as well as its parent organization, the Department of the Interior and the Secretary thereof are obligated to observe Water Code Sections…” I'm reading from the bottom of page 147 of my green brief, “11460 to 11463 in carrying out the Central Valley project.”

Then the second quote, “Whatever may have been the intent of the legislature in adopting these statutes, we cannot conclude that it was intended thereby to deprive areas such as the City of Fresno and the Fresno Irrigation District of a source of water supply so readily accessible to them at that obtainable from the San Joaquin River.”

We believe that the legislature in adopting watershed protection Sections 11460, 11463 and the county of origin sections 10500 to 504 and 10505 was expressing a policy that area such of the city and the district, both highly developed and well-established, located almost at the very outlets of Friant Dam should not occur deficiencies and supplies such as they are now suffering while water is transported pass them to distant undeveloped lands.

Now, that's the Water Rights Board that farms out the water.

Now, this is from Mr. Goldberg's, former boss, the Attorney General, from 25 opinions of the Attorney General, 1955-21, “The legislative background as a priority makes it difficult to concede that the legislature intended that the authority could destroy the priority by condemnation.

Since the priority exist only as against the authority, such as construction would completely destroy the effect of Section 11460 and make it in the -- its enactment and idle gesture.”

And if you say that you're giving protection, water to the areas in which it originates and at the same words saying, you can take it away by condemnation, I think that Congress never intended that.

I think they intended to back up the cities, City of Fresno and other people that I have told.

This area here which is an agricultural area in California, it is not asking government subsidies.

It grows grapes, raisins, citrus.

You have the dried fruit capital of the world.

There is some party, they are carrying their own load and all they need is water and we humbly ask you gentlemen to get that closed.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: No, I would say that they could take whether a surplus or not as long as the great, rich, highly developed -- historically developed areas in California are left with sufficient water supply.

I don't think Congress ever intended to dry up the richest agricultural county in the United States.

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: For it should not take water?

Unknown Speaker: [Inaudible]

Mr. Claude L. Rowe: Yes and I think that is the opinion of the Attorney General, Mr. Goldberg's former boss, the present governor when he said, “Even though they have taken it, if in the future they needed, the Government has to give it back to them and the people don't have to pay the Government anything for the project.

Now, I agree with Mr. Goldberg's boss.

I agree with the Water Rights Board who really are the people who say who gets the water.

Now, I want to thank you very much for your kindness.

Rebuttal of B. Abbott Goldberg

Mr. B. Abbott Goldberg: May it please the Court.

With regard to Fresno drying government, Fresno is not becoming one with minivan tire.

Fresno is pumping more water now than it pumped 20 years ago or 12 years ago when this lawsuit began.

They started out their pumping around 40,000 acre-feet.

Now they're pumping 60,000 acre-feet.

They are not suffering a shortage in water supply.

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: That's in addition to what they pump.

So if you assume that Fresno needs a 100,000 acre-feet, when are they going to need it?

Well, as I read -- as I read the little table on page 83 of Mr. Rowe's brief in Number 51, they're not going to need that hundred thousand acre-feet until sometime between 1980 and 19 -- 1990, allowing for 30,000 acre-feet of their well.

So they have 60,000 plus 30,000 which is 90,000 here about that time.

Now --

Unknown Speaker: [Inaudible]

Mr. B. Abbott Goldberg: If they go ahead and put in a system so they could get the water from Friant, they could turn off their pumps and let the ground water come back.

They'd be getting 60,000 and that would take their full supply for a while.

As the city engineer who testified, I've made a little collection of these because I find them rather amusing, the city engineer testified at one time that he have to curtail service in some area of the city.

Where it turned out under cross-examination, he had to curtail service not because there wasn't enough water there but there was so much demand for it that he couldn't get it through the existing pipe system.

I refer to five record at page 2179, but what concerns me is this 100,000 acre-feet and actually the impact of Judge Goldberg's question, because the problem is this.

You can't say, you can't say for the City of Fresno or for anybody else, you're going to need a 100,000 acre-feet in the future.

You could only say you're going to need 100,000 acre-feet if present conditions of growth, patterns of growth continue and these projects have to be kept elastic and you have a splendid demonstration of the last or future project here.

The original feature is Friant, Delta-Mendota Canal, Madera Canal, Friant-Kern it's just the way up here in the north the best dam, the most feasible one built first, Tracy Pumping System.

Now, the next dam, the next most feasible one was the American shortly north of Sacramento up here on Poso dams on the America.

So they built that.

This water supply is a constantly expanding thing when Fresno says in page -- I think its page 52 and so of their buff reply brief, I identify it as buffed because there are two of them in 51.

May I continue for just a moment, when they say that they have no source of supply except from the San Joaquin River sir, that is not correct?

They have a source of supply from the Central Valley project.

They indeed what have a source supply from the state project which will be coming on the west side if they chose to use it.

The fight is not over, source of water, availability of water, it's over the price that's going to have to be paid.

Thank you.