ARIZONA v. CALIFORNIA

Justice Hugo L. Black: Before proceeding, the Court exceeded to the request of the parties granting the time which they asked arguing in this case because of its very great importance and the numerous issues involved.

The Court, however, is unanimous of the opinion.

The time allotted is not compulsory.

No one, no member of those attorneys, we decide, needs be there.

That will be held against him if he filed.

We can discuss his fees in a shorter period in that which has been allotted.

Mr. Stanley Mosk: I shall bear that in mind, Mr. Justice Black.

If I may, for just a moment until this diagram is placed for your viewing.

May it please the Court.

The State of California and seven public agencies of California are before this Court as defendants in a suit Arizona commenced nearly 10 years ago over rights to use waters of the Colorado River System.

We're defending the fourth suit Arizona has brought in this Court against California.

In terms of its consequences, this is the most important suit in which California has ever engaged.

Whatever the Court's decision, the outcome will deeply affect all of the states in the South Western part of the United States.

More waters at issue, many times over, that in all of the previous interstate suits which this Court has heard involving Western Interstate Water Rights.

Arizona initiated this suit in order to obtain an adjudicated right to water for the proposed Central Arizona Project, a reclamation project which could convey water from the main Colorado River to irrigate lands in the Phoenix area.

In Arizona's statement, accompanying her motion for leave to file a bill of complaint, Arizona alleged the contending parties assert conflicting claims to the right to use certain quantities of Colorado River System water.

These claims are mutually exclusive.

As to each quantity of water involved, a recognition of the Arizona claim requires a denial of the California claim, and vice versa.

Now, Arizona's statement is undeniably accurate in that respect.

This litigation, in terms of its results, is a contest which will decide, if it decides anything at all, whether the water now being used by existing projects in California is to be taken away from those projects for new projects in Arizona and Nevada.

Now, if I may, let me briefly describe the three California projects, the rights of which are at issue here.

This map behind me and in front of you will illustrate the location of these projects.

First, the Palo Verde Irrigation District.

The Palo Verde Irrigation District is located on the Colorado River about 212 miles below Hoover Dam.

It is California's oldest project with water rights initiated back in 1877.

Second, the All-American Canal Project.

That canal serves the defendants, Imperial Irrigation District and Coachella Valley County Water District, and also that portion of the Yuma Project which is in California but which is not a defendant in this proceeding.

These areas are located, as you can see from that diagram, in the south east and central part of California immediately north of the international boundary with Mexico.

The All-American Canal replaced a diversion canal to the Imperial Valley which began service back in 1901 and it takes its name from the fact that it replaced a diversion route which left the river in the United States and crossed Mexican territory on its way to Imperial Valley.

And, third, the Metropolitan Water District of Southern California.

Metropolitan built and maintains the Colorado River Aqueduct which diverts water form the Colorado River at Parker Dam, transports that water 242 miles over and through the mountain range which separates the great cities on the coast from the Colorado River.

Metropolitan's Colorado River Aqueduct supplies the defendant City of Los Angeles, the defendant City of San Diego and nearly 90 other cities which are not named as defendants by Arizona.

Justice William O. Douglas: Is that all taken from the Colorado?

Mr. Stanley Mosk: Yes, all from the Colorado, and it's transported this 242 miles through the Aqueduct.

Justice William J. Brennan: But that's not the only source, is it, of water for those?

Mr. Stanley Mosk: Well, that's the only source of water for the Colorado River Aqueduct which is -- which supplies the Metropolitan Water District of Southern California.

Justice William O. Douglas: What percentage of California's use of the Colorado River water takes that water into a different drainage basin?

The Colorado River Aqueduct apparently does because the water that would -- was used, would be left over, would not flow back into the Colorado, would it?

Mr. Stanley Mosk: No.

Justice William O. Douglas: What percentage of the -- roughly, is there any table or --

Mr. Stanley Mosk: I'm going right back, Mr. Douglas.

Justice William O. Douglas: Don't stop to ask me now -- answer now, Mr. Attorney General, but I'd be interested to know --

Mr. Stanley Mosk: Yes, we will --

Justice William O. Douglas: What that figure would be.

Mr. Stanley Mosk: We'll have that figure for you, Mr. Justice Douglas.

The cost of this entire project of the Colorado River Aqueduct was over a half a billion dollars and, I might add, these were depression-sized dollars.

This Colorado River Aqueduct was initiated almost 40 years ago.

It's been in service now for over 20 years, yet, even with that initiation 20 years ago, it's still California's newest Colorado River Project.

Under the law of California which, in this respect, is identical to the law of prior appropriation of the other Western States.

Metropolitan's rights are due here to the rights of California's two great agricultural projects which were earlier initiated.

Hence, Metropolitan would feel the brunt of the Master's decision.

The demonstrable effect of that decision is to wipe out Metropolitan's entire Colorado River supply whenever the limitation imposed on the Lower Basin by the Colorado River Compact is enforced.

Under the Master's recommended decree, there is not water at all for this great project unless there is available to the Lower Basin very substantially more than the 8.5 million acre-feet of water per year which the Colorado River Compact specifies for use in the Lower Basin.

Quite naturally --

Justice Potter Stewart: I don't--

Mr. Stanley Mosk: -- this con --

Justice Potter Stewart: I don't quite understand that.

Do you mean to say that the agricultural users in California would use up all of the California's quota?

Mr. Stanley Mosk: Yes, that is correct.

They have priority.

Justice Potter Stewart: How many million acre-feet?

Mr. Stanley Mosk: These two projects have priority.

Well, --

Justice Potter Stewart: We understand they have priorities, but how many acre -- million acre-feet would they use in the --

Mr. Stanley Mosk: Well, it is -- under the Master's recommendation, as we see it --

Justice Potter Stewart: Yes.

Mr. Stanley Mosk: California gets 45 -- 44/75 of the first seven-and-a half million acre-feet available not from the stream and the tributaries --

Justice Potter Stewart: From the stream itself.

Mr. Stanley Mosk: But from the congregated mainstream alone.

Justice Potter Stewart: Yes.

Mr. Stanley Mosk: From Lake Mead down to the Mexican boundary.

Justice Potter Stewart: Yes.

Mr. Stanley Mosk: Now, this means 44/75 times 6 million or about 3.5 million acre-feet.

3.8 --

Justice Potter Stewart: Where do you get that -- where do you get the 6 million?

Mr. Stanley Mosk: Well, 6 million is in the lower stream, 2 million in the tribute -- tributaries according to our evidence.

Justice Potter Stewart: But, these are not findings to the Master?

Mr. Stanley Mosk: No, they are not but that leaves 3.5 million acre-feet according to our calculations.

3.85 is used by the prior users before Metropolitan gets a single drop of water.

Justice Potter Stewart: 3.85 million acre-feet per anum.

Mr. Stanley Mosk: That's correct.

Justice Potter Stewart: By the California agricultural users.

Mr. Stanley Mosk: That is correct.

That leaves nothing whatever for Metropolitan --

Justice Potter Stewart: I understand --

Mr. Stanley Mosk: -- under this --

Justice Potter Stewart: I understand your --

Mr. Stanley Mosk: Under this evidence.

Now quite naturally, this consequence is rather frightening to the seven million Californians who depend on Colorado River water.

Between 1950 and 1960, the population in the Southern California area served by Colorado River water, just the increase alone in that one decade, was nearly 3,200,000 persons.

That increase alone is double the entire population of Arizona and Nevada combined in 1960.

Justice William O. Douglas: Has there been a comparable increase in Arizona?

Mr. Stanley Mosk: Percentage-wise, yes but, numerically, no.

Justice William O. Douglas: Yes.

Mr. Stanley Mosk: The Special Master accurately reports that, at the date of the trial, California's projects were using about 4.6 million acre-feet of water.

Now, that was the 1956-1957 figure to which evidence relate.

1960, we used about 5.1 million acre-feet.

Now, on California's contentions, there's only about 4.6 million acre-feet of water permanently available to California.

We are temporarily able to use more than that, a half million more acre-feet, only because the Upper Basin has not yet put to use its Colorado River water apportion.

Now, of course, we cannot ask this Court to reverse the laws of nature nor do we ask this Court to relieve us of the responsibility or the consequences of either of the two agreements which California entered into on March 2, 1929, the Colorado River Compact or the California Limitation Act.

We do earnestly ask this Court not to rewrite the law of the river to impose on California a drought more severe than that which nature could accomplish.

Justice Felix Frankfurter: May I ask whether -- what do you use now, 5.1, is it?

Mr. Stanley Mosk: Yes.

Justice Felix Frankfurter: And that's in necessity from your point of view?

Mr. Stanley Mosk: Yes, it is.

Justice Felix Frankfurter: May I ask you how you will supply the deficit if the Upper Basin uses its appropriate share?

Mr. Stanley Mosk: We've -- this would dry up our source.

It would dry up the Metropolitan Water District almost immediately if the Upper Basin states use the amount they're entitled to under the Colorado River Compact.

Justice Felix Frankfurter: You mean, in -- what would happen to the people?

Mr. Stanley Mosk: The people would go with -- do without water, I'm afraid --

Justice Felix Frankfurter: If the law intend --

Mr. Stanley Mosk: Until such time as we could find an alternative source.

Justice Felix Frankfurter: Pardon me?

Mr. Stanley Mosk: Where they would have to do without water until such time as we could find an alternative source.

Justice Felix Frankfurter: I can't imagine that enterprises in California would let them go without water.

Mr. Stanley Mosk: We believe, Mr. Justice Frankfurter, that's the result of the Master's recommendation to this Court.

Justice Felix Frankfurter: No, but apart from the Master's repu -- report or conclusions, you have a deficit just in the Upper Basin if they use they're appropriate share.

Mr. Stanley Mosk: Yes, we do.

Justice Felix Frankfurter: And you almost have thrown up your hands in answer to my question what you're going to do for them.

Mr. Stanley Mosk: Yes, we have no -- we have no ready answer for this deficit that will exist and if -- the deficit is certain to exist if the Master's report is adopted.

The issue, as we see it in this case, is not whether California will have water for a new project from the Colorado River.

We don't seek any new project.

The issue was not whether any existing project in Arizona or Nevada will be required to give up water that it is now using, nor even to forego its planned development.

We concede to Arizona and to Nevada the full quantity of water required for the full development of all of their existing projects.

We don't oppose any future project in the Lower Basin if its rights are recognized as being junior to the rights of existing projects.

No water, not even water temporarily available, should be permitted to waste to the sea.

The ultimate issue, in terms of the impact upon people and their way of life, is whether an existing California project, probably the greatest municipal water supply project in the world, must be wholly destroyed to permit the building of a new reclamation project for the central Arizona area.

Justice Potter Stewart: Now, the Metropolitan Water District gets water from sources other than the Colorado River, does it not?

Mr. Stanley Mosk: Yes, some.

Justice Potter Stewart: Underground water?

Mr. Stanley Mosk: No, not at all -- excuse me.

Not at all, Mr. Ely reminds me.

Justice Potter Stewart: None?

Mr. Stanley Mosk: That is correct.

Justice Potter Stewart: I understood --

Mr. Stanley Mosk: Solely dependent upon the Colorado River Aqueduct.

Justice Potter Stewart: Well, is this also true of -- well, let's say water users in Los Angeles and San Diego, they use -- the only water there is Colorado River water, is that correct?

Mr. Stanley Mosk: No, they get water from the Sierras as well, but Metropolitan project --

Justice Potter Stewart: But it's not supplied through the Water District, is that it?

Mr. Stanley Mosk: Sir?

Justice Potter Stewart: But the Sierra water is not to supplied through the Metropolitan Water District, is that it?

Mr. Stanley Mosk: That is correct.

Metropolitan is solely dependent upon Colorado River water.

Justice Potter Stewart: But the -- but then, so I fully understand it, Los Angeles and San Diego get water then from sources other than the Metropolitan Water District, is that right?

Mr. Stanley Mosk: Only Los Angeles, not San Diego.

Justice Potter Stewart: I understand.

Mr. Stanley Mosk: San Diego is wholly dependent upon Metropolitan.

Destruction of Metropolitan's water supply results, as the Master has said with rather commendable frankness, we think, not from resolving Arizona and California's historic controversy in Arizona's favor.

The historic controversy between Arizona and California has been over the Colorado River Compact.

The Master would resolve that conflict in every material particular to save one in accordance with California's contentions, but that single particular is his conclusion that the Colorado River Compact is irrelevant.

Justice William J. Brennan: Mr. Attorney General, just -- do I understand -- isn't there some state project in effect in Northern California for turning rivers around for --

Mr. Stanley Mosk: That --

Justice William J. Brennan: -- the water to Southern California?

Mr. Stanley Mosk: That was excluded from evidence and we think properly so in this case, Mr. Justice Brennan.

Justice William J. Brennan: But -- well, just a matter of curiosity, is that to supply water to the area served by the Metropolitan Water District in substitution?

Mr. Stanley Mosk: It will not be in substitution for the Metropolitan Water District Project.

This will be to provide for the expanding population of California, but I stress the fact that this was properly, we think, excluded from evidence by the Master.

The Master's conclusion in this instance that the Colorado River Compact is irrelevant is contrary to the pleaded contentions of Arizona and of California in this suit and in the three suits which preceded this one.

Such a conclusion was never suggested in any form in which this controversy was mooted until after the close of the trial in the present suit.

Water supply in which 7 million people depend should not be destroyed on the basis of an issue discovered for the first time decades after the project had been constructed.

Now, of course, this Court is well aware of the fact that the Master denies that the decree recommended will have the disastrous effect that aren't tested.

He says, at page 115 of his report, "Existing California users are in no danger of curtailment unless and until many vast new projects, some of which are not even contemplated at this time, are approved by Congress and constructed."

His optimism is repeated in the briefs of the other parties.

If the Master is right, this suit is premature and unnecessary but the ultimate issue in terms of legal consequences is this.

Who should bear the risk that the Master's optimism is ill-founded?

Throughout the West, under the law of prior appropriation, the risk of water supply is on the newest project.

The sponsors of a new project can best calculate the risk.

They alone can decide whether to undertake that risk.

We have sought priority only to the extent of 4.4 million acre-feet per annum and only insofar as the dates of initiation of our projects make them senior to later initiated projects in other states.

Justice Felix Frankfurter: Would all the potential projects of Arizona require congressional approval or executive approval?

Mr. Stanley Mosk: Yes, they would.

Justice Felix Frankfurter: So that the contingency which you fear is dependent upon congressional action.

Mr. Stanley Mosk: Yes, that is correct.

The risk we are unwilling to assume is one that -- is one that places the entire supply of the Metropolitan Water District of Southern California at the hazard of certain destruction if the Colorado River Compact is ever enforced against the Lower Basin.

That's a risk, we believe, that should be born, if it all, by a new project and not prior project on which seven million people have come to depend.

Now, if it please the Court, I will present Mr. Northcutt Ely.

He's the Special Assistant Attorney General of California.

He will argue on behalf of all of the California defendants.

Justice Hugo L. Black: Mr. Ely.

Argument of Northcutt Ely

Mr. Northcutt Ely: Mr. Justice Black and may it please the Court.

Justice William O. Douglas: That -- before you start, just to get my own thinking straight.

I noticed on page 347 of the Master's report, if sufficient mid -- mainstream water is available to satisfy seven-and-a half million acre-feet, then that is divided in a certain way, is this -- is that the -- the point of the division, is that the main controversy between you and Arizona?

Mr. Northcutt Ely: There are two main points of controversy arising out of the Master's report, Mr. Justice Douglas.

That is a one often them, what we call the limitation issue.

That is

Justice William O. Douglas: Yes.

Mr. Northcutt Ely: -- the quantities.

Justice William O. Douglas: Now --

Mr. Northcutt Ely: The second is a question of priorities of Judge (Inaudible).

Justice William O. Douglas: Yes.

Now, on page 21 of your brief, in the first full paragraph --

Mr. Northcutt Ely: Which of our brief?

Justice William O. Douglas: Your main brief.

Mr. Northcutt Ely: The --

Justice William O. Douglas: Your opening brief.

You further narrow the issue down apparently to a question of 8 -- 80,000 acre-feet of water, is that right?

Mr. Northcutt Ely: No, Your Honor.

The 80,000 acre-feet is the quantity of uses in Arizona and the Nevada which would not be safely protected by what we call the safe annual yield of the river.

That is their --

Justice William O. Douglas: But the --

Mr. Northcutt Ely: -- only risk.

Justice William O. Douglas: This is your proposal, is it?

Mr. Northcutt Ely: Yes, if our proposal were adopted, all of the existing Arizona-Nevada Projects would be fully protected out of the safe dependable supply of the Colorado River --

Justice William O. Douglas: Except for 80,000 people.

Mr. Northcutt Ely: Except for the 80,000 people, whereas, under our own proposal, if our estimate of the water supply is correct, then we are not in that favored position.

We would have available to us out of the dependable supply some-800,000 acre-feet less than the capacity of our constructive projects.

We would available 4,600,000.

Their capacity is 5,400,000.

Justice William O. Douglas: Now, just to go back to par -- that paragraph on page 347 of the Master's report.

But this -- this mean that the difference on this point between you and Arizona would be resolved if the apportionment to California was increased by 80,000 acre-feet?

Mr. Northcutt Ely: No, sir, not at all.

Not at all, if I may say.

Justice William O. Douglas: It's not as simple as that?

Mr. Northcutt Ely: No, sir, not at all.

The 80,000 acre-foot figure is the margin which Arizona and Nevada projects would have it at risk.

The balance of their uses for their full requirement should be ordered is 1,200,000 acre-feet when fully -- when fully completed.

All of that except 80,000 is protected out of what we call the safe annual yield of the dependable supply, no risk at all involved.

We concede them in such in, say, full supply.

We are not in that happy position.

The controversy between Arizona and California rising from the Master's report is of the magnitude of 1,200,000 acre-feet, not 80,000.

Your Honor -- Your Honors, there are three issues which I propose to argue arising out of the Master's report.

I shall use them for ready identification, namely, the limitation issue, the priority issue, and the water supply or justiciability issue.

First, may I explain what I mean by the limitation issue.

All three of these, I may say, arise out of these questions of law out of his interpretation of the Boulder Canyon Project Act in its relation to the Colorado River Compact and a third statute, the statute of California called the California Limitation Act.

I'll explain this as I go along, but all three of them were proclaimed to be in effect simultaneously on June 25, 1929 by the President of the United States.

They use interlocking terms, the same terms, and our basic quarrel with the Master is that he assigns interpretations to the same words in the Colorado River Compact and the California Limitation Act in diametrically opposite directions.

This is the limitation issue.

May I refer to the map and, to -- along with it, the reprint which you have before you of Section 4 (a) of the Boulder Canyon Project Act, Article III (a) of the Colorado River Compact and Section 5 of the Project Act.

Section -- these statutes came to -- into existence in this way.

The Colorado River Compact was an agreement among the seven states of the Colorado River Basin shown on the map behind me, Map A, in 1922.

All promptly ratified it in 1923, except Arizona for reasons which I'll come to.

The Boulder Canyon Project Act was approved by the President on December 21,1928.

It authorized the construction of the Hoover Dam and the All-American Canal and they gave consent to the Colorado River Compact but it made the construction of these works, the authority to construct them, conditional upon the President's proclamation that either seven states had ratified the Colorado River Compact or if Arizona refused to -- continue to refuse to do so.

Then, upon this proclamation, that six states would ratify it, including California, and that, in addition in that event, California should have enacted a Limitation Act limiting her rights in the Colorado River System.

These things were all done.

Arizona did not ratify, six states did, including California, California passed a Limitation Act, the proclamation was so issued on June 25, 1929.

The specific issue of statutory construction involved, first, on the limitation issue is this.

If I may refer to the reprint of Section 4 (a), this is the section that prescribed that the Project Act should become operative only upon the satisfaction of this conditions.

Justice William J. Brennan: Excuse me, Mr. Ely, you said we have a reprint copy?

Mr. Northcutt Ely: Yes, sir, distributed to the members of the Court.

Justice William J. Brennan: This morning?

Mr. Northcutt Ely: Yes.

Justice William J. Brennan: Excuse me.

There it is.

Mr. Northcutt Ely: Thank you.

This section provides that the Act shall not become effect -- become -- not take effect, these were the opening words, until certain conditions are carried out.

The first appears on page 1.

Until, one, the States of Arizona, California, and so on ratify the Compact and the President proclaims or two, if the seven states fail to ratify, then until the alternative takes place.

The alternative is six-state ratification plus enactment by California of a Limitation Act which, and as to this we have placed that requirement in Italics on the first page, “Until the State of California, by act of its legislature, shall agree irrevocably and unconditionally with the United States and for the benefit of the States of Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming as an expressed covenant and in consideration of the passage of this Act that the aggregate annual consumptive use, diversions less returns to the river of water of and from the Colorado River for use in the State of California, including all uses under contracts made under the provisions of this Act and all water necessary for the supply of any rights which may now exist shall not exceed.”

And here we come to the two components of the limitation, "One, 4,400,000 acre-feet of the waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact.

The second component, plus not more than one-half of any excess or surplus waters unapportioned by said Compact, such uses always to be subject of the terms of said Compact."

Article III (a) of the Colorado River Compact appears on page 4 of this reprint and it says, "There is hereby apportioned from the Colorado River System, in perpetuity to the Upper Basin and to the Lower Basin respectively, the exclusive beneficial consumptive use of 7,500,000 acre-feet of water per annum which shall include all water necessary for the supply of any rights which may now exist."

The specific issue with respect to this language arises on page 173 of the Master's -- Special Master's report where he says this, "I have concluded that Congress intended, in limiting California to 4.4 million acre-feet of the waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact, simply to limit California's annual uses of water to 4.4 out of 7.5 million acre-feet.”

Congress referred to Article III (a) of the Compact solely as a short-hand way of saying 7,500,000 acre-feet per annum.

This inappropriate reference to the Compact has been the cause of seeming inconsistency in the Act and of much confusion in its interpretation.

Reflection has led to the conviction that the statutory language does not accurately express the true congressional intention.

Thus, I hold that Section 4 (a) of the Project Act and the California Limitation Act refer only to the water stored in Lake Mead and flowing in the mainstream below Hoover Dam despite the fact that Article III (a) of the Compact deals with the Colorado River System which is defined in Article II (a) as including the entire mainstream and the tributaries.

The effect of this distinction is shown upon the map A and also in map B.

I refer to map A.

Here, shown in red is that segment of the main Colorado River which the Master refers to as the "mainstream," a word of art in the report meaning Lake Mead and below.

That is shown in this map in red.

The Colorado River System, as he correctly defines it, is not the area in red.

It is the segment in red plus the river shown in blue.

The difference, mathematically, is this.

The Colorado River System, as defined by the Colorado River Compact, includes all the tributaries as well as the main river.

He so holds correctly, we believe.

The uses -- the supply of the tributaries in the Lower Basin, that is the area on map A shown in white below the shaded area, the uses supplied supported by the tributaries are the general order of two million acre-feet per annum.

That, by the terms of the Colorado River Compact, is included within the III (a) apportionment.

These are rights which may now exist in 1929.

In any event, they are long since put to use and they are accountable, basin versus basin, as part of the Lower Basin apportionment.

The total apportionment to the Lower Basin made by Article III (a) is seven and one half million acre-feet including that resource.

By a simple subtraction, therefore, whenever the Upper Basin invokes against the Lower Basin the “limitations on appropriations,” as he calls them, the ceilings on appropriations provided by Article III (a), seven-and-a half million in total.

Then, out of the main river, Arizona, California, Nevada may take within that III (a) ceiling only 5.5 million acre-feet.

Nevertheless, the Master interprets the language I just read to you, Section 4 (a) of the Project Act and the identical language in the California Limitation Act, which is the operating statute or self limitation, as meaning that the three states were intended to divide up 7.5 million acre-feet out of the region -- the segment shown in red.

There is, thus, a built-in shortage.

Significantly, note the main river between Lee Ferry, the division point between the Upper and Lower Basin, and Lake Mead.

It is shown, here, in blue.

That is because the Master specifically redefines the main river itself between Lee Ferry and Lake Mead as a tributary.

He says, in so many words, it is intended to be treated exactly as a tributary.

Now, the -- this has a number of a -- it presents a number of problems.

The second component of the limitation, which appears on page 2 of this reprint, provides plus not more than one-half of any excess or surplus waters unapportioned by said Compact.

The quarrel between Arizona and California that was pleaded here was whether or not that second component does or does not permit California to share in the advantages of Article III (b) of the Colorado River Compact which is printed at page 373 of the report.

Article III (b) provides that, in addition to the apportionment made in paragraph (a), the Lower Basin is hereby given the right to increase its beneficial consumptive use of such waters by one million acre-feet per annum.

Arizona contended that we were precluded -- excluded from that million acre-feet in the second component.

We said we're entitled to participate.

The Master decides that in our favor that, on the phase of the statutory language, California is not excluded.

Justice William J. Brennan: That's no longer an issue in the Court.

Mr. Northcutt Ely: We think you're correct, Your Honor.

We do -- we're happy to accept his determination as to the interpretation of the statute but, as I'll now show you, mathematically, he does exclude us from the benefit of that holding and have --

Justice William J. Brennan: But my point was, as I understood the brief, Arizona no longer quarrels with you as to your right to share half of that extra million between the water.

Mr. Northcutt Ely: I believe you're correct and we hope so.

We think that issue is out of the case and we have won that one.

We disagree with the Special Master as to the -- the reason but I shall not in to that at the moment.

But, as I shall show you now, we are --

Justice William J. Brennan: But I'm not wrong about that, am I?

Mr. Northcutt Ely: No, you're correct.

You're correct, Mr. Justice.

As I shall now endeavor to show you, however -- or the issue initially was and the one presented here --

Justice Felix Frankfurter: What issue is left?

Mr. Northcutt Ely: The issue, and I'll demonstrated by this chart mathematically, if I may have chart one please.

Chart one is before you in a small reproduction and --

Unknown Speaker: (Inaudible)

Mr. Northcutt Ely: -- no, I beg your pardon.

You do not have small reproductions of it.

It's only upon that.

Now, line one of this chart shows the Article III (a) apportionment to the Lower Basin.

Let me stop here and say the Master throughout holds that these "apportionments" are truly ceilings on appropriations.

Now, this is a distinction that may be more than just words.

The apportionment to the Upper Basin of 7.5 half million acre-feet per year is a ceiling on appropriations, not on Upper Basin appropriations somehow but upon -- it's a ceiling imposed for our protection.

Let me explain this rather curious feature of the Master's report, whereas the Compact purports to apportion in perpetuity to the Upper Basin seven-and-a half million and to the Lower Basin seven-and-a half million.

He treats these as reciprocal ceilings on appropriations.

The protection to the Upper Basin is not the apportionment made in perpetuity to that basin but the Upper Basin's right to invoke against the Lower Basin a seven and one half million acre-foot ceiling on our appropriations found in the apportionment to us.

So, also with this million acre-feet, III (b) right of the increase of use.

In other words, the Upper Basin may, when it needs the water, impose upon the Lower Basin the enforcement of these ceilings, 8.5 half million acre-feet on our appropriations.

Justice Felix Frankfurter: Except, they are not reciprocal.

Mr. Northcutt Ely: No, they are reciprocal undoubtedly but instead of treating the apportionment to the Upper Basin as a reservation in perpetuity like that for an Indian reservation or what it calls it, “an apportionment in perpetuity,” instead, the protection for the Upper Basin is not that apportionment to them but their right to invoke the reciprocal ceiling on our appropriations.

Justice Felix Frankfurter: (Inaudible) to be 7.5.

Mr. Northcutt Ely: Yes, but they may never get up to that point because the water supply may not support it.

Justice William J. Brennan: Well, is there a practical consequence during this year?

Mr. Northcutt Ely: Yes, sir, there quite probably is.

Justice William J. Brennan: (Inaudible)

Mr. Northcutt Ely: Yes, because of a probability that the water supply will never, never support in fact 15 million or 16 million acre-feet of consumptive use.

The problem of shortage that we face is not contingent upon the Upper Basin putting to use seven-and-a half million acre-feet.

It is contingent upon the point being reached where they have to invoke the ceiling on our appropriations.

Now, to -- they may have to do that to build up uses for themselves or more of anything more than four million.

In other words, we do not face a happy possibility that shortage will not hit us until the Upper Basin uses 7.5 million acre-feet.

To the contrary, shortage will hit us when they invoke the ceilings on our appropriations to permit them to use four or four-and-a half or five million acre-feet.

Justice Felix Frankfurter: All this is in the realm of the speculation fundamentally, namely, the speculation about the (Inaudible).

So, we could have a more important speculation between the findings and then draw it from the circumstances.

Mr. Northcutt Ely: No, I think it's quite the contrary, Mr. Justice Frankfurter, because, as I shall indicate by another chart in a moment, we're practically up to that ceiling right now.

Justice Felix Frankfurter: Well, what do you say when the Colorado River Compact had 15 million acre-feet, exactly what appeared to be (Inaudible)

Mr. Northcutt Ely: It was based upon the estimate then available as to reasonable -- reasonable apportionments.

The chart on the rack behind me illustrates the effect of the Master's interpretation.

The Article III (a) apportionment appears in line 1, 7.5 million acre-feet.

The Article III (b) item, the right to increase the Lower Basin's use by 1 million is in line two.

The total Compact imposed ceiling on the Lower Basin whenever the Compact is invoke is, thus, eight-and-a half million acre-feet, but that encompasses the uses on the tributaries which are of the order of 2 million acre-feet.

Consequently, the residents should --

Justice Arthur J. Goldberg: May I ask you a question.

Mr. Northcutt Ely: Please.

Justice Arthur J. Goldberg: Is 2 million acre-feet from the tributaries being used or is that just its production?

Mr. Northcutt Ely: That is the quantity in fact being used at the present time with respect to the Gila River, the greatest of these tributaries.

It is also its full dependable production.

It is fully put to use.

With respect to the other tributaries, 200,000 acre-feet of thereabout is used from them.

They produce more than that but the excess flows into the main river and is a part of the main river supply already appropriated there.

Justice Felix Frankfurter: Does that mean the 5.1 is drawn from the tributaries?

Mr. Northcutt Ely: 5.5.

Justice Felix Frankfurter: You use now 5.1.

Mr. Northcutt Ely: Yes.

Justice Felix Frankfurter: Is that drawn from the tributaries?

Mr. Northcutt Ely: That is used by diversion from the main river.

The physical supply that reaches us in -- comes mostly from the inflow at Lee Ferry but also it is supplemented by the inflow of the tributaries above Hoover Dam which, upon the map A or B, are the Virgin River coming in from Utah and the -- by Arizona and Nevada and the Little Colorado coming in from New Mexico and Arizona.

Justice Felix Frankfurter: Which brought the map in Court.

Mr. Northcutt Ely: That is right, sir.

That is right.

That's entirely outside the scope of the decree of writ.

Now, the 2 million acre-feet on the tributaries is encompassed within the Compact ceiling or apportionments to Lower Basin.

The residue available out of the mainstream, therefore, is not over 6.5 million acre-feet for appropriation by Arizona, California, Nevada whenever the Compact ceilings are enforced against the Lower Basin.

Now, if I may anticipate my argument somewhat, the last segment of this chart shows the effect of the Master's report upon California because he allocates to California 44/75, as Mr. Douglas pointed out earlier, of the quantity available from Lake Mead and below.

If it's 7.5 million or less, we get 44/75 of it.

44/75 of 6.5 million is 3.8 million acre-feet for California.

Now, the second -- now, may I pause here to say that if the language in the limitation means the Colorado River System and the area in the red plus the area in blue in the Lower Basin, you have no problem of shortage in meeting the appropriations up to the Compact ceiling because they're written in the same terms.

The production, as was called a moment ago, of the tributaries plus the 5.5 million we may appropriate out of the main river will supply 8.5 million acre-feet of consumptive use.

You reach no problem of shortage in that respect, but if they -- if the limitation is severed from the Compact and given a separate interpretation, if the quantity is covered by the limitation or the area in red, you have this built-in shortage.

You cannot supply 7.5 million acre-feet from Lake Mead and below out of a supply limited by the Compact to 6.5 million, and that brings us to the second issue of the Master of what he does about this shortage.

Justice Arthur J. Goldberg: I don't understand.

If 7.5 million feet must, in all events, be sleuths through at Lee Ferry, then why doesn't that amount of water reach Lake Mead?

Mr. Northcutt Ely: Well, let met come to grips at once with that.

I take it, you're referring perhaps to Article III (d) of the Compact.

Article III (d) which, perhaps we should refer to at the Master's report at about page 373, is an entirely separate provision of the Compact which says this.

That the states of the upper division, that's Colorado, New Mexico, Utah and Wyoming will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75 million acre-feet for any period of 10 consecutive years reckoned in continuing progressive series beginning with the first day of October next, exceeding the ratification of this Compact.

A guarantee of a minimum supply at Lee Ferry of 75 million acre-feet for 10 years.

One of the issues initially in this case was the contention by Arizona that this 75 million is the same thing as the 7.5 million acre-feet referred to in Article III (a).

The Master rejects that contention and does so properly in our review.

And, I -- well, at page 144, he disposes of that.

Justice John M. Harlan: If it becomes necessary to exclude the Compact, how could we do that with the absence of all the Upper Basin States?

Mr. Northcutt Ely: We raise the same question here, Your Honor.

When we moved to join them, the Court ruled against us by a divided vote.

The Mater does construe the Compact.

It's a foundation of his report, although he says that it cannot be construed it their absence.

Justice John M. Harlan: Then, by one of those durations, it's difficult reaching the conclusion there, but he ends up by saying the Compact is irrelevant for the purposes of this litigation.

If he's rights then, of course, the absence of the Upper Basin States is not important.

Mr. Northcutt Ely: Well, it is a -- the Compact is truly relevant as it's intertwined throughout his report in a way I've just described, but it's relevant in another sense, to which I'll come to on the third issue of justiciability.

The Master, as you'll see in the page I'm about to read from, does construe the Compact.

He does so repeatedly throughout his report.

If he didn't, he couldn't reach the conclusion he does.

He says that, lastly, Arizona argues that Article III (a) relates to the mainstream only because III (a) and III (d) are correlative.

III (d), being III (a) multiplied by 10, and Article III (d) is fairly a mainstream measurement.

This argument is unacceptable since Article III (a) imposes a limit upon appropriation whereas III (d) deals will the supply at Lee Ferry, an interpretation which makes these two provisions correlative, one to another, as inadmissible since a substantial quantity of water is lost through reservoir of operation and channel losses as it flows from Lee Ferry, the point where the III (d) obligation is measured, to the diversion points downstream from Hoover Dam where most of the appropriations are made.

7,500,000 acre-feet of water at Lee Ferry will supply a considerably smaller amount of appropriations below Hoover Dam.

Moreover, III (a) extends to appropriations on Lower Basin tributaries, as well as the mainstream.

Such appropriations cannot possibly have any relation to the quantitative measurement of the flow of the water at Lee Ferry.

We think he's entirely correct on that.

Justice Potter Stewart: Do you agree wholeheartedly on that?

Mr. Northcutt Ely: We do, indeed.

Yes, sir.

Justice William O. Douglas: What were you reading?

What page was that?

Justice Byron R. White: 144.

Mr. Northcutt Ely: That was from page 144.

Justice Byron R. White: 144, thank you.

Mr. Northcutt Ely: Let me be sure if my reference is correct.

Now, this brings me to the question what the Master does about this built-in shortage.

If the Compact is enforced, this brings us to what they call a priority issue.

This issue arises primarily from his interpretation of Section 5 of the Project Act which is also reprinted in the folder you have before you and primarily from the first and last sentences of Section 5.

Section 5 provides that the Secretary of Interior is hereby authorized, under such general regulations as he may prescribe, to a contract for the storage of water in said reservoir and for the delivery thereof at such points on the river and on said canal as may be agreed upon for irrigation and domestic uses.

It goes on with generation of electric power, recovery of cost, and so on.

And, concludes with the final sentence, contracts respecting water for irrigation and domestic uses shall be for permanent service and shall conform to paragraph (a) of Section 4 of this Act.

"No person shall have or be entitled to have the use for any purpose of the water stored as aforesaid except by contract made as herein stated.”

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: Yes sir.

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: Right.

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: Substantially so.

He rejects our contention that shortage is inevitable by holding that there's no assurance whatever, noting to indicate that the Compact will ever be invoked against us.

There's nothing to show that projects will be built in the Upper Basin to a level which will require the invocation of the ceiling upon our appropriations.

Justice Felix Frankfurter: They're not (Inaudible)

Mr. Northcutt Ely: Well, unfortunately, the answer to that is no, Mr. Justice Frankfurter.

The issue of the rapidity of Upper Basin development was not litigated.

Such references as are in the record are truly thereby accident.

Unfortunately, the facts are just dead against the Master's optimistic interpretation as our expectation, as I'll indicate by Committee reports in Congress and by a simple mathematical subtraction.

We are living obviously on borrowed water and borrowed time if we use more than 6.5 million acre-feet out of the main river.

It is -- if the Com--

Justice Felix Frankfurter: If you read the Compact of how much (Inaudible)

Mr. Northcutt Ely: Well, we think you're right.

We think the forecast of the his -- based on the history of the river is valid evidence.

He rejects it completely.

If accepted, it would show that, instead of having 6.5 million acre-feet available, we would have probably less than six in view of the latest information on the water supply of the river system, less than six.

The most we can claim is 6.5 million if the Upper Basin develops beyond its present level of about four million.

We are right at the breaking point.

We're on a collision course with the Upper Basin as of this moment.

Any expansion in the Upper Basin, as I'll come to with another chart in a moment, will bring us smacked against the imposition of this six-and-a half in the city.

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: Well, that is not the point, Mr. Justice Frankfurter.

The seven-and -- the 75 million acre-feet at Lee Ferry, the III (d) guarantee, is not the same as our 7.5 million exceeding on Lower Basin III (a) appropriations, as the Master had so clearly demonstrated.

Our 7.5 million encompasses the tributaries.

We can claim all of the main river only 5.5 million under III (a).

The 75 million delivered at Lee Ferry must, therefore -- it will be partly used up, burned up by channel losses, reservoir losses which he treats as a diminution of supply, not a consumptive use, between Lee Ferry and the diversion points and, more important, it includes the Upper Basin share of the Mexican treaty burden of the 75 million acre-feet at Lee Ferry required by Article III (d) every decade.

25 million is not available for use in the United States.

The reason is that the Mexican Water Treaty will require 15 million of that and losses -- unavoidable losses from Lee Ferry to Mexico are some 10 million acre-feet per decade in excess of the tributary inflow.

That is fundamental.

There is no equation between the 75 million III (d) delivery at Lee Ferry and our ceiling on appropriation of 7.5 million for two basic reasons.

The 7.5 million encompasses a tributary uses.

The second basic reason is that 75 million of supply at Lee Ferry must include water for Mexico in part and must include losses.

There --

Justice Felix Frankfurter: Well, this does not quantify the generosity upon (Inaudible)

Mr. Northcutt Ely: He does, Your Honor, and they are at -- on page 125.

Justice Felix Frankfurter: Mr. Ely, (Inaudible)

Mr. Northcutt Ely: No, Your Honor.

His figures I -- in fairness to the Master, I must say, if we accepted them, the si -- our situation is even more extreme and desperate.

The figures he gives for losses, we think, will be reduced in the future.

If we used his figures, the situation is truly catastrophic.

He shows evaporation from the two reservoirs below Lake Mead.

These are Lake Mohave at Davis Dam and Lake Havasu at Parker Dam.

The two of them combined, they burn up about 300,000 acre-feet a year in evaporation loss, nothing you can do about it.

Channel losses between Hoover Dam -- Hoover Dam and the International Boundary are shown there below that and, as you will see, they have averaged, for the two periods you give, something of the order of a million acre-feet.

Now, in addition, there are losses between Lee Ferry and Lake Mead.

They are just about offset by a tributary inflow there, but if you add up the losses he gives on page 125, you will see that they are of the order of 1,300,000 acre-feet per year.

And, there's no substantial tributary inflow of the Gila as fully appropriated and the Little Bill Williams River doesn't produce much.

That's the only truth.

Justice Hugo L. Black: I'm a little confused about your statement with this respect.

What do you understand, under the Compact, the amount of water which the Upper Basin is entitled to have and to use for itself?

The people have said it's to the apportionment.

Is it?

Mr. Northcutt Ely: The Upper Basin is entitled to put to use water up to the ceiling on appropriations, in the Master's expression, imposed by the Colorado River Compact.

That ceiling on appropriations is a ceiling which will come into operation when the Upper Basin is faced with the necessity of delivering 75 million acre-feet of water at Lee Ferry plus perhaps part of the Mexican burden, another problem, and the residue may or may not be 7.5 million or six million or five million.

They can use only so much water as does not interfere with the prime mortgages that the Compact has imposed upon them, (a) the Mexican Water Treaty, (b) the Article III (d) delivery requirement of Lee Ferry.

When we were before you on the adjoining argument, Mr. Justice Black, all of us at that time were raising our argument on pleadings which treated the apportionment to the Upper Basin as 7.5 acre-feet.

It is quite clear from the water supply evidence in this case that it is impossible for the Upper Basin to ever use 7.5 million acre-feet and honor its III (d) obligation.

If that evidence were not here--if that evidence were not here, the Master's interpretation, nevertheless of the Compact as imposing reciprocal ceilings on appropriations, means that the Upper Basin does not have an apportionment or title or patent or grant of 7.5 million acre-feet.

It has a ceiling imposed upon it which will come into operation long before it ever uses seven-and-a half million.

That ceiling is the one invoked to permit or make possible the flow of 75 million acre-feet at Lee Ferry.

Justice Hugo L. Black: Am I correct or incorrect in making it your argument as to what other waters have you divided in the Lower Basin must inevitably affect the amount of water which the Upper Basin can utilize of itself?

Mr. Northcutt Ely: Not -- not necessarily.

We don't -- well, it may, Your Honor, but we do not differ from the Master's approach in that respect.

Justice Hugo L. Black: Exactly how are we to accept this consultation about the Master --

Mr. Northcutt Ely: Yes.

Justice Hugo L. Black: And other self intentions whether you're arguing -- you're making reference to the apportionment of the Lower Basin, meaning that inevitably you are bound except for the apportionment of seven million acre-feet in the Upper Basin would be below that?

Mr. Northcutt Ely: No, Your Honor.

The effect on the Upper Basin is not dependent at all upon your adoption of our view of the proper allocation on the Lower Basin or the Master's view of it.

In either event, we both go on the assumption that the Article III (d) limitation or guarantee is going to be enforced and it is that which will make impossible the full utilization of their use in the Upper Basin.

That has nothing to do with how you divide up the water in the Lower Basin.

Justice Arthur J. Goldberg: How can that be a question in this case because it depends upon how much water there will actually be and nobody knows that?

Mr. Northcutt Ely: Well, Your Honor, there are two problems.

One, shall the Colorado River Compact be treated as a -- as truly a covenant among these states in operating, intended to be enforced, and did Congress pass the Project Act and require the limitation of California in the expectation that it would be enforced or shall it be treated as a scrap of paper?

We don't know whether the Upper Basin will ever develop.

We don't know what the water supply will be in the Compact.

It's, hence, irrelevant, as the Master believes.

Now, as I will indicate when I come to the third point of my argument, justiciability in water supply, the physical flow at Lee Ferry has always been of the order for any period you want to take, 10 years, 20, 30, 40, any long period has always been of the order of eleven-and-a half million acre-feet or more.

The maximum claims of Arizona, California, and Nevada, added to their Mexican requirements, added to all losses are less than 11.5 million acre-feet.

They don't have a shortage now.

There's no occasion for a cross word between Arizona and California, truly, but for the existence of the Colorado River Compact and the fact that the Compact entitles the Upper Basin to enforce against all three of us a ceiling on appropriations and, hence, reduces the supply below the claims and creates a justiciable controversy.

If the Colorado River Compact didn't exist, there'd be no justiciable controversy here because, in that event, the rights of state versus state, basin versus basin, would be controlled by the law, the rule this Court has developed of equitable apportionment, priority of appropriation as a primary consideration.

The Arizona appropriations, and ours, and Nevada's are all senior to a new undreamed of projects in the Upper Basin.

We wouldn't be before you.

The quarrel would come someday when the Upper Basin states endeavor to bring forward these junior projects and collide it with Arizona, California, Nevada senior projects.

We're here, today, only because the Colorado River Compact exists.

What meaning shall be given to it?

Does it or does it not impose upon the Lower Basin states a ceiling on their appropriations?

If it doesn't, we have no quarrel with Arizona.

This case is not justiciable.

If the Compact, however, is given effect, then the ceiling on our appropriations in the Lower Basin from the main river is 6.5 million acre-feet.

The Master's requirement would give us 3,800,000 acre-feet for California, which is 800,000 acre-feet less than our existing uses at the time of trial.

Some of our projects are going to be destroyed.

It happens to be the Metropolitan Water District.

But we'd be just as disturbed about it, on behalf of the state of California, if it were Palo Verde or All-American, or any other.

You don't destroy existing uses, existing projects to build a new one under any law this Court has devised heretofore.

You're only driven to that if the Colorado River Compact has restricted the supply available to these three states and has given some effect and if you construe the limitation on California, although it is terms of the same Colorado River Compact, Article III (a) as being an inappropriate reference.

Somehow, the resource of supply is limited by the Compact but we're told to divide it up on a formula which, although it uses Compact terms, did so inappropriately.

Justice Felix Frankfurter: Too much of the Limitation Act do environment meets the requirement.

Mr. Northcutt Ely: We think exactly so.

Yes, we want to do that.

We -- we will --

Justice Felix Frankfurter: Suggest that the Compact adhere.

Mr. Northcutt Ely: Yes, sir, and I will develop that.

In this legislative environment, the limitation has to mean the same thing that the Compact means.

These -- the upper states couldn't get a seven-state Compact because Arizona rejected it.

The next best thing was a six-state Compact accompanied by a limitation enacted by California.

You can't accomplish the purpose of a seven-state Compact by the substitute device of a six-state Compact that had collateral agreement by California, unless a collateral agreement by a California written in Compact terms means the same things as those same terms in the Compact itself.

This -- this problem can be simplified in this way.

So far as the limitation issue is concerned, I'm not talking about the priority issue now, the limitation issue, does the Limitation Act, when it says “Compact” mean Compact?

It's just that simple, just that simple.

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: You're right, Mr. Justice Frankfurter.

The Master's report reduces this great controversy, this dispute over the destinies of these states to a problem of parsing sentences in the statute.

It's not that simple, it's not that simple.

We have involved here the history of four decades of interpretation controversy over the meeting of the Colorado River Compact and, in fact, I analogize it in this way.

With respect to the limitation issue, we're somewhat like five partners who are attempting to draw drafts against the bank account in a bank that has country branches, the tributaries, and there's 7.5 million dollars involved that we can draw drafts against.

California has made an agreement.

We will not draft more than $4,400,000 against that total account in the main office and all the branches.

And, that leaves a residue of $3,100,000 we're precluded from.

Our partners go to the branch banks and cash drafts for $2,000,000, that's the tributary banks.

And then, they come to the main office and say “Here's our draft for $3,100,000.”

We say "You can't do that.

You've already drawn $2,000,000 out of the country banks."

They say “No, this reference to the country banks is inappropriate.

You just give us this $3,100,000, out of the main office and we will keep the $2,200,000."

And, California says “You can't do that.

We got a claim for $4, 400,000.

There's only $5,500,000 on deposit at the main office."

And then, the Master says, “Well, that being so, we'll prorate and see,” and they'll prorate.

Our draft is good.

This is our agreement.

Now, to come to this question of priorities, what do you do when you don't have the resource to pay?

And before I do that, let me say I'll analogize this in another way.

We're like people who quarrel for 30 years over a contract that says it's governed by the laws on New York, incorporates a New York statute by specific reference.

It's Article III (a) of some New York statute.

And, after the trial is all over, all argued, all briefed after three years, the decision comes down from the Master.

“The reference in your contract to the laws of New York was inappropriate.

It should have said North Dakota.”

Now, that's a little late and he is very candid about this.

In oral argument in New York, when they called this to his attention and said, “Nobody -- nobody in 30 years has ever suggested, has ever litigated the idea that the limitation, when it says paragraph (a) or Article III of the Colorado River Compact doesn't mean that, it means the red water from Lake Mead down, it doesn't mean the system.”

Nobody's ever suggested that.

They only said, “I agree with you.”

But if this were -- if this were a patent case, I'd claim novelty on it.

Well, novelty in a patent case may be a very good idea but it's not a good way to offset a rule properly.

Justice Felix Frankfurter: Mr. Ely, is there a great big difference in meaning.

No quality interpretation has explained it and the Court at least who adjudicated this (Inaudible).

Mr. Northcutt Ely: Well, of course you're right, Mr. Justice Frankfurter.

What I am attempting to say is that this has become a rule of property through four previous -- three previous decisions of this Court.

Administrative actions, investment of $600 million in the California Projects, you don't likely offset all that by a patent or novelty.

Justice Felix Frankfurter: So, you might even say this has not been indicated for 30 years until it changes for the Master.

Mr. Northcutt Ely: It wasn't litigated there.

That's my point.

Nobody made this issue.

Justice Felix Frankfurter: What?

Mr. Northcutt Ely: It wasn't before this Court on the joint of motion.

Justice Felix Frankfurter: Perhaps that's the contention that your argument is supposed to indicate but is bound by the social conflict of it.

Mr. Northcutt Ely: No, I do not -- I do not mean that.

I mean to say that you don't offset the -- by the parsing of -- by the parsing of sentences, you don't --

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: Exactly so, and I'm saying that even if his interpretation might have had basis, as of June 25, 1929, President Hoover had proclaimed this to be interpretation or, on December 21, 1928, President Coolidge had.

Then, we would have had a clean slate.We could have decided do we or don't we take the gamble on this?

Do we or do we not build a Metropolitan Aqueduct that cost $600 million based upon the expectation of no water at all for it if the Compact is ever invoked?

That wasn't the gamble we took at all.

Justice Felix Frankfurter: Wasn't that what he brought here?

He might have written a conclusion.

Mr. Northcutt Ely: You're right.

I'll read you a little later from what he does say on that.

It's appalling.

All it really is an assumption of abundance into the future.

Now, the priority issue, I've been on the edge of that for a while.

The priority issue is simply this.

If there is not enough water to satisfy the 7.5 million acre-feet within the III (a) apportionment from Lake Mead down, the Master's mainstream, you have a -- not Mead again.

If we don't have within the red area on this -- on this map 7.5 million acre-feet to satisfy the claims within the III (a) apportionment, what do you do about it?

The Master says we are going to prorate.California shall have 44/75 of whatever is there.

Arizona 28/75, Nevada, 3/75.

The 44/75 for California he gets out of his interpretation of the limitation, which I have read to you.

We would have had 4,400,000.

If 7.5 million were there, he's going give us 44/75.

The shares for Arizona and Nevada are 2,800,000 and 300,000.

He gets that -- those out of contracts which the Secretary of Interior made in 1944 with those two states.

I'm going to postpone discussion of that until I reach it in the chronological order but, for the moment -- for the moment, I shall simply say that the Master proposes to prorate the quantity available.

Now, that is irrespective of the fact that the projects affected in California are built existing -- using water more than 4,400,000 acre-feet.

The projects in Arizona that, on the same proration schedule of 28/75, would get something like 2,240,000 acre-feet -- 2,400,000, excuse me -- 2,400,000 would go to Arizona.

All of their existing projects, when fully developed, will use about 1,100,000 -- 1,200,000.

Water will, thus, be set aside for expansion in Arizona to the extent of about 1,200,000.

In other words, about double the requirements of their existing projects.

As to Nevada, the result percentage-wise is more extreme because they're using very little.

California says that, in the event of shortage, it should be borne by application of the rules this Court has developed in its equitable apportionment cases.

Their priority of appropriation is a guiding principle, modified by the rule that you do not destroy existing uses.

We rely upon both legs -- both legs of the equitable apportionment rule as developed here.

Our priorities are senior.

Our uses are in existence.

Never before has this Court abrogated the rule of priority of appropriation, destroy its existing uses to set aside water for future use by projects which, in the Master's expression, may never come into existence except by acts of Congress hereafter.

Now, we say that if he's right about that, if the shortage depends upon the enactment of statutes hereafter to authorize new projects, then maybe we're litigating the wrong statute and doing so prematurely because if the harm is going to be occasion not by what's in the Boulder Canyon Project Act but by what Act X by a senator whose yet to un-elect it says, "Then we are here before you prematurely because if the new statute that authorizes the new project says on its face, this is without prejudice and subject to the priorities of projects now in existence, we have no quarrel to that sort of a statue.”

If the new project will take that risk, as Attorney General Mosk told you, our quarrel is with the fact the risk is thrown upon our existing projects and that's not right.

Justice Felix Frankfurter: Mr. Ely, may I ask of you about the judgment of the jury, I can bring you any prejudice of the jurisdiction, starting with the jurisdiction of the fact of this litigation.

By litigation, I mean consider the attempt to (Inaudible).

Are you saying that (Inaudible) concluded a legal appeal doctrine that was involved, he had rejected an unconditional doctrine?

Mr. Northcutt Ely: The latter, sir.

Justice Felix Frankfurter: Can it -- can the Court mean (Inaudible) not been involved?

Mr. Northcutt Ely: I think, Your Honor, the answer -- I think the answer is -- the answer is no.

I believe that, truly, I must give you that answer but that isn't quite our situation.

The trouble is that the Master decided the case was never litigated, never pleaded, never at issue.

Justice Felix Frankfurter: That's why you at -- you'd take (Inaudible)

Mr. Northcutt Ely: That is right, sir.

Had they heightened this, I'd put it in a nutshell.

Had Arizona's bill of complaint tendered here in 1952, which California respond, “We have no objection to the filling of this bill.

We want this controversy decided.

That is our response.”

Had the Arizona bill of complaint then tendered said on its face what the Master's report now says, that complaint would have read something like this, “Arizona desires a determination of the availability of water supply for its proposed Central Arizona Project.”

We have not made up our minds where we're going to divert, whether above Hoover Dam or below.

We are next to a bill of complaint on map which shows the three routes were now considering.

Two of them are shown in blue on the map behind me and in front of you, map A or map B, either one.

The third is shown in red below Hoover Dam.

We desire a decree that will say that if we divert below Hoover Dam, the diversion from the Central Arizona Project with about 1,200,000 acre-feet is to be encompassed by the decree and charged against the 2,800,000 acre-feet we want.

But if we decide to build this above Hoover Dam to divert from Rich Canyon or Marvel Canyon, the two routes, I may interject, that are now under active investigation, then that water is to be in addition to the decreed water and not encompassed within it.

That is what the Master's proposed decision says.

Now, if that bill of complaint had said that and had gone on in paragraph two to say what the Master says that there is no indication of shortage for California's projects or for ours, including our proposed Central Arizona Project, unless and until Congress authorizes vast new projects, some of which are as yet unformulated in the Upper Basin, then had gone on to say that, “We desire a construction of the limitation which shall say that the references to the Colorado River Compact were inappropriate and we want a pro rata wiping out California priorities for your existing projects."

Point one, do you think we would have acquiesced in the filing of such a bill with a method of threshold, as the three earlier suits were met, by opposition to the filing of such bill and, second, I don't think this Court would ever permit it to be filed.

It shows on its face a non-justiciable controversy, one that says that the Colorado River Compact may or may not ever be invoked.

It's irrelevant.

The pleadings that came here presented precisely the opposite issue.

You may recall Arizona tendered three issues.

They all involved the Colorado River Compact.

What she said was that the California Limitation Act imposes on California a limitation written in terms of the Colorado River Compact.

There is a dispute between us -- a dispute between us as to whether the beneficial consumptive use chargeable to Arizona shall be reckoned by diversions less returns, as California says and as the Master holds, or on some basis more favorable to Arizona.

They call it "depletion theory."

I won't go into that.

And, second, what do you do about reservoir evaporation losses?

Are they treated as a consumptive use chargeable within the Compact, chargeable within the Limitation Act?

The Master says, "No, they're not.

They're a depletion of -- diminution of supply."

And, third, Arizona's pleading said, "Is California precluded from the million acre-feet of so-called III (b) water?"

Master decides that for us, too, "No, we're not precluded.

We can share in it."

The three issues tendered were those upon which we took a calculated risk in building our projects and we won all three of them.

We're glad to have those litigated and decided, but we'll lose this case here because the Master decides it upon an issue never tendered.

Had it been tendered, it would've been within the compass of a complaint which on its face, we think, would have shown a non-justiciable controversy.

Justice Felix Frankfurter: In effect, (Inaudible)

She has agreed (Inaudible) that she wanted to involve the (Inaudible).

Mr. Northcutt Ely: Yes.

Justice Felix Frankfurter: In fact, it's there, isn't it?

Mr. Northcutt Ely: Substantially so, sir.

Justice Felix Frankfurter: (Inaudible).

He pretty much exercised the conviction in a desperate (Inaudible) if the plea was entered to recognize the cause and he insisted that he couldn't use what the (Inaudible) exact way to do it with contention to (Inaudible).

Mr. Northcutt Ely: Well, I would say so, Your Honor, because she alleged that the claims of the two states were mutually exclusive.

The premise of the Master truly is that they are not mutually exclusive because you won't know until new projects were authorized in the Upper Basin, vast new projects, where there may not be water enough for everybody.

If this were -- the dispute would involve the Mississippi River and were a controversy between New Orleans and Memphis, you wouldn't care what their formula was.

There'd be so much water, you just wouldn't care.

You -- it's the fact that the formulas applied against a water supply that either is or is not limited by the Colorado River Compact that brings us here.

The Master says, "It's not."

If not, then why are we here?

Justice Hugo L. Black: Still, it wasn't impaired by the fact that he indeed (Inaudible) turned back the subjects.

Maybe I -- do you tend to the fear of danger in California's existing conflicts on the basis that the Upper Basin may use the water which is entitled to you by the Compact.

Mr. Northcutt Ely: Or even a major fraction of it, yes, sir.

Justice Hugo L. Black: What if --

Mr. Northcutt Ely: Or even a major fraction of it, yes, sir.

May I have -- let me come to --

Justice Hugo L. Black: Does that mean that you really have a controversy there with the Upper Basin?

Mr. Northcutt Ely: No, not at all, Your Honor.

If the Upper Basin honors its III (d) minimum commitment, which of course it will, then that is a -- that is the reason why the Upper Basin cannot expand very much.

Justice Hugo L. Black: What I understood -- that's why I want to be clearer.

What I understood was, you mean to say, they use that potential, I presume it means that they are authorized to use under the Compact and then California would suffer, you say, without the Compact.

Mr. Northcutt Ely: No.

I have not made myself clear.

Let me come to grips with that.

May I have chart 3?

Justice Arthur J. Goldberg: As I understand you, Mr. Ely, does it come down to this?

Your claim is that Arizona should be charged with the water that it may remove from the Colorado River between Lee Ferry and Lake Mead.

Mr. Northcutt Ely: In part, that is a very important part of our contention.

The other is that --

Justice Arthur J. Goldberg: What else?

Mr. Northcutt Ely: The other is that Arizona is accountable, chargeable for her uses upon the tributaries, the Gila primarily.

Let me put it this way.

The Limitation Act excludes us from 3,100,000 acre-feet of the waters referred to in paragraph (a) of Article --

Justice Arthur J. Goldberg: Well, I understood -- I intended to say from the Colorado River including its tributary --

Mr. Northcutt Ely: That is correct.

Justice Arthur J. Goldberg: -- the system --

Mr. Northcutt Ely: That is right.

Justice Arthur J. Goldberg: -- between Lee Ferry and Lake Mead, is that it?

Mr. Northcutt Ely: No, it includes -- our problem includes the Gila which comes in below and the Gila is the greatest of the items involved in the equation.

Justice Arthur J. Goldberg: I see.

Mr. Northcutt Ely: It's -- it's this, Your Honor.

We're precluded from 3,100,000 acre-feet of the waters referred to in paragraph (a) of Article III.

We've agreed to that.

Can 3,100,000 acre-feet be claimed in its entirety from the stretch of the river from Lake Mead to Mexico, the area in red on the maps before you, or may it be claimed instead from the area in red plus the tributaries shown in blue?

We say the latter.

If we we're right, then some-two million acre-feet of that 3,100,000 is accounted for by those tributary uses not over 1,100,000 maybe acclaimed within Article III (a) from the main river, the red area, by Arizona and Nevada.

Justice Felix Frankfurter: Does Justice Black's question become circling in cases where there was planning in tributaries in the Lower Basin?

Mr. Northcutt Ely: No sir.

It --

Justice Felix Frankfurter: Although it's been briefed -- it's been briefed.

Could you please answer this question?

Mr. Northcutt Ely: I will try to.

Justice Felix Frankfurter: Are there something that the rule does not require? The rule is not -- they're not part of the exhibit on --

Mr. Northcutt Ely: I'll try to --

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: I'll try to do it both ways.

Justice Felix Frankfurter: Is that not the real question of it?

Mr. Northcutt Ely: I'll -- I will try.

Justice Felix Frankfurter: But, it's a (Inaudible) if you have a group of waters that bind the state, or so put it, then you have no problems with reference to the Upper Basin, is that it?

Mr. Northcutt Ely: We don't have any reference to any quarrel with the Upper Basin in either event, but we --

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: I'll -- I will -- I'm not sure I understand the difference in the two questions of which I'm confronted, but I'll do my best to --

Justice Felix Frankfurter: Well, my --

Mr. Northcutt Ely: To sort them out.

Justice Felix Frankfurter: My mind is very in eagerness to get your answer.

Mr. Northcutt Ely: Yes, sir.

I'll try, I'll try.

Justice Hugo L. Black: Mr. Ely, I'll simply ask you just to redefine to permit the basin -- the Upper Basin that you may be part of it.

As I have understood your argument, a large part of it has been based on the Upper Basin is entitled to get -- is or is not entitled to get a certain amount before it goes downstream.

Now, what I'm asking you is, suppose there were only -- if it turned out to be only 12 million acre-feet available both below and above, is it your argument that the Upper Basin has to lose a part of its 7,500,000 feet?

Mr. Northcutt Ely: Yes, but not in consequence of any division you may make between Arizona, California and Nevada.

It's in consequence of Article III (d)'s guarantee of 75 million every 10 years and a consequence of the obligation assumed in Article 3 (c) --

Justice Hugo L. Black: Of the Compact.

Mr. Northcutt Ely: Of the Compact.

Justice Hugo L. Black: And, that --

Mr. Northcutt Ely: It does not have anything to do with how you decide Arizona versus California.

Justice Hugo L. Black: If that is true, can we decide your problem without deciding one way or the other on what the Upper Basin is entitled to receive?

Mr. Northcutt Ely: Well, we don't ask you to decide what the Upper Basin is entitled to receive.

Justice Hugo L. Black: Or to keep.

Mr. Northcutt Ely: Or to keep.

What we do say, Your Honor, is that a simple mathematical subtraction will show you that the Master is unfortunately wrong in his optimistic assurance of plenty to us.

If I may have your attention to this chart behind me, the line one -- first of all, this chart is -- shows the Upper Basin depletion which would not impair the Lower Basin mainstream supply of 7.5 million acre-feet of consumptive use.

This is the Master's premise that there is nothing to indicate, for the foreseeable or the unforeseeable future, developments in the Upper Basin that will reduce the Lower Basin below 7.5 million acre-feet in the red segment of the river.

This table is in millions of acre-feet of consumptive use per year.

The first column gives descriptions.

The second column is captured in maximum of a 48-year period, 1909 to 1956, the next column, minimum of 27-year period, 1930 to 1956.

Now, let me explain these captions first.

If you'll turn to page 118 of the Master's report, you'll find tabulated there the so-called undepleted or virgin flow of the Colorado River at Lee Ferry.

This is a term devised by the Bureau of Reclamation.

It is a calculation by the Bureau and published by the United States Geological Survey of the quantity of water which would have been flowing at Lee Ferry in each of these years had there been no Upper Basin depletions whatever.

This does not say that the flow of the river in 1792, the virgin undepleted flow would be such and such.

It's a calculation of how much would've been there in the year 1951 had there been no Upper Basin depletions.

Now, this method of calculation was developed in the trial.

It's used by the Bureau of Reclamation.

These figures are accepted by all of us.

I don't tell you that you can -- anybody can perform this calculation to a precision.

It's Arizona's evidence.

We don't -- we use it all as a working tool.

Now, the Master shows at the bottom of the page the averages for poor selected periods.

The greatest of these is the figure 15,211,000 acre-feet for the period of 1909 to 1956.

Justice Felix Frankfurter: I'm sorry, where are you?

Mr. Northcutt Ely: Page 118, sir.

Justice Felix Frankfurter: 118?

Mr. Northcutt Ely: Yeah, 118.

Justice Felix Frankfurter: Thank you very much.

Mr. Northcutt Ely: The largest of these is the figure 15,211,000 acre-feet per year.

This is flow, not consumptive use, for the period 1909 to 1956.

If you select any other period, you are dealing with a smaller resource.

Justice Potter Stewart: Why is that?

Mr. Northcutt Ely: The reason, Your Honor, is that in the -- they do not install gauges at Lee Ferry until 1922.

Before that time, all of the flows rest in us.

And, before that time, the --

Justice Potter Stewart: Before that, you said --

Mr. Northcutt Ely: Pardon me?

Justice Potter Stewart: You said before that -- estimate.

Mr. Northcutt Ely: Estimate, yes, sir.

Justice Potter Stewart: I beg your pardon.

Thank you.

Mr. Northcutt Ely: They are estimates and the figures are inflated by the fact that in those estimates appear some tremendous floods which are ga -- estimated only by the height the River rose by leaving debris on the canyons.

Any figures before 19 --

Justice Potter Stewart: 1909 is a very important date.

Mr. Northcutt Ely: That's right sir.

Justice Potter Stewart: Before 1914.

Mr. Northcutt Ely: 1909, 1912, 1914, 1917.

Justice Potter Stewart: 1921?

Mr. Northcutt Ely: No.

To pose error, you may remember Wyoming versus Colorado.

The Court threw out the evidence of the four biggest years.

It said it wasn't going to depend on them.

If you did that here, you would throw out these tremendous flood years for two reasons, one, because nobody knows that these floods really happened and, second, because if they did happen, the flood is so tremendous, it's beyond the capacity of any reservoir to fully save and equate.

You're going to lose part of it by a spill to Mexico.

Anyhow, the total resource, the whole universe, is shown in the four lines at the bottom of the page.

If you're optimistic, if you believe that the flows of 1909 are really going to come again or 1917, and that you're going to have reservoirs big enough and empty enough to catch them and save them and use them then, in that event, assume a virgin flow of 15,200,00 acre-feet as being your resource.

If, on the other hand, you -- you're cautious, take the period that began with the period you selected in Nebraska versus Wyoming, 1903, and I -- in that event, you'd have 13,085,000.

That's the whole resource if neither basin -- I mean, if the Upper Basin was not using a singled drop.

Now, if you're still more pessimistic, you wouldn't use any of these four figures.

You'd use the one from 1931 to 1940.

That's the period by coincidence.

That was the limiting drought period in Nebraska versus Wyoming and, in that event, you'd be down to less than 12 million, about 11.5 million.

Now, if you'll turn to my chart, under the maximum column, we have started with the most hopeful of these figures, 15,200,000 acre-feet per year of undepleted or virgin flow, from page 118 of the Master's report.

And, under the minimum per -- column, we have taken the least optimistic that for 1930 to 1956, 13,100,000.

Now, in line two, we have subtracted the two figures that must be subtracted to determine what residue the Upper Basin can actually use consistently with the III (d) requirement.

If the Master is right, the 7.5 million acre-feet can -- is going to be consumed from the red segment of the river and if Mexico is going to get its 2.5 -- its 1.5 million acre-feet, and if this million acre-feet of losses is going to be met, then there must flow at Lee Ferry every year a constant or an average at least of 10 million acre-feet.

Now, if you subtract that obligation and decide what the residue the Upper Basin has for itself, line three shows it.

If you're dealing on the hopeful basis of the maximum resource, 15,200,000 acre-feet of virgin flow, then the Upper Basin would have left 5,200,000.

If you're dealing with a more pessimistic assumption of virgin flow, the Upper Basin would have left 3,100,000.

Now, let me pause there.

Those are the figures that I am talking about, not 7.5 million apportioned to the Upper Basin.

Line four shows for you the existing and authorized Upper Basin depletions.

Those are in evidence.

Those are -- a report from the United States Bureau of Reclamation to the committees of Congress.

As to the depletions to be occasioned by projects already authorized or already in existence in the Upper Basin, you can't do anything about that.

That is water literally over the dam.

That is 3,900,000 acre-feet.

Subtract that and line five shows you the margin remaining for Upper Basin depletions if the Lower Basin is to have from the red segment of the river 7.5 million acre-feet of consumptive use.

Justice Potter Stewart: Well, I know all that all adds up, but I gather -- get it that the III (d) in Mexico requirement even at the maximum, as you put it, most encouraging protection, mean that the Upper Basin can never have seven-and-a half.

Mr. Northcutt Ely: Precisely.

Precisely.

That is right.

They cannot expand more than 1,300,000 acre-feet above their present authorizations and the Bureau of Reclamation has also projected the date at which the million hundred -- 1,300,000 acre-feet will be put to use and it's within a few decades, about the length of time since the Compact was signed.

Justice Hugo L. Black: Do we have to decide that here as to what maximum the Upper Basin can have?

Mr. Northcutt Ely: No.

I would say, Your Honor, that if the -- I'd put it the other way around that it would be breaking all precedent that you established in the Nebraska versus Wyoming and Wyoming versus Colorado where you did examine water supply so carefully to proceed on the assumption that nothing can happen here to interfere with the prospect of abundance.

Of course it can happen here.

The Colorado River Compact is looking us in the eye and you cannot assume that the Upper Basin is going to fold its hands and say “we quit.”

We have an apportionment of perpetuity, it says here, seven-and-a half million but we're content with 3,900,000 now on the books.

Of course not, bills are pending in Congress at this moment to increase that.

Justice William O. Douglas: Could you stop for a minute?

Give me the reconciliation between the table that you've been referring to on page 118 of the Master's report and the one on the previous page, 117.

Mr. Northcutt Ely: Yes, sir.

Justice William O. Douglas: They're both there at the same measurements at the same place and the same units but they're vastly different.

Mr. Northcutt Ely: They are, Your Honor, and this is the reason.

The 117 table is captioned "Historic flow of the Colorado River at Lee Ferry,” the emphasis toward “historic flow.”

That is the measured flow since 1922, the estimated flow prior to that time.

That is what in fact was there.

118 is the calculation by the Bureau of Reclamation engineers as to what would have been there if there had been no Upper Basin depletions at all.

It is called the undepleted or virgin flow.

The total Upper Basin depletions are of the general order of two million within the period covered by these two tables.

It's of the general order of two million acre-feet if you -- excuse me?

Justice Felix Frankfurter: (Inaudible)

Mr. Northcutt Ely: If you -- and that represents, in general, a magnitude of the difference between them not year by year but on average.

Justice Felix Frankfurter: When did you say that gauges were introduced at Lee Ferry?

Mr. Northcutt Ely: 1922, Your Honor.

Justice Felix Frankfurter: Well, is the big thing is that, even after that, the figures differ between the historic flow and the virgin flow.

Mr. Northcutt Ely: It would be, Your Honor.

Let me be clear on that.

It should be different for every year.

By historic flow, perhaps that's the wrong word for it, I don't mean by that measured flow, I mean that the physical flow actually there with the measure estimated.

Justice Felix Frankfurter: Well, I've -- my question and my ignorance is why should they estimate after they had meet and measured it accurately?

Mr. Northcutt Ely: Well, they didn't, no.

The -- let me just take this up from 1922 on.

The equation is simply this that the historic flow on page 108 -- 117 plus the upstream depletions, more or less two million, should equal the virgin flow shown on page 118.

Justice Potter Stewart: As a matter of fact, the page, as I gather, only gauge what goes through and you have to add the depletion --

Mr. Northcutt Ely: That is correct, sir.

Justice Potter Stewart: To get the virgin flow.

Mr. Northcutt Ely: That is right.

That is exactly so.

You take the historic flow shown at page 117.

That sh -- the gauges show it went through there.

Add to it the depletions to arrive at the figure shown on page 118.

Justice Potter Stewart: The virgin flow is an imaginary figure.

Mr. Northcutt Ely: Yes, sir.

It's a hypothetical figure.

Justice Potter Stewart: A hypothetical?

Mr. Northcutt Ely: Yes, it's imaginary.

Justice Potter Stewart: But, with the flow -- what flow would've been if nobody above had taken any water out.

Mr. Northcutt Ely: Exactly so.

And, it's a concept everyone has difficulty in accepting but that's the tool that we work with.

Justice Felix Frankfurter: Clear up some more on my part.

What do you gauge if it's imaginary?

What imaginary figure the gauge has gauged?

Mr. Northcutt Ely: Well, that's the, imaginary perhaps is the wrong word, hypothetical flow.

You want -- you know as a --

Justice Felix Frankfurter: I'm still troubled.

I don't understand what you measure.

Mr. Northcutt Ely: Well, we have --

Justice Felix Frankfurter: How do you measure the imaginary?

Mr. Northcutt Ely: We've had the same trouble we pursued there as on the witnesses on this subject but, in fairness, what it comes down to is simply this.

That if you -- if you wanted to know how much water was flowing to great falls above the -- in the platonic here, you'd go up and measure.

But if you wanted to know how much water would be flowing there if no diversions have been made upstream by any community above, then you'd have to find out what those diversions were and add them back in.

That's the difference.

Justice Potter Stewart: That's not really hypothetical.

Justice Felix Frankfurter: Is that the basis of the objectivity and--

Mr. Northcutt Ely: That's right.

Oh yes, it's not -- I used wrong word, imaginary.

Justice William J. Brennan: It didn't actually go through to the extent that it had been depleted before it got there, but you can arrive at what had been depleted before it got there.

Mr. Northcutt Ely: As you can calculate for the reasonable accuracy of the upstream depletions, you can go there and measure it and you add it into the historic flow at Lee Ferry and you have the sum is equal to what would have been the undepleted flow or the virgin flow.

Justice Potter Stewart: Because I suppose you have to adjust it.

I don't want to get too complicated for the evaporation.

Mr. Northcutt Ely: Oh yes.

Justice Potter Stewart: That would've occurred.

Mr. Northcutt Ely: It's --

Justice Potter Stewart: Other water that, in fact, was depleted.

Mr. Northcutt Ely: That is correct.

It is an engineering equation but you're correct.

Justice Felix Frankfurter: But, after we've had the figures of the exposition in your part, is it true that all this is irrelevant to the problem we have to face on your -- on the basis of your argument that, in any event -- in any event, what goes through -- what gets to the Lower Basin is unaffected by what the Upper Basin may get out of its hypothetical or out of this abstract seven million fund?

Mr. Northcutt Ely: Well, my -- the thrust of my argument is simply to answer the Master's reassurance to us, there's no possibility of shortage, the Compact is irrelevant.

You're concerned what Congress does here after, I don't know, it may never build this project.

Justice Felix Frankfurter: What I was -- in answer to Justice Black's question is we needn't bother about these figures, whatever may be the differences, the fact is that 7,500,000 is merely an unreal ceiling for the Upper Basin.

Mr. Northcutt Ely: That is correct.

That is right.

It can never -- it can never --

Justice Felix Frankfurter: And that's your position.

Mr. Northcutt Ely: That is correct.

That's right.

And that's the thrust of this table that --

Justice Potter Stewart: Before you -- excuse me.

Mr. Northcutt Ely: Pardon?

Justice Potter Stewart: Are you -- about ready to leave --

Mr. Northcutt Ely: Yes, sir.

Justice Potter Stewart: Part of this charge?

Mr. Northcutt Ely: One final figure which is in the red on the chart before you shows that if you assume the resource is only the undepleted flow of 1930 to 1956, why, Armageddon is already here.

The Upper Basin can't supply 3,900,000 acre-feet of projects that's already built or is building now by -- to the extent of 800,000 acre-feet and still meet its III (d) obligation of 75 million and the -- its share of the maximum treaty burden.

We're busted -- somebody's busted now.

Justice Potter Stewart: Well, I'm -- I may be a bit confused but item 2 there, II (a), the downstream requirements use -- put the 7.5 million there for consumptive use form the mainstream.

Your point is that it's not limited to the mainstream.

Mr. Northcutt Ely: Exactly, Your Honor.

Justice Potter Stewart: This as though accepting the Master.

Mr. Northcutt Ely: That is right, yes, sir.

Justice Potter Stewart: Is that it?

Yes.

Mr. Northcutt Ely: We're -- we are trying to meet his hypothesis that there is no possibility of shortage of 7.5 million from the red area, the mainstream, from Lee Fer -- from Lake Mead to Mexico.

Justice Potter Stewart: I see.

Justice Felix Frankfurter: May I ask this question?

I uphold Justice Black's question.

The answer that you give, we can forget all about the Upper Basin, there's no bearing to the -- on the controversy.

That's true, isn't it?

That's your essential position.

Mr. Northcutt Ely: Essentially so, I -- probably, if I thought it through, I'd hinge a little but, essentially, that's right.

Justice Felix Frankfurter: Subject to that lawyer's reserve, do you speak for all the parties when you said that's your position, the Upper Basin -- the waters of the Upper Basin is unrelated to our problem?

Mr. Northcutt Ely: By other parties, you mean our opponents?

Justice Felix Frankfurter: All, yes.

Mr. Northcutt Ely: I certainly hesitate to speak for our opponent.

Justice Felix Frankfurter: But, I mean, from what -- from what their position as known to you.

Mr. Northcutt Ely: Well, the Arizona --

Justice Felix Frankfurter: I didn't mean to have you speak for them, but --

Mr. Northcutt Ely: I -- I am certainly get in trouble if I do.

Justice Felix Frankfurter: No, I understand that but, as far as you understand that.

Mr. Northcutt Ely: Well --

Justice Felix Frankfurter: Is that part of your answer?

Mr. Northcutt Ely: No.

I'm -- may this Your Honor, the position taken in Arizona's exceptions is that the Colorado River Compact has been misconstrued by the Master.

It's said, imposes a greater burden on the Upper Basin and we say it does.

They say the seven-and-a half million of III (a) water, the million of III (b) water is all to be found at Lee Ferry and the Compact itself excludes all the tributaries.

We don't argue with it.

Justice Felix Frankfurter: Because I understand that, but --

Mr. Northcutt Ely: And, if that's so, then the figures I have left here for Upper Basin margins would have to be shrunk in material.

Justice Felix Frankfurter: But -- I know but, in all event, they wouldn't have to be -- they wouldn't be expanded, would they?

What I want to know is whether the basics of your argument that the relation, the interest of the Upper Basin States on the water from Colorado are not relevant -- is not a relevant problem for the disposition of this case by us.

Mr. Northcutt Ely: Well --

Justice Felix Frankfurter: If it is, then, from my point of view, we're in trouble.

Mr. Northcutt Ely: Well, from the --

Justice Felix Frankfurter: From -- you are then adjudicating rights that aren't before us.

Mr. Northcutt Ely: Well the -- if the Mas -- let me -- let it cross-grain a little bit.

If the Master is right that the Compact is irrelevant, then we say you don't have any justiciable controversy because our water supply is unlimited.

The historic flow has exceeded anything we've ever asked.

Justice Felix Frankfurter: We've got a limitation statute?

Mr. Northcutt Ely: Well, we intend to abide by it, but when I say the -- where the supply exceeds the demands, I am taking as California's demand, the demand limited by the limitation agreement.

If you add up the requirements of these states, California limited by our limitation statute, Calif -- Arizona's demand for 2,800,000, 300,000 for Nevada, you're well under 9 million acre-feet.

Add in Mexico, add in losses, you're well under 11.5 million.

And, the historic flow --

Justice Felix Frankfurter: If it comes down?

Mr. Northcutt Ely: Yes, exactly so, if it comes down.

Now, the historic flow upholds -- on page 117, the flow that's always been there in the past for any period you want to take ending in 1958, whether it's 10 years, 20, 30, 40, roll the calendar back as you wish, it has always been an average of more than eleven-and-a half million acre-feet.

We have no quarrels with anybody.

It's only the Compact's effect.

Now, then, consequently, I don't know honestly how to answer your question as to the impact on the Upper Basin.

If the Compact has a ceiling on our appropriations, then they're surely going to invoke it.

It is the -- we're in a state of euphoria if we believe otherwise.

Look at this chart.

They can't go above 3,900,000 acre-feet.

They can't go in fact above 3,100,000 if we have water for the future like we've had for the last -- since 1930, the last 30 years.

Are they going to throw away the Colorado River Compact that they imposed in the Boulder Canyon Project Act 27 times?

It's written into that Act 27 times.

For what purpose?

Are they going to throw away and let us use, as the Master thinks, 7.5 million out of the mainstream instead of 6.5?

They've got to impose it.

It's unrealistic to assume that this Compact is a scrap of paper but that is the blinders the Master puts on this case.

Don't look at the Compact, it's irrelevant.

Justice Hugo L. Black: Does that lead us enough of this question, under your argument, that we must assume that it may be left and that, therefore, there must be some method of apportioning it between the two, either by the way the Master has suggested by his percentage figures or by the doctrine of apportionment?

Mr. Northcutt Ely: No, Your Honor.

There is a preliminary question.

There is not a shortage if the limitation is read as written, that the reference to Article III (a) of the Compact means III (a) of the main river and the tributaries because when the resources of the tributaries are added to the 6.5 million available under the Compact in the main river, there's no shortage.

You don't reach the question of proration versus priority.

You'll only reach it if you adopt the Master's premise that these two are to be severed and snipped apart, that is the limitation from the Compact.

Now, before I -- on that very point, may I have chart 2, if you please.

This chart's caption, “The water required to supply California, 4.4 million on the basis of proration,” that's the Master's assumption, “In millions or acre-feet of consumptive use.”

The first group of figures is -- the head of the -- if the Compact is incorporated in the limitation.

Here, as you'll see, no problem of shortage.

There are three columns of figures, one shown -- captioned “Mainstream,” one captioned “Tributaries,” one captioned, “Total.”

California might claim 4,400,000 acre-feet from the mainstream, nothing from the tributaries, we have none, for the total of 4,400,000 acre-feet.

The other Lower Basin states might claim the 3,100,000 from which were excluded, in the last column, and that 3,100,000 is made up of two components, 1,100,000 from the mainstream and 2,000,000 from the tributaries.

There's no shortage, no problems involved.

There is in the mainstream 5,500,000 acre-feet of III (a) water available.

We may have four, for the other states 1.1, but if the Compact is excised from the limitation, then you reach the second group of figures.

Here, look at the last column first.

In order for California to have 4,400,000 acre-feet, there must be 9,500,000 acre-feet available in the main river plus the tributaries because the other states on the Master's hypotheses are entitled to claim 5,100,000, of this, two million on the tributaries, 3,100,000 from the main river.

A total from the main river alone is 7.5 million, from the tributaries, two million, a total of 9.5 million.

Now, that is one million in excess of the Lower Basin's ceiling on appropriations, a total of III (a) plus (b).

You can't find under the proration rule, 4,400,000 acre-feet for California unless the Lower Basin, as a whole, is at least one million acre-feet in excess of its III (a) and III (b) ceilings.

The problem -- the essential on the limitation issue is always this, can the other states claim the 3,100,000, which we're precluded, from the red river, Lake Mead to Mexico or from the system, The main river plus tributaries?

Now, on this matter of proration versus priorities, I'd like to call your attention to the different way in which the -- well, first, before reach that, everything I'm going to say on priorities relates to this 4,400,000 acre-foot component of our limitation.

In the reprint before you, the one brought back is number one.

The second component, one-half of the excess or surplus, I don't talk about in terms of priority at all.

It says “one-half.”

One-half means one-half.

We concede that the effect of that is proration not because it says so, but because our priorities in fact exceed one-half and we're cut back to it.

On the priority issue, I'm talking about the 4,400,000 acre-feet, the first component.

Here's what the Master does with respect --

Justice Potter Stewart: The other way is priority issue, one that comes in the case of -- if there's been a shortage.

Mr. Northcutt Ely: It only comes into the case in the event that you agree with the Master that the 3,100,000 acre-feet can be claimed from the red segment instead of the system.

It depends on your deciding the limitation issue against us and as you've decided it.

If you decide the limitation issue with us, you do not reach the priority question.

Now, on the question of priorities, the basic rule which has been -- may I have the map again, the map A please.

The basic rule which would be applicable throughout the Colorado River Basin in the absence of the Colorado River Compact and the absence of the Project Act and the Absent Limitation Act is unquestionably the rule of equitable apportionment interstate, but this Court has evolved and the latest of the cases would be Nebraska versus Wyoming.

Print this transcript Transcript:

Argument of Attorney General

Attorney General: May it please the Court.

Priority matter, I am reminded, however, that two or three points perhaps I better dispose off before I go on.

The first, I have used throughout this discussion two terms that I have should have define at the beginning.

I'm not sure a definition is needed the course of acre-foot as the name implies as a cognitive order covering one acre or one foot deep.

The other expression that I used and we're all used is beneficial consumptive use.

That's a term found on the Colorado River Compact.

It is repeated as consumptive use in the Boulder Canyon Project Act.

The Master defines it correctly, we feel as the quantity diverted, less of quantity that returns to the stream.

Unknown Speaker: (Inaudible)

Attorney General: Pardon me.

Unknown Speaker: (Inaudible)

Attorney General: That is now agreed among all parties.

Initially, it was an issue of great importance and how beneficial consumptive use should be measured.

Unknown Speaker: May I have my (Inaudible) please.

Attorney General: It was -- of importance because at that time, Arizona was ascertain alleged interpleading that the question of what Arizona was charged with under the Compact and under the 3,100,000 acre-feet that the other States could claim against this under the limitation was effective by the magnitude of the uses on the Gila River.

We agree with that, so she is, but Arizona at that time contented that are uses on the Gila should not be measured by the quantity diverted unless a quantity return to the stream but should instead be measured by the much lesser amount by which those uses depleted the flow of the Colorado River to Mexican boundary.

Now, a difference -- not to dwell on it, the difference is that in that state of nature, part of the water that Arizona diverts in Phoenix area but never reach Mexico because it would have been burned out by evaporation.

The Master decides that under the Compact and under the Project Act both consumptive use means the quantity use measured at the site of use which we contend diversions less returns to the river.

Now, the figure of 2,000,00 acre-feet that I've used repeatedly with respect to the quantities of the uses on the tributaries, I do not represent to you, it was given the finding by the Master's is not.

It is a figure which is the quantity developed by from two sources.

One, the Arizona pleadings, the other is the California proof.

Arizona alleged that measured by depletion, the uses on the Gila were about 1,000,000 acre-feet measured by diversions less return.

There were approximately 1,0000,000 more than that or about 2,000,000 or a proof developed that the safe annual deal, the dependable supply of a Gila River fully use now in Arizona is of Nevada -- New Mexico is of the order of 1,750,000 acre-feet, and the uses on the other tributary are about 200,000.

Those are our figures.

They're not the Master's but they are supported by the Arizona pleadings.

Now, I have repeatedly refer to --

Unknown Speaker: (Inaudible)

Attorney General: Yes, Your Honor if -- if the Project Act the limitation uses the expression Article 3 -- paragraph (a) of Article 3 compact as truly meaning what the compact means as a Master founds, the mainstream plus tributaries.

Then the uses on the tributary is our accountable against this 7,500,000 3 (a) water which the Lower Basin may claim and we can claim only 5,500,000 out of the -- out of the Red River, the mainstream.

If they figure was not 2,000,000, but 1,000,000 or 1,500,000, it would by just that quantity effect the residue of 3a water that we could claim out of the main river.

Also another point that I should have made clear I -- I try to but it is the distinction between consumptive use.

The figure I just that -- phrase I just used, and the flow of the stream.

Now, the Master did that in the quotation that I read to you supply, Article III (d) cannot be correlative with III (a).

The flow of the stream at a given point that has -- is not -- has nothing to do with the quantity of beneficial consumptive use.

It's a little bit the different stream gross income and net income.

7,500,000 acre-feet flowing at Lee Ferry that flow the resource will not sustain 7,500,000 acre-feet of consumptive use diversions less returns at any point down stream because our losses between Lee Ferry and point of diversion.

And moreover, the quantity that returns to the stream after it's diverted is credit against that diversion, and arriving that the net consumptive use.

As a matter of fact the water that inevitably reaches Mexico and the form of return flow from the American projects, nothing you could do about it.

That's a great part of the source from Mexico is deducted from a total diverted in the United States to arrive at the beneficial consumptive use.

Another point that has been mentioned here about Upper Basin depletions, Upper Basin expansion, I should be -- to make it very clear.

The Master declined to let us entered this evidence on that point.

When the -- we first discovered from his report that he regarded the rate of Upper Basin depletions as a material, as relevant that there was no possibility of shortage under his formula because there is nothing to show how rapidly the Upper Basin were developed.

We ask Lee to present evidence upon that.

The only evidence we had offered or referred during the trial he'd excluded and he declined to permit the trial of reopen to take testimony upon that.

Unknown Speaker: (Inaudible)

Attorney General: Well, the relevance we saw in it was simply to answer his assertion of impossibility of shortage that his formula should not be measured by its effect because the effect we saw was based upon the enforcement of the compact and there's no likelihood the compact ever be enforced, nothing to show the Upper Basin every use so much water.

In other words, if the point he made against this is relevant that there's no possibility of shortage because the compact never be enforced, we thought it relevant, have an opportunity to rebut that by in the form of the chart that I showed you a few minutes ago that the Upper Basin can expand at all --

Unknown Speaker: (Inaudible)

Attorney General: -- without an -- pardon.

Unknown Speaker: (Inaudible)

Attorney General: No.

No, he do that from a senate committee report that --

Unknown Speaker: (Inaudible)

Attorney General: Pardon me?

Unknown Speaker: (Inaudible)

Attorney General: Yes, yes, Your Honor, but one written with respect to legislation long since (Inaudible), a projection of Upper Basin expansion which is obsolete.

And he refused to receive evidence upon the current expectations, the current estimates that are on the same categories to report you're relied upon.

Unknown Speaker: (Inaudible)

Attorney General: He didn't --

Unknown Speaker: (Inaudible)

Attorney General: I think the way I read it for, he excluded it because he had -- he was in fact making a finding on that.

He didn't call of that but there's nothing to show that for the foreseeable -- the unforeseeable future, their uses never rise about 4,800,00 acre-feet.

Well, even if that resolved.

The figures I showed you on the chart, (Inaudible) the chart please.

The figures I showed on the chart little while ago to make it clear that if they got up to 4,800,000 acre-feet, they have to invoke this compact sidings upon us.

They have available -- they have available total, one of the most optimistic estimate of water supply 5,200,000 and 3,100,000 more estimates.

At the beginning, Mr. Justice Douglas asked Attorney General Mosk the question on the proportion of in-base and an out-base and use in the California, the total quantity of water that we divert in California to points of views where it cannot return to the stream amounts to something like 90% of a total that California would divert for all of our projects.

The reason for that is that the -- may have the may (Inaudible).

The reason for that is that the Great California projects are the Metropolitan Water Districts Colorado River Aqueduct and the All-American Canal, a Metropolitan Aqueduct takes water to the coastal plain of Southern California and Metropolitan cannot return to the Colorado River.

The Imperial Valley and the Coachella Valley are the large part below sea level.

They are -- by some definitions within the Colorado River Basin because the Colorado has flowed into them, we do so again if not to kept out, but they -- it has been kept out successfully for half century or more and if the your -- the water taking into those valleys of course cannot return to river.

So that -- the literal answer to your question Mr. Justice Douglas is about 90%.

Unknown Speaker: (Inaudible)

Justice William O. Douglas: Last year, by sending it -- make that relevant at all that you --

Attorney General: No.

Justice William O. Douglas: -- I didn't find it though.

Attorney General: No, I don't think so, and I don't think it should have.

As I started to -- to say earlier, this -- with respect to the priority a problem, if it were not through the Compact or the Project Act or the Limitation Act, it's only unquestionable that the -- the controlling rule here would be the equitable apportionment rule of which priority of appropriation is primary element, protection of existing uses a second.

There are other factors but those two, of course, we think controlling.

Now, what the Master has done with respect to River Basin as a Lower Basin as a whole is this.

He has applied the rule of equitable apportionment on the Gila River system.

The Gila as raises as you will note in Western New Mexico, flows clear across to Arizona and into the main river near Yuma.

He says, “There is no compact between New Mexico and Arizona.”

The Boulder Canyon Project Act is not effect raised between two States.

He applies the rule of equitable apportionment.

Priorities are enforced except existing uses in New Mexico and existing economies, although based on junior uses is not to be destroyed.

He makes an excellent exposition, a quotation of the rule of equitable apportionment at page 316 and again at page 326 to 328.

I won't stop to agree with them.

Now, he applies also the rule of priority of a proportion, equitable apportionment between the users on the -- from the main river, mainstreams as he calls, the red area and users who may divert above the Lake Mead.

That is to say the California projects that are required a pro-rate denied the priorities as against a competing Arizona project right across the river from them may nevertheless enforce those same priorities even though derive, the water right maybe derive entirely from a contract of United States against a new diverter above Lake Mead, and note what that means.

If Arizona, he elects to build a Central Arizona project by diversions from Bridge Canyon or Marble Canyon shown in -- by the blue doted lines on the map behind me.

Then California may -- by the express language in the report, bring a new action, I suppose in this Court to enjoin that diversion because it is junior to our projects and because it is specifically outside the scope of this decree.

Our priorities are intact against that diversion above Lake Mead.

But if Arizona elects to build the Central Arizona project by the diversion shown in the red, which would take off from Parker Dam near the Bill Williams River, then that diversion is to then the Arizona apportionment made by the decree and it then the shortage will prorate against it.

He applies the -- he -- he retains the doctrine of priority of appropriation with respect to what he calls present perfected rights even interstate.

By that he means, he says, “The quantity of water which a project had in fact put to use on the effective date of the Project Act and the Compact, June 25, 1929.”

The quantity of water which have been put to use up to that date is a "present perfected right,“ and it's priority intestate is protected.

If there is not enough water to satisfy the present perfected rights, the appropriative rights based on state law in Arizona, California and Nevada, priority of appropriation control strictly.

The junior is yield, the seniors are protected.

Justice Hugo L. Black: May ask you a question --

Attorney General: Yes sir.

Justice Hugo L. Black: -- that referred several times to this.

The California existing (Inaudible) its capacity --

Attorney General: Yes sir.

Justice Hugo L. Black: Are you referring that to the capacity of equipment that (Inaudible) of appropriation in (Inaudible) 1929?

Attorney General: By capacity of approximate 5,400,000 acre-feet, I mean the present existing capacity.

The capacity of our work --

Justice Hugo L. Black: At this time?

Attorney General: At this time, yes sir.

Yes, You Honor.

There are -- are --

Justice Hugo L. Black: (Inaudible)

Attorney General: Pardon me.

Justice Hugo L. Black: How much is that if you recall (Inaudible) existence 1929?

Attorney General: Yes, sir.

The capacity in existence in 1929 by our propose findings conclusion, not the Master's figure but ours, it was about 3,700,000 acre-feet.

And we had in fact put to use applied through those works about 3,300,000 acre-feet prior to 1929.

As of the same date, Arizona had put to use about 250,000 acre-feet in 1929 and Nevada nothing.

Consequently, we're dealing here with an allocation which -- which text projects in two categories.

One, the uses which had in fact been made prior to the construction of Hoover Dam without the assistance of storage, that figure is to be determine says the Master in supplementary proceedings after this decree.

If we cannot agree upon it, then we bring -- come back to court and have to determine.

The definition he gives, however, is quantity in fact use prior to 1929, not the capacity of the works in but the quantity in fact used.

Now, the quantity in fact used in 1929, the Arizona pleadings concede California was used in approximately 3,000,000 acre-feet, 2,900,000, we say somewhat more 3,300,000.

Arizona does not claim of use prior the storage, construction of storage more than 250,000.

Now, this produces, if I may just a moment, some very resting comparisons upon what's done -- what's done with the allocation of the benefits of Hoover Dams storage?S

ubtract these quantities I have given you.3,000,000 for California, from -- even 4,400,000 for California and you discover that about a third of the water we can get is made available by the construction of the Hoover Dam.

If we're limited by the compact to the 6,500,000 from the main river and we get 4470 feet of it or 3,800,000 acre-feet, then the net advantage we have got out of the construction of Hoover Dam is something less than 300 -- then 800,000 acre-feet perhaps, a 500,000.

By contrast, Arizona which was use in, perhaps, 250,000 before Hoover Dam was built would get out of the same 6,500,000 acre-feet about 2,400,000 or about 2,000,000 acre-feet of the benefits storage.

The benefits of storage are allocated between the States in such fashion that virtually all of the incremental new water made available by the construction of Hoover Dam goes to Arizona and Nevada and in minimum of it to California.

But the effect of the Master's formula, is that if -- in event of shortage, if there isn't 7,500,000 acre-feet for these three States, California bears 44/75ths or 59% of that shortage.

Out of 6,500,000 acre-feet that the river may make available to the Lower Basin, we're in fact to allocate it about 20% of the new storage water, 20%, and Arizona, Nevada about 80%.But if there is shortage, we bear 59% of that shortage.

Now that is the effect of enforcement of proration, a proration under a formula which treats our present perfected rights but exactly the same way as a paper appropriation on the new state within the quantities and uses as nominator and denominator of this fraction.

While he respects present perfected rights as a floor beyond law which we cannot go when it comes to wait in them, to wait in them in the proration, he picks in exactly so their paper appropriations.

It's a little bit --

Justice Hugo L. Black: You mean --

Attorney General: Pardon.

Justice Hugo L. Black: -- after 1929

Attorney General: No.

Justice Hugo L. Black: He goes the line, does it?

Attorney General: No.

What I'm trying to say is this Mr. Justice Black that if there is less than 7,500,000 acre-feet, we take the figure 6,500,000.

We're going to get 44/75ths of that or 3,800,000.

It makes no difference to him that of that 3,800,000, 3,000,000 or more was present perfected rights that we have before a storage was constructed, and it makes no difference to him that out of the 2,400,000 Arizona would get practically all of it is new storage water because she had perfected uses of only 250,000.

Justice Potter Stewart: Is this 250,000 mainstream water?

Attorney General: Yes, yes sir.

Justice Potter Stewart: This doesn't count the Gila?

Attorney General: Oh you're right for uses on the tributaries.

The Gila was fully appropriated in 1929 and virtue of the use, we find there are now existed down.

Justice Felix Frankfurter: (Inaudible)

Attorney General: No.

Justice Felix Frankfurter: (Inaudible)

Attorney General: No, no You Honor.

Throughout my discussion at this moment, I have used his -- his time in 1929, no sir.

We do not -- what I'm talking about here is phraseology, yes sir.

Justice Felix Frankfurter: (Inaudible)

Attorney General: Yes, no.

You note that the effect of what he says, the protection he purports to give present perfected right simply means this, “No state is going to be deprived to the water for present perfected rights that as it uses as of 1929 but add them up.”

We claim or we're using the -- perhaps 3,300,000, the Arizona 250,000 and Nevada nothing.

He gives the Indians a present perfected right as of the date of creation of the reservation whether they ever used a drop to this day or not.

If you add those in, that's 600,000 for Arizona but you still have a figure that's less than 4,000,000 acre-feet for all the present perfected rights in all three States from the main river.

Now, if that so, the protection for present perfected rights is an illusion because under nobody's estimate is the water supply a projected to a figure down to 4,000,000 acre-feet.

What we complain about is having given us the point.

The present perfected rights were not to be destroyed.

He then puts him into an equation on proration with precisely the same effect as it paper appropriation or project, nobody heard any yet.

A little bit as all we -- yes, you're deciding what to do whether in solving the state and they had stocks and bonds to deal with and you announced it this State is going to be disposed off in such a way that the bonds are going to get paid.

That's the present perfected rights and it's a very good announcement.

But in the second paragraph, you say that the total assets that have gone of the State are going to be distributed in proportion of the total amount of securities held by each creditor.

And it turns out therefore that you're giving exactly the same weight to a common stock or debenture that you do to a first mortgage bond.

That's what he does to present perfected rights here.

The fact that out of California's 4,400,000 over 3,000,000 is present perfected rights and only a marginal part of its total, it doesn't effect even the slightest.

In event of shortage, in event of shortage, we assure that shortage 44/75ths although the storage made possible on the portion of that 4,400,000.

But to go on, what he does with the doctrine of priority of appropriation, priority of appropriation often continuous to apply intrastate, intrastate between competing projects within Arizona, between competing projects on the California side of the line.

It stops its state line accept for present perfected rights, except for claims against the diverters above Hoover Dam.

And furthermore and this is significant, furthermore, these priorities are protected intrastate and against users above Hoover Dam even though they are generated by federal water delivery contracts and have nothing to do with any appropriation ever made under state law.

Consequently, the issue of whether -- the issue of whether priority survived interstate does not depend upon whether the water right asserted is derived from an appropriation made under the laws of the state or whether it is generated by a contract made with the United States because contract generated rights are protected as to their priorities against other rights within the same state.

Contract generator priorities are protected against users above Hoover Dam.

It is only when they're in conflict, this conflict between two users on opposite side of the river glaring to each other, each with the contract, reach without a contract that you get into the question of proration.

This creates some very curious hybrid results.

He says specifically that the limitation did not cut off California's rights against the substantial tributary employee calls above Lake Mead.

Nothing on our contracts does that and nothing in the Limitation Act raised those priorities.

We'll visualize if you will then a suit by California against a new diversion above Lake Mead.

Central Arizona project decides to build there.

The issue is tried on a basis of priorities.

We prevail that Headgate had shutdown.

The water must come down into Lake Mead.

What happens to it?

It commingles, he says with the waters in the lake may be released only under the Secretary's contracts and that -- that having happen, it comes up pro rata.

So having one in our case against the junior diversion above Lake Mead, we get to keep 44/75ths of the water we want and Arizona takes 2875ths of it even though for the benefit of a project in Arizona below Hoover Dam junior to the one we've just deputed in this hypothetical suit.

Take the Bill Williams River, little stream that comes in at -- just above the point where this lower Central Arizona project diversion will take off.

It's not a big stream but it contributes more water than Utah and New Mexico, have claimed or have used out of the whole Colorado River System.

If their claims are de minimis and so as it has some vice versa.

Justice William O. Douglas: Where does it rise, in Arizona?

Attorney General: It rises in Arizona, yes sir.

Now, that stream, he treats as so it came into the river above Lake Mead.

He says its de minimis of Congress apparently overlook it and intended to treat that as stored water, it's control by this water contracts even though the contracts call for water released from Lake Mead and even though Bill Williams River comes in below.

Well, you imagine the water uses on the Bill Williams River.

If they use the water before it gets into the mainstream, its tributaries not chargeable of Arizona's 2,800,000.

If they don't, it reaches the main river then it is chargeable or by diversions from the Central Arizona project below the Bill Williams.

Now, the Master's report in other words, it projects a hybrid system of water rights, never before seen in the jurisprudence of this country.

Let me come to the basic -- the basic difference between the priority and the proration rule.

May I have the map proceedings?

Justice William O. Douglas: What was the date of the Colorado River Aqueduct, when was that finished?

Attorney General: It ran into service in 1941.

It commenced in 1932.

Justice Potter Stewart: All-American Canal though?

Attorney General: In the same year of 1941.

It commenced in 1932 and 1933.

Justice Potter Stewart: And the -- is the All-American -- the All-American Canal, the canal that runs east and west, is it also include the law extended --

Attorney General: Yes, that matters yes.

Justice Potter Stewart: -- Northwest to Southeast (Voice Overlap) --

Attorney General: I should have explained.

Now, Let me have (Voice Overlap) --

Justice Potter Stewart: (Voice Overlap)

Attorney General: The all-American canal takes off that Imperial Dam that parallels the river to a point just above the Mexican boundary turns west and that carries water into the Imperial and Coachella Valleys, the point.

There's a -- the division point, the junction that you referred to is that of the Coachella branch which takes water around the Salton Sea depression and into the Coachella Valley, the Coachella Valley being to the North and West of Imperial Valley.

The -- this whole area is below sea level.

The water is taken by gravity.

The valley extends into Mexico.

It's called the Mexicali Valley and before the construction of Hoover Dam, the river when it could broke through into this area instead of the sea.

Justice Potter Stewart: We call the -- it's caused the Salton Sea, isn't it?

Attorney General: That is correct sir.

They break at the river in 1905.

Justice William J. Brennan: Well, on this might be --

Unknown Speaker: (Inaudible)

Attorney General: That is -- that is correct sir.

The Coachella branches a long branch of 120 miles.

Justice William O. Douglas: Is there any finding -- this may not have been relevant.

I noticed in some account recently about a complaint of the Mexican Government on the saltation of the river.

Is there any reference in this report to the problem of saltation?

Attorney General: Very little.

It was litigated.

A lot of evidence went in on it.

The problem in a nutshell is simply this that the river carries a lot of salt, about a ton of salt for acre-foot of water.

A farmer who applies for a ton of the four acre-feet of water to 168-acre farm is adding 640 tons of salt per year to his farm.

He has to get rid of it.

That's a lot of salt.

Justice William O. Douglas: Well, they have drainage (Voice Overlap) --

Attorney General: They have drainage facilities that lich the water through the soil and take out the salt.

With the result that into the Salton Sea, there must go about a fifth of the water that's diverted from the Colorado River to carry out this salt or agriculture sewage if you want to call it that, otherwise, the soil salts up and becomes outline and no good.

Now, what the -- consequently, the water requirements of the Imperial Valley cannot be reckoned simply as the quantity of water that maybe burned up by the plant.

You have to add through it the water you must necessarily waste out just human waste and sewage from the city to the sea.

That's one reason why a consumptive use is reckoned as diversion is less returns.

If you don't have returns, you have a project of the short line.

The -- all of the California projects, I should've added response to the earlier question were originated long before 1929.

The Palo Verde project in 1877, the Metropolitan Water District of Colorado River Aqueduct by appropriations under state law in 1923 and 1924 and 1926, and actually some $2,000,000 have been spent on those -- that project before the Project Act was passed.

Justice Hugo L. Black: Which project is that?

Attorney General: The Colorado River Aqueduct of the Metropolitan Water District.

The Imperial Irrigation District, the Imperial Valley had been irrigated since 1901 under the state law appropriations made in the 1900s.

The Coachella Valley was included in those appropriations but the water did not reach it until the All-American Canal was built.

These were all very old -- very old rights.

The Yuma project is -- I should've mentioned, the Yuma project is a federal reclamation project that straddles the Colorado River.

The bigger portion is in Arizona.

There is small area in California that has been served by diversions in Colorado since about 1905.

Now, the question of salt that Mr. Justice Douglas raised which has recently been agitated by Mexico is simply this.

The drainage works have been constructed on Arizona side from the Wellton-Mohawk project whose name is not given here but it is in the cluster of dots shown on the map where on Yuma.

That carries very heavy salt -- salty water back into the river at a point where it close in New Mexico and the Mexicans as result are getting water that have very bad quality.

And the Mexican Water Treaty of 1944 during ratification proceeding, this issue of quality of water was agitated.

And at that time, it was apparent that from the reports of the negotiators to the two countries that there is a wide difference on what they're reporting.

The American negotiators say that Mexico had to take water of any quality.

The Mexican negotiator is reporting that wasn't so.

They were entitled to the water of good quality.

The water they're getting now they say is a very bad quality and they want something done about it.

And all you can do -- all you can do when you've been encountered that kind of a problem that are force to improve the quality of the water is give more water of the less salt contents, whatever it result.

So the Mexican burden -- the Mexican burden is one of the liabilities that is not fully probed in this litigation.

We know that the water reaching Mexico must exceed the treaty quantity of 500,000 acre-feet for the mechanical reason that you can't -- you can't exactly control it.

You control it at Davis Dams on 150 to 200 miles upstream and you can't meter -- meter it out at Davis precisely to meet the demand 150 to 200 miles below.

And beside that, if Mexico prevails in improving and getting better water, we have to add too that often.

Unknown Speaker: (Inaudible)

Attorney General: The -- yes.

The water is diverted into this Yuma -- Wellton-Mohawk area at Imperial Dam and it's -- the drainage comes back in at a lower point for above Mexico.

But I think the Imperial Valley which diverts over 3,000,00 acre-feet a year, that's over 3,000,000 tons of salt and figure how many train loads will it take to haul it away, weren't disposed of hydraulically in the Salton Sea and gets the idea of our necessity of having great return flow.

Justice William J. Brennan: What is the difference?

Attorney General: Well --

Justice William J. Brennan: (Inaudible)

Attorney General: Yes, sir.

It's in the -- all the waters of the Colorado River.

The river of this sort carries some natural salt but has its supply the irrigation in the Upper Basin and then successive projects below, it becomes saltier and saltier.

It takes salt out of the soils.

With the result by the time it reaches the lowest one abbreviation, it's -- it's a very bad quality.

Justice William J. Brennan: (Inaudible)

Attorney General: That is correct sir.

Now, if I may have a (Inaudible) again, please.

Justice Potter Stewart: So this is a -- for salt generic term chemically, is this mean this -- is the salt, the same kind of salt that is in the sea that --

Attorney General: Well, thank you Mr. Gindler.

I just mentioned the same point to me, no sir.

It means the -- the sailing content, their magnesium salts, sodium salts, they are primarily chlorides but there are many other radicals involved and the type of salt that's concerned also is vast important somewhere, not volatile as others are.

Justice Potter Stewart: So you're not talking -- this isn't like sea water?

Attorney General: No, it is not.

NaCl is not sodium chloride.

There are sodium chlorides in it but their magnesium chlorides and calcium chlorides.

Justice William J. Brennan: (Inaudible)

Attorney General: Salt in sea is the residue of Colorado River water that came in there and bygone centuries evaporated, left great salt that's now has received new Colorado River water.

So its content reflects the accumulated salts of bygone archeological time as well as the present.

The Colorado River Compact and Boulder Canyon Project Act, the California Limitation Act, all came into existence against the background of the existence in the west as a way of life of the law priority of appropriation.

And this doctrine, you're familiar with but the elements of it are that he who's first in time is first in right.

Justice William O. Douglas: We had quite a problem with that in Nebraska, in North Platte River case.

Attorney General: Yes sir.

That is correct.

That is correct as the doctrine of --

Justice William O. Douglas: And we didn't follow -- we didn't follow it very strictly, did we?

Attorney General: Well, you used the doctrine of equitable apportionment which we invites you to use here that it is modified to protect junior of uses whereof an existing economy is based upon, and the Master applies that as I've indicated on the -- on the Gila River.

Now, the doctrine has several elements.

The first is he who was first in time is first in the right of priority of appropriation, and another element is a doctrine in relation back.

If you have initiated a right and pursued it with due diligence, then your right is measured, not by the quantity.

You in fact have put to use as of the given date, June 25, 1929 for example but by the quantity you ultimately have put to use with due diligence and that right relates back to the date of inception, the date of initiation.

That's important because any municipality that doesn't plan ahead 25 years for the protection of its people is that being badly planned.

Every aqueduct is built, not to their crimes of today only if it doesn't, it obsolete tomorrow.

It is built for the requirements of the future.

And when that capacity is finally build up before use, the water right relates back in its entirety to the date of inception.

This doctrine as a -- this Court has said in the Beaver Portland Cement case and the Gerlach case came into existence by a necessity.

In California, when the gold is discovered at about the same time, the miners discovered the necessity of the use of water, sometimes at a distance from the stream.

It had to be taken in flumes and the doctrine of priority of preemption with respect to mining of properties and with respect to the water necessary for their use developed simultaneously and put it very simply.

In the West, you don't jump a mining claim and you don't jump on appropriative right.

Having established by self-help, by appropriation, it is yours provided you continue to use that resource of diligence.

Unknown Speaker: (Inaudible)

Justice William O. Douglas: Yes, sir.

Unknown Speaker: (Inaudible)

Justice William O. Douglas: It's still as -- it's still as a classic, Your Honor.

Unknown Speaker: (Inaudible)

Justice William O. Douglas: Well -- yes sir.

It will -- will still the most comprehensive.

Look, I'm very sorry if we haven't decided apportionship.

The map behind me, and you have a graphical, shows the relative humidity of the various states of the United States.

It is a map that the lines drawn through points of equal, annual precipitation.

And the -- it is shown in three shadings.

The area in white is the area in which the doctrine of priority of appropriation has completely replaced the riparian law.

The dark -- the area shown in light gray, the eastern part of United States is that in which the riparian law is still prevails.

And the two interiors of States shown in darker shading are those in which a mixture of riparian on appropriative rights prevails.

Now, the great distinction between the riparian doctrine of the English common law and the appropriative doctrine of the Western States and particularly the seven States now before is this.

Under the riparian rule, proration is a rule.

It's derived from the law of torts.

The law of river should flow as it's accustomed of flow.

And well, you may consume it for domestic or stock watering purposes to a reasonable amount, we respect as your neighbors needs downstream, you can't use irrigation that way.

You can have a pro rata share percentage.

Now, as the Western States were developed, as our civilization moved into dryer and dryer countries, as this Court has pointed out, that rule is found totally, totally unacceptable as the basis for the stability, the security of projects and investments.

Anyone investing great sums in a project had to know that it was not to be deluded water down by a later comer who might ask you to move over and prorate your supply.

The Master placed in his report, equates the term in the Project Act of permanent service with a necessity for stable, a firm water supply.

Now, in these seven -- the heartland of the appropriation doctrine, the doctrine of priority of appropriation in relation back as distinct from proration happens to be the States now before you.

The Colorado River Basin has drawn here in this white area.

It is quite true that California does have restitutes of the riparian law and much to our, should grant and regret.

It has been a continuing headache with which the courts, the Legislature and finally the Constitution of California wrestle.

It does not involve the problem here.

There are no --

Justice Potter Stewart: Riparian involves the Colorado case?

Attorney General: That is right.

Justice Potter Stewart: What -- was there any ever -- ever in law in saying that the upstream sovereign gets it?

I thought that was part of the riparian?

Attorney General: That was the rule that Colorado contended for in Colorado versus Kansas, Wyoming versus Colorado that the upstream sovereign had a right to retain.

It's not really riparian or appropriative in sort of a sovereign concept.

Justice Potter Stewart: It's something else?

Attorney General: Yes sir.

And that has been thoroughly upset throughout these Western States.

Every one of them has abrogated the rule of priority -- rule of riparianism.

Every one of them within its domestic law has adapted the rule of priority of appropriation.

If this for one state involved here on both sides of the Colorado River, there's only one rule that we apply priority of appropriation, unquestionably.

This Court applied priority across state lines on Wyoming versus Colorado.

Now, the beginning before of this century, development had come about on the Colorado River.

The developments of the Imperial Valley, I have spoken off, was a development of an area that could be readily water, expansion made possible by gravity irrigation but it's also below sea level and threatened by floods.

So that early in this century, they developed the gradual consciousness of a need for flood control, a storage dam on the Colorado River.

By 1920, that had become an overpowering -- overpowering dried.

There was national consciousness of a need for flood control.

The Upper Basin States, Wyoming and Colorado, New Mexico and Utah were vastly disturbed about the possibility of the building of a great storage dam on the lower river.

The natural flow had long since it's been appropriated.

If a dam was built which had its stored waters, that stored water too would be appropriated by this -- in this lower country and if their projects came along later, junior projects, they would find themselves denied in water by the operation of the lower priority of appropriation.

The Colorado River Compact and consequently be visualized as a -- as a price demanded by the four upper States for their political acquiescence in the construction of Hoover Dam or any dam in the Lower Basin.

And we may turn briefly to the provisions of the Compact the page -- it starts at page 371.

You'll find here the document that finally came out of these negotiations in November 1922.

This compact makes a division of the great Colorado River Basin into two parts, an Upper Basin and the Lower Basin divided by a point on the main river at Lee Ferry, which is in Northern Arizona.

The area draining into the stream above that or which can be used water from that area is called the Upper Basin.

I'll pause there in a minute.

This means that Denver, which is outside the natural drainage basin, is within the Upper Basin as defined by the Compact.

It means in Los Angeles, which is outside the drainage basin of the Lower Basin is within the -- the Lower Basin as so defined.

This reflects that philosophy of another element of the law of appropriation.

The riparian right could be used only by the user located on whose land was about in the stream.

That's not adaptable to the needs of people for water in the west.

They're located not along the streams but at a distance.

The law of appropriation permits the water to be taken from water -- one water shed into another.

That is another great distinction between them.

The fact that the metropolitan area is outside the drainage basin, there's wholly consistent with the law of priority of appropriation.

Denver is taking the water from outside the basin.

The Central Utah area will take water from outside the basin.

That is a necessity of life in the west.

The Compact reflects that.

The heart of a compact is Article III.

You have -- you seen earlier today in this reprint Article III (a) which apportions to the Upper Basin and the Lower Basin, the waters of the Colorado River system.

It defines -- it has already defined that Colorado River System has meeting the drainage area.

The Colorado River System in II (a) is defined as that portion of the Colorado River and its tributaries within the United States of America and its tributaries as a claim.

Article III (a) apportions from that same Colorado River System 7,500,000 acre-feet to the Upper Basin, to the lower.

Justice Potter Stewart: But then -- if we didn't so define it, Wyoming wouldn't be in the picture at all, wouldn't it?

Attorney General: Wyoming has tributaries that --

Justice Potter Stewart: It has tributaries in those parts of the mainstream (Voice Overlap) --

Attorney General: Exactly so, exactly.

That is true of Wyoming and it is true of New Mexico.

Neither of those States have any access to the main river.

You're quite correct, Your Honor.

And I pause here to say the Boulder Canyon Project Act uses Colorado River and Colorado River System, Colorado River and its tributaries in general its interchangeable terms.

Everywhere -- everywhere throughout the documents then describing is a system -- a system compact, not a main river compact.

On Article III (b), it gives the Lower Basin the right to increase its use by 1,000,000 acre-feet per annum.

Well, if, however, in III (a) and III (b) through into one article, 8,500,000.

The reason seems to be -- it seems to be that Article III (b) is not treated as a perpetual apportionment at all.

But if the Lower Basin has in fact used this 7,500,000 then it can put the added million acre-feet to use because of the problem encountered in Article III (c) of the next article.

Article III (c) provides that if we make a treaty with Mexico, Mexico is to be satisfied first out of the waters that are surplus to those specified in Articles III (a) and (b).

That is surplus to 16,000,000 acre-feet of consumptive use.

But if that surplus isn't enough, then the two basins are to contribute equally to bear-in the deficiency.

Now, let me pause there to point out the significance of that.

If the tributaries are included as a compact so claim he says in the accounting, then, 2,000,000 acre-feet of useless in the Lower Basin tributaries are chargeable, accountable against the Lower Basin in deciding how to divide up this Mexican burden.

If a 2,000,000 acre-feet or Lower Basin tributaries didn't exist, if you excluded them from the accounting, then the Upper Basin is in trouble because it must contribute at an earlier level than -- than otherwise.

If we have 2,000,000 acre-feet of uses on the tributaries, that's part of the resource which we're accountable, then it is to the Upper Basin's advantage of course to have those tributaries included in the accounting, and they were insistent upon it for 22 years.

That is why Arizona rejected the Colorado River Compact because the tributaries are so plainly included within its scope.

And if the Lower Basin is accountable to the Upper Basin for the fact that Arizona is getting the advantages out of the tributaries then he can be very sure that in any accounting between Arizona and California, which had the effect of restricting to 6,500,000 acre-feet what the States in combination will take out of the main river, Arizona was accountable for those same advantages, those same benefits.

And for that very reason, no part of this compact for 22 years, it's because the tributaries were included.

Article III (d) provides that the States of the upper division, that's Colorado and New Mexico, Utah and Wyoming will not deplete the flow at Lee Ferry below 75,000,000 acre-feet every 10 years, that has nothing at all to do with Article III (a).

Article III (a) encompasses the uses on the tributaries.

It deals in diversions less returns.

It has nothing to do with 75,000,000 acre flow or acre-feet of flow at a distant point Lee Ferry upstream on the main river.

Justice Potter Stewart: Is that -- that's what the Master says --

Attorney General: That's right.

Justice Potter Stewart: That's what you say.

Attorney General: That's correct.

Justice Potter Stewart: Is there a unanimity about that?

Attorney General: No, Arizona contends that the III (b) and III (a) as to remedies and moreover that III (b) can be claimed at Lee Ferry too.

Justice Potter Stewart: Yes.

Attorney General: Article III (e), (f) and (g) are importance, with peripheral importance, the points I want to make here.

The heart of the -- the heart a compact is this Article III and the heart of Article III is the deliberate decision to include the tributaries in the accounting.

Now, you could have written the compact obviously that they're only Lee Ferry.

They didn't do it.

They deliberately included the tributaries.

That's in the Compact.

That's in the document of which the Limitation, the California Limitation in the Section 4 (a) makes cause reference.

That is a point of which the Master's says the Project Act made in inappropriate reference because the Limitation doesn't include these tributaries.

Unknown Speaker: Why did you say that the three tributaries, I didn't know --

Attorney General: I didn't.

Excuse me, I did not hear you sir.

Unknown Speaker: Why did you say that the three tributaries --

Attorney General: At the Article II (a) of the Compact finds the Colorado River System to do so.

Unknown Speaker: It's in Article III, I thought you said (Voice Overlap) --

Attorney General: No, it is define in two-way and the Master specifically interprets the Compact at the -- to just as I described it as including the tributaries.

He says at page 142 and 23, “The limits established by the Compact on the acquisition of appropriative rights were applicable to the mainstream of the Colorado River and to its tributaries.

And at the later point, the plain words of the Compact permit only one interpretation on Article III (a), (b), (c), (f) and (g), deal with both the mainstream and the tributaries.”

And he says on page 143, “The various arguments of Arizona failed before this unmistakable language of the Compact.

The historical fact that the Upper Basin was primarily concerned with the mainstream will not nullify a language of the Compact that subjugates both mainstream and tributaries to its rule, nor is the argument persuasive that because some provisions deal only with the mainstream, all provisions are so limited.”

Now the -- after the other States have verified in 1923, Arizona rejected it.

I say rejected advisedly because that is the word this Court uses in referring to it in decisions all come to later 283 U.S.

The reason Arizona refused to ratify the Compact is the précised one that the Compact include the tributaries specifically the Gila.

The other States in 1925 adopted the statutes which recognized a political fact of life that Arizona was not going to ratify the Compact that the Boulder Canyon project, if it was going to get built, it's going to be authorized by a statute that it's either going to accept six States as a membership of the Compact or not yet passed at all.

Consequently, the other States passed statutes that waived.

The requirement of seven ratifies and in fact converted the Colorado River Compact into a six state compact by reciprocal legislation.

When this came before the Congress, it resulted in the inclusion and the Project Act of the alternative provisions I have referred to in Section 4 (a), the reprint you have, which provide either for the required at the -- as the condition proceeding one of two things, either seven States ratification in whichever that everybody is happy or failing that six state ratification and in that event, passage by California, this Limitation Act.

That was the alternative that went into the -- into the Project Act.

Now, as a result of this language of Section 4 (a), California on March 4, 1929 passed two statutes.

One was a statute that ratified the Colorado River Compact and the six States agreement all over again.

The other was in Limitation Act.

Both passed on March 4, 1929.

They have a very narrow and tight question statutory interpretation.

In the California statute that ratifies the Colorado River Compact as a six States agreement, the Compact has set forth, and the Limitation Act appears the same language, 4,400,000 acre-feet of the waters apportionment of the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact.

The narrow question is that the California Legislature in passing these two statutes on the same day used in one of them the expression Article III of the Colorado River Compact as encompassing the tributaries in which event we were assuming as against the Upper Basin the inclusion of the tributaries and the accounting which respect to the Mexican burden.

And on the same day, passed the statute that said with respect to Arizona exclude those tributaries, Article III (a) is inappropriate reference.

Now, that is a problem before the Court.

Does this language and the underscore, on reprint you have before you, we repeated in the Heichberger, the California Limitation Act mean it when it says 4,400,00 acre-feet of the waters apportioned of the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact?

If it does, it includes a system, the tributaries.

If it does then the 3,100,000 from which were precluded in -- I include also Arizona's uses all of those same tributaries.

If it doesn't, as the Master believes, then that 3,100,000 we can't take and be asserted against the Red River from Lake Mead below.

Yes, let's get the -- yes.

Justice Potter Stewart: (Inaudible).

Attorney General: Not over in Oklahoma.

Now --

Justice John M. Harlan: It's clear I take it that what California was assigned to was to satisfy the requirements, addition or whatever you use to call it, this Project Act that it's passed its Limitation Act.

Attorney General: That is right.

Justice John M. Harlan: Therefore, I would suppose that the crucial question is now what California was thought it was doing, but what Congress intended California to do?

Attorney General: Well, we are quite content to meet the problem on either those basis.

The --

Justice John M. Harlan: In terms -- in terms with California is intended (Voice Overlap) --

Attorney General: Well, that is true.

That is because our statute is the operating statute and the Master has plainly says with respect to the uses above Lake Mead and that is the tributaries to come in.

He says, “It is inconceivable that the California Legislature and the California Senators have voted for the bill intended to waive California's priorities against this substantial tributary inflow.”

He looks to the intent of the California Legislature.

We do too, then we say it's even more inconceivable that the California Legislature intended not only waive its priorities against the substantial tributary inflow above Lake Mead but to leave all of that resource out of the accounting and furthermore, to waive the same priorities against the projects across the river.

Justice Felix Frankfurter: (Inaudible)

Attorney General: Yes.

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well it --

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well, I don't recall that at all.

I don't recall that at all.

So I said, it refer to meet the problem on the Basins being intended either of the -- either the two suburbs.

But the point I want to emphasize is if this is an agreement, it is a statutory compact enacted by reciprocal legislation.

Statutory compact is what Arizona called in their briefs here on a previous occasion.

It's a good expression point.

Take a look at the sort of language that's used, at the bottom of the first page of this reprint in Italic.

The State of California is required by -- act of its Legislature to do something.

What is it?

It shall agree irrevocably and unconditionally with the United States as an agreement and for the benefit of the States of Arizona, Colorado, Nevada and New Mexico, Utah and Wyoming, third-party beneficiaries.

As an expressed covenant, more contract language and in consideration of the passage of this Act that the aggregate annual consumptive use and so on shall be restricted.

Now, the problem is what is the statutory compact between these two sovereigns?

The Master believes that the underscored language on the second page starting with the item one has this effect that the California Legislature, when it passed the statute accepting this offer and that Congress is making the offer, intended that the word “compact” which appears three times in the last half dozen lines, 4,400,000 acre-feet of the waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact.

That time, the word “compact” doesn't mean compact at all at shorthand, shorthand for 7,500,000 acre-feet in the Red River, Lake Mead to the Mexican body.

The second time it's used plus not more than one half of any excess or surplus waters apportioned by it said compact.

That's an inappropriate reference too.

That means shorthand for the Red River.

But, such users always to be subject to the terms of said compact.

The third time is used compact means compact.

This time, we mean the Colorado River Compact.

Well, this is an extraordinary piece of statutory construction.

It is repeal, wholly contrary to the whole purpose of the requirement of the limitation.

What was that purpose?

It's written into the Act by Upper Basin Senators, fearful.

Now, the seven States compact would not come about a six States compact plus the Limitation had to be in substitute.

You cannot get the equivalent of a seven States compact by the device of a six States compact plus a Limitation Act that uses with respect to Limitation at entirely different body of water.

Why struggled?

Why struggled to include the tributaries in the Colorado River Compact with the protection of the Upper Basin if we're going to exclude them in the one -- in the whole Boulder Canyon project that worth counts most?

Mainly, the situation where Arizona won't ratify this Compact and you have to protect the Upper Basin by the best way you can.

Let me illustrate, in the bridge of the river from the Lake Mead to Lee Ferry, that is the blue area above the red.

At the time, the Project Act was under consideration, diversions were being planned both by Arizona and by California.

The Metropolitan Water District had under review four routes for its great project, a great aqueduct to the California coastal plain.

One of them would have taken off from Bridge Canyon then the gravity route.

Unknown Speaker: (Inaudible)

Attorney General: It is a feasible engineering and feasible route, right away problems of Arizona, of course our major problems.

But so far as the engineering is concerned, that is a quite a feasible route.

Unknown Speaker: (Inaudible)

Attorney General: Oh yes.

That is right, that is right.

Unknown Speaker: (Inaudible)

Attorney General: That is correct, yes sir.

But two Arizona Senators Cameroon (ph) and Ashurst both speeches to Senate in 1927 and 1928 said, “This is the place where the Colorado River aqueduct should diver, Bridge Canyon.

We don't want any dam at Black Canyon inside the Hoover Dam at all.

We don't want it.

We will go along with the dam at Bridge Canyon, which can divert for Los Angeles there.”

It was a possibility and it was not abandoned for many years, it avoids all pumping.

At the same time in Arizona, they have remained what it called the quarter filings were out giant project that divert in the same bridge of the river, the Grandfather of the Central Arizona project.

It is inconceivable that the Upper Basin Senators would have intended to redefine the Article III (a) of the Colorado River Compact so as to mean a Red River, Lake Mead to Mexico.

Nobody knew where Hoover Dam is going to be.

It might build it upstream with Black Canyon or Boulder Canyon.

The Compact talks about a damn in the Upper Basin for the benefit of the lower, meaning Glen Canyon Dam.

And you don't -- as I say, you avoid the whole purpose of the Colorado River Compact if you exclude the Gila River and the other tributaries.

Now, the Senators very carefully wrote into the Boulder Canyon Project Act in any number of places that the Colorado River Compact should control despite anything it might be said in this Act.

If you'll turn to page 389, here, you'll find Section 8 (a) of the Project Act, the United States, its permits, licensees and contractees, and all users and proprietors of water stored, diverted carrying and so on.

It shall be subject to in control by the Colorado River Compact and the construction management, operation and said reservoir canal, other works and so on.

And then the third line from the end, anything in this Act to the contrary not withstands in all permits, licenses, and contracts are so provide.

And in the 13 (b), the rights of the United States, they entered to two of the waters of the Colorado River and its tributaries also river claimed were required, as well as the rights of those claiming under the United states shall be subject to in control by said Colorado River Compact, the 13 (c) and 13 (d) for the same effect.

Now, it is inconceivable.

It is inconceivable that it was intended in Congress in the one place where encountered most to redefine Article paragraph (a) of Article III of the Compact.

Specific articles of the Compact are referred to specifically in the Boulder Canyon project on a number of occasions, several times in the same Section 4 (a).

It refers to Article 11, Article 3 (a) and another paragraph refers to Article 3 (c).

It's incredible draftsmanship to assume that in this one plate crucial place, Article III (a) doesn't mean III (a) for something else.

Now also, respect to the function of the Limitation Act, just protection in the Lower Basin.

Arizona knew it was feasible that we were thinking about diversions of above Lake Mead for the Colorado River Aqueduct.

The two Arizona Senators were inviting us to do that.

It was a limitation assuming that to be written for Arizona's benefit intended to exempt to California diversions above Lake Mead.

It is not an inviting piece of construction.

Actually, the bridge to the main river from the Lee Ferry to Lake Mead is one further that the whole length of the river from Lee Ferry to Mexico.

Now, the reasons that the Master gives for rejecting the language of Section 4 (a) of declining to give what the meaning that they agreed from the natural reading of the words is this.

He says that -- pardon me.

He says that the debates indicate that the Senators were contemplating the division of 7,500,000 acre-feet from the mainstream, the main river.

That the second paragraph in Section 4 (a) provides authority for compact among Arizona, California and Nevada, which would only operated on the main river.

And that consequently, he must reject the literal language, the plain language of the Act and look to the debates.

Now, let us look first at the -- at the language of what these Senators said.

The -- it is quite true -- it is quite true that in the debates on the Boulder Canyon Project Act, you'll find considerable confusion but the confusion is this.

Some Senators whom a -- special Master quotes, Senator Pittman in particular, Senator Hayden, unquestioned were talking on the assumption that the Article III (a), not the same thing as Article III (b), the flow at Lee Ferry.

The Master rejects that literal language of the debates like he rejects the literal language of the statute.

But all of this -- all of this business of what was meant by Article III (a) was cleared up like a flash of lightning by author of the -- of the limitation amendments.

Senator Phipps of Colorado after this debate had indicated, developing confusion as to what they meant by this limitation.

“What are you doing about the tributaries?

What are you doing about the Gila?”

This is a language with the Senator Phipps used.

It is in California as opening brief at pages 118 and 119.

What happen was that the Fifth Amendment which brought this limitation into being was before the Senate, Senator Phipps, was the Chairman of the Reporting Committee, the author of the amendment, spokesman of the Upper Basin has to perfected at the time he did so.

The language instead of saying paragraph (a) of Article III said simply the waters apportion to the Lower Basin.

Senator Phipps said this, “Referring to the Amendment which is now before the Senate in order to remove any possible misunderstanding regarding the 4,400,000 acre-feet of water, I had desired to perfect the amendment by inserting on page 3 line 4 after the word by, the words paragraph (a) of Article III of so that it will show that that allocation of water refers directly to the 7,500,000 acre-feet of water that are mentioned in paragraph 3.”

If you refer now to paragraph (a) of Article III of the Colorado River Compact, there's only 7,500,000 acre-feet mentioned in the Article III, that is III (a).

He was making its specific but he was looking to that resource as the one to which the limitation.

On California, it was applicable and hence, it is that resource against which the 3,100,000 acre-feet that were excluded.

Unknown Speaker: Well, that (Voice Overlap) what the emphasis in reading that language on 7,500,000 or on 3,100,000?

Attorney General: There's only --

Unknown Speaker: I see that it clears up the (Inaudible)

Attorney General: Well if you look at Article -- paragraph (a) of Article III, you look at Article III as a whole, there is only one 7,500,000 acre-feet --

Unknown Speaker: That divides this whole on that, on both sides of the (Inaudible).

Attorney General: There is no other 7,500,000 acre-feet mentioned in the Article III, Your Honor.

Unknown Speaker: I realized that but I'm just wondering if you want to go (Inaudible).

Attorney General: No.

Phipps said that earlier said that Arizona is entitled to have the Gila taken into account.

There's no question in the world that Phipps was intending to rate in to the limitation.

The same function at the Upper Basin had insisted on writing into Article III of the Compact.

The Lower Basin tributaries have got to be included.

Here's what Phipps said, earlier said, this is on page 121 of our opening brief -- page 120.

He says at the top of page 121, “For years passed, at least some of the waters in the Gila River have come into the canal that is now supplying the Imperial Valley.

It is not a definite fixed pack that where the enactment of this proposed legislation.

The All-American Canal is going to be build within the period of 70 years.

As a matter of fact, it may not be rebuilt at all.

We do not know as to that.”

But I do not think that the water from the Gila River, one of the main tributaries of the Colorado, should be eliminated from consideration.

I think that California is entitled to have that account again as being a part of the basic supply of nature.

But in offering this protecting amendment, he wasn't protecting our interest, he's protecting his own.

You cannot get the result of the Colorado River Compact in protecting the Upper Basin against 3 (c) the obligation of New Mexico unless you charge the Lower Basin with the uses on the tributaries.

Now, the other reason the Master gives for rejecting the literal language of the first paragraph of Article -- Section 4 (a) is the authorization for a tri-state compact found in the second paragraph, which is also in the reprint you have before you.

Here, the third of Arizona's filibusters against the Boulder Canyon Project, the Swing-Johnson bill was terminated by an agreement of the Senate to accept Senator Hayden's amendment that which is the second paragraph.

As originally drafted, it was a -- it was a condition preceded like the first one provided that the statute, the Project Act should not take effect unless California would agree to this too, water for Arizona and Nevada.

As finally amended on a Senate floor, it was amended to make it wholly permissive.

Justice Hugo L. Black: Then the second paragraph of what?

Attorney General: Section 4 (a), it is on the reprint before you on page 2.

It is in the -- on the Master's report --

Unknown Speaker: (Inaudible)

Attorney General: -- under Project Act at a --

Unknown Speaker: (Inaudible)

Attorney General: Yes sir, commenced at the bottom of page 382.

Now, before getting to the substance of it, let me tell you what the Senate did with it before it passed it.

The -- after considerable debate, Senator Pittman prevailed upon Senator Hayden to modify by making it wholly permissive.

And the -- this was the language of the colloquy which brought that about.

The language of the second paragraph of Section 4 (a) was accepted as an amendment to the Project Act by Senator Johnson between the bill's order and became a part of the bill upon the following representations, “colloquy.”

Mr. Johnson, “I want to make clear that this Amendment shall not be construed hereafter by any of the parties to it or any of the States as being the expression of the will or the demand or the request of the Congress of the United States.”

Mr. Pittman, “Exactly not.”

Mr. Johnson, “Very well then.”

Mr. Pittman, “It is not the request for Congress.”

Mr. Johnson, “I accept the Amendment then.”

No senator voiced any objection to that amendment.

Justice Hugo L. Black: What was meant by that?

Attorney General: This was -- Senator Pittman explained simply a consent in advance to a contract versus three Legislatures might then put in to effect by reciprocal legislation.

They're about to be in recession.

If they choose to do so and their time would be save.

They wouldn't have to sign a treaty and bring it back for ratification.

And he explained that was he's only purpose to save time.

The Legislature might or might not accept this but if they did, time will be saved.

Justice Hugo L. Black: That was the division, was it not, (Inaudible) whether the Congress should (Inaudible)?

Attorney General: Yes.

Senator Bratton made that point and the there was a-- I won't say a division, almost unanimity among the Senators who expressed themselves that the Congress could not divide or allocate the water at all, that it had to be by interstate compact and the question was a wisdom.

Senator Bratton said, “The spelling out to the state in advance and what they should do.”

Justice Hugo L. Black: Well, is that your position that they -- they can not divide the river?

Attorney General: Well --

Justice Hugo L. Black: -- allocate it as they did in 4 (b)?

Attorney General: They did not allocated in the 4 (a).

Justice Hugo L. Black: I thought (Inaudible) surplus, it could be divided in (Inaudible), would be not?

Attorney General: In the second paragraph -- in the second component of the limitation in Section 4 (a), they provided that California should limit theirselves to one half of the surplus.

By agreement of the California Legislature, the operating language is not that of Congress which says, “We do know here now divide the water.

If they had intended to do that, there is no necessity for requiring California's Legislature to agree with.”

Justice Hugo L. Black: What about this position, these 300,000 acre-feet, thousand acre-feet above (Inaudible)?

Is that what you're saying it's not -- it's not mandatory?

Attorney General: That is correct sir.

This was a -- by plainly, this is as its -- the introductory language says, “The States of Arizona, California and Nevada are authorized to enter into an agreement to do the following.

There is nothing compulsory about it.

It had been originally written as a condition.”

The action not effect unless California so agrees that was deleted on the Senate floor by Senator Hayden and the author after Senator Pittman had persuaded into, and then follow the colloquy between Pittman and Johnson.

This is not the request to the demand of the Congress at all.

Justice Hugo L. Black: And is it your position, the California is entitled for 4,400,00, under any of one these (Inaudible)?

Attorney General: Not under -- it's not on the second paragraph that which I'm just referring at all, it's wholly inoperative.

Under the first paragraph, we would be entitled under the law of appropriation to far more than 4,400,000 acre-feet are appropriations vastly exceeded that.

We are restricted to 4,400,000.

Let me make this clear.

We do not say that the first paragraph of Section 4 (a) is in a grant or a patent to California of anything.

It is the limitation, the Master is correct and so constraint.

It is a limitation upon California's rights, which absence the limitation would be greater, would be greater under the law of equitable apportionment.

Our appropriations then in existence were greater and on any bases of estimate.

We were -- could have taken from this river more than we can now take under the limitation.

The limitation cut us down.

Justice Hugo L. Black: Do you agree that California is bound by that limitation?

Attorney General: Yes, we raised before we do, we raised the point, Your Honor that since it was exactly devoirs on the -- if Arizona refused to ratify the Compact, then if Arizona is now construed to ratify as the Master said she did, 22 years after in 1944, then we should -- we held to this limitation.

He says, “No, you're bound by it” and we intend to carry out our obligations.

We -- our Legislature enacted this.

We build our projects at the time it was enforced and we do not ask that -- that it'd be -- that it'd be lifted promise.

We do not welsh on it.

We asked that we be entitled to the -- to take what they're up to, what the limitation gave us and that the statutory compact be respected by the United States as it is by us.

But the second paragraph is wholly inoperative.

This compact was never signed by any State, never ratified by any State.

It is a proposed -- that is a proposed Compact that all three States want to know part of, Arizona alone, but the three of them passed an Act even before it even it ratified.

And that was in 1939 and she amended it, amended it in the vital particular of saying and in addition the Gila River before she'd pass it.

Now, the second paragraph, the Master feels should be used as a dictionary to construed the first paragraph.

If you look at the second paragraph, it is not a useful or valuable dictionary.

In the first place, it's not operative, there is no such compact.

In the second place if hey -- it has no water at all into California, not a drop, nothing for New Mexico, nothing for Utah.

It's all efforts to amend this or tear it up seize when it was made permissive and who cared what it said, the Legislature didn't have to take it.

But, if the first paragraph as the Master holds is just the limitation on California, then the second paragraph is just a limitation on Arizona and Nevada to gives them nothing, gives them nothing.

Now, the Master treats the references to 2,800,000 for Arizona and 300,000 for Nevada in the second paragraph as meaning, the Congress intended, the Congress intended that these two quantities in California's 4,400,000 all have to be come out of the main river below Lake Mead, below Lake Mead, the Red River.

Now, if that so, this would have been one of the most curious compacts ever signed, ever ratified by anybody.

Can you imagine a compact that spelled out the implications the Master finds here?

Namely, that if Arizona diverts in the flung third of the main river from the Lee Ferry to Lake Mead, what she takes there shall not be charge against the 2,800,000 acre-feet under this hypothetical compact where she takes it below Lake Mead and (Inaudible).

She can take as much as she likes above no matter how much it diminishes a common resource but not to be charged with it.

And furthermore, how can you possibly reconcile -- reconcile a divorce of the limitation from the compact in the teeth of the provisions of the Clause 6 of this proposed compact on page 3 of my reprint, that all the provisions are said price state agreement shall be subject in all particulars to the provisions of the Colorado River Compact.

Clause 7, said, agreement to take effect upon the ratification the Colorado River Compact by Arizona, California and Nevada.

Now, the Master says, the Master says in page 173 that I read at the beginning this morning that the Project Act in Section 4 (a) use a reference to paragraph (a) of Article III as shorthand, that his expression shorthand for 7,500,000 acre-feet in the main river, the Red River from Lake Mead to Mexico.

Now, these three Legislatures were authorized by the second paragraph to enter into a compact provided it was exactly as written in Heichberger here.

Is it sensible to say that not only it was Congress talking in shorthand in the first paragraph to the Legislature of California and California responded in shorthand?

But moreover, if these three States of Legislatures adopted the compact to the second paragraph, they're supposed to be talking in shorthand in each other too by using a cryptogram.

When they say at paragraph (a) of Article III of the Compact, which by definition includes tributaries, all four sovereigns concerned, Congress, the three State Legislatures, all are presumed to be using that shorthand for something quite different.

It is a remark it will be at statutory construction.

The true -- the true dictionary here isn't the second paragraph of Section 4 (a) at all.It's the Section 13 (b).

The rights of the United States, that's at page 393 and 394.

The rights of the United States in or two waters of the Colorado River and its tributaries, and its tributaries, howsoever, claimed or acquired as well as the rights of those claiming under the United States shall be subject to in control by the said Colorado River Compact.

So much then for the limitation, the limitation issue has repairs and the legislative history of the Project Act.

Senator Phipps making as clear as a man could make it what they offer to California map.

What body of water he's talking about?

The Master rejecting, rejecting the alternative interpretation that Senator Hayden and Senator Pittman gave.

It'll maybe useful to site you the Master's characterization of what they were saying.

At pages 189 and 190 --

Justice Hugo L. Black: In your brief?

Attorney General: No, excuse me of the Master's report, at 189 excuse me, 189 and 190.

Here, the Master discussing the origin of the figures that were being quoted on the limitation.

The conference about provision of the Governors in 1927 had proposed a formula.

It was related to the division of the 3d water, the water of the Upper Basin let down at Lee Ferry.

The Master says after quoting the report from a remark from Senator Pittman, it was quoted from Governor's recommendations.

He says, “This report by Senator Pittman did not adopt or perhaps fail the grass that portion of the Governor's resolution which expressly found the source of the allocated waters in the Article III (d) obligation of the upper division, instead Senator Pittman related the limitation Article III (a), not III (d),” and he quotes Senator Pittman.

On page 190 near the top he said, “Thus Senator Pittman used Article III (a) to define this -- the area against which the limitation was to operate.

He did this in apparent misunderstanding of the Governor's recommendation.”

All subsequent discussion in the Senate flowed in the same channel.

Here, we're dealing with the debate that the Master characterized were confused and he doesn't -- he does not adopt the interpretation that Pittman is giving namely that the III (a) equals III (d).

He rejects that completely.

Having rejected it, there is not a single word in the legislative history, the Project Act to support the Master's truncation of the Colorado River at Lake Mead.

True enough, you'll find Senators who thought III (a) was the same thing as III (d).

True enough, you'll find Senator Phipps rejecting and correcting that, III (a) means the tributaries.

You will not find one Senator, you'll not find one word of support for the notion that the Senate of the United States intended to divide this river at Lake Mead, either Lee Ferry or include the tributaries but nobody said the Red River.

Now, the other element of the statutory compact that I want to emphasize is a priority feature.

The Master's concept is at Section 5 of the Project Act, which is in the reprint before you, delegated to the Secretary of the Interior, the authority to “impose a federal apportionment,” on the States if they fail to enter into a compact, and that the Secretary by its water deliver contracts in later use did that.

The Master rejects Arizona's contention that Section 4 (a) which we've just left creates a mandatory formula, a mandatory formula that the Secretary's bounded putting into effect but the States didn't accept it.

He rejects that completely.

He -- in doing so, he relies upon the colloquy I've quoted.

He says, “I have rejected the contention of the second paragraph, in Section 4 (a) page on 202.”

The Act established a mandatory form and they're governing them out of water, Arizona must receive.

He says at Section 5, “Authorize the Secretary of the Interior by in his discretion, in his discretion to place a formula in effect.”

And that by the contract as Secretary later made, he did that.

And at that the conflict of the contracts of the Secretary were -- what I've described this morning namely proration, 44/75ths, 28/75ths, 375ths or whatever what was available.

Now, there is nothing in Section 5 which makes any such delegation of the Secretary of the Interior.

The record is replete with statements by Senators that the Congress did not have the power to divide the water, they -- as replete with the assurances that we're not delegating to the Secretary of the Interior.

Delegating to the Secretary of the Interior, the powers that they refused to exercise themselves.

Here, typical expression, Senator Bratton of New Mexico, they're only two ways known to me through which titled the water of an interstate stream either for purposes of irrigation or development of power may be adjudicated.

One is by a contract or agreement, the method sought to be followed in this case, and the others by a decree rendered in a suit instituted originally in the Supreme Court of the United States.”

Here's Senator King, in the colloquy of Hayden, “If the Senator means by his statement,” as the King speaking, “That the Federal Government may go into a stream, whether it be the Colorado River, the Sacramento River or a river in the State of Montana and put its powerful hands down upon the stream and say, “This is mine.

I can build a dam there and allocate water to whom I please, regardless of other rights either suspended, inquorate or perfected.

Now, I deny the position which the Senator takes.”

And Senator Hayden said, “The amendment that I have offered contemplates no such possibility.”

That's the second paragraph of Section 4 (a).

Justice Hugo L. Black: May I ask you that, (Inaudible) intended to do in violate Senator Kings (Inaudible)

Attorney General: Yes.

Justice Hugo L. Black: Does that (Inaudible) to the fact that the Secretary was giving the right to make a contract that should be finding (Inaudible)?

Attorney General: No Your Honor, in response to Senator King's comment, one week later, he introduced what became Section 18 of the -- of the Project Act.

And that says, “Nothing herein shall be construed as interfering with such rights as the States now have either to the waters within their borders or to adopt such policies and enact such laws as they're may be necessary with respect to the appropriation, control, and use of waters within their borders except as modified by the Colorado River Compact through other interstate agreement.”

Now, that language, it was construed by this Court in the first of the Colorado River cases here 283 U.S. by Mr. Justice Brandeis as preserving to the States the rights of control of appropriations on their boundaries.

Arizona's raise against California are not cut-off or perfected by the Project Act.

Justice Hugo L. Black: What you meant by this (Inaudible) in Section 5 (Inaudible) entitled to have a use.

(Inaudible).

Attorney General: That language, Your Honor came into the Act as an amendment proposed by spokesman for the Upper Basin, Mr. Carpenter of Colorado.

And it is designed to require that no land may use waters of the Colorado River except by a contract which in turn shall contain the provisions required by 13 (b), (c) and (d) that it is subject to and in control by the Colorado River Compact.

That is no use in Arizona could escape the consequences of the Compact.

He had to get water by a contract.

The contract had to contain a compact -- a compact term.

Here's -- here is Carpenter's explanation.

Except by a contract made as herein stated means this, ”If the flow of the Colorado River is controlled and regulated by the constructions of Black Canyon Dam and any person of the State of Arizona attempt to take any water out of the stream, which has been discharged from the reservoir.

It's been carried in the streambed as actual conduit but (Inaudible), this law would be brought into effect and he would prevented from using any of that water independent with Colorado River Compact but unencumbered by any other condition for the benefit of California and Nevada.”

In other words, a Compact does not disturb the right -- does not disturb the rights between Arizona, California and Nevada intercedes to their fortune of the water.

The thought of this amendment is that any water stored in this reservoir, under the terms of the Compact when released through storage shall be burdened by the Compact wherever it goes.

As far as water is concerned, existing claims of the lower States are protected by the Compact and water must pass through this reservoir to take care of the person existing to lower claims.

As the future development from the river, we insist that water stored in this structure by the United States be stored and released upon the expressed condition that the persons who received their water shall respect and do so under the Compact.

It has nothing to do with the interstate relations between Arizona and California.

Justice Hugo L. Black: Your argument, I think --

Attorney General: Yes.

Justice Hugo L. Black: Your argument with respect (Inaudible) having provided that all has been made existing rights at that time (Inaudible) observed then they had no rights that how the Secretary or did not did not invalid.

Attorney General: Did not (Inaudible)

Justice Hugo L. Black: -- to allocate and sell the water at he saw (Inaudible).

Attorney General: That is right.

We do not reach the constitutional question, Arizona does.

She says, “Unless you take the -- the Section 4 (a) as a mandatory formula, they're not sufficient constitutional guides with the Secretary in Section 5.”

We say they are that that the guide is in the reclamation law, Section 8, the basic 19 to Reclamation Act.

That is a statute which controls stored water as well as -- as well as a natural -- use of natural flow.

And it is a statute that says that the right to the use of water acquired under the provisions of this Act as a reclamation law which the Project Act is a supplement, shall be appurtenant to the land irrigated and beneficial use shall be the basis, the measure and the limit of the right.

We say that the Section 5 contracts of the Secretary of the Interior simply initiate perforations under federal laws stored water and of the basis, the measure and the limit of the rights so acquired is a quantity of water, in fact put to use as it would be under a state law of corporation.

The Section 5 contracts to us are patents or grants.

They're not a reversion to the riparian doctrine of -- that you may have something that you can be a dog in a manger about you can keep.

It's not related to use.

The right has measured by use and the priorities are preserved.

Now --

Justice Hugo L. Black: One more question.

Attorney General: Yes sir.

Justice Hugo L. Black: Let assume how the Congress did say that should be divided to 4,400,000 (Inaudible) little 2,000,000 or whatever you have figure (Inaudible), 300,000 will be divided.

And then asking all the existing corporations (Inaudible).

Then you say the Act does not commit the Secretary to determine to whom he will sell that one over (Inaudible) delivered.

Attorney General: If we --

Justice Hugo L. Black: Am I right Mr. Attorney General?

Attorney General: If we accept this as premises, the statutes have said in so many words, the water is divided as follows among these three States.

And I would think it would follow that the Secretary would be -- be so bound and that he would have to make his contracts conform to those three quantities, whether you call them limitations --

Justice Hugo L. Black: But he has the right --

Attorney General: -- when you call graphs.

Pardon?

Justice Hugo L. Black: But he has the right under the bill that you see, the power under the bill to determine to whom within the States have waters to grow or would that be a matter that would take (Inaudible) that he makes the contract (Inaudible) inside the State?

Attorney General: Under the statute as it stands now.

Justice Hugo L. Black: Assuming that -- assuming that which you do not assume that there has been a division among the States to (Inaudible).

Attorney General: Made by Congress.

Justice Hugo L. Black: Yes.

Attorney General: I would suppose, Your Honor depend on what the statute said is to with respect to that particular point, that the statute said the Secretary shall decide who gets intrastate so be it if the statute says the Secretary shall deliberate to those who qualify under the state law, so be it.

The Master adopts the latter interpretation of the Project Act.

The state law controls who gets it within the State.

Justice Hugo L. Black: That's what I was --

Attorney General: "You have to have both valid states right on the contract to get the water”, says the Master.

Justice Felix Frankfurter: (Inaudible)

Attorney General: Yes.

Justice Felix Frankfurter: (Inaudible)

Attorney General: Yes, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well, there --

Justice Felix Frankfurter: (Inaudible)

Attorney General: No, you're substantially right.

In 23 U.S. Arizona suit turn to join the Colorado River Compact and the Boulder Canyon Project Act in place in effect.

And according of Mr. Justice Brandeis' opinion, Arizona sought regrets against two ascertained wrongs.

The first was invasion over sovereignty by building the dam and now Hoover Dam, and the second was the threatened invasion of Arizona's quasi-sovereign right to prohibit or to permit appropriation under risk laws of the inappropriate water of the Colorado River flowing within the State.

Now, with respect to the first, he held the dam could be built, with respect the second after defining the law of appropriation is, he went on to say, “The further claim is that mere existence of the Act, it will invade quasi-sovereign rights of Arizona by preventing the State in exercising its right to prohibit or permit under two laws, the appropriation and inappropriate of water and so on.”

Then, he quotes Section 18 of the Act --

Justice Felix Frankfurter: (Inaudible)

Attorney General: That is right.

As -- and he goes on to conclude as we hold that the grant of authority to construct the dam and reservoirs of valid exercise of the congressional power that the Boulder Canyon Project Act does not purport to a bridge, the right of Arizona to make or permit additional and appropriations of water flowing within the State or on its boundaries and that there is now no threat by will or any of the defendant's States to do any Act which will interfere with the enjoinment of any present or future appropriation.

We have no occasion to consider other questions which it has been argued.

The bill is --

Justice Felix Frankfurter: (Inaudible)

Attorney General: Pardon me?

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well --

Justice Felix Frankfurter: I think though the -- (Inaudible)

Attorney General: Well, it goes on with the final sentence or he perhaps clarifies it.

He says, “The bill is dismissed without prejudice to an application for relief in case the stored water, the stored water is used in such a way as to interfere with the enjoinment by Arizona or those claiming under it of any rights already perfected or with the right of Arizona to make additional, legal appropriations and to enjoy the same.

Now, it's --

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well clearly, the account reconcile Judge Rikfkind's holding that the Project Act did cut off the right of the appropriation when Justice Brandeis' statement that Arizona could come back to this Court if the future uses stored water interfered with then perfected the appropriations to right to make further ones.

If Judge Rifkind is right, the answer in 283 U.S. to where Arizona was yes, you're qualified now.

You can't come back to complaint of appropriation being interfered with or any such things anymore.

Justice Felix Frankfurter: (Inaudible)

Attorney General: I can't -- I don't have the qualification, I think he's very careful in this.

Here's what he says about Section 18.

What this Court says through Mr. Justice Brandeis at page 262 and 23 U.S., “The act does not purport to effect any legal right of the State or to limit in anyway the exercise of its legal right to appropriate any of the appropriated 9,000,000 acre-feet which made flow within on its borders.”

On the contrary, Section 18, specifically declares that nothing therein shall be construed as interfering with such rights as the States now have, either to the waters within their borders or to adopt such policies and act such laws as they may deem necessary, with respect to the appropriation control and use of water within their borders except as modified by the interstate agreement.

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well, it's canvassed to say but --

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well, --

Justice Felix Frankfurter: (Inaudible)

Attorney General: Not the --

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well, he was dealing with issues and presented --

Justice Felix Frankfurter: I know but (Voice Overlap) --

Attorney General: -- and the Arizona --

Justice Felix Frankfurter: (Inaudible)

Attorney General: -- right.

And --

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well, I recall sitting in this courtroom and hearing (Inaudible) argue that case for Arizona and the issue between Arizona and the Solicitor General is this precise one.

Did the Project Act, “in throne the Colorado River Compact?”

Did it as of that moment cut-off Arizona's right to further appropriate?

Did it require Arizona to come to the Secretary had in-hand to get a contract, which should be a subject to the Colorado River Compact?

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well, I shared your regret, 1954 Mr. Justice Frankfurter.

But the point that we have all argued about for this 39 years, the only reason we call about the means of the Colorado River Compact and the suit between Arizona and California is that it was relevant, it was relevant.

The Master says, “It isn't.”

Then what we care what it means?

Why has Arizona been here four times on they joint their motion in which you denied California's motion to joint these upper States?

A question was whether on Arizona's three issues of interpretation of the Colorado River Compact, those absent States were indispensable parties, interpretations of the Compact.

The Court held that they weren't.

And I supposed the law of these cases therefore that the Colorado River Compact can be construed here in the absence of those States because in three issues you then had before were compact issues, nothing else.

Now, the subsequent history in this -- and in this Court doesn't indicate that the Section 18 was found ambiguous or the 283 U.S. was found ambiguous.

As a matter fact, this Solicitor of Interior Department subsequently interpreted as just exactly as we have here in withdrawing regulations Interior Department were issued on the river.

Justice Hugo L. Black: Did the record show when California exceeded on its commitment by equipment or use of the water for 4,400,000 --

Attorney General: Yes.

Justice Hugo L. Black: (Inaudible)

Attorney General: Yes, I believe so speaking from memory.

Arizona alleged in their complaint that we were then using about 4,500,000 in 1952 or 1953 and the last probably not far off, we --

Justice Hugo L. Black: Did it show that (Inaudible), that this has been a running pipe, as we all know for (Inaudible)?

Attorney General: No, the California projects that are before you now are the same ones that would have been for it were described to the Court in the three previous cases, we have no new ones.

It's quite true that the Colorado River Aqueduct, which is built-in with tunnels with full capacity, did not add the pumps, all its pumping equipment until later, it's come on by status and some in fact added during the course of this trial.

But the eradicable decision to build the aqueduct full size and drive 80 miles of tunnels have made in 1932 to 1935.

So there's been no increase in the sense of going into the river and building a new project.

Same is true to the All-American Canal.

The Coachella branch, it's true that more land has been added under the Coachella branch of the Canal in recent years but this is all in accordance as what we described as the law of relation of act of reasonable diligence.

The project diversion capacities are as it where initially.

It just gradually flexed them up.

But the quantity of water in fact consumed in California as they close the trial was they ordered 4,600,000 acre-feet.

Justice Hugo L. Black: I do not understand this, all of the equipment and all of the project (Inaudible)

Attorney General: No, sir.

They're all initiated in a sense of appropriations made and project --

Justice Hugo L. Black: Appropriation (Inaudible)?

Attorney General: Under the laws of the State of California, notice his file.

Justice Hugo L. Black: (Inaudible)

Attorney General: Well, these were notices of appropriation under which work has been done.

The Colorado River Aqueduct to the Metropolitan Water District had spent some $2,000,000 on this project before 1929, but the project was not in fact gone on a big scale until 1931 after -- after the Project Act.

The Imperial Valley was served from 1901 by a Canal that squirted around through Mexico and back.

The All-American Canal project to authorize by the Board of Canyon Project Act was commenced, authorized in 1929, commenced 1931 or 1932.

Justice Felix Frankfurter: (Inaudible)

Attorney General: Yes, sir.

Justice Felix Frankfurter: (Inaudible)

Attorney General: No, Arizona is --

Justice Felix Frankfurter: (Inaudible)

Attorney General: That's correct, Your Honor and the six dates and the Secretary of the Interior.

The motion -- that was the one case that was dismissed on motion, the other was moved for leave to file is not granted.

On the question of the power of the court to proceed to the interpretation of this Compact, I should refer you as a Special Master did on the joint motion to the Hinderlider case, Hinderlider versus La Plata River in Cherry Cheek Ditch Company 304 U.S. 92.

Unknown Speaker: (Inaudible)

Attorney General: That a compact -- an interstate compact may be construed despite the fact that all of the sovereign parties do it or not before the Court.

Unknown Speaker: (Inaudible)

Attorney General: Well, the language from a decision was it has been suggested that this Court lacks jurisdiction to determine the validity in effect of the Compact because Colorado and New Mexico, the parties to it are not parties to this suit kind of we made so, the contentions unsound.

The cases were many, were entitled to land dependent upon the boundary between States have been passed upon by this Court upon reviewed of judgments of federal interstate courts and suits between quite the litigants.

Unknown Speaker: (Inaudible)

Attorney General: That is correct.

Justice Hugo L. Black: I assume that probably do you have a questionable judicial (Inaudible) and have a considerable weight thereafter deciding what should be done in connection with abatement.

If you assume in other words that what is to be done, might be done in such way that is a thing about a continuing existing demand to existing plants necessary (Inaudible), would it be rather inappropriate, would it not, to decide --

Attorney General: Well --

Justice Hugo L. Black: -- have that effect on the Upper Basin?

Attorney General: Well the -- the Master's report opposes to remind that a very dilemma, Your Honor.

If there is no shortage now and no prospect of any foreseeable shortage until, “vesting projects to authorized, why are we here?

Nobody knows what those statutes would say.

If they say that they're subject to the priorities of existing projects, will not destroy them, that's one matter.

They say on the other hand that we take irrespective of the effect on existing projects such another.What he does say is that you should have your rights now determined as being pro rata of the quantity available.

I reassure you this can't hurt you very much because the Upper Basin isn't going to develop.

We say that's a wholly unsound premise.

If that premise were sound and this case shouldn't be here, it's not justiciable.

We say the Compact means what it says.

It's glaring its right in the eye and it enforced as indeed it will have to be enforced if the Upper Basin expands at all, then we are subject to the disaster's consequence, being cut back to 3,800,000 acre-feet.

Justice Hugo L. Black: That argument could be used the other way that (Inaudible) development in case, would it not that besides, let's say, disaster condition might (Inaudible).

Attorney General: I do not follow that, Your Honor.

If the --

Justice Hugo L. Black: What I meant was if -- what is to be done here is (Inaudible) on the basis of water.

Attorney General: Well, I --

Justice Hugo L. Black: You potentially use a reservation.

That was (Inaudible)?

Attorney General: I think I totally -- sir, no.

I assure you most honestly the reverse is true.

Nothing you do here with respect to the decision of the case of Arizona versus California to our mind is going to add to or detract from the burden upon the Upper Basin.

Their obligations are fixed by the Colorado River Compact.

The obligation is to deliver not less than 75,000,000 acre-feet at Lee Ferry every 10 years and to bear a portion of the Mexican burden under the Article III (c).

Now, the trouble the Upper Basin faces results from the fact that it cannot possibly expand that all if the Master is correct that there is at least 7,500,000 acre-feet of consumptive use available to these three States.

Justice Felix Frankfurter: (Inaudible)

Attorney General: Well, we say that they cannot deplete the flow below the 75,000,000 and in addition thereto parts of the Mexican burden on under III (c).

Justice Felix Frankfurter: (Inaudible)

Attorney General: That is right but the point I am honestly trying to make is that the Master can't be right that we both getting a -- have our cake in either two that you --

Justice Felix Frankfurter: (Inaudible)

Attorney General: Yes.

That you cannot assume -- you cannot assume abundance in the Lower Basin, 7,500,000 of consumptive use plus a 1,500,000 for Mexico, plus 1,000,000 losses, 10,000,000 of requirements at Lee Ferry.

You cannot assume abundance for the Lower Basin and at the same time assume abundance for the Upper Basin.

One or the other is going to be short.

If we have the abundance that he foresees for us, no possibility of shortage in the foreseeable or the unforeseeable future then the Upper Basin cannot expand one acre-foot, unless you assume there is more water than there's been for 30 years in the hydrology of this river basin.

If on the other hand, you accept as a reality of life, the flow of the stream, the reference of the last 30 years, of the last 40 years as the Court did in Nebraska versus Wyoming, Wyoming versus Kansas then, then, there is an inevitable reinforcement of the Colorado River Compact against our supply and are being cut back under the Master's quantity, the treatment of 3,800,000.You can't have it both ways abundance in both bases.

Now, I'm --

Justice Potter Stewart: If Arizona's destruction of the meaning of the compact were adapted, then that would've adversely the effect of the Upper Basin.

Attorney General: Oh yes, indeed.

It would indeed --

Justice Potter Stewart: Of course --

Attorney General: Yes.

Justice Potter Stewart: Of course, they wouldn't be concluded because they're not parties as those States are not parties --

Attorney General: That is right.

If you adapted there -- right sir.

If you adopted Arizona's interpretation of the compact, the Lower Basin tributaries were excluded --

Justice Potter Stewart: Yes.

Attorney General: -- from the accounting as to III (a) and (b).

We can claim from the Upper Basin 8,500,000 acre-feet of Lee Ferry plus water from Mexico plus losses.

Then they are broken, then they are broken.

Justice Potter Stewart: Yes.

Attorney General: The Upper Compact is destructive but the Upper Basin is so construed.

We don't assert that construction.

Your Honor, I had -- like to be able to conclude in a rather short time, I can't do it this afternoon.

I will -- first thing in the morning, I should like to reserve about an hour for rebuttal time.

So, I will now attempt even now and as we start in the morning to give you a resume of what we think is involved on these two critical issues prior -- limitation and prior order.

Justice Hugo L. Black: (Inaudible)

Attorney General: The two critical issues.

The limitation issue that I have spent so much time on and the priority issue which I do want to leave very firmly in your minds because we feel that even if you should decide that the Master's right on the limitation issue that reference to the Compact and the Limitation Act is inappropriate somehow.

Nevertheless, we are entitled to protection for the priorities of our existing projects in California within that 4,400,000 acre-feet.

You should not prorate a shortage.

It should be borne by the new project.

And if you follow our construction of limitation, there's no shortage, you stop is a risk.

But the priority issue I have want to -- before I threw emphasize, then I want to take up the prior decisions of this Court then bear upon both of those two issues give you something of the way of which these two issues bear upon the project that's hazard here, the Metropolitan Water District and finally to conclude.

So I shall endeavor within the minute of so now left and about half hour in the morning to cover that ground and reserve about an hour for me.

The case has been here not only in 283 U.S. but also in the perpetuation of testimony case in the 292 U.S. case of United States versus Arizona in 295 U.S., and the final Arizona and California cases in 1935 and 298 U.S.

Now, the Arizona, the first of these cases, I have already mentioned to you.

If the Special Master is right in his interpretation of the Project Act, then it passes all comprehension that the Arizona Senators and Congressmen should've voted against this Act, should've opposed the appropriations to build Hoover Dam that conferred these benefits upon them.

And in 1930, the State of Arizona sued in this Court to enjoin the Project Act in the Compact in going to effect.

Why?

That is the question I'll weigh about the morning.

Print this transcript Transcript:

Argument of Northcutt Ely

Mr. Northcutt Ely: I find on a review of yesterday's proceedings that the points that I had intended to return to this morning have been enlarged part -- anticipated by corrections from the bench.

And I shall -- consequently this morning simply identify for you the places in our reply brief where the material is found which I referred yesterday, invite your attention to it and reserve the balance of my time for rebuttal unless there are questions this morning.

The reply brief was follow -- was filed October 2, 1961.

The limitation issue is found beginning at Page 19.

It is captioned, “The legislative history of the Project Act does not support severance of the Colorado River Compact from the California Limitation Agreement”.

The priority issue is covered beginning at Page 34 and it is captioned, “The priorities of California's established projects up to 4,400,000 acre-feet annually should be protected from impairment by new projects in Arizona and Nevada”.

The water supply or justiciability issue is covered beginning at Page 98.

And if this caption -- if the conclusion is reached by the Special Master as urged by the other parties are correct, this controversy is not justiciable.

It goes on to say, however, that upon our premises, this controversy is justiciable.

And may I invite your attention also to the preliminary material which begins at Page 1 which is captioned, “The basic controversy”.

And here, we attempt to sum up the impact of these three issues.

The limitation or severance issue, as we sometimes call it, the priority issue and the jurisdictional water supply issue as compared with California's claims and the impact, the effect of the Colorado River Compact.

And now may it please --

Justice William J. Brennan: I agree.

Mr. Northcutt Ely: In our reply brief of October 2, 1961.

That brief in turn gives cross references to the more detailed treatment of these materials in our earlier briefs and also a cross references to what our opponents would have to say about them up to that time.

And so now if may it please the Court, I -- unless there are questions, I shall reserve the balance of my time.

Justice Hugo L. Black: Mr. Wilmer.

Argument of Mark Wilmer

Mr. Mark Wilmer: May it please the Court.

Arizona's case brief itself naturally into two parts.

The first being the controversy between the states over the Colorado River, the interstate controversy mainly Arizona versus California in that we are supported largely in the Master's -- in upholding the Master's Report by United States and by Nevada.

The second portion of the controversy which is really almost a separate controversy involves the dispute between Arizona mainly and the United States with respect to the claims of the United States for federal establishments mainly the reservations on the Colorado River, the Indian Reservations.

Because of that of the fact that in one sense we are appellee here insofar as California is concerned and that we mainly support the Master's Report, we have yielded to California our plaintiff's position to open.

However, with respect to the United States in effect, we are the appellant.

And therefore, with the Court's permission, we propose to divide our argument as I've indicated.

I will discuss the Arizona position and the reasons why we believe the Master's Report fundamentally is sound.

And Mr. Reed, in turn, will discuss with you Arizona's views with respect to the apportionment made to the federal establishments and particularly, the Indian Reservations.

I expect to use approximately four hours of our allotted time and Mr. Reed approximately an hour and a half.

Please the Court, some 36 years ago, Justice Holmes in an opinion written for this Court in Sanitary District of Chicago versus the United States could very well have been using language which we think appropriate to this case.

He first discussed the great issues involved, the claims of the Sanitary District of Chicago as to the vast amounts of money which had been expended.

He then turned to their claims of the great importance for many billions of people residing in the Chicago area.

He then said after having summarized the issues as presented by the pleadings, this brief summary of the pleadings shows the importance and gravity of this case.

But importance and gravity alone do not tend to impede the ability to decide the case.

The exact language were, do not stand in the way of a quick decision.

He then said the mere fact that great sums were involved and that the millions -- the welfare of millions of people is involved does not do more than ten to cause disputes which would less mighty interests involved, no one would venture to question.

He round up with this significant phrase dealing there with navigable water as we are dealing with navigable water here, “The law is clear and when it is known, the material facts are few”.

And we say here dealing again with a navigable stream that the law is clear and when it is known, the material facts are indeed few.

This great record undoubtedly will serve as a repository of many interesting studies, of many interesting excursions into the field of hydrology, into the field of many things but from the stand point of relevancy to this case, it is our belief that ninety percent of the record is in the same category as was characterized by Justice Holmes in the Sanitary District in Chicago case.

Either this case is one -- if it please the Court, in which to take it by a mighty phrase which Senator King used in the project debates, the United States has put its mighty hands down upon the river and has you surfed its flow has laid aside all other lesser interests except in supplier as to that they indicated a contrary purpose, either that or else despite the fact that under the navigations of under the par which the Congress has under the Commerce Clause when they can call of a navigable river.

It has expended these great sums to store the entire flow of the Colorado River.

It has expended these great sums in building that works that are involved.

And this Court has said it has done so constitutionally under the Commerce Clause.

Either that, as we have said or else as California would request this Court that river still flows as it was want to flow, the river is still a course as its old course down the Colorado.

We say, if it please the Court that the law is clear and that the material facts are few.

Significantly, if it please the Court, despite the fact that the Special Master relied strongly upon the Chandler Dunbar case decided in 1913, upon the appellates in Electric case decided later, upon the Twin City Power case but despite those cases which the Master relied upon and which Arizona and the United States relied upon as ruling this case, California has not even cited those cases.

We suspect that perhaps the reason is that it's impossible to cite them, to read them and not to find the answer to this lawsuit.

I do not need -- if it please the Court to -- I might add to that the early case of United States versus Rio Grande Irrigation and Dam Company in 174 United States.

The Court will recall that that was a case in which this Court examined the power of Congress unto the navigation of the Commerce Clause and in the light of the Rivers and Harbors Act of 1890 and 1899, in that case, 1890 because the 1999 Act had not been passed.

And in that case, this Court held that with respect to a navigable river, anything which impaired its navigable capacity violated the Rivers and Harbors Act of 1890 and in that case, sent it back to the District Court in New Mexico, the Federal District Court, to ascertain if in fact the proposed construction of this dam would impair the navigable capacity of the Rio Grande.

The Court in that case said that Congress under the Commerce Clause had the right not only to demand no obstructions to the flow of a navigable stream itself but had the right to reach up into a tributaries if interference on the tributaries impair the navigable capacity of the stream below.

I make that point because I think it will become quite important later in our discussion with respect to the so-called truncation of the Colorado River.

It is our position briefly, if it please the Court that the position of the Upper Basin in this case is of no more consequence than the rights of Massachusetts or New York.

This case is solely a case of statutory construction of the Project Act.

This case no more involves the rights of the Upper Basin than it involves the rights of Mexico.

Congress in enacting the Project Act, in our review, if it may please the Court, spoke under its dominant servitude which this Court has called “a power over navigable water”, a dominant power not in terms of property but in terms of power.

In the Project Act, the Congress of the United States, exercising the power which resides in it by a virtue of the Constitution has put the river water in its pocket.

It has bonded up in Lake Mead and it is then said how this water is to be distributed.

I don't care, if it please the Court whether Congress talked about 3 (a) or 3 (b) or 3 (c), the decisive question before this Court is, ”What water did Congress have in mind?”

Whatever terms it may have employed become wholly immaterial if it is clear what water it was talking about.

I say again, if it please the Court that if it is clear from the legislative history, from the surroundings which existed at that time that Congress was talking about mainstream water which it was going to store at Lake Mead and which it was going to direct the apportionment of then the terminology used to tell us what it intended becomes relatively important.

The Master has said that the Congressional reference to 3 (a) of the Project Act related to a fourth hand method of describing the first 7,500,000 acres available for consumptive use.

Arizona has disagreed to one extent.

We fully agree with the Master that what the Congress was talking about was at first 7,500,000 available for consumptive use in the Lower Basin each year.

The Master has said that 3 (a) constitutes an appropriative ceiling against the Upper Basin and necessarily if it's a appropriative ceiling against the Upper Basin, it has to be with respect to the mainstream because you don't get an appropriative right against the source of water that you don't have access to.

So our tributaries have no access to the Upper Basin, therefore, it's a short junk in the Master's position to our position.

But I do not propose, if it please the Court, to pursue at length any attempt of interpretation of the Compact.

The Master, at the outset turned to the Delphic instrument and he said, “Each time you shake the kaleidoscope, you get a different picture”.

I think that is true.

But because it is irrelevant, because the Master has held it irrelevant and because we agree, we do not propose to pursue an interpretation of it because it would serve no purpose.

It's nice to debate how many angels can dance in a point of a pin but unless it becomes of some consequence in the lawsuit, best be laid aside at least in the Court of this dignity.

Justice Felix Frankfurter: What you're doing is demand side the -- the literal terms of the language, you say, in this case they're not qualified, as you say?

Mr. Mark Wilmer: Right.

Yes Mr. Justice Frankfurter, I say that whatever Congress said and Congress stored this water, whatever terms Congress used if it is clear what water it was talking about --

Justice Felix Frankfurter: You say whatever Congress said but if Congress used the term, you have to define it.

You'd have to the pause a meaning into the word, don't you?

Mr. Mark Wilmer: Certainly, Your Honor, yes.

Justice Felix Frankfurter: And you disregard the word in pouring in the meaning into the word, is that it?

Mr. Mark Wilmer: No.

Please the Court, Mr. -- Mr. Judge Murnaghan, I believe at one time made a very wise observation at a (Inaudible) jurisprudence is not -- does not look to the dictionary as a fortress.

It looks to the words and it looks to the -- the purpose that the Congress is attempting to achieve and then interpret the statute in the light of that purpose which the Congress was going to achieve.

Justice Felix Frankfurter: (Inaudible) from saying just -- (Inaudible) in all the words.

Mr. Mark Wilmer: No Your Honor, I certainly would --

Justice Felix Frankfurter: In other words, you -- you've quoted Justice Holmes but no one is more frequent than he said intention of Congress is derived from the word it used.

What the words mean is a different story, but it seems to me a bit of cavalier just to start on an argument by saying we disregard the word altogether.

Mr. Mark Wilmer: Your Honor I -- if I could capture my argument and quickly cover the legislative history, I would be, I think justified in the -- taking the position I have taken.

I think that no one and I say this advisedly no one can read the legislative history in the light of the environment then existing and come to the conclusion other than that the Congress was speaking of mainstream water at Lee Ferry.

Justice Felix Frankfurter: But your -- but it's a different thing from saying you disregard that, what you're saying is it's because of the (Inaudible) statute if in Congressional English, this is what those words mean.

Mr. Mark Wilmer: I will accept that, Your Honor.

Justice Felix Frankfurter: Pay no attention to the word and go on because you're talking Congress.

Mr. Mark Wilmer: I am most happy to accept that, Your Honor.

I think that's exactly what I was trying to say.

I put it that way.

Justice William J. Brennan: You say that --

Mr. Mark Wilmer: Yes sir.

Justice William J. Brennan: -- the content that the Master (Inaudible) namely the reference to 3 (a) is just a short hand that way of saying the first 7,500,000 feet, do you agree that's --

Mr. Mark Wilmer: We agree.

Yes Your Honor.

We have minor what I would call -- I supposes it's matter of attempting to justify a position taken, the end result is the same whether you call our position of 3 (a) right or the Master's position, the end result is the same.

Justice William J. Brennan: But how is yours different from him in that respect?

Mr. Mark Wilmer: We believe, if it please the Court, that 3 (a), if the matter was before the Court for the Compact not the Project Act, but Compact was before the Court for consideration today, we would be urging that 3 (a) and 3 (b) are correlative.

That in fact, what 3 (b) means is a leveling out of the 3 (a) demand from the Upper Basin.

Your Honors, yesterday we saw how erratic this river is.

You saw how the flows are up and down.

It's our belief that the Upper Basin demand this safety valve against the year when they would have a short supply and in favor of a year when they would have a long supply.

In other words, if you look at the record of the flow, you'll see some years where there's very little water.

I mean, by that down to either --

Justice William J. Brennan: Specifically in the context of the Project Act, you do agree with the Master --

Mr. Mark Wilmer: We do.

Justice William J. Brennan: -- the reference to 3 (a) is just shorthand for the first 7,500,000?

Mr. Mark Wilmer: We accept the result, Your Honor.

We accept that as a sound conclusion.

Now --

Justice William J. Brennan: To the meaning of the reference in the Project Act?

Mr. Mark Wilmer: If it please the Court, we do not believe.

I say this again, we do not believe the Compact is here for construction by the Court.

We believe the Project Act is here for construction by the Court and that whatever the Congress said in the Project Act is what governs.

What the -- what these seven men thought in 1922 or what their secret beliefs or thoughts or discussions were or even their stated words becomes completely immaterial, as we see it.

When we see what Congress said when it enacted the Project Act --

Justice William J. Brennan: Well, I'm sorry Mr. Wilmer.

Mr. Mark Wilmer: Yes, Your Honor?

Justice William J. Brennan: I don't seem to -- clear about just what your position is as to the reference in 4 (a) in the Project Act to 3 (a) in the Compact.

Mr. Mark Wilmer: We believe that the reference in the Project Act to 3 (a) in the Compact means what the Master said it does.

Justice William J. Brennan: That's what I want --

Mr. Mark Wilmer: That it means the first 7,500,000 acre-feet of water released or available rather in the Lower Basin, the rest is academic.

If the Upper Basin were here, perhaps we might debate the matter but they're not here and they're not necessarily here because in the Hinderlider Case, this Court construed the Compact which involved four states with only two present because only two states' rights were involved.

And here, the impact of this decision cannot reach to the Upper Basin because we're not construing the Compact.

We're construing a statute passed in 1929 which has reference only to a supply coming down from the Upper Basin in which does not pretend to reach into the Upper Basin and ask or demand any water.

In fact, if it please the Court, counsel yesterday talked of Section 18 of the Project Act which you will recall, in substance provides that, ”No local waters, no local rights shall be invaded, shall be impaired or otherwise affected by the Project Act”.

The exact language, “Nothing herein shall be construed as interfering with such rights the states now have either their water within their borders or to adopt such policies in the next such laws that they may deem necessary with respect to the appropriation control and use of waters within their borders except -- except as modified by the Colorado River Compact or other Interstate Agreement”.

The contention which California makes is perhaps plausible but when this Project Act is read in the light of its legislative history and of the conditions then persisting -- then existing, when we read in this Project Act the great care, the actual overemphasis upon protection that the Upper Basin demand, we understand what this means.

The Court will recall the Master said that the peers of the Upper Basin were against the quick development of the Lower Basin.

Wyoming versus Colorado had been decided in 1922 and from that point forward, the peers of the Upper Basin increased because of the recognition of the doctrine of prior appropriation in an equitable -- equitable apportion.

This language in substance says what?

It says that the rights of the Upper Basin are preserved and are not affected by this Act with one exception as modified by Colorado River Compact -- as modified by the Colorado River Compact.

We say, if it please the Court, that Section 18 is a barrier which the Upper State erected as between the Upper and the Lower Basin States to be sure nothing pass through that barrier by virtue of the Project Act except the burden they assume under the Compact.

So I say again, if it please the Court, that the rights of the Upper Basin are not involved and cannot be involved because they're not affected by the Project Act.

And the Project Act stands, if it please the Court, as the sole instrument before this Court for interpretation as the rights of the states because Congress did bottle up on that water, Congress did put the hand -- mighty hands of the United States down upon that stream and it did take it into its custody and did apportion it.

If I might, digressing for a moment, please the Court, I think it might be helpful because we have not have the advantage of it at this point to just briefly review the geography of the area and some of the background which existed.

Again, if I might use the words of a great jurist Learned Hand, he said that where'd you like chameleons which take their color from their environment.

And I think we need to know the environment that existed when the Project Act was passed to understand the full impact of the words which are contained in the Project Act.

Briefly and I'm sure the Court has perhaps read this many times, the Colorado River is -- as the Master said the stream of continental proportions.

It is the third largest in the United States surpassed only by the Rio Grande and the Mississippi that extends approximately 1300 miles generally as you saw in the map yesterday in the northerly and the southerly direction rising in the high peaks of Colorado some 14,000 feet high.

It extends to Colorado 245 miles, to Utah 285 miles to Arizona alone 295 miles.

It is the common border of Arizona and Nevada 445 miles.

It is a common border of Arizona and California for 235 miles and it is a common border of Arizona and the Republic of Mexico from 16 to 20 miles.

So immediately, it becomes apparent the great State of Arizona has in this river because as far as access, as far as it being a part of Arizona, Arizona's contact with it outweighs down of all other states.

Master further found in the tables are in the report and I will briefly cover them to the save taking it up.

Arizona has a total square mileage of 113,900 miles, California, 158,693 miles.

And Arizona's total of 113,900 miles, 107,242 fly within the drainage basin of the Colorado River System.

California has 3,599 miles within the drainage basin of the Colorado River System.

The percentage of the total state in the drainage basin, Arizona is 94 and one tenths percent, California 2 and three tenths percent.

The percent of the entire basin in the State of the entire basin 44, a basin system, 44 and three tenths percent is in Arizona, 1 and five tenths percent in California.

The square miles of the State in the Lower Basin of Arizona 100,306 California, 3599.

The percent of the State in the Lower Basin that is of the entire State is 88 and five tenths percent against California, two and three and tenths percent.

Now, it is true, if it please the Court, that in the past, Arizona has been charged with being rather unreasonable with respect to this river.

And yet I think this figure should bring home to its very quick to the fact that Arizona has to be a little unreasonable because this is a sole treasure Arizona has.

This is the sole practically access Arizona has to life getting water because if you can see, practically the entire State, future is wrapped up in the Colorado River and therefore, when your very life perhaps as a State, we just be justified perhaps being just a little unreasonable.

If I might pursue that matter just a little further, the Upper Basin is noted for the fact that it is at very high altitude.

It has a short growing season of three to four months.

Most of its irrigable areas are narrow valleys.

The access to irrigation water is difficult, costly.

On the contrary in the Lower Basin, it has a growing season almost the year around.

It has broad large expanses of level land rather usually available for irrigation.

So far as community of interest is concerned, the two Basins are separated by a thousand mile canyon.

Actually, the picture which shown -- the map which you show on the easel yesterday correctly depicts the square miles of the two Basins but actually they should be viewed in a shape of a -- of an hourglass, perhaps, not in the exact -- it's a little bit of a crooked hourglass but you have in the Upper Basin a basin which is in itself a (Inaudible).

You have a thousand miles of arid, canyon, difficult country where the river flows in the canyons.

You have the Lower Basin or you have the level land and the long growing seasons.

I say this -- I bring this to your attention for mainly this reason, there is absolutely no community of interest between the two basins other than their common interest in the river.

And I might say perhaps the fact that there was a religious interest in the Mormon Church, the good people of Utah and the good Mormons of our State of course had a strong religious community of interest.

But communication is practically non-existent in the century nor today.

New York and Chicago was more accessible to Arizona than Denver at those days.

So that these things are important when we come to consider what Congress was talking about when it enacted the Project Act because actually, the low Upper Basin had no more interest in the Lower Basin than it had in Mexico.

There was simply nothing there other than the one common treasure that they both sought.

They both desired access to and wanted to get as much of as they could and that was the Colorado River as it extended from the Upper Basin and to Lower Basin.

When further fact, may I brought your attention of the Lower Basin tributaries, the only one of consequence, of real consequence is the Gila, which empties into the Colorado River above the City of Yuma and some 20 miles or so above the border.

In the early days, the Mexican, the imperial liberation was to (Inaudible) which came out of Arizona about four miles above Mexico when down into Mexico followed a course to Mexico to above Calexico is now and there reentered California.

So that from the standpoint of the Upper Basin, it had no interest whatever in the Lower Basin tributaries, it couldn't get to them, they weren't accessible to it.

They simply used a hydrological fact that water doesn't run uphill.

So that the only fund of water which was available for consideration and division among both basins was the mainstream as it flowed down from the Upper Basin.

It would be assuming that the Upper Basin desired to impose upon the Lower Basin an economic ceiling to say it was concerned with how much water was used in the Lower Basin for consumptive use.

The Upper Basin was concerned with one thing, that thing was how much water have we got to give them down below under threat of court action.

The Lower Basin was concerned with just one thing, how much can we shake out of it?

How much can we force them to give us to supply our needs under threat of problems?

It seems crystal clear to me, if it please the Court, that in approaching the understanding of the Compact Act, we have to understand that the Upper Basin had no interest whatever in the Lower Basin.

It had no interest whatever in the tributaries of the Lower Basin.

It had no interest whatever in their supply of water except for one thing to put on the bargaining table to say you've got so much water.

Therefore, you shouldn't ask so much mass but to say that the Upper Basin without any competitive position at all with respect to Lower Basin was visibly engaged in trying to apportion the water of the Lower Basin, to me applies in the face of reason.

There's no economic motivation for it, no religious motivation for it, no long standing history of rivalry, nothing -- nothing to say that the Upper Basin should give one concern -- one bit of concern with respect to the supply of the Lower Basin, it was concerned with one thing and one thing only and that is how much of this common treasure must we surrender.

I think reason should supplant the actual language --

Justice Felix Frankfurter: Well, that's the (Inaudible) all around --

Mr. Mark Wilmer: Thank you.

Justice Felix Frankfurter: -- that would call it contention.

Mr. Mark Wilmer: Yes Your Honor, I agree.

Justice Felix Frankfurter: (Inaudible) out of this full of water.

Mr. Mark Wilmer: The point I was trying to make --

Justice Felix Frankfurter: -- did we know what (Inaudible), isn't that true?

Mr. Mark Wilmer: Your Honor, I was trying to make this position -- this point that if we have some ice cream to divide up and we both have access to it, we're going to find out how much ice cream we bought and how much I scoop out and how much you scoop out but if it happens to be a pot sitting there that you don't have any interest in and no access to and the right to, I would say that there are statute which referred to that division would have to be given an unreasonable construction to assume that you had some rights to dig in this bundle of water over here which you've never used, which you can't use, which you can't get to and which you have no access to.

Justice Felix Frankfurter: But after you make the division of the ice cream, divide it between two -- between two parties then of course those within one half of the division or whatever you're talking about have no interest in the other half.

But in the original division -- the original (Inaudible) derived from the interest in this what you call a common treasure and that to say in controversy within the Lower Basin, isn't it?

Mr. Mark Wilmer: The same consideration, Mr. Justice Frankfurter, withheld Arizona's ratification of the Compact has caused the Upper Basin to refuse to pass the Project Act.

I think that's a fair statement.

Now, as I've indicated, it is Arizona's position and it is Master's position in which we will highly concur that this is the statutory construction case.

This is a case which involves the construction of the project -- Boulder Canyon Project Act.

It is true, after the Master found the Compact had no relevance, after he had said that it is to be laid aside and has no consequence in this case because it is what Congress meant when it passed the Project Act.

He then said however, in view of the fact that the Court may not agree with me.

On the chance that the Court might decide to construe the Compact, I will express my views as to what it means.

And he then went on to several pages using language which is in effect as California has told you except that he did limit his holding as to 3 (a) that it was an inappropriative ceiling as against the Upper Basin which is a far cry from –- an appropriative ceiling in the entire basins.

The Court will look in his -- the Master's Report in page 114, I believe it is , you'll see that he twice holds that it is a ceiling in the Lower Basin only as against the appropriators in the Upper Basin.

In other words, he construed the Compact fairly and squarely as an interbasin instrument and he said this 3 (a) is a ceiling against rights in the Lower Basin against the Upper Basin.

And since the only water in the Lower Basin in which rights could be obtained against the Upper Basin would be mainstream water necessarily we have reference from mainstream.

Now I take it there's no point in going into a discussion of appropriative rights.

We all know that to get an appropriative right, you must get it again to someone else, an appropriative in the vacuum does not exist.

It is of importance only because it gives you precedence over someone else.

And that precedence of necessity must be against someone else who has access to that water, otherwise, it would have no meaning it'd be a little medal you pin on your chest and say I've got an appropriative right but so what?

So that as I said earlier, it's a short junk from Arizona's contention actually in practical effect to the Master's conclusion because he did say that the 3 (a) is a limitation as against the Upper Basin only in gaining appropriative rights.

He then went on and discussed it at some length and used general language but he's holding is as I have told the Court.

This Court -- if it please the Court in the Chandler-Dunbar case if you recall was considering the question of excess capacity over navigation in the Saint Mary's River.

The Chandler-Dunbar Company there was seeking compensation for loss of power rights on the basis that there was excess capacity in the river above the requirements of navigation and therefore, they should have compensation that having been taken by the Congress.

This Court said in that case, in substance, there is no room for judicial review of the determination of Congress as to whether this water should be taken, there is no room for review as to whether or not the excess water, there is excess water and if so, should there be compensation?

It's squarely held that it was a legislative determination by the Congress and that it was not the function of this Court to review the discretion of Congress in the exercise of its powers under the Commerce Clause.

Now, that holding has been cited many, many times.

This Court in the appellates in case used the language, “In truth, the authority of the United States and the regulation of Commerce on its waters' navigability in a sense just stated, is but a part of the whole.

Flood protection, watershed development, recovery of the cost of improvements to utilization of power are likewise parts of Commerce control”.

I would like if I might, to repeat again that last statement, recovery of the cost of improvements to utilization of power are likewise parts of Commerce control because I think that will bear quite heavily upon our friends in California's criticism of the Master's truncation of the river.

It will bear quite heavily upon the notion of whether or not Arizona or California for that matter, could go above the river and stick a pipe down in its supply in the mainstream which has been dedicated by Congress to the provision of water pump in the Project Act and thereby take out a substantial flow of water from that river because -- I would come to this in a moment, the Project Act requires the Secretary before entering into the project, before beginning construction, that he shall make a determination if the revenues from the project shall be sufficient to repay its cost of construction.

So that anyone who for and moment would stand here and tell this Court that despite the fact that the Congress plainly in the debates looked to the supply at Lee Ferry as a supply of water plainly told the Secretary, "Before you construct this project, you shall see you have revenues sufficient to repay it”.

But nonetheless and despite that, Arizona, California or anyone else could interfere with the water supply of that project as it comes in Lee Ferry and dam.

Despite or in addition of course, you have Rivers and Harbors Act, you have the requirements that you obtain a permit from Congress and of course, you have to have the Congressional approval.

I merely say that the language of the case I just cited, the Appelachian Electric case plainly indicates, plainly indicates that as a part of the Commerce Clause Power, that the powers of Congress go far beyond just the matter of regulating the flow of the river but extends through all these peripheral -- peripheral things which go to aid the exercise of this power by Congress.

Justice Felix Frankfurter: If I -- if I understood, it remained constitutional argument, I must have missed them.

Mr. Mark Wilmer: I don't think he made it constitutional arguments, Your Honor.

The argument made and if you recall on the map there was shown a proposed route from -- I believe it was Bridge Canyon and the argument was made and is made in the brief that this construction, the Master would permit Arizona and California to go deep in the river above the lake.

And I say, if it please the Court, that can't be done except Congress authorizing it.

And if Congress sees fit to authorize it, I then say it becomes more concern of Arizona, California or this Court.

Justice Felix Frankfurter: All I'm saying I -- if we recall that the he invoked the Commerce Clause that compelling or prohibiting this or that?

Mr. Mark Wilmer: Mr. Justice Frankfurter, I know there's one thing, a very outstanding about Mr. Ely's argument.

He religiously stayed away from the Commerce Clause.

Now in the Twin City Power Company, this Court again said, “The interest of the United States in the flow of a navigable stream originates in the Commerce Clause”.

Maybe I'm a little out of order reading to this Court which Your Honors yourselves have said, but if I might, I would like to just cover it.

That clause speaks in terms of power, not of property.

But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one.

The power is a privilege which we have called a dominant servitude.

The legislative history in the construction of particular enactments may lead to the conclusion that Congress exercise less than its Constitutional power, fell short of appropriating the flow of the river to the public domain and provided that private rights existing under state law should be compensable or otherwise, recognized.

Such with United States v. Gerlach Live Stock Company, Federal Power Commission v. Niagara Power Company suit.

I might say in passing, California did cite the Gerlach case only to misconstrue it and to state that held something which it goes -- it does come -- have no place for it.

They said it recognized and established appropriative rights, it did no such thing.

It recognized that Congress could, in enacting a statute, provide for compensation that it could exercise less than the whole of its power if it desire.

And if it did so and this Court construing that case held that it did, not intend to exercise the full extent of its power but it did not.

But this Court for one second indicated that the Congress did not have the right to usurp the entire flow of the river without compensation in the navigable stream.

We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river for the declared public purpose.

Now we say, if it please the Court, that we have here a situation where the United States has usurped the entire flow of the river and has displaced all lesser interests.

Justice Hugo L. Black: May I ask you?

Mr. Mark Wilmer: Yes.

Justice Hugo L. Black: Now you say -- that sound seems to me that the word you're using certainly has meaning that are not consistent with the thought of the argument you're making.

You said that several times that the United States has usurped --

Mr. Mark Wilmer: Yes, Your Honor.

Perhaps I spoke -- a little too enthusiastically, Your Honor but what I meant was this-- but I meant was this, that the United States in building Boulder Dam did usurp the entire flow of the river.

It did stop the entire flow, it did bottle it up, it did take it over, it did take it into its control and possession.

And thereafter -- and thereafter, by a virtue of the Project Act provisions, it released some of that but we do say Your Honor and I'll say it without equivocation.

The United States did usurp the entire flow of the river and then did --

Justice Hugo L. Black: You merely mean by that when they took it over and had the power to do it or they took it over wrongly?

Mr. Mark Wilmer: Oh no, I don't mean wrongfully in the slightest sense, Your Honor.

Not in the slightest sense.

If I used it -- if it were to have that connotation, I -- I made a mistake in using that --

Justice Hugo L. Black: Well, it has a more limited meaning also?

Mr. Mark Wilmer: Well, I used it in the sense, if it please the Court, that the United States did take control of this entire flow, did set it to assign and store it and then the Project Act said, “Now here's how we're going to use this stored water.

Here is how it shall be used”.

Justice Hugo L. Black: May I ask you just --

Mr. Mark Wilmer: Certainly.

Justice Hugo L. Black: As I understand if you're saying that United States did build it, they took it all over --

Mr. Mark Wilmer: Yes Your Honor.

Justice Hugo L. Black: If you reach the constitutional question which is not if -- maybe not yet to be reached at all, had the power to do it, what it is done is to give Arizona a certain amount and California a certain amount?

Mr. Mark Wilmer: And Nevada a certain amount.

Justice Hugo L. Black: And Nevada.

Mr. Mark Wilmer: Yes.

Justice Hugo L. Black: And that -- to that extent it has apportion the stream and you accept that apportionment?

Mr. Mark Wilmer: Yes, Your Honor.

That in fact rather is we believe the only conclusion that a reasonable mind can come to in reading the debates and in reading the Act itself.

That is the only conclusion that we've been -- can be reached is that when Congress did under the Commerce Clause and this Court so held in the first Arizona, California case, constitutionally could build the Dam under the paragraph in the Commerce Clause.

Justice Frankfurter or Justice Brandeis in that case as I recall laid aside the consideration of the General Welfare Clause and simply said we do not need to reach that but he did say squarely under the navigation under the power over navigation -- or power under the Commerce Clause over navigation, that Congress could constitutionally take over the entire flow of this river.

Justice Felix Frankfurter: If that were the essence of the litigation in the --

Mr. Mark Wilmer: Correct.

Justice Felix Frankfurter: -- first Arizona case.

Mr. Mark Wilmer: Constitutional question.

Justice Felix Frankfurter: You're raising else, it was subordinate?

Mr. Mark Wilmer: And all the rest of it is --

Justice Felix Frankfurter: Not only subordinate but almost disregard it.

Mr. Mark Wilmer: Well, Judge has (Inaudible) of the litigation Your Honor was that one question.

Justice Felix Frankfurter: Yes.

Mr. Mark Wilmer: And the -- and the Court cut Arizona's (Inaudible) as far as that's concern on that particular point.

If I may use that as a question.

Justice Felix Frankfurter: I -- I think that they even started from there.

Mr. Mark Wilmer: Well I think if it please the Court we feel to get a little bit of the environment to get the color of these words that the Congress used before we start to construe them just in the color light of black and white on a piece of paper.

Now if I might just briefly --

Justice Felix Frankfurter: And that's -- that --

Mr. Mark Wilmer: Yes Your Honor.

Justice Felix Frankfurter: -- if I may say so, is more convenient to my ear.

You don't construe it black and white on a piece of paper rather than saying that the Compact is irrelevant.

That doesn't mean much to me considering the fact that the Act which is to be construed refers to the Compact.

I don't know how many times --

Mr. Mark Wilmer: Yes it does Your Honor.

Justice Felix Frankfurter: -- has to say irrelevant means that you -- that -- that a special meaning has to be given to the reference in the Project Act not with the Compact which preceded it as irrelevant because it's in there, in this --

Mr. Mark Wilmer: I think I stand corrected, Your Honor.

I -- I certainly --

Justice Felix Frankfurter: Well, even the Master says that I don't know what that means to say it's irrelevant on part of the statute which you construed makes a reference to that.

I don't understand, i know those evidently and constantly told this is semantics, but that's what all law is about.

Law is about words or rather conveyed by word, therefore, we should say things that just verbal.

That's the -- that's what all business is.

Mr. Mark Wilmer: Your Honor, I think the Master meant that it's unnecessary to construe the Compact to reach the decision in this case.

Justice Felix Frankfurter: Or rather that the reference in the Project Act requires a construction about the -- or what the scope of the Compact is with a reference to the Act and not with reference to itself.

Mr. Mark Wilmer: With respect to the Project Act, yes, You Honor.

Now, I'm certainly not going to trouble the Court with a review of the entire Project Act.

There are about four or five provisions, which we think are decisive.

We would like first to just briefly touch it by laws to indicate the fact that the Congress of the United States did exercise its full power under the Commerce Clause.

We would like then to pursue if we might the legislative history of two or three of those sections because they are most in like then we would like, then we will go --

Justice Felix Frankfurter: That -- that's crucial to your case.

Mr. Mark Wilmer: Yes Your Honor, it certainly is.

Justice Felix Frankfurter: As it is to Mr. Ely's case, namely --

Mr. Mark Wilmer: Yes.

Justice Felix Frankfurter: -- the legislative history insofar as authority is preceding discussions in the Congress are relevant no more than constructions.

That's crucial to this case, isn't it?

Mr. Mark Wilmer: There is no question about that Your Honor.

There is no question about it.

That the legislative history of the Act as it develops and the words of the managers of the bill and the managers of the amendments to the bill are crucial.

We're glad they are because we think that they wholly support our position.

I should say if it please the Court that beginning in 1922, the first of what were known as the Swing-Johnson bills was introduced in Congress.

Introduced by the Honorable Phil Swing from California Representative and the Honorable Hyr -- Senator Hyrum Johnson of California.

I'm sure that many of you have personal acquaintance with at least Senator Johnson.

The original Swing-Johnson bill as introduced for a little resemblance to the bill as finally enacted in 1928.

The first Swing-Johnson bill failed, the second Swing-Johnson bill failed.

Chiefly because of the opposition of the Upper Basin as has been indicated to you yesterday, Arizona refused to ratify the Compact.

She refused to ratify it because there is no allocation of Lower Basin Waters between herself and California.

And she held that until it was such at the basin, she could not safely ratify the Compact.

Because of that, I would not stand here for one moment and suggest that too little Arizona in those days of a few hundred thousand population stood in the way of mighty California but stood in the way of mighty California in those days with the Upper Basin because the Upper Basin did not propose to permit the construction of this storage.

Permit California to take the full Lower Basin apportionment and leave Arizona at liberty and at large to take a further share of the water since she had not ratified the Compact.

So that the California attempts to secure that into the Project Act failed.

Now I'd call Your Honors' attention to this, that Arizona was not unsympathetic to the Project Act.

Colorado River as has been indicated was an erratic and a violent strip because its flow came mostly from the melt of snow water in the high mountains of the North to the -- in the Upper Basin.

Its flow in the spring was sometimes of tremendous proportions.

A violent destructive plot but it was destructive in Arizona as well as California.

Yuma in the lower southwest corner of Arizona border (Inaudible) of this sled as did the California interests.

So Arizona was not unsympathetic to the notion of either the Compact or Project Act.

She merely wanted to know that this one source of life to her from the standpoint and development should be at least equitably apportioned.

The third Swing-Johnson actually it was two thirds in Johnson but only one of which is recognized and that is the one that's introduced in February.

Beginning with the third Swing-Johnson, we began applying some evolvement, begin to find some development attempting to adjust the claims and demands of the Upper Basin and in favor of the -- in their favor and attempting to give them some measure of protection at the same time attempting to induce Arizona to ratify the Compact.

If I might first turn to the Project Act as enacted but I will cover only a few sections.

Section 1, the first portion of it, after the enacting clause, provides that for the purpose of controlling floods and this is found in either in the Master's Report Appendix 2, I believe Your Honors or the Arizona's opening brief, Appendix B page 9A, “That for the purpose of controlling floods, improving navigation and regulating the flow of the Colorado River, providing for storage and for the delivery of the stored water thereof for reclamation of public lands and other beneficial uses exclusively within the United States, for the generation of electrical energy as means of making the project herein authorize a self-supporting and financially solvent undertaking, the Secretary of the Interior, subject to the terms of the Colorado River Compact hereafter mentioned is hereby authorized to construct, operate and maintain a dam and related works in the mainstream of the Colorado River at Black Canyon or Boulder Canyon, adequate to create a storage reservoir of the capacity of not less than 20,000,000 acre-feet of water”.

Now may I say this at this point (Inaudible), the United -- the California has severely criticized the Master for saying that the Secretary of the Interior had no power beyond the reservoir and the dam.

That's all the Congress gave him.

They said the Secretary might construct a dam and create a reservoir above it but capacity of not less than 20,000,000 acre-feet.

So that's where the Project Act ends so far as the Secretary is concerned as of the top end of that reservoir because there is where Congress ended his authority.

That's what Congress told him he could do and then they told him what he was to do after that.

If I might then turn before going to Sections 4 and 5 to Section 6.

That the dam and reservoir provided for -- the dam and reservoir provided for in Section 1 hereof shall be used, first, for river regulation, improvement of navigation and flood control.

Second, for irrigation and domestic uses and satisfaction of present perfected rights in pursuance of Article VIII of the Colorado River Compact.

Now I would invite the Court's attention to the peculiar language of that phrase, not in satisfaction of present perfected rights but in satisfaction of present perfected rights in pursuance of Article VIII of the Colorado River Compact, plainly the Congress had some reason in so phrasing their language.

Justice Hugo L. Black: What do you think it was?

Mr. Mark Wilmer: I think it was this Your Honor.

Now I have to -- Article VIII of the Compact, if it please the Court, provides this, it first says, “present perfected rights are unimpaired by this Compact”.

It then says, ”When storage on the mainstream of the Colorado River in or for the benefit of the Upper in or for the benefit of the Lower Basin shall have been provided in the mainstream of the Colorado River, then rights of users or appropriators, if any, on the mainstream as against users and appropriators in the Upper Basin shall attach to and be satisfied from water storage -- not in conflict with Article III of the Colorado River Compact”.

It is our view and in this we depart from the Master's conclusion Your Honor, but again it is not a large matter.

We believe that the Project Act did not intend to perfect, to -- to protect present perfected rights per se.

We believe that this language was intended solely -- solely to discharge the obligation contained in the Article VIII of the Colorado River Compact solely to provide that we have now discharged the burden laid by the Upper Basin Compact.

Justice Hugo L. Black: I don't quite understand it, that the present perfected rights --

Mr. Mark Wilmer: Well, if it please in Court, we would have them --

Justice Hugo L. Black: I don't believe that the --

Mr. Mark Wilmer: Excuse me.

Justice Hugo L. Black: -- that Section 6 or any of the others were intended to preserve right which had already been recognized in particular persons.

Mr. Mark Wilmer: Well, Your Honor, may I express it this way.

First of all, the question of the extent of rights in the Lower Basin is indeed a (Inaudible).

We have first of all, the fact that in the Rivers and Harbors Act of 1890 and 1899, the Congress forbade, forbade under criminal sanctions, anyone impairing the navigable capacity of a stream and as Summers once said, “I don't know how you get more impair the navigable capacity of a stream than taking all the water out”.

So we would say, first of, whether you can gain any appropriative rights in a navigable stream by exhausting its flow without the consent of Congress, indeed presents the authority question.

Justice Hugo L. Black: What I would -- I -- I didn't make my --

Mr. Mark Wilmer: I'm sorry.

Justice Hugo L. Black: -- make it clearly at Section VI which you refer to say irrigation and domestic users and satisfaction present perfected rights in pursuance of Article VIII.

Now what do you understand was meant by present perfected right?

Mr. Mark Wilmer: I understand, if it please the Court, that by present perfected rights coupled with and tied to in pursuance of Article VIII of the Colorado River Compact, it limited the present perfected rights protected to those which the Colorado River Compact intended to protect and those which should be protected under the Colorado River Compact.

But that, if it please the Court, only preserve that protected those against Upper Basin appropriators.

It did not protect or preserve them against Lower Basin appropriators intra Basin.

The only function, if it please the Court, of this language we have quoted is to discharge the Upper Basin obligation against claims of the Lower Basin mainstream users at such time as they were provided storage.

In our view but isn't it again it isn't a matter of supreme ones, our view is that this language was intended solely to say that Upper -- the Lower Basin appropriators, once this storage is completed had no further claim against the Upper Basin.

It was not intended to preserve intra- Basin, State versus State in the Lower Basin, any rights.

We say that for several reasons.

One, the administration of the river with a prime purpose of preserving navigation, controlling the floods and or rather protecting against floods and controlling the flow is incompatible with the recognition.

Justice Hugo L. Black: Concretely, what does that mean that you believe in reference to as such water has already been appropriated for use and being used in equipment of California either in one of this statute.

Mr. Mark Wilmer: If it please the Court, the Honorable Philip Swing several instances we have quoted used this expression that you can't read the English language other than that Article VIII of the Compact discharged appropriative rights in the Lower Basin.

He said not once but several times that the impact of Article VIII was simply that you took stored water in lieu of natural flow.

In other words, if it please the Court, the Lower Basin said, "We are content, give us adequate storage, we're content to accept, we are content to accept stored water.

We are content to then waive any further rights we have against the Upper Basin and take our water out of storage because we get what?

We get an adequate year round supply, we get clear distilled water, we're released from the floods and all in many other benefits inherent in that storage”.

There is nothing, if it please the Court, that I know of which justifies the conclusion that present perfected rights are to be preserved absent a provision for piloting the natural flow to the reservoir.

You don't store the entire stream irrespective of its natural flow; you don't give a person downstream gobs of water as he asks for it without respect to his appropriative rights and say yet, appropriative rights are preserved.

Justice Hugo L. Black: I still don't quite understand.

Let's assume that there were quite a number of projects some in Arizona, some in California and some in Nevada already in use, being used for irrigation, domestic purposes --

Mr. Mark Wilmer: Yes, Your Honor.

Justice Hugo L. Black: -- at the time the Act was passed.

Do you think that the Act displaced those so that they could be ignored in the carrying on the work by the manager of the project?

Mr. Mark Wilmer: I think if it please the Court, that the Act substituted stored water for those appropriative rights.

Justice Hugo L. Black: But -- but was still water and you think you're right were preserved, is that it?

Mr. Mark Wilmer: I think the Congress contemplated Your Honor that there should be allocated ample water so that those rights would be protected.

I do not think the Congress expected that those rights were to be protected in the sense of a preservation of their historic, time, quantity and amount of flow at a given point.

Justice Hugo L. Black: I don't understand how they could be protected if you ignored the fact that they have been using a certain quantity and they want to continue to use it.

Mr. Mark Wilmer: Your Honor --

Justice Hugo L. Black: How would you protect it if you took the right?

How -- the right away those people to enjoy the full protection of the same amount withheld?

Mr. Mark Wilmer: Your Honor, in particularly, in Imperial Valley prior to construction of the Project Act, the low flow in the summertime was inadequate -- was inadequate to service that just been claims on that water was all gone, there's been when the crops were started.

Congress gave in place of those rights in the natural flow, which is inherent in an appropriative right a great body of stored water.

Congress said, "We're going to give you a block of water which in our judgment is ample to give you year-round water not just when it would naturally come to you by virtue of the normal flow of the river in a state of nature”.

Now I say this, it if it please the Court, that if Congress set aside, if Congress stored the entire flow and said, "This is to be used to satisfy these appropriative rights.”

The States then had the privilege perhaps of saying, "No we want natural flow.

We refuse to give up our appropriative rights."

Pile up our natural flow to the river and give it to us as it was want to flow and perhaps it would've had some basis for complaint but they didn't do that.

They accepted the proper of Congress to take in lieu of the natural flow and their rights in the natural flow a stored water, a body of stored water the same as if they went to the store to buy some bread.

It was there in ample quantities for them but not in relationship to their historic method and time and place of taking.

Now the only distinct that I'm going to draw is this Your Honor.

I think the notion of present perfected rights being preserved cuts across the theory and philosophy of the Project Act.

I think Congress realized that it was storing an ample supply of water because it was storing it all and then it was going to allocate that out not according to the natural flow but as people wanted it to the extent of the apportionment it made.

And if you'll recall, many of the debates in Congress, particularly in the Senate, in the second session of the 70th Congress which was all in the enactment of this Act, Senator Johnson was asked time and again, "What are your present rights in imperial?

What are the present rights in California?”

And at one point, he gave a figure which I have and can give you the Congressional reference to.

In which as I recall he stated the California present users were something in excess of million, I believe 159,000 in that general order of magnitude.

Those were the present uses in California.

Those were how much California was then using.

Justice Hugo L. Black: Did he also refer to certain projects that already inclusive construction such as the Metropolitan?

Mr. Mark Wilmer: No -- yes he did, Your Honor.

There was quite an exchange which is quoted in our legislative history between he and Senator Walsh of Montana.

In which say the Walsh of Montana asked him about this so called appropriative right of Los Angeles and he said, yes, they had one in 1924, they have followed notice of appropriation for a million and I believe 95,000 acre-feet.

And Senator Walsh then pursued him, "But, what have you done about this?"

Well, we've spent some money on surveys and finally forced from Senator Johnson that concession that without the project, they couldn't give any water.

Finally a portion in the agreement that absent storage, the natural flow was all appropriated and that there's no place in which they could get the water other than storage.

That discussion did occur Your Honor and a round up would be, I would say concession on the part of Senator Johnson that California's paper filing which without value unless there was storage.

That was recognized and add that for the 2,100,000 and some thousand you've got 3,000,000 and some thousand.

Now I might say and I'm the aggressor a little bit here but I want to make this point of -- this point because we've had considerable talk about it.

In the course of this discussion, in the -- in the second session the 70th Congress, Senator Johnson (Inaudible) it up what he said was the total requirements that California would need ultimately.

He thinks that the million, I believe nine thousand -- six -- I'm sorry, a million and nine thousand and he totaled all out there.

And then he discussed the governor's conference which I want to come in a minute which has taken place in 1927 and he used the significant word which I'm going to quote to you in (Inaudible) a little later.

We agreed to take 4,600,000 recognized it and we aren't getting enough water.

We agreed to take 6,000,000 -- 4,600,000 in effect to get this project underway, recognized that this wasn't sufficient to take care of all our needs and that we were taking a calculated risk.

To get the Project Act passed, California did take the calculated risk.

And now having got the Project Act, she wishes she hadn't taken that competitive risk (Inaudible).

Now, in any event Your Honor, I'm going to come back to this in respect to the Master's treatment of present perfected rights and if I might and if the Court will permit me, I will defer at this moment further --

Justice Hugo L. Black: I thought it's a --

Mr. Mark Wilmer: -- discussing this point.

Justice Hugo L. Black: -- just simply wanted to know that parties at --

Mr. Mark Wilmer: Well, I -- I said that isn't the right thing Senator Johnson said there, the likelihood of wherever being any question shortage is remote, it really isn't something that we need to get too excited about, although I would have at this point in passing correct Mr. Ely when he said that the Master's shortage apportionment cut across established rights.

The report expressly provides that in the event of shortages, present perfected rights are fully paid, are fully taken care of and then the shortage is apportioned.

I'm sure Mr. Ely spoke as it at least as we read the Master's report his holding squarely was an untimely shortage present perfected rights take precedence and thereafter the -- the water -- (Inaudible) water is shared (Inaudible).

Now I want to just -- again refrain to Section 6.

The Secretary of the Interior -- I'm skipping to the second paragraph, shall prescribe and enforce rules and regulations with the -- conforming with the requirements of the Federal Power Act as far as after who, respecting the maintenance of work, conditions of repair adequate to their efficient operation, maintenance of system, accounting control rates and so on relating only to power.

He then -- then further provides he shall also conform with other provision, the Federal Water Power Act and the rules and regulations of the Federal Power Commission which have been devised or which may have to be devised for the protection of the investor and consumer.

The point I am making and reading this is only this Your Honor that when we come to a considerate -- Your Honors, when we come to a consideration of Arizona's position that 4 (a) and 5 of the Project Act constituted a mandatory formula.

It becomes most significant to find in the Project Act detailed treatment -- detailed treatment of how power shall be handled, detailed treatment of who shall get it, what policy shall govern and if there'd be conflicted applicants, they shall have a hearing and yet in the disposition of this most precious commodity water, we find only the language that the Secretary shall conform with the provisions of Article 4 (a).

I want then to go if I may, to Section 4 (a) and Section 5.

They're long, I am not going to read them.

I'm simply going to note two things.

The first paragraph of Section 4 (a), as it was finally passed, provided for either a six or a seven-state ratification within six months or a six-state ratification within or within six -- I'm sorry, provided for a seven-state ratification or if that did not occur within six months, then for a six-state ratification; provided further, that as we read it and as the Master found in any event, the Project Act shall not take effect until California shall have, for the benefit of the United States and for the benefit of the other Basin States, enacted the Limitation Act.

It further provided in paragraph 2 for what is termed the permissive compact, it simply provides that in paragraph 2, unnumbered of 4 (a), that the three states were authorized to enter into a compact dividing the 7,500,000 in accordance with the way it was divided in 4 (a).

At least with respect to the fact that in 4 (a), it said California can't take more than 4,400,000 that therefore there was a 2,800,000 and 300,000 left for Arizona and Nevada, provided for certain other things which I am not going to discuss here.

Then provided in (b) that before any money is appropriated for the construction of said dam or power plant or any construction work done or contracted for, the Secretary of the Interior must make provision for revenues sufficient to ensure repayment of the Act.

Then in Section 5 as present as an Act, it provide that he was authorized, the Secretary, under such general regulations as he might prescribe to contract for the storage of water and its delivery.

Then, if it please the Court, this language will become significant and will be heard again and again.

Contracts respecting water for irrigation and domestic uses shall be for permanent service and shall conform to paragraph (a) of Section 4 of this Act.

No person shall have or be entitled to have the use for any purpose of the water stored as aforesaid, except by contract made as herein stated.

The Master has held and Arizona agrees that Congress intended by this provision to prohibit the use of any water stored pursuant to these works, other than by contract; but that was the intent of it.

Now if I might, I would like to, in reviewing the legislative history of this matter, first turn to the Governor's Conference of 1927 that is found in the last page of the Arizona legislative history.

It is printed in various other places but if you will turn to the last two pages 158 and 159, the recommending -- the recommendations of the Governor's Conference are set forth.

I would call Your Honors' attention to the fact that up to this point in 1927, the Swing-Johnson Acts have been appointed and rejected in the Congress and at Denver in 1927, in September and first part of October, the seven Governors of the seven Basin States met at Denver in a conference.

It is apparent it was quite a conference because we will see later Senator Pittman was there.

We know that Delph Carpenter was there from his testimony.

We know that Senators Phipps was there from his testimony.

Therefore, we can assume, I think, without stretching the record that it was quite a conference.

It was attended by all of the prominent water people of the seven Basin States involved.

Its purpose, to try to work out this conflict between Arizona and California, to try to work out some kind of a meeting of the minds so to speak, whereby Arizona would ratify the Compact and the Project Act could be enacted.

It is significant, if it please the Court, that one of the Governors attending this conference was Governor Emerson, Frank Emerson, who had been one of the Compact negotiators for the State of Wyoming.

It is significant that from his testimony, Delph Carpenter, another of the negotiators of the Commissions of the Compact was in attendance of this conference because from his testimony in the Congressional hearings, we know he was there.

Now, I say in passing that we have here the people concerned who are most vitally affected, the Upper Basin States.

Finally, the four Governors of the Upper Division States New Mexico, Utah, Wyoming and Colorado sat as arbitrators -- sat as arbitrators to determine what should be the division made to the Lower Basin.

I have mentioned the names of the arbitrators because it seems to me that they, particularly Carpenter and Emerson must have been keenly aware of the exact obligation of the Upper Basin under the Compact.

The Governors there recommended of the average annual delivery of water to be provided by the States of the Upper Division at Lee's Ferry under the terms of the Colorado River Compact, 300,000 to Nevada, 3,000,000 to Arizona, 4,000,000 to California.

Secondly, that Arizona should have the unequivocal use of a million acre-feet, the Colorado River Tributaries employing in the State with reference to Mexico.

Significantly, in paragraph 3, these Governors of the Upper State -- of the Upper Basin recommended that as to the all Lower Basin Tributaries, they should go to the states in which they were flowing except that it was a two base -- two-state river that it should be subject to division between the states.

But it is significant that these four Governors who would be most interested in the Lower Basin tributaries if they were in fact involved, recommended that they be given to the states of the Lower Basin free and clear and without limitation.

Why?

Because with respect to the mainstream in paragraph 5, they provided Arizona and California may each divert and use one-half of the other portion of water of the main Colorado River flowing at below Lee's Ferry.

Why?

Subject to further equitable apportionment between the states after the year 1963 quickly turning back to Colorado River Compact in Article III (f) provided that after 1963 that there might be a further equitable apportionment of the unapportioned water, the water unapportioned by A, B and C upon application of the Governor of any state.

The significant thing?

Lower Basin States were not tributaries were not reserve for further equitable apportion.

Mainstream, excess flow was reserve for future equitable apportion.

Now, if it please the Court, this recommendation of the Governors we believe is equitably reflected in the legislative history became then the vehicle -- the vehicle for working out a settlement and compromise as between California and Arizona in the United States Senate because Arizona and California still could not agree.

Arizona demanded 4,600,000, the Governor recommended 4,200,000, Arizona stood under 3,000,000.

So that --

Justice John M. Harlan: (Inaudible) in Section 1?

Mr. Mark Wilmer: 4,600,000 or Your Honor I can best answer that but the Governors were referring to the 7,500,000 let down at least third.

So the exact language of the average annual delivery of water to be provided by the States of the Upper Division at Lee's Ferry.

Now Your Honor engineering wise, hydrologically, any other wise we want to choose that had to be Upper Basin water because Lee Ferry I analogized the minute ago with respect to the two Basins as an hourglass.

The Upper Basin is defined as that portion of these states which naturally drain into the river above Lee's Ferry which was named as a point a mile below the mouth of the Perry River so that the Lee's Ferry was the point of division.

It was in effect where the Canyon section which isolate the Lower Basin from the Upper Basin begun to ameliorate something although the Grand Canyon still lies below it.

So that when they said of the annual delivery at Lee's Ferry, there could be no conflict.

There could be no claim that that did not mean Upper Basin water.

It just -- isn't any getting away from it.

You can talk until you're blue in the face and then were at everyone's faces, that lawyers who are very intense sometimes do have.

Justice John M. Harlan: I would have comprehended however the portion of the mainstream that is referred to between Lee's Ferry and then --

Mr. Mark Wilmer: Yes and I think it does.

I think if it please the Court that the Master's holding is misunderstood.

He has said that the Secretary, the Secretary has control over only the dam and the reservoir.

I would not for one minute contend in the light of the legislative history that Congress did not dedicate the water at Lee's Ferry to the uses of the Project Act.

There's no question about it.

They did because that's what they talked about.

All through the -- the legislative history, as we will demonstrate there's a water let down at Lee Ferry, the water provided at Lee Ferry.

Justice John M. Harlan: Well, do you disagree with the Master's (Inaudible) you construed into that water in California litigation?

Mr. Mark Wilmer: I wouldn't know that I would read his decision Your Honor as in quite that light.

As I understand the Master's decision, he held that the water which the Secretary had control over and which he might contract with respect to was water stored in the dam, in other words, it was water which the Congress had authorized him to store and to manage in the interest of navigation and to then apportion.

But I would have to make this distinction if it please the Court and if we disagree with the Master we disagree with it.

I do not think you can read the legislative history of the Project Act particularly in the third – in the second session of the 70th Congress and conclude other than that Congress had reference to the supply of water coming from the Upper Basin that it was to be stored.

I do not think it can come to the conclusion other than that in effect was dedicated to the purposes of the Project Act including the generation of power and including the related phases of management which necessarily inherent in that type of thing.

But all Congress gave the Secretary power to do was to build the dam and free the reservoir and then manage that reservoir but that doesn't rule out the fact that Congress was looking into the water at Lee Ferry as a supply for that project.

And that doesn't rule out the fact that therefore the Congress has preempted the flow at Lee Ferry for the purposes of the Project Act.

But it doesn't necessarily say that the Secretary of the Interior is giving control over that water until it gets within his grasp because he is the only the agent of the Congress.

The Congress delegated to him management of a certain supply which it looked to for this reservoir.

The -- the significance as we see it, if it please the Court is that --

Justice William J. Brennan: May I ask then, well, what --

Mr. Mark Wilmer: Yes, Your Honor?

Justice William J. Brennan: -- what's under the diversion -- the status of diversion between the lake and Lee Ferry.

Mr. Mark Wilmer: The suggestion that might be done?

There's two answers to that Your Honor.

Your Honor, the Master gave one, which was that no one can do it without the consent of Congress and if Congress consents, that's Congress' business.

Justice William J. Brennan: And what's your view of it?

Mr. Mark Wilmer: My view of this exactly that one you can't -- you can't build a dam and take water out off a navigable stream except either with the permit of the Secretary of Water or the consent of Congress, that is, the Rivers and Harbors Act of 1890 as amended in 1899, he simply can't do it.

Secondly, and I think of equal cogency is a statement that Congress has set aside the flow of the river as it comes to the Lower Basin at Lee Ferry for the purposes of the Project Act.

Congress, by their very terms of the debate, the very terms of the language of the Senators who finally hammered out the Project Act in effect said the supply at Lee Ferry shall be used for this purpose among which --

Justice William J. Brennan: That's -- does that add up to this -- that all the Secretary can do is contract in respect to the water which actually gets to the lake only has to --

Mr. Mark Wilmer: (Inaudible) has Your Honor.

Justice William J. Brennan: -- that if anything else needs to be done or rather if anything maybe done through the water between Lee Ferry and the lake this requires -- as I say suggest the approval of the Secretary of Water plus further Congressional approval, Is that it?

Mr. Mark Wilmer: Your Honor, I -- I can -- I can come to no other conclusion.

Justice William J. Brennan: Well, is that what the -- the Master said?

Mr. Mark Wilmer: The Master did say that this was not a matter of consequence because it couldn't be done without the consent of Congress.

He did definitely take that position.

We did not urge to him at that time.

I think if he had pursued it, he would have come to the same conclusion and that is, that in addition under the Project Act, none of the Congress here has plainly -- plainly in the debates and in the committee hearings and everything else, has shown that it was looking to the supply of water from the Upper Basin at Lee Ferry to make this Project feasible.

Now to me its maxim of a -- of a what's this -- plain nonsense to suggest that once the Congress having dedicated this supply of water at Lee's Ferry and I defy it if it please the Court, anyone who come to a contrary conclusion if you read the legislative history objectively.

Congress having dedicated that supply at Lee Ferry to suggest with the straight face that Arizona might go up and construct the dam above that and take that water and run into Central Arizona, I just don't think that to adds up I don't think it makes sense.

Justice William J. Brennan: Above what?

Above Lee Ferry?

Mr. Mark Wilmer: Above Lee Ferry and below Lee -- I mean above the lake --

Justice William J. Brennan: Above the lake --

Mr. Mark Wilmer: -- and below Lee Ferry?

Justice William J. Brennan: -- and below Lee Ferry?

Mr. Mark Wilmer: Just physical facts would deny it, but it's in the deep Canyon, it's impossible to get to but that isn't the answer -- the legal answer is that one, the water is been set aside from the Project Act by Congress.

Two, under the Rivers and Harbors Act of 1890 and 1899, you can't build the dam in a navigable stream without the consent of the Secretary of Water or of Congress.

Justice William J. Brennan: Well now, is that -- is that your -- I didn't I understand your pleadings correctly, but I believe not just today, he was talking of Project of which Canyon and (Inaudible).

Mr. Mark Wilmer: Yes.

Justice William J. Brennan: And your answer is, that you couldn't do those --

Mr. Mark Wilmer: My answer is -- is two things, Your Honor.

One, the two projects have both been abandoned, but if that were not true -- that were not true, it could not be done without the Congressional approval and I don't know of any better power to give us authority than the Congress.

Congress has stored this water and the Congress wants to say to Arizona, we authorize you to take some additional water, they are not going to say we're going to charge you for the Lake Mead but this is a body of water.

It's as if the situation of Lee Ferry was a fountain, a spring as far as this lawsuit is concerned.

So far as this lawsuit is concerned is the same as if there was a spring at Lee Ferry which gushed out so much water every year because under the Compact, that is the delivery point in the Upper Basin that is the measuring point of the Upper Basin.

And it's just the same as if the Congress have said, “That supply of water used to be dam by the construction of the Boulder Canyon project, it is to be stored.”

And for anyone to commit and say well the State of Arizona or the State of California may (Inaudible) under those circumstances in deep in that body of water and defeat the Project Act, defeat its purpose, defeat the contracts which the Secretary was required to make to provide revenue by depriving the project of water.

All of those things simply the reason cries out against them and there's no basis for concluding that the Congress having said to the Secretary, “You, in effect measure this water.

You determine how much of a head you're going to have for generating electricity.

You determine how much of a supply of electricity you're going to have to sell and then based on that, you determine the piece if only the project and go ahead and build it.

And then to commit and say despite that Arizona can go and take half that water and defeat the project, defeat the computation of the Secretary”.

I can find no basis for that at all.

They assigned the Rivers and Harbors Act and this point was not urged on his Master -- the Master.

This point is not made until the argument in New York that this in effect amounted to a permission to Arizona and California to went above the lake and take the water and accordingly, frankly, we haven't thought of this argument and honestly I think.

But on reflection upon further thought and upon further reading of the Congressional history, it just doesn't make sense to suggest to having set aside this water for the purpose of this project having considered and measured at Lee Ferry having consider the supply at Lee Ferry.

Having told the Secretary he is to figure out how much water this will supply in the way of water to sell, water to generate power.

And based on that, he is to build the project and then to say that despite that, Arizona or California can commit and take half that water without his consent or the consent of the United States.

That is why, if it please the Court, I quoted with care from the appellates of the case to the effect that it involved not only the Commerce Clause involve not only the matter of navigation but the peripheral and other factors which went to make that exercise of that part feasible or economic.

Now if it please the Court, I would like if I might to travel for just a moment to legislative history by way of the evolution of Sections 4 (a) and 5.

For the convenience of the Court and only for that purpose, we had printed a little piece of paper here which is supposed to have been supplied to you in evolution of Sections 4 (a) and 5, first paragraph of the Boulder Canyon Project Act for our use in oral argument, this amounts to no more if it please the Court than --

Justice Byron R. White: Excuse me Mr. Wilmer, this just came in, did it?

Mr. Mark Wilmer: It was.

Justice Byron R. White: The agreement?

Mr. Mark Wilmer: Yes, Your Honor.

Justice Byron R. White: -- the evolution is that --

Mr. Mark Wilmer: Yes, that is correct.

Justice Byron R. White: Nothing different?

Mr. Mark Wilmer: That is correct.

It is.

Justice Byron R. White: Why are you keep adding in these things --

Mr. Mark Wilmer: I realize the Court is getting a few papers it might even be felt distractive.

The only purpose of this if it please the Court is conclusion.

There's no editorial commentaries, there's no argument, it is simply excerpts from amendments as proposed.

First -- in the first section, though I shouldn't say that, it goes back to the third Swing-Johnson bill.

The first printed Section is Section 5 of S 33, 31 which was in the 69th Congress, the first session.

Justice Hugo L. Black: What year was that?

Mr. Mark Wilmer: 1926, Your Honor I believe.

I -- I think that's right but I -- the only purpose of this first quote, if it please the Court, is to show how the evolution of Section 5 began.

You will note that it has a provision contracts respecting water for domestic use -- for domestic use maybe for a permanent service but subject to rights of prior appropriators.

I would therefore call Your Honors' attention that at this stage of the evolution of Section 5 which is the provision of Project Act which we say interlocking with Section 4 (a) constitutes an allegation.

This provision specifically say the rights of prior appropriators and that if it please Mr. Justice Black is one of the reasons for our belief that present perfected rights in pursuance of Article VIII means less than it might mean at first blush because here we have an express provision in the Act as introduced which protected and preserved rights of prior appropriators.

Now in the 69th Congress, the Senate Committee on Irrigation and Reclamation reported out Section 5 of the Senate Bill.

The eliminations are bracketed, the additions are italicized for the convenience of the Court in quickly recognizing the difference.

The significant portion of course is at the top of Page 2, “No person shall have or be entitled to have the use for any purpose of water stored as aforesaid except by contract as herein stated”.

The Committee of which I believe at that time Senator Hyrum Johnson was the Chairman deleted the provision, ”may be for permanent service”, and changed it to, “shall be for permanent service”.

And deleted, “but subject to the rights of prior appropriators.”

And added, “no person shall have or be entitled to have the use, for any purpose, of the water stored as aforesaid except by contract made as herein stated”.

We believe that is persuasive, if it please the Court, that at least the Senate Committee which acted upon this ruled out subjugating this water of the rights of prior appropriators and rule in the proposition that no person should have this water for any purpose except by contract with the Secretary.

Now, the next little excerpt is just by way of a (Inaudible) to our esteemed to Senator Ashurst but in fact the first mention of a limitation on California working out this problem between Arizona and California, appeared in a bill which he -- which I believe he had printed but did not offer in which he suggested a limitation on California.

Up to this time the Swing-Johnson Acts had not propose any limitation on anybody in the Lower Basin.

And up to this point, they have gotten exactly no one.

Now in the 70th Congress which was 1928, Section 5 as introduced is most illuminating.

Not as introduced, I'm sorry.

It was introduced as it ended up in the third Swing-Johnson, was introduced in the form which you have seen on the bottom of the preceding papers, as amended.

I saved a little printing by simply saying that Section 5 of Senate 728, which was the Senate Bill in the fourth Swing-Johnson introduced in the 70th Congress in the form shown above as reported out of the Committee on irrigation and reclamation provided the following.

Again, I'll bring your attention that this Committee, I believe it was Chairman by Senator Hyrum Johnson.

The addition is of two things, one, minor related to generation of electrical energy.

Justice Hugo L. Black: Why do you say that was minor in that kind of --

Mr. Mark Wilmer: Well, I'm wrong Your Honor, it wasn't.

I was thinking of it was minor in the later I mean this is major the later point in the fight.

I agree with you Your Honor.

You have corrected it.

But -- excuse me -- the italicized language is most significant.

It has been California's assertion time and time again that this Project Act did not deal with mainstream water.

Well here is the Committee amendment in the first session of the 70th Congress adding this, “provided however that said contracts”, these are the Secretary's contracts, no one can have any water without them, “shall not provide for an aggregate annual consumptive use in California of more than 4,600,000 acre-feet of water allocated to the Lower Basin by the Colorado River Compact mentioned in Section 12 and one-half of the unallocated excess, and or surplus water, provided further, that no such contract shall be made until California, by act of its legislature, shall have ratified and approved the foregoing provision for use of water in said State and then no person shall have or be entitled to have the use for any purpose of the water stored as apportioned except by contract made as herein stated”.

In other words, the first limitation on California, the first movement toward the final passage of this Act came in Section 5 and by a virtue of a restriction on the right of the Secretary to contract with respect to water.

Now if we are right that this water that was being stored was mainstream water and it's pretty difficult to come to any other conclusion.

We then find that the first mention of a restriction on California, the first attempt to divide this water is how?By limiting the right of the Secretary to contract with respect to how much that water they could give in California.

I would like also if you would please note above five lines in the bottom of that, the words appeared that no such contract shall be made until California to the end with the italicized portion.

Before going to the next amendment which was printed, I'd like to suggest this to the Court that this was a period of foremen.

This was a period when subsequent to the Governor's conference unquestionably backroom conferences and front room conferences in California conference and all kinds of conferences were going on.

We find gradually evolving the notion of how to protect the Upper Basin if Arizona didn't ratify how to reduce Arizona to ratify and that is the purpose of our printing of the next several amendments.

But I want to call one other thing to Your Honors' attention.

Senator Johnson, Chairman of the Committee -- Chairman of the Committee which reported out this measure made this observation on the floor of the Senate and it appears in 69th Congressional record at 7250.

Section 5 provides, “That the contract must be generally for storage and delivery of water and the Secretary shall fix charges to meet the revenue requirements and that contracts for irrigation and domestic uses must be for permanent service”.

An amendment has been inserted here to request to the Upper Basin States offered I think in the Committee by the Senator from Wyoming which provides that and then he quotes the italicized provision you have just read.

Then he said, “That is another rigorous provision.

A rigorous provision to which those who represent California are willing to consent in order that legislation might be accorded but binding California perpetually and forever to use not to exceed 4,600,000 acre-feet of water”, binding California how?

A reasonable limitation upon the power of the Secretary to contract with respect to stored mainstream water and yet to have told time and again, California didn't understand what she was getting into.

California built these great projects upon the assumption that she was safe and doing so at least for the system allocation.

Now, I ask Your Honors to note the portion of the italicized Section 5 as it came out the Committee.

Senator Waterman, one of the Senators from the Upper Basin, I have forgotten, Colorado I believe --

Unknown Speaker: Colorado.

Mr. Mark Wilmer: -- printed an Amendment with respect to Section 5 which struck out the words I have asked you to note that no such contract shall be made until California and so on and propose to insert therein the language which is set forth.

The only significant thing I'm going to call Your Honors' attention to is the fact that he specifically stated, “shall have first ratified and approved all of the provisions of this Section and set in this Act in anyway relating to the use of waters of the mainstream of the Colorado River within or by the State of California or by any virtue of cooperation for said State”.

And then on the next page, “That any and all water demanded and required are lawfully appropriated and applied for beneficial use for the State of Arizona or any of its inhabitants including corporations, municipal or otherwise, or any of them out of the mainstream of the Colorado River shall at anytime exceed and so on”.

In other words, Senator Waterman clarified and definitely identified what they were talking about was mainstream water.

It was water which was in the mainstream of the Colorado River which that I have said before you Your Honors, was the only concern of these people, these Upper Basin States were not concern in the slightest with the uses of our tributaries.

They were concerned with the notion of the tentacles of the Lower Basin reaching up into the Upper Basin by means of an equitable apportionment suit and demanding more water.

That's what they were afraid of and that was what they were protecting themselves against and the one thing they were concerned with was mainstream water because Lower Basin tributaries weren't accessible to them, rights are and couldn't be asserted against them because they were not of the supply.

Just doesn't add up to assert that the Upper Basin was concerned for one second with uses in the Lower Basin or concerned that it should be a system matter insofar as a Project Act was concerned.

Justice Hugo L. Black: They were concern whether or not being compel to give up water left in their amount they agreed to have in the Upper Basin?

Mr. Mark Wilmer: Your Honor, there's just isn't any other answer to it.

Otherwise, we have to consider that the States of the Upper Basin, the Senators of the Upper Basin were concerned with limiting the economic development of the Lower Basin which have no relationship to it.

What did they care of?

Justice Hugo L. Black: Suppose your arguments should be fully accepted?

Mr. Mark Wilmer: Yes, Your Honor.

Justice Hugo L. Black: That suppose you should win every point that you have.

Would that jeopardize in anyway either temporarily or permanently, the right of the Upper Basin to have 7,500,000 acre-feet?

Mr. Mark Wilmer: Unequivocally, no.

That is the purport of Section 18, that is the reason for Section 18 which I quoted earlier which said, “That nothing herein contained in the Project Act shall be construed”, I'm not trying to repeat this from memory, I'm simply giving the substance of it, “shall be construed as interfering with the right of any state to control the waters within its borders except insofar as modified by the Colorado River Compact”.

Justice William J. Brennan: Well, Mr. Wilmer, what -- what does that mean in the event there's enough water to have 7,500,000 feet in the Upper Basin and at the same time deliver at least 30 of the amount that they're obligated under the Compact delivery?

Mr. Mark Wilmer: Your Honor, under the Compact, the Upper Basin assumed that they obligation in 3 (c) -- in 3 (d), assume the obligation knowingly, willingly, purposely that they would deliver on an average 7,500,000 every year at Lee Ferry.

Justice William J. Brennan: So if -- if in discharging that obligation that leads them with less than that in the Upper Basin, they accept the deficiency?

Mr. Mark Wilmer: That is a calculated risk they took to get the consent --

Justice William J. Brennan: Well, I didn't quite understand your answer to Mr. Justice Black.

Mr. Mark Wilmer: I'm sorry Your Honor, I meant to say this that nothing that Your Honors do today or I shouldn't say today I mean in the decision of this case.

Nothing Your Honors can do in the decision of -- should do in the decision of this case assuming that it is a statutory construction case with respect to the meeting of what with respect to what Congress meant in enacting the Project Act can effect the Upper Basin.

Nothing -- nothing can affect the Upper Basin.

Justice Hugo L. Black: What -- what effect would it not if it's with use the amount of usable water in debate below 7,500,000 acre-feet?

Mr. Mark Wilmer: Your Honor is now speaking of a system Lower Basin --

Justice Hugo L. Black: I'm talking about what practically the Upper Basin will be free to use if you win all your points.

What will they be free to use, no, they can use or that having a demand, by reason of demand you brought about by a decree remedying this controversy?

Mr. Mark Wilmer: The best way I can answer that is this Your Honor.

This Court should not enlarge the obligation of the Upper Basin under the Colorado River Compact.

This Court does not need to enlarge the obligation of the Upper Basin under the Colorado River Compact.

Justice Hugo L. Black: Neither -- neither to enlarge, I presume not to diminish or to diminish unless they were here perhaps.

Mr. Mark Wilmer: Unless they were here and I see no occasion for having them here or offer than being here.

As I said before Your Honor --

Justice Hugo L. Black: (Inaudible) might have some bearing on the fact as I understood either statement was made that if you should win, your argument plainly had a decree you seek that the Upper Basin would be tied to that so that might not be able to keep for its own use as much as the 7,500,000 acre-feet.

Mr. Mark Wilmer: Your Honor, I am sure that perhaps Mr. Ely did not mean to make the statement he did when he said that the 75, excuse me, that he said that the 75,000,000 of 3 (d) water included Mexico.

I'm sure he did not mean to make that statement because --

Justice Hugo L. Black: Of course Mexico is a different situation.

Mr. Mark Wilmer: That --

Justice Hugo L. Black: No controversy, it's never been in the controversy in the Compact anywhere else as to the Upper Basin and the Lower Basin derived being subordinated to carrying out and to (Inaudible) Mexico.

Mr. Mark Wilmer: I think there could be no question of what the treaty must be carried out.

Justice Hugo L. Black: But I'm -- I'm saying now that if it should be diminished by what you add and the decree should be written in such way that the Upper Basin is denied its 7,500,000 eliminating all of that Mexico with anything your argument you'll make required a decree to be written which wouldn't do that in --

Mr. Mark Wilmer: No.

Justice Hugo L. Black: -- the Upper Basin.

Mr. Mark Wilmer: No, we'd have no right to ask that Your Honor.

Justice Hugo L. Black: It's your idea that if you would win on your basis the decree which was molded according to your argument would still lead the Upper Basin at all time so that it did not either temporarily or permanently, unless by reasonable negligence, have its the usable water for use below 7,500,000 acre-feet.

Mr. Mark Wilmer: Obviously, there's no question Your Honor unless they can hear one qualification.

Unless under the Compact as agreed to, that result followed and I mean by that merely their obligation under 3 (d).

In other words, this Court, I do not think would attempt to either interpret or modify the Compact and the Compact fairly requires that the Upper Basin must and they were on an average 75,000,000 over a 10-year period.

So that I would qualify my answer only in the summary, that nothing which we have urged on the Court, nothing which we would suggest in the decree this Court enter could in any fashion enlarge or lessen the obligation of the Upper Basin.

My answer to Your Honor is quick but fair.

Justice Hugo L. Black: I understand.

Mr. Mark Wilmer: The provision I might simply note in passing of 3 (c) which is a Mexican treaty application is that if such surplus which is a surplus above (a) and (b) shall prove insufficient for this purpose, then the burden of such deficiency shall be equally borne by the Upper and Lower Basin and whenever necessary, the States of the Upper Division shall deliver at Lee Ferry water to supply a one-half of the deficiency so recognized in addition -- in addition to that provided in Paragraph (d).

Now Paragraph (d) is a paragraph which provide for 75,000,000 on a 10-year average.

And therefore, the Mexican water is not included within the 75,000,000 because it shall be in addition to that required by Paragraph (d).

Now, the following is an amendment printed, get myself cleared.

The other Waterman amendment following that is Section 4 (a).

In other words, we have now progressed with the Section 5 amendment through the first Section of the 70th Congress which has resulted in an amendment restricting California by a limitation upon the Secretary's power to contract that ends our treatment of 4 (d) and 4 (a) Section 5 at this moment.

We have started now in the first session of the 70th Congress with the Section 5 out of Committee with a limitation upon the Secretary's right to contract limited to 4,600,000.

Justice John M. Harlan: With that 4,600,000, you mean all water below Lee Ferry?

Mr. Mark Wilmer: That is our belief, Your Honor, yes.

Justice John M. Harlan: Not below Lake Mead?

Mr. Mark Wilmer: No.

No it's -- it's the water in Lake Mead and because the only place he could contract under the Project Act Your Honor.

Justice John M. Harlan: Insofar as the limitation is concerned, the point you've arrived, there's no distinction between -- there's no diminution of the California limitation or the California rights to back the fact that the water between Lake Mead (Inaudible).

Mr. Mark Wilmer: (Inaudible) it confines California's rights to water below Lee Ferry and in Lake Mead.

I would say the Secretary's rights to contract are with respect to water which he is to store under the Project Act because that's safe.

Justice John M. Harlan: (Inaudible) the limitation with respect of Lake Mead and all water in the mainstream below --

Mr. Mark Wilmer: Lee Ferry and in Lake Mead, yes.

Justice John M. Harlan: Well that's the question.

Mr. Mark Wilmer: Well, the water in -- below Lee Ferry Your Honor has got to go to Lake Mead, that we think it's committed to Lake Mead, we think it is tied to Lake Mead, that it's dedicated to Lake Mead and we think that it is, in effect, in Lake Mead because hydrologically it must go there.

Unknown Speaker: (Inaudible)

Print this transcript Transcript:

Argument of Mark Wilmer

Mr. Mark Wilmer: I am told that I may have misspoken this morning in stating the figures which Senator Johnson placed in the record as being the -- then uses of California until I said a million, two hundred and some thousands, two million a hundred and fifty-nine thousand, I believe.

The amount which he claimed was six million and nine thousand, I think I stated that big, his claim but the uses which he specified were in the neighborhood of two million one or two hundred thousand rather than if I did say so, one million Your Honor.

Secondly before going on, I would like to make it clear that Arizona concurs in the Master's conclusion that inflow below Lee Ferry and in to the reservoir is part of the water which is the subject of the congressional consideration and distribution.

I may have spoken improvidently, a time of Upper Basin water, it is the Master's view and it is our view that Congress dealt with the supply of water at Lee Ferry mainstream which of course is Upper Basin water.

And in addition, recognized there would be inflow below Lee Ferry and above Hoover or Boulder Dam.

Arizona does not contend for a moment that this water when and as it reaches the mainstream is not subject to the provisions of the Act, it is.

Make no contention to that effect at all.

Your Honor, there is one as known as the Little Colorado, actually the most water which reaches the stream from that is and what is known as Blue Springs which are down at the bottom of a rather deep canyon and close to the river.

On occasion, the Little Colorado runs in the spring and flood.

It -- it drains an area of Northern Arizona much like the Upper Basin that is, it's a high country in snow and that sort of thing.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: Pardon?

Yes, there are old consumptive uses Your Honor, going back to the '70s perhaps, it was the -- some of our -- for a moment, the early seven -- the northern part of the state in that area but not large and the inflow is sporadic and is not large, there is an addition from Utah and Nevada, the Virgin River, the Muddy River.

There are miscellaneous springs and inflows but, actually as I remember the figures they gained from Lee Ferry to the dam generally is recognized as in the magnitude of a million acre-feet, maybe a little higher.

Justice John M. Harlan: (Inaudible)

Mr. Mark Wilmer: We were -- we -- we cons -- we concur Your Honor and this concludes that after water is freed from the tributaries and reaches the main stream, it falls squarely within the Secretary's power to contract.

Justice John M. Harlan: (Inaudible)

Mr. Mark Wilmer: Our view is this Your Honor, that uses on the tributary below Lee Ferry and above the dam within the state are not chargeable against the California limitation.

In other words, we believe that Section 8 again protects us, in that -- it says that water within the state except as it is modified by the Colorado River Compact is not to be disturbed by the Project Act.

We say and we agree with the Master in his conclusion that when the Secretary said that you have to accept uses on your tributaries which might never reach or which -- I'm -- would be making an accurate statement.

The statement was that uses on the tributaries to the extent they diminished the flow into the reservoir are chargeable against our two million eight.

We disagree with this requirement that we accept uses to the extent they deplete the flow.

We do concur that to the extent that flow reaches the river and becomes a part of the stream, it then becomes subject to the Project Act.

I cannot add it, if it please the Court to the Master's treatment of our objection.

Justice John M. Harlan: (Inaudible)

Mr. Mark Wilmer: If it gets into the mainstream, its part of the mainstream.

Congress -- excuse me, Your Honor.

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: No -- no, I didn't mean that if I said so, I misspoke Your Honor.

I meant this.

We do not concur -- we do not contend that we have any right to a credit so to speak for inflow below Lee Ferry and above the dam for our contribution after it reaches the stream.

We concur in the Secretary's -- in the Master's finding that Congress did recognize there was a miscellaneous inflow, did not look to it for the supply but it recognized it was there and we would be -- we would be very unrealistic to contend.

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: Our view Your Honor is that exactly that the Congress said you can construct a reservoir on the dam, that's all Congress told him he could do.

That's all he should've done.

Justice John M. Harlan: (Inaudible)

Mr. Mark Wilmer: I'm sorry, Your Honor.

Justice John M. Harlan: (Inaudible)

Mr. Mark Wilmer: Until it got in Lake Mead.

I would -- yes.

I -- I should answer Your Honor directly.

He would not have any power --

Justice John M. Harlan: (Inaudible)

Mr. Mark Wilmer: -- to contract with Arizona to take water out of the river above Lake Mead.

I -- I certainly -- sorry if I misspoke myself in that respect Your Honor, that unquestionably is our position and unequivocally, I think it's correct.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: No, he has not Your Honor, the -- the contract provision of Arizona which we objected to and we contested before the Master in which he accepted as a proper objection, it's a provision of 7 (l) of our contract which says that to the extent, our uses on the tributaries above Lake Mead and below Lee Ferry diminish, deplete, the flow in the lake -- into the river and into the dam to that extent, we're charged against our two million acre.

We contest that that on the ground it was beyond the Secretary's power and the Master has accepted that and had said it was beyond the Secretary's power and has recommended that that provision be held improper.

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: I do, Your Honor.

I understand in California's position is that in some strange fashion the Master has separated out of the context this whole thing that stretch between Lee Ferry and the head of the reservoir and in some fashion, removed that from consideration, we don't think that's true at all.

We think the Secretary's power if I can again say this, the Secretary's power has distinguished from the dedication of that water by the Congress is limited to the water that the Congress told that he could store and use.

That's -- that's a distinction.

Now, if I might turn back again to the progress of the evolution of Section 4 (a), the significant thing which I would like to call your attention to in respect to this next several amendments which were printed but not offered in the first session of the 70th Congress.

First of, on page 8 of this little pamphlet that we have provided is an amendment printed but not offered by Senator Phipps.

This amendment later became the first paragraph of Section 4 (a), the first paragraph of the limitation on California and the requirement for seven States or six States ratification.

Now, may I again call this sequence of events to the Court's attention?

The water amendment which I have referred to as to Section 5 but it again was working upon, if I may use that word, deferment was working of some method of controlling the uses in the mainstream.

Section 4 (a) as printed by Senator Phipps in the first session did this very significant thing.

It eliminated it from Section 5, if you would turn back if you please, to Section 5, to the portion I emphasized on page 3 that is italicized.

Senator Phipps' amendment deleted from Section 5 this limitation language which restricted the Secretary's power to contract as a limitation.

In Section -- to Mr. Justice Frankfurter, if you look at Section 3.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: In Section 5, if it please the Court, we will let that at the end of the first session with a limitation on the Secretary's power to contract in Section 5, which restricted his power to four million six.

Senator Phipps offered this amendment, which eliminated it from Section 5, this limitation on the Secretary but transferred it to Section 4.

The language of the Phipps amendment as introduced on page 8 provided for the ratification and provided and inserted for the first time the requirement that the limitation on -- use should be stricken from Section 5 and should be incorporated in Section 4, page 8 and 9, Your Honor.

In other words, it provides first for the alternate of the little book, Your Honor.

The top of page 9, it provides, "And until the State of California by Act of its legislature shall agree with the United States and for the benefit of the States of Arizona, Colorado and Nevada, New Mexico, Utah and Wyoming as an expressed covenant.

And in consideration the passage of this Act, that the aggregate -- angled diversions of water coming from the Colorado River for use in the State of California, including all diversions under contracts made under the provision of this Act and so on, shall not exceed four million six hundred thousand acre-feet of the water apportioned to the Lower Basin States for the Colorado River Compact or one half of the surplus."

Now this point -- in this amendment Senator Phipps proposed the excision from Section 5 of the contractual limitation on the Secretary as imposing a limitation on California and inserted it in Section 4 (a).

The last portion on page 7 strike out the land's four to 12 inclusive and insert a neuter on the following that you will find is an excision from Section 5 of the italicized portion which is found in the page 3, termination of that in the 69th Congress.

Senator Bratton offered an amendment along the same general lines and Senator Pittman offered an amendment which later became the Hayden amendment that is found on page 9.

The Pittman amendment envisage not only a transfer of the limitation to Section 4 (a) but a mandatory compact, and over to this point, we have in Section 4 (a) (1) a limitation by -- I mean a ratification by seven States, the ratification by six States, a limitation in California and a mandatory compact.

In other words, Congress in this language said California must agree.

If Arizona and Nevada accept the limitation which is proposed in paragraph 1, California then must compact along the lines of the division which we have previously indicated.

In that connection, in discussing the matter, Senator Pittman made this observation that is why he said that he was at the Governors' Conference.

I wish to play -- this is from our legislative history at page 24, I wish to place in the record at this point a suggested amendment.

It is not to be proposed because it will be perfectly useless but it had been suggested.

It is in accordance for the conference to which I have just referred, Governors' Conference.

That it's designed to carry out that idea at some date.

Now, Senator Pittman in substance said, this has been proposed to carry out what was arrived at at the Governors' Conference.

Someone offer it now because it isn't time but at some date, this is what we're going to do.

It was largely drawn by Mr. Wilson.

That's Mr. Francis Wilson, who was a well-known and respected attorney from New Mexico and a very highly regarded water attorney.

The law only drawn by Mr. Wilson the Commissioner of New Mexico in the course the conference to which I have just referred, it is only to be published in the record.

It's not offered as an amendment.

Now that, if it please the Court, about concludes the first section of the 70th Congress.

We find pending the Bratton amendment, the Phipps amendment, the Pittman amendment, all having the same central theme, a limitation in California, the Pittman amendment and mandatory compact in California and the removal of the limitation on the Secretary's power to contract from Section 5 as a limitation in California to Section 4.

Now, it is most significant -- most significant, that the excision of five at the same time was in connection or was at the same time a part of a connection with the amendment to four, which put the limitation in Section 4.

In other words, I can draw no conclusion reasonably I think.

But what the Phipps amendment said, "No we won't put this in Section 5.

We won't limit the Secretary's power to contract in this fashion, we'll make it part of Section 4 (a) and say that until California has by statute, limited herself, nothing so happen."

In other words, I think it is logical and reasonable inference that the 4 (a) limitation language being excised was transferred to and put into Section 4 (a).

That becomes important in connection with our so-called mandatory allocation argument.

Now at the opening of the -- incidentally the first section is probably you all know entered in a filibuster which repeated the -- the passage of the Act to that session although the House had passed and sent to the Senate a companion measure introduced by Representative Swing.

Now, at the opening of the second --

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: Yes, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: Forces behind it were the -- our good Senator Hayden and our good Senator Ashurst.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: Because the allegation which we were seeking had not been arrived at.

In other words, these are -- these amendments Your Honor had been offered but -- have been printed but not offered.

There was still -- there was still not enough meeting of the minds to arrive at what at least Arizona considered to be an inducement to ratify the compact what the Upper Basin's considered had gone -- progressed far enough to protect it.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: Pardon?

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: To these amendments?

No, Senator Hayden offered the Pittman amendment at the opening of the second session Your Honor.

I would say contrary to execute -- to indicating hostility, the only hostility that Senator Hayden who carried them all for Arizona, really, indicated was the four million six versus the other allocation and to the --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: The bargaining was in process Your Honor.

I think that's a fair analogy and a fair statement.

But it is significant, to please the Court, that at the opening of the second session of the 70th Congress, the Senator from California, Senator Johnson asked unanimous consent to take the House measure which had been passed, check up the title and insert underneath it the Senate measure, the Senate Bill 728.

In other words, at the outset of the 70th Congress, the Senate discarded the passed statute as sent forward from the House in the previous session and simply gave it the House number and did that by unanimous consent.

Now, in line with Justice Frankfurter's observation that the bargaining hadn't ended, I would conclude that the bargaining had made some satisfactory progress or this legislative maneuver would never have been achieved with unanimous consent.

I would have assumed that Senator Hayden and Senator Ashurst at least could have arose and said, "No, we won't agree to that."

Now, the next amendment which is in order, is on page 11 which is the Hayden amendment to the -- to the then pending bill.

I would bring to Your Honors' attention this fact because of the fact that Senator Johnson asked and received unanimous consent to amend the House measure by eliminating the entire body of the Act and inserting in lieu thereof the body of the Act of 728, that then became an amendment, a pending amendment and that becomes important as we will see as we go on.

So that actually the matter pending before the House was the Johnson amendment to the House measure which had come forward and had been passed.

The Hayden amendment was the Pittman amendment word per word.

It proposed the mandatory compact.

It proposed the four million two to California, three million to Arizona and the same division in the mandatory compact.

Now, the thing that I now would stress, if it please the Court, is that the Phipps amendment had been printed in the first session.

The Phipps amendment as I may go back just briefly, one transferred from Section 5 to Section 4, the limitation on the right of California to get water.

That became a part of Section 4 and it provided for a six-to-eight ratification.

But the significant thing is that the Phipps amendment called for (Inaudible) -- for a excision of this limitation and its transfer to 4.

The next significant thing if I may say is this, Senator Phipps had offered -- had printed this amendment in the first session but had not offered it.

He did not offer it in the second session until Senator Hayden had offered his amendment.

Now mind you, his amendment had been printed within the record.

Hayden's amendment had not been printed and was in the record.

And yet Senator Phipps for some reason waited until the Hayden amendment had been tendered and offered.

And then he said this, offering his amendment.

Mr. Phipps -- I'm reading from page 15 of our legislative history.

So I'm reading from page 15 of -- we printed this little excerpt on page 15 of this matter.

Mr. Phipps, I understand that the pending amendment is the one offered by the junior Senator from Arizona, Mr. Hayden.

I desire to offer an amendment to that amendment which I believe is permissible under the rule enforced.

In other words, not only did Senator Phipps wait until the Hayden amendment had been offered but before offering his amendment, he carefully inquired and was assured that it was a Hayden amendment to which his amendment was being offered.

Now, may I suggest the significance of that?

The Hayden amendment then contained the mandatory formula.

The Hayden amendment then provided that California must compact along the lines indicated.

Now, if Senator Phipps have not been keenly aware of what Senator Hayden's amendment contained, that was two paragraphs and not one, he wouldn't have been so careful and he wouldn't have waited but he first found out it was a Hayden amendment.

And in the Hayden amendment, there was a mandatory formula.

Senator Phipps in his amendment struck out the language.

I mean, in his amendment to Section 5, not only changed over the limitation on the Secretary but added the language, "and shall conform to the provisions of Section 4 (a) and shall conform to the provisions of Section 4 (a)."

California has told you that when the Phipps amendment was offered, there was nothing for Congress, it was an isolation.

That is not the fact.

The legislative history clearly indicates that when Senator Phipps offered his amendment, he offered it by striking out the first paragraph of Section 4 (a) of the Hayden amendment and as a part of his amendment requiring that contracts shall conform to Section 4 (a).

We say that is significant.

We think it indicates that Senator Phipps that the bargaining have progressed if I may use your term Mr. Justice Frankfurter, had progressed and that it was all part of a more or less agreed course of conduct.

Now, the -- the amendment then became the amendment in the second degree, the Phipps amendment, the Hayden amendment and the Johnson amendment.

This was debated for some time and then this parliamentary maneuver ensued.

The Senator from Wis -- from Arizona, Mr. Hayden asked in page 17 of our little excerpt here, "Mr. President, I would like to have the attention of the Senator", and if the Court will permit me, I would like to read this because I think it's important.

I -- that I may discuss the parliamentary situation as it exists and what am I do if possible to remedy it.

In order that the amendment offered by the Senator from Colorado, Mr. Phipps maybe perfected.

As I understand the situation, the amendment offered by the Senator from Colorado is an amendment in the second degree, an amendment to the amendment which I have offered and therefore not subject to amendment.

The Senator's amendment contains three substantive propositions upon which there is a difference of opinion between the States of Arizona and California and we must vote upon all of them as one if this amendment is not subject to amendment.

But if the Senator's amendment could be made subject to amendment, the Senate could vote upon the various propositions separately, for example, the Senators taken from another part of the bill, a provision that refers to Section 5.

A provision that the State of California shall have four million six hundred thousand acre-feet of water on the Colorado River, on the Colorado River.

Now there's no dispute about what the Colorado River was, it wasn't the tributaries and it wasn't the system.

Arizona agrees that the State of California shall have four million two hundred thousand acre-feet of water.

Now, I desire at the range so that the Senate may vote upon the question of whether it shall be one figure or the other.

Now, if anyone can tell you gentlemen that that wasn't a square cut issue before the Senate that they were voted -- vote upon how much water California should have and how it should be divided?

I wouldn't know how to, more strongly express it if I were in the Senate.

Justice John M. Harlan: (Inaudible)

Mr. Mark Wilmer: Yes, Your Honor.

The Cal -- Arizona contended then for four million two.

In fact, the way that came about was it in the Senate in the Senate Committee.

The Committee reported out the amendment not recomm -- except in the Governors' Conference recommendation but they're all of four million six and four million two and Arizona had accepted that as an -- as a compromise.

"I would like to inquire of the President of the Senate whether I should withdraw the amendment which I have offered, would then the amendment offered by the Senator from Colorado be an amendment in the second degree and subject to amendment?"

Mr. Hayden, "If I withdraw the amendment which I have offered to which the amendment of the Senator from Colorado is a substitute, will this amendment be an amendment in the first degree and subject to amendment?"

The Vice President told him, "No, it would -- it couldn't be done."

Mr. Hayden "Would it then be possible -- no, they said he could withdraw it.

"Would it then be possible for the Senator from Colorado to immediately re-offer his amendment?"

The Senator from Colorado could do that.

Now, Senator Hayden said, "I wish to state to the Senate that what I am trying to accomplish is to get a vote on the one particular question of the quantity of water which the State of Colorado may divert from the Colorado River, should it be two million four hundred thousand acre-feet or four million six hundred thousand acre-feet?"

I can state in 15 or 20 minutes all the reasons why Arizona favors the lesser figure and then the Senate may have a vote upon the question.

Mr. Phipps (Inaudible)

I desire to call attention to the fact that the four million six hundred thousand acre-feet was a figure adopted by the Senate Committee.

It was written in the substitute then offered by the Senator in California, Mr. Johnson.

Therefore it seems to me and so on, whether right down to the question of four million six hundred thousand acre-feet as recommended by the Senate Committee and four million two hundred thousand acre-feet as written in the amendment by the Senator from Arizona.

Mr. Hayden, "And upon that particular issue and upon nothing else, I desire to have a vote of the Senate at this time."

Mr. Phipps, "The other item that is in the amendment to which the Senator calls attention as I understand it is the provision regarding the Federal Power Commission, that is the only matters in that."

My amendment has originally offered -- provided for seven State ratification of the Colorado River Compact.

The Senator from Colorado in his amendment provides for a six State ratification.

That is another question upon which I -- we should like to have the Senate take a vote.

If the Senate will bear with me for a moment, I desire to say that it's only fair to the State of Arizona that the several substantive propositions which are contained in the amendment of the Senator from Colorado and in my amendment be voted upon, each upon its own merit for the Senate and not grouped together in one particular amendment.

If I am privileged to do so Mr. President, I withdraw without prejudice the amendment I have offered."

The Vice President, "The Senator has that right."

The amendment of the Senate from Arizona to the so-called Johnson amendment is withdrawn.

Senator Hayden, "Now, if the Senator from Colorado, Mr. Phipps will again offer his amendment, just as it is, we can proceed to debate it, to amend it, and to vote upon it."

Mr. Phipps, "Mr. President, I understand the Senator from Arizona has withdrawn his amendment.

I desire again to offer my amendment as it now is before the Senate."

Mr. Vice President, "The question is on agreement with the amendment from the Senator from Colorado."

And Senator Hayden then offered an amendment which would have changed it to four million two and which was lost.

Thereafter, Senator Bratton, who has been described by California as not believing the Senate could describe the water offer the Bratton amendment.

And that amendment changed the figure to four million four and the Senate enacted that amendment and it became four million four.

Now, I do not want to bore the Court with a lot of excerpts of legislative history.

I feel, however, that in view of the statements made by California that at least a modicum might be in order.

First of all, I would call your attention to the report of the Senate Committee which reported out this bill with four million six.

And this is what Senator Hiram Johnson said in proposing that bill and recommending it for passage in the Senate in the second session of the 70th Congress.

"Here, finally is presented a unified -- excuse me.

Unknown Speaker: What is that?

Mr. Mark Wilmer: It's our legislative -- it's on -- not in this Your Honor.

It is -- the citation is 70th Congress first session, Senate Report Number 592.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: Is it on our legislative history?

We'll check it, Your Honor, if so -- well, I'm sure it is but I wouldn't -- probably that was here.

Here is what he said, "We will provide it if necessary Your Honor, we will provide it."

It's the second session Your Honor, it's the Senate Report Number 592 of the 70th Congress first session, I'm sorry, first session, 1928.

Here finally is presented a unified plan -- this I may have read to you before with respect to 5.

For perfecting those entitled for protecting those entitled to protection and then he said, "For the allocation among the States desiring that allocation of the waters of a great river to which all are entitled."

In other words, here is Senator Johnson telling them that in this bill, which is reported out, they're making allocation of the waters of this great river to those who shall be entitled to it.

Now, if I might, I would like to refer to the colloquy from -- between Senator Walsh and Senator Johnson, which is found in Arizona legislative history at pages 40 to 43.

I haven't copied the whole thing, I have taken excerpts but it is set out substantially in full.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: Mr. Walsh of Montana, "Yes, but I have always understood that the interest that stores a water has a superior right to prior appropriations that do not store."

Mr. Johnson, "Possibly so, what is the point?"

Mr. Walsh, "The point is that apparently if that is correct, then this expenditure is being made with no right in the Government of the United States to control the water which is stored but that it must go to those appropriators."

Mr. Johnson, "No.

The bill provides that a contract in advance must be made for the storage of water by the Secretary of the Interior."

Mr. Walsh, "The contract with whom?"

Mr. Johnson, "With those who utilize and take and inappropriate the water."

Mr. Walsh, "That is to say, the Government may dispose of the stored water as it sees fit."

Mr. Johnson, "Yes, under the terms of the bill."

He goes on.

Mr. Walsh, "I directed the inquiry merely for the purpose of trying to find out if I can, under what kind of obligation the Government of the United States should have built this dam would be to those who have the appropriations."

Mr. Johnson, "The Government would be under no obligations until it makes its terms.

I see I'm unable to make that plain.

But here is something in this -- but here is some -- everything in this theme, plan or design.

Everything is dependant upon the Secretary of the Interior contract with those who desire the benefit of the construction and he is not to undertake any expenditure or to undertake any construction until that shall have been accomplished."

Mr. Walsh, "Let us suppose the Arizona people are perfect and willing to meet the requirements and that the Los Angeles people are perfect and willing to meet the requirements.

And other people have not even attempted to make any appropriation are perfectly willing to meet the requirements.

Who has the right?"

Mr. Johnson, "The Secretary of the Interior and the Government have the right."

Mr. Walsh of Montana, "The Secretary of the Interior may possibly ignore those appropriations?"

Mr. Johnson, "Possibly so."

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: He said possible.

Mr. Johnson has been accused for being at times confused by California when some of his legislative history has been a little embarrassing that --

Justice John M. Harlan: (Inaudible)

Justice John M. Harlan: Just -- just to demonstrate it, if it please the Court, that the legislative history completely and unequivocally demonstrates that Congress was disposing of the water and was dividing the water.

California has made the assertion that no Senator contended that they were dividing the water.

That there were no contention that they are dividing the water.

Justice John M. Harlan: (Inaudible)

Justice William O. Douglas: The -- under this law the -- all state rights, the rights under state law in water were displaced and a new federal domain erected over the dispensation of water?

Mr. Mark Wilmer: Precisely.

Precisely, Your Honor as to stored water.

Justice William O. Douglas: That's been the argument -- that's been the argument the Government has been trying to get us to take many times but we've never done it so far.

Mr. Mark Wilmer: Well, Your Honor, let me make this distinction.

Justice William O. Douglas: I -- I say, the Federal Government.

Mr. Mark Wilmer: I understand that.

Justice William O. Douglas: You know the cases?

Mr. Mark Wilmer: Yes.

In fact I think that troubles my Brother, Mr. Reed a little bit.

In any event, our position is this Your Honor, that this is not a question of the Government claiming water in the sense of owning it in a flowing stream.

This is a question of the Government in the exercise of its power under the Commerce Clause storing a large body of water.

Justice William O. Douglas: Well, that's a Government right to store, comparing, you would recognize that.

Mr. Mark Wilmer: Yes.

Justice William O. Douglas: I'm not talking about that.

I'm talking about allocation of water to land which had -- we'd always assume under all the federal legislation unless this changes it, it was a matter of state law.

Mr. Mark Wilmer: Your Honor, I think that the distinction is this, where you have a federal project which stores water under the power of navigation under the commerce power to store water then there inheres in the Congress the right to say how that water shall be disposed of.

In fact, there's an early Supreme Court decision which involves almost the same general type of situation that's -- its back in the -- in the --

Justice William O. Douglas: There'd be no recourse in these -- and you're a Western lawyer, you know about water rights probably better than any of us, but would these be compensable interests that the Government takes them?

Mr. Mark Wilmer: Your -- Your Honor assume --

Justice William O. Douglas: I -- under the law -- the water rights of the West that these were -- these were rights, were much of a property interest, this building or a factory or?

Mr. Mark Wilmer: If this were a non-navigable stream, Your Honor there'd be no doubt about that.

The distinction arises from the fact this is a navigable stream and that under the Commerce Clause, whether there is appropriate -- I would take this Your Honor appropriative right is a no greater consequence than the right in the appellation case of the power company which had a permit on that stream.

Justice William O. Douglas: That power can protect the commerce goes way up into the tributaries so to carry that out logically then there would be the power in part of the Federal Government to destroy all the subsidiary property rights that it (Voice Overlap) --

Mr. Mark Wilmer: Well Your Honor in --

Justice William O. Douglas: -- state law.

Mr. Mark Wilmer: -- in -- in United States versus Rio Grande Dam and Irrigation and Dam Company in 174 United States, a landmark case.

That is precisely what this Court held.

That in a navigable river in that case, the Rio Grande, a navigable river up to a point, the State of New Mexico was -- I believe the Elephant Butte Dam, I'm not sure of that but it was a dam construction anyway.

And by that, it was proposed to dry up the tributaries, not the mainstream, but the tributaries.

United States had a stormy course in that -- in that case.

The --

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: Yes, Your Honor.

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: No.

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: No.

Justice William O. Douglas: Are you different from the Federal Government then?

Mr. Mark Wilmer: Well Your Honor, we make this distinction, I think it's valid.

I started to say the -- the Rio Grande case, the Court squarely held that in a navigable stream, anything that impair the navigable capacity of that stream transgress the Act of Congress of 1890.

In that case, the transgression was to occur on the stream, on tributaries of a navigable stream.

And this Court said, "You can't do that."

That Congress has in effect under it's -- under its control over navigable stream complete power over the tributaries as well as the stream itself to the extent that those tributaries are necessary to maintain a navigable capacity of the stream.

We say therefore that, we see no distinction between a power permit up on the river in the east issued under state law which this Court has said in the navigable stream when the Government preempts the stream, it becomes a nullity and then no compensation involved.

We say there's no difference between that and appropriate divide if you can gain one of the navigable stream that when the Congress assuming it wasn't appropriative rights Your Honor, we believe the words of this Court in many cases to the effect that when the Congress exercises its power, its dominant servitude over that stream under the navigation, it's power into the Commerce Clause to control and improve navigation, that all lesser interest must give way.

I don't care whether they be appropriative right, a power --

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: There's nothing in the Project Act --

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: Excuse me, Your Honor.

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: Oh, I believe that the legislative history barely read shows that the Congress recognized they were allotting to the various states water over and above they then uses.

And as Senator Hayden said at one point and I have his quote, that what that is -- well I have it right here, "And this is just what my amendment proposes."

He said, "We have -- we have allocated the water and then who shall use it within the respective states is a matter for the courts to the state or for the state."

Justice William J. Brennan: Or state law?

Mr. Mark Wilmer: Or for state law, yes.

I -- I -- I know this one of the -- the more or less major -- major but problems that Nevada has with the United States as a contention that the contract with Nevada because it is with the Nevada River Commission, the Colorado River Commission State Agency is not valid, the Master displaced that, the Master said, "No."

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: We have a few --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: No --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: No, the -- the Solicitor General Your Honor takes the position and the United States takes the position that that contract is (Inaudible) -- is -- is invalid because it is with a state agency and not with the individual users.

But the United States further takes the position that the Secretary can allocate intrastate according to priorities as he sees fit.

We disagree with that.

Justice William O. Douglas: That's -- that's what I was trying to get at.

Mr. Mark Wilmer: Oh no, we do not contend Mr. Justice Douglas that the Project Act controls at any respect the use of water intrastate.

We have made no such contention.

Our sole contention is limited to the proposition --

Justice William O. Douglas: Were you in California filing a degree upon one thing then?

Mr. Mark Wilmer: I want to be careful what I say, Your Honor.

May I study the transcript and that's without New Orleans.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: We are in disagreement, correct.

Now, I would say this in this Court.

The Arizona contract provides that the Secretary shall make contracts with individuals, corporations who aren't qualified under the Reclamation Act within the State of Arizona.

We originally took the position that it should be the state with whom he contracts and the state apportioned it out.

The Master held that under the Arizona contract we had desi -- delegated to the Secretary the right to make those contracts and it's a valid provision.

We have not accepted that -- to that holding of the Master.

So that in any event, it would be a question of our contract having made that designation.

The Secretary has an agent to make the contracts and he living up for our contract rather than anything in the Project Act which says to the contrary.

In fact, that California's position is, the Project Act preserves priority of appropriation that preserves the rights of various users to come and demand of the Secretary water in accordance with their historic appropriative rights.

That is why we said at the outset that California in effect asked this Court to tell the Congress of the United States and the Secretary that that stream is to continue flowing as it was -- want to flow.

We say that just can't be.

We say that is impossible to interrupt the regiment of that stream as established by the Secretary to respond to appropriative rights as we -- excuse me -- as we know them normally.

We say it just isn't in the cart.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: I would say, Mr. Justice Frankfurter that within the state, if the state wants to apply that law, I don't think it's any business of this Court.

I don't think its any business of the other states for that matter.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Or the Secretary.

Might I make one further suggestion on that respect -- respect to this matter of appropriative rights.

In any event, as Nevada has suggested, as United States has suggested and as Arizona has suggested, there has been a complete abandonment of any attempt to live up to appropriative rights.

There had been no attempt from the day of the first water restored on that project to this day to take any water in accordance for the appropriative rights.

There has been no attempt, whatever.

Justice Hugo L. Black: There has been has there not a record, (Inaudible) of rights that were existing in 1929?

Mr. Mark Wilmer: Only in the Project Act, if that is true, Your Honor.

In other words, the Master has held the language of Section 6 in satisfaction of present perfected rights in pursuance of Article VIII of the Compact is a protection of perfected rights existing as of 19 -- June 25, 1929, when the Project Act became effective.

Justice Hugo L. Black: So that so far as 1929, there'd be no question of just compensation there?

Mr. Mark Wilmer: Well Your Honor, they've got better water more than they ever had before 1929.

Justice Hugo L. Black: No, what I mean is, that -- under that interpretation of the Act engaged no private rights have been with the water made (Inaudible) done away with it.

Mr. Mark Wilmer: None, none.

It -- we -- we have a mild disagreement with the Masters just what that means, we think if it means anything, it means 1922 when the Compact was signed.

Justice Hugo L. Black: If your disagreement exists there with reference to what could be done after the Act was passed and the project was built in connection with the distribution of the water.

Mr. Mark Wilmer: I would say this that if the Master's holding is correct, that the Act does prefer -- preserve present perfected rights.

And if those rights are not protected and if they haven't been abandoned then the holding of this Court in the Gerlach case I believe that would be to the effect that Congress didn't intend to preempt the whole stream but intended to make compensation.

In other words, I would say then that if that is the meaning of the Project Act and if they haven't been abandoned, then there may be a basis for a contention if they're not satisfied, they're entitled to compensation but --

Justice Hugo L. Black: That there would be no questions -- I'm trying to get to that, there'd be no question of just compensation could arise with reference to future rights.

Mr. Mark Wilmer: None, none.

Justice Hugo L. Black: (Inaudible) -- after the Government Act was passed because there would be none --

Mr. Mark Wilmer: There would be none.

Justice Hugo L. Black: -- whatever the law is.

Mr. Mark Wilmer: And I think the matter have raised it, if it please the Court, with respect to what then existing rights the Congress recognized.

Your -- this is -- this Court has said that, you've said it with not -- with respect for appropriative rights although you approached it in one case in which Mr. Justice Jackson said that you'd never held that you could store up a navigable stream in a bottle of water and sell to somebody else but you passed the question and answered with respect to appropriative rights in a navigable stream.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Yes, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Oh, I'm sorry.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Well to that extent, Your Honor I --

Justice Felix Frankfurter: To that extent (Inaudible)

Mr. Mark Wilmer: Your Honor, if I may pause for just a moment to be mildly (Inaudible) it reminds -- my conduct reminds me of the statement --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Maybe I should justify my conduct by saying I don't know what I'm thinking if I hear what I say because maybe that's the case.

The -- the balance of the legislative history, I would like to treat them quickly.

You were given a quotation from Senator Phipps in which he perfected his amendment.

Mr. Justice Harlan suggested that maybe language wasn't quite as clear as was indicated by California.

I would like therefore to read to you a statement made by Senator Phipps before he perfected his amendment, shortly before that.

It's in congressional record at page 390, 1928.

Senator Phipps, "Just a word -- in a word, I wish to state that my understanding of the effect of the pending amendment is that under it or under a State Compact, the upper states would be compelled to send down 7,500,000 acre-feet."

It's a misprint.

It should be 75 million acre feet, "Of water in 10 years or to put it the other way, they would have for their own use the 7,500,000 acre-feet annually.

If the seven State Compact is entered into, it settled the question as far as the future Upper States' basin are concerned."

Justice William J. Brennan: (Inaudible)

Mr. Mark Wilmer: Your Honor I copied this fairly, I'm quite sure it is there, we'll supply the reference, I'm sure it is there.

"If we enact this legislation without providing for a six state Compact, the discussions on the differences between the Lower Basin States may continue indefinitely and the Upper Basin States have no assurance if they are going to be protected in what they get, what they conceive to be their rights.

The language of the amendment providing for a six State Compact has incorporated in it the engagement upon the part of California that she will not take for her consumptive use more than six -- 4,600,000 acre-feet or now 4,400,000 acre-feet of water of the estimated 7,500,000 acres annual flow."

Now, I don't know how you're going to talk about a system basis of accounting when you talk about a 7,500,000 annual flow, talking about the mainstream, the Colorado River.

Now, and this I think concludes decisively the question.

Subsequent to the time when Senator Phipps had perfected his amendment, subsequent to the time he had added the seven -- the 3 (a) language which was referred to.

Mr. Johnson, "Alright," this is a colloquy between Senator Johnson and Senator Hayden.

Senator Johnson, the manager of the bill, Senator Hayden, the manager of the amendment.

"Now, in the division of water that the Senate saw fit to impose yesterday, in the division of water which the Senate sought to impose yesterday, Arizona had 2,800,000 feet and 3,500,000 feet from the Gila, did it not?"

Mr. Hayden, "Correct."

Now in other words, Senator Hayden -- Johnson said, "You got 2,800,000 didn't you, plus the Gila on the division we saw fit to make yesterday?"

And that was the division when Senator Hayden said, "I want to vote upon this question and nothing else, the division of water."

Mr. Johnson, "Making 6,300,000 acre-feet, California was given, with its claims at its perfected rights, 4,400,000 acre-feet.

That is correct is it not?

Alright, now you wish to deduct from the burden that has imposed that upon -- now you wish to deduct from the burden that is imposed by water that goes to Mexico first, 3,500,000 acre feet, do you not?"

"I do."

Mr. Hayden.

Mr. Johnson, "Then you wish to put upon California and Arizona one of them having then 2,800,000 acre-feet and the other 4,400,000 acre-feet, the burden equal share, do you not?"

"I do."

Mr. Johnson, "Alright that is just what I wanted to demonstrate."

Mr. Hayden, "The senator is unwilling to do that?"

Mr. Johnson "Of course I'm unwilling to do that."

Mr. Johnson "Let us say, just by way of example, that 2,000,000 acre-feet would be utilized by Mexico, I'm unable to say how much it would be but a while ago some Senator upon the floor used that as an example.

That 2,000,000 acre-feet might be ultimately allowed to Mexico under your plan then 1,000,000 acre-feet would have to go before by California, 1,000,000 acre-feet by Arizona."

Mr. Hayden "Yes."

Mr. Johnson "That would leave then for California, 3,400,000 acre-feet."

Mr. Hayden "And for Arizona, in the mainstream, 1,800,000 acre-feet."

Justice Hugo L. Black: Is that in your legislative history?

Mr. Mark Wilmer: Yes it is, Your Honor, I'm sure -- I will check these and we'll supply the clerk with the reference because I -- I apologize for --

Justice Hugo L. Black: (Inaudible)

Mr. Mark Wilmer: -- for not -- including it, I did with some.

Mr. Johnson -- now Hayden said, "And for Arizona in the mainstream 1,800,000."

Mr. Johnson "Yes, with 350,000 -- 3,500,000 added thereto from the Gila."

In other words, here is a clear recognition in a debate in a colloquy between Senator Johnson and Senator Hayden that there had been a division of water that Arizona got 2,800,000 plus the Gila, that California got 4,400,000 and that the Mexican burden was shared equally.

Justice John M. Harlan: I wonder if one of your associates could pinpoint this in the legislative history --

Mr. Mark Wilmer: We will do so Your Honor, yes.

Justice John M. Harlan: I mean, could you -- could he --

Mr. Mark Wilmer: Well --

Justice John M. Harlan: -- do it now (Inaudible)

Never -- if -- if he can't, alright, I'll -- don't -- don't slow up your argument.

Mr. Mark Wilmer: The reference I made to Senator Hayden statement is in our legislative history as to his statement that, "What my bill provides is for division of water."

That's in our legislative history at page 45.

The language is this, "The only thing required in this bill is contained in the amendment that I have offered, that there shall be apportioned to the state, to each state, its share of the water."

Then who shall obtain that water is relative -- a relative order of priority made it -- maybe -- be determined by the state courts.

Senator Pittman made this observation in the debate, "What is the difficulty?"

This is in our legislative history at 76, 77 -- no.

Now -- we'll have to give it with you.

Page 71 and 72 of our legislative history.

As I understand --

Unknown Speaker: This one is the Hayden and Johnson.

Mr. Mark Wilmer: The Hayden and Johnson colloquy -- no, this is the legislative history Your Honor, you have the pages in the legislative history.

Justice John M. Harlan: Certainly on the legislative --

Mr. Mark Wilmer: No.

Justice John M. Harlan: -- it's cited in our -- cited in our own brief or to them with reference with the (Inaudible)

Mr. Mark Wilmer: The excerpt I took Your Honor is from our opening brief at pages 63.

The quotation which I gave you from Senator Phipps with res --

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: Our answering brief Mr. (Inaudible).

Unknown Speaker: That's your -- in the answering brief.

Mr. Mark Wilmer: The answering brief, Arizona's answering brief at page 6 -- 62, 63.

The quotation which I gave you from Senator Phipps is in our answering brief, our answering brief at page 64.

Now, with respect to Senator Pittman's remark, that is in -- sorry, I did have our legislative history but I don't have it's -- the quote, it's in the 70th Congressional Record at 232 on December 7, 1928.

It said, "What is the difficulty?"

We have only minor questions involved here.

There is practically nothing involved except the dispute between the States of Arizona and California in regard to the division of the increased water that will be impounded by in the proposed dam.

That is all.

Justice William J. Brennan: On page 67 of your legislative history.

Mr. Mark Wilmer: Thank you, Your Honor.

An agreement has been entered into between the seven states interested in the river, this river by which half of that water is retained in the four upper states and half of it let down to the three lower states.

The four upper states have ratified the agreement.

The question now is for Arizona to ratify the agreement.

Arizona, as I understand, will ratify the agreement whenever there's -- whenever there shall be provided in the bill or a separate agreement between Nevada and Arizona and California, dividing the water let down to the three lower states of the 3,500,000 acre-feet of water let down that river, they have gotten together within 400,000 acre-feet.

They have got to get together and if they do not get together, Congress should bring them together.

Now, California quoted from Senator Phipps with respect to a statement he made, the effect that he didn't see why the Gila should not be included.

I would direct Your Honors' attention to our legislative histories, pages 76, 77, 78 and 79 which demonstrates that Senator Phipps was under a misunderstanding.

He thought that there was a million acre-feet flowing into the mainstream from the Gila and he thought that Arizona was desirous of retaining control of that million acre-feet as well as the uses on its tributaries, that is quite clear.

But it was explained to him that this million acre-feet talked about was merely returned flow if a large amount of Colorado River water were diverted, he was then satisfied.

All Senator Phipps was talking about when he said that tributaries should be included was his misunderstanding that Arizona was contending that Gila River water after it got in the mainstream should be likewise exempt for the benefit of Arizona.

In view of the fact that our legislative history has, I think covered in detail, at least we have, I believe conscientiously tried to include the good with the bad.

I'm not going to take further of the Court's time in reading excerpts.

I would like, however, to briefly dwell upon the administrative interpretation subsequent to the passage of the Boulder Canyon Project Act as to whether or not this was mainstream or other water and as to whether 4 (a) made an apportion.

The Court will recall that Secretary of Interior Wilbur at that time was in charge of this matter.

He was from California.

He was certainly not interest -- disinterested party in the full sense of the word but he certainly attempted to be disinterested and we think he was.

The Wilbur-Healey documents contain these collection of the various Hoover Dam documents and also an explanation by the Secretary of the Interior Wilbur, as to what he had done implementing the Project Act.

In Wilbur and Healey, the Hoover Dam Contract, the 1933 Edition at pages 41 and 42, which is an exhibit, this statement occurs, "The Department has promulgated regulations designed to assure water supply to Arizona.

These regulations are included as an appendix in this volume.

They outlined the form of the Hoover Dam water delivery contract which the United States will enter into with Arizona upon certain conditions.

Briefly, the contract calls for the delivery of 2,800,000 acre-feet annually.

In return for which Arizona undertakes to make no interference with the diversion by other government contractors.

This quantity of water is adequate for all of the Arizona projects below Hoover Dam and is without prejudice to the power of parties to contract from the future for a delivery of additional water as required."

Then this significant language, "Arizona is thus offered an assurance of 2,800,000 acre-feet of mainstream water that given an opportunity to look to the United States rather than to an agreement with the other states for a delivery of that quantity of water in return for an agreement not to interfere with the diversions of resistive states."

In other words, in 1933, the Secretary of the Interior, in making a regulation which proposed a contract of Arizona stated that he was allocating to Arizona 2,800,000 acre-feet of mainstream water.

Now, subsequent to the enactment of the Project Act, there were a number of contracts entered into by the Secretary.

The California contracts were pursuant to what was turned a seven-party agreement.

In other words, the Palo Verde Irrigation District, the Yuma Project of the California Division, that is the sister project across the stream from the Arizona project, the Imperial Irrigation District, Coachella Valley, Metropolitan Water District, City and County of San Diego.

Now, the significant thing on this seven-party agreement is this, it divided the proposed water delivery contracts up into several priorities.

It delivered -- it divided them up into four priorities which were termed the Irrigation Priorities and the Metropolitan Water District Priority.

The significant thing is that as to the fourth and fifth priority, both of which were allocated to the Metropolitan Water District and/or the City of Los Angeles, they split them in two.

The first was 550,000 acre-feet which will -- with the agricultural priorities, equal and even 4,400,000 -- equal and even 4,400,000.

In other words, at that time, California herself understood that the 4,400,000 was a first priority and in their own seven-party agreement so indicated.

Now, the next thing that is significant is that in each of these contracts, including the Arizona contract, the Secretary contracts to deliver storage water.

He does not contract to deliver water pursuant to any scheme of priorities.

He simply contracts to deliver out of storage so many gross acres of water for use.

In fact, the Palo Verde contract contained this provision.

This was cited by California as a typical contract and most of them are quite similar although I'm not sure this particular clause appears in all of them.

Section 4, "Whereas, the district is desirous", and this is appendix to the Master's brief number -- number 8, (Inaudible).

"Whereas the district is desirous of entering into a contract with the delivery to it of water from Boulder Canyon Reservoir and it is to the mutual interest of the parties hereto that such contract be executed and the rights of the district in and to the waters of the rivers be hereby defined."

In other words, the contract itself provides that it defines the rights of the district in and to the river, the waters of the river.

And that contract, may it please the Court, is strictly a storage contract.

It speaks not one word of the fact that the delivery is to -- pursuant to appropriative rights, pursuant to anything, it's a straight storage contract.

I think I'm perhaps pursuing this rather unnecessarily.

The Master himself has reached to his conclusion that the interaction of the Section 4 (a) and 5 plus the Secretary's contracts have resulted in an allocation of the entire stream flow.

At page 224 and 225 of his report, he said this, "Since the Secretary hasn't intentionally bound himself with contractual apportionment substantially, although not precisely, along the lines suggested by Congress as fair and equitable in the two paragraphs of Section 4 (a) of the Project Act, that section has been used as a guide for interpreting and defining the contractual allocation.

Applying these laws to the contracts, I interpret them as establishing the following water delivery scheme.

The Secretary in his discretion decides how much water is to be released from mainstream reservoirs at any particular period.

The amount available for consumption in the United States in any one year shall be the amount so released less the amount necessary to satisfy higher priorities.

The contracts do not limit the Secretary's discretion.

They operate only upon the mainstream water which is available for consumption in the United States.

They refer that this water be apportioned as follows, of the first 7,000,005 acre-feet of consumptive use in any one year, 4.4 million for use in California, 2.8 million in Arizona and 0.3 in Nevada.

Of the remaining consumptive use during the -- the year, 50% were used in California and 50% in Arizona, subject to the possibility that Arizona's share maybe reduced 46% of the Secretary's contract, to keep the Secretary contracts to allocate 4% of the surplus to Arizona."

Now, I'd like to drop by just a minute Mr. Justice Black, if I might and say this because I didn't think I answered your question accurately or fairly.

Under the Master's allocation, there is no draft on the Upper Basin.

Under the Master's allocation there is no fixed allocation of water.

There is no finding required or attempted that every year there shall be 7,500,000, nothing of that character.

He says that of the water available for use, for consumptive use, in the Lower Basin, be it 7,500,000, be it seven, be it six, be it four, be it nine, of the first 7,500,000, this is how it goes, 2,800,000 to Arizona, 300,000 Nevada, 4,400,000 to California.

So that (Inaudible) -- I think I didn't make it clear to you that the Master's allocation does not impose any burden upon the Upper Basin does not in any fashion affect the Upper Basin, it merely says that that water which is here physically for use.

This is how I want it divided.

This is how I said the Project Act divides it.

I think that that probably answers Your Honors' question with respect to whether or not this enlarges the obligation and provision.

It can't.

It doesn't.

It simply divides that which is there for division, no more and no less.

Further in that respect, I would like to say this, I may have misread some of these cases, but if I do not misread them, if I do not misread the Chandler-Dunbar case, I do not know how it lies within the jurisdiction of this Court.

When Congress has taken in its mighty hands, under the Commerce Power Clause, which the constitution gives it, this water has taken it in its hands so to speak and has said this is how it shall go.

This is how we shall handle it.

I tell the Secretary first, you shall operate this reservoir and this dam to control floods, to regulate the flow of the river and in aid of navigation, secondly and thirdly.

But fundamentally, you are charged with the obligation of operating this river in this fashion.

Now, in what fashion may I inquire, should this Court then put its hands on the river and tell the Secretary how he is to operate the river unless -- excuse me, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Yes, Your Honor.

I think that's true.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: The only thing I was suggesting, Your Honor, is this, that if what California suggests should be attempted, then very well, the constitutional question will be presented.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Certainly, certainly.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Certainly.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: No.

Not -- certainly not, Your Honor.

I -- I agree with that and I agree wholeheartedly and I think Your Honor has stated the -- the central issue in this lawsuit by --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: I would say only this Your Honor, that I think they are involved to this extent and that is, you would certainly interpret the -- the -- or you certainly interpret what you're asked to do in this decree within the limits of the constitutional jurisdiction granted the Court.

I would certainly not think that -- that the California argument does other than put this Court in the business of running the river, put this Court in the business of telling the Congress and the Secretary how that river is to be operated.

Justice Felix Frankfurter: What I'm saying (Inaudible)

Mr. Mark Wilmer: That is correct Your Honor, yes.

And I'm saying that California's arguments are invalid because they suggest the contrary.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Well, granted Your Honor.

One other thing if I might in passing from the Project Act then to the remaining somewhat we regard less vital questions in the case.

I would ask Your Honors to take a look at the language of Section 4 (a) again and Section 8 (b).

8 (b) is the provision which is found in -- is in the Project Act, the appendix of the Master's report number 3 -- page 380, 389.

The language of the Project Act which I would refer to is the last portion of Section 4 (a) and draw this thing -- this to Your Honors' attention.

Section 8 (a) provides in -- 8 (b) provides in substance that the United States in administering the river, in the contracting for use of power or water for irrigation shall observe and be subject to and control anything to the contrary here and not withstanding by the terms of such compact, if any, between the States of Arizona, California and Nevada or any two thereof.

Or the equitable division of the benefits including power arising from the use of water going to said states, subsidiary to and consistent with said Colorado River Compact which maybe negotiated and approved by said states under which Congress shall give its consent and approval on or before January 21, 1929.

The terms of any such compact included between said states and approved and consented to by Congress after said date provided that in the latter case, such compact shall be subject to all contracts, if any, made by the Secretary of the Interior under Section 5 hereof, prior to the date of such approval and consent.

Now, in substance, this says -- thank you -- this says, that with respect to any compact entered into by any of the three states or any two of them, any two of them and I want to come to that in a minute.

That the Secretary shall be bound by them provided, that as to any contracts made after January 1, any compacts made after January 1, 1929, that they shall be subject to contracts made by the Secretary.

The legislative history of that is this.

This was proposed by Mr. Esquire, a Nevada witness fairly early in the game.

And he explained and he thought it was proper the state should be permitted the compact.

Mr. Delph Carpenter and that is also available, in testifying, stated that the reason for this date was to stay the hand of the Secretary until the state should have a chance to compact.

In other words, as to any compacts entered into prior to January 1, 1929, the Government was to be bound by them.

As to any compact after that date, then the Government was bound by them but such compact was subject to the Secretary's contracts made prior thereto.

Now I ask you first of all, on what basis could this -- could two states compact with respect to a body of water available to three if it hadn't already been divided.

Now, this amendment which changed it from three states to two states or more was contemporaneous with a part of the general format that resulted in 5 (a) of the legislative history I've just given you.

Up to that point, this provision in the statute had been three states only.

But after this concept of the -- shall conform to the language of Section 5 shall conform to Section 4 (a) after that language came into the picture and was a part of it, then, the Congress changed this to any two or more of the three states.

I respectfully say to you first that you can't have two states dividing up water belonging to three unless the Congress has already divided it.

Justice Potter Stewart: Well, but Congress -- if the Congress had already divided it, what would be the point of having any compact at all?

Mr. Mark Wilmer: Except they could change it.

They could change it, Mr. Justice Stewart.

In other words, the Compact in 4 (a) was pre-approved by Congress.

That was something which they only had to approve and didn't have to come back to Congress but Congress said in addition, "Now, if you want to make a different division, the authority resides in Section 8 (b).

You can divide this water up and still come back to us.

But California maybe only gets only 4,300,000, maybe Nevada and Arizona wants to fool around a little bit with you."

But the significance of this is that in Section 4 (a), it was a pre-approved compact.

It was a compact which did not need to come back to Congress.

In Section 8 (b), a compact was authorized between two or more states.

But that had to come back to Congress for approval as if the Secretary had made any contracts because they didn't compact before January 1, then his contract took precedence.

I say the first point is this, there had to be an understanding in Congress that the water had already been allocated otherwise, could Nevada and Arizona take some water away from California?

Congress certainly didn't consider that but the more important point, I want to suggest to the Court is this, in Section 4 (a) Compact -- in the Section 4 (a) Compact approved in advance by Congress, there wasn't any such provision.

There wasn't any provision in the 4 (a) Compact that the Secretary's contracts took precedence or didn't.

There was just as much likelihood that the 4 (a) Compact pre-approved by Congress wouldn't be made for a year or two years, just as much as with respect to 8 (b), just as much.

Yet in 8 (b), which was not the allocation made by Congress in 4 (a), Congress said that the Secretary contracts before you do this, his contracts take precedence.

But we say that decisively -- decisively, the 4 (a) is a mandatory allocation that Congress did regard it as a mandatory allocation because otherwise, they would have made some provision for the Secretary's contracts which preceded the approval of the pre-approved 4 (a) Compact, otherwise you would have an impossible clash.

You'd have a situation of Arizona, Nevada and California not compacting for a year.

There's nothing in the language that said the Secretary's hand was to be tied in connection with this particular thing, this particular provision in the legislative history.

So we say that we do believe our argument that it is a mandatory -- a formula is very persuasive.

We say otherwise there would have been language in the 4 (a) that would have made some provision for the Secretary's contract deviating from the allocation made therein.

Otherwise, you would have contracts for permanent service, clashing with a compact which the Congress had already approved.

We did not make that argument before the Special Master, frankly, hadn't occurred to us.

But that Mr. Justice Frankfurter once said that the wisdom sometimes never comes and therefore when it comes late, you shouldn't ignore it.

Well, we had several attacks of character unfortunately in this case.

Now, I would like to briefly, if I might, advert for just a moment to the Master's finding with respect to present perfected rights.

I have stated -- we have stated that we don't regard it as a magnitude in this case but we do regard it as having consequences for this reason.

The Master has suggested that subsequent to this termination of this case, that all parties shall file their appropriative rights with the Secretary, I believe it is and then if we don't agree then there's going to be another great big lawsuit.

Well, if we have a lawsuit, we'll have lawsuits.

We believe, however, that the present perfected rights provision of Section 6 relates only to a satisfaction of the requirements of Article VIII of the Compact.

And that has gone back in the Upper Basin.

We believe that Congress simply said, if they had intended to preserve all present perfected rights, they would have said so, they don't need to say in pursuance of Article VIII.

They would have said, all present perfected rights shall be respected but they did not say that.

They said in pursuance of Article VIII.

They had previously rejected the notion that present -- that appropriative rights shall be respected.

And they therefore, we believe we're simply providing that with respect to the provision of Article VIII of the Compact, this discharged that requirement.

Now on that connection, the Master held and I'm not going into a compact argument, but Section 6 of the Compact, contains this language, "That if there is a dispute between two or more signatory states, between two or more signatory states of the Compact with respect to waters of the Colorado River System not covered by the Compact, then the following shall occur."

Now, you have a flat out finding there, a flat out contract -- Compact provision but there are waters not covered by the Compact because that's what it says as to -- with respect to waters in the Colorado River System not covered by the Compact.

We took the position that that did again indicate that Lower Basin tributaries were not involved.

The Master in a sense agreed.

He said that that demonstrates that there is only inter-basin results -- inter-basin effects of the Compact.

It is not an intra based and interstate matter and that therefore, that language refers to in intra-basin interstate rights.

So we say again if that is true, if that language of Article 6 says that the Lower Basin tributaries interstate of the Lower Basin are not involved, then again, the present perfected rights means only against the Upper Basin.

The -- the interpretation you have suggested is that of -- of the -- of -- Representative Swing that has -- wipes out appropriative rights.

Senator Johnson made a very interesting remark in which he said, "Oh, one of these days you're going to regret it if you maintain these theories of appropriative rights in the stream."

That is quoted in our legislative history.

In summary, with respect to this phase of our case, we would simply say again, that there is no doubt, one, the Colorado River is a navigable stream.

That is judicially established as well as factual.

Secondly, there is no doubt that Congress took in control of the entire stream and stored the water.

There is no doubt that Congress gave directions to the Secretary as to what he was to do with that water and how was he to handle it and the purposes for which he was to put it -- for which he was to put it.

And that therefore, the law is clear that this is a matter of statutory construction.

It's a matter of interpreting the Project Act to determine what Congress intended in what language Congress spoke.

What meaning is to be inscribed to their words?

Now, the balance of the time and I will quit at the end of the day.

I want to comment briefly upon California's talked about water supply.

The problem we face is one which is not unusual in this type of a case.

Originally before the Congress when she was opposing the Central Arizona Project, passed the Senate twice and was defeated in the House every time.

Her position was that water was not legally available dependent upon an interpretation of the Compact and related legal documents.

In fact, my good friend Mr. Ely in numerous times said it was a question of law, nothing to do with this.

Now that that question has been resolved, becomes a question of fact as to whether or not water supply is adequate.

We believe that with the Master that whether or not, there 7,600,000, 7,800,000 or seven million ten, it is of no consequence so far as the determination of this case is concerned.

The Master said only this, that he was -- no, let me just stop for a moment.

The very argument that California has made today was made just as loudly, just as strongly before the Special Master in New York, August 17th, 18th and 19th I believe, before this report was filed on December 5th.

The draft report of the Master had been circulated.

Three days of argument was had in which these very arguments were made that are now being made to you.

The Master said, "If I believed, if I had any reason to believe that any of these dire consequences which you predict would ensue, I would very carefully reexamine the situation, I would strain for an interpretation which would avoid them."

And he took the matter under advisement.

And in December 5th, he then filed this present report with respect first to the suggestion that the case be reopened, for the purpose of taking testimony in the Upper Basin as to the depletion there.

I don't know quite how the Master could go on a so to speak frolic and detour of his own in the Upper Basin to gauge their future depletions without the Upper Basin being present.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Yes, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: After he circulated his draft report --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: I can't answer that, Your Honor.

I don't remember.

At least not the --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: It was a motion to reopen for the purpose of offering additional truth and --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Yes, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: There were -- two things were done Your Honor.

There was a proffer of additional evidence, some -- I forgot quite a volume of it which purported to show the --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: It's a bifurcated situation Your Honor.

First, they offered additional documentary evidence, quite a volume which --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Actually tendered which they said showed the legislative and administrative interpretation subject to 1929.

The Master heard them on that, took it under advisement and rejected the offer stating in his report that he'd examine each of the documents in detail that if they proved anything, they prove nothing.

And that is that Arizona had taken many positions, California many positions, but the Secretary of the Interior had merely been scrupulously careful not to take sides in the controversy so he rejected that.

The second prong of the of the -- of the offer was that the case be reopened for the purpose of taking testimony with respect to probable depletions in the Upper Basin saying that that issue had not been litigated and that they had not been fairly apprised that this was a problem and Arizona's position was so and so.

Just briefly and I'm sure they're in the record, on August -- on May of 1957, the year in five or six months before the case closed, Arizona filed a memorandum and served it on the parties saying what we're saying today, which is that the navigational problem involved, the Project Act should be construed because of the overwriting power of the United States Congress.

So California was unnoticed there.

On August 5th, 1957, Arizona filed what was denominated and amended in supplemental statement of position in which we put California and noticed that we were retreating from.

We were in effect abandoning our pleaded position from the -- which had been originally filed, stating that we felt that we were in error.

We also filed at that time in a memorandum entitled Decisive Effect of the Compact in the Project Act which fully explored although not in as great detail and with some departures of what we're now saying so that as of August 5th, in 1957, California knew that Arizona had retreated from her position.

And then before the end of the California case we filed and proffered amended pleadings which the Master rejected and as he said in his brief it'd be strange in the case of this magnitude that parties were held to their pleadings, I find it unnecessary to rule upon it.

So that when we are confronted with the statement that this is a strange theory that suddenly awakened out of the deep somewhere and originally confronted California at this late hour, it just didn't so because --

Justice William J. Brennan: What was the -- what -- I don't quite understand --

Mr. Mark Wilmer: I'm sorry.

Justice William J. Brennan: (Inaudible) theory of this --

Mr. Mark Wilmer: Well, California speaks of the Master's patentable invention.

Justice William J. Brennan: Oh.

Mr. Mark Wilmer: Speaks of the fact that Arizona's position was pleaded so and so and that this --

Justice William J. Brennan: I understand now.

Mr. Mark Wilmer: -- this wasn't litigated that the -- what you call it?

Well, frankly, we never knew whether the Special Master had part of a permitted amendment or not.

Don't know the date.

The Solicitor General expressed an opinion maybe he didn't.

We tendered the pleadings nonetheless because this Court was in recess at that time so there would be no question but what California fully understood before her case was closed.

But Arizona had completely abandoned her theory of treaty equating to the Gila and all the rest of that stuff which we finally could not support.

Justice William J. Brennan: What was the title of (Inaudible)

Mr. Mark Wilmer: The proposed -- well, Your Honor that was not in detail.

It simply was a proposal that the Master reopen the case for the purpose of taking evidence as to the probable future depletions in the Upper Basin bearing upon water supply.

Justice Hugo L. Black: Suppose that -- what (Inaudible) interpretation was passed.

Mr. Mark Wilmer: None, none at all.

Justice Hugo L. Black: Do you that they are claiming this (Inaudible) -- as I understand it that that was the pleading (Inaudible) certainly not incurred.

Mr. Mark Wilmer: Yes, Your Honor.

Justice Hugo L. Black: (Inaudible) that what effect would it have on it (Inaudible) is asking with reference did it not of the water it didn't get?

Mr. Mark Wilmer: Speaking of California's assertion is not our concessions, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Pre -- precisely, Your Honor.

Justice Hugo L. Black: On water available, of course they can't get it if it is not available.

Mr. Mark Wilmer: Very difficult.

Justice Hugo L. Black: (Inaudible)

What in your judgment effects could that have on the determination (Inaudible) determination?

Mr. Mark Wilmer: We concur completely with the Master that this is a statutory interpretation case.

We concur fully with the Master that the formula which he has proposed divides what water there is there in accordance with the congressional intention.

And that therefore the amount of water that is there is without relevance to this case.

Justice Hugo L. Black: You're standing on the provision that the statute itself about -- then 4,400,000 --

Mr. Mark Wilmer: Correct.

Justice Hugo L. Black: -- 2,800,000, Nevada, 300,000?

Mr. Mark Wilmer: That is correct.

Justice Hugo L. Black: And what did they propose to show with reference to -- to that (Inaudible)

Mr. Mark Wilmer: It relates to these charts Your Honor as seen and to many shall I say, unilateral figures that have been presented to you which have -- we take little relation to the record?

Justice Hugo L. Black: (Inaudible) -- that -- in the question I'm asking is not with reference (Inaudible) but what is it, (Voice Overlap) will not get their whole 4,600,000 or 400,000?

Mr. Mark Wilmer: The approach which California takes is this, Your Honor and the Master very nicely exposed that in his report.

California says, for purposes of the Limitation Act, 3 (a) shall be construed as a system proposition.

In other words, that California is limited to 4,400,000 out of 7,500,000 of system water, not mainstream water.

Justice Hugo L. Black: That gets back to the interpretation of the Act, does it not?

Mr. Mark Wilmer: Yes.

That's why we say if its mainstream water, the case is over as far as we're concern, we want it.

Justice Hugo L. Black: But if -- if the interpretation of the Act is correct, can you say that once the -- the relevance of the facts they offered (Inaudible) the claims they're making would have on that interpretation?

Mr. Mark Wilmer: Your Honor that is precisely why we quoted Justice Holmes at the outset of this case.

The law is clear and the material facts are few.

What California has offered here in the way of these many, many pages of water supply testimony has no relevance to a determination of this case if the Master is correct and if we are correct.

I think that is a fair statement.

It is a question of the division of the water which the statute -- which Congress dealt within the Project Act and the Master has dealt with that and has said of that supply it shall be divided as follows.

Justice Hugo L. Black: Suppose they arrive on saying that the -- the Act is wrong to interpret and that it should be (Inaudible) as though -- as applied to the whole (Inaudible)

Mr. Mark Wilmer: Might be necessary to re -- to refer the matter back to the Master, Your Honor, I -- I wouldn't want to --

Justice Hugo L. Black: There was an agreement (Inaudible)

How could it -- if -- if that interpretation is wrong, the decision is based on that interpretation, would we go further and decide it in a (Inaudible) that court has made?

Mr. Mark Wilmer: You could not do so, Your Honor if we are correct in the fact that this is a navigable stream stored by Congress in the exercise of its power over the stream.

Justice Hugo L. Black: Then it goes back to what it means.

Mr. Mark Wilmer: Well --

Justice Hugo L. Black: Well, what I am saying, it proposed that -- suppose that the (Inaudible) on which the Master made his report, the interpretation there is wrong, what then?

Mr. Mark Wilmer: Well, Your Honor, we've been so very sure the Master is right, I really haven't thought about it.

Justice Hugo L. Black: Is there --

Mr. Mark Wilmer: I'd say we've been so very sure the Master is right that I haven't given very much thought.

Justice Hugo L. Black: (Voice Overlap) what you're arguing, your arguing is wrong.

Mr. Mark Wilmer: Yes Your Honor, I realized that.

If the Master is wrong that this Project Act is improperly construed then I presume it becomes a matter of determining how much of this system water California is to get and how much Arizona is to get.

May I just pursue that just a moment?

The --

Justice Hugo L. Black: (Inaudible)

Mr. Mark Wilmer: -- California theory, as we understand it is this, under the Project Act, the California Limitation Act limits California to four million four of system 3 (a) one, system as distinguished to mainstream.

She next says that there is available in the Lower Basin tributary wise, two million acre-feet of use.

She says that's all put to use.

So therefore there is a total available to California in the mainstream of her portion four million four of the remaining five million 3 (a) water and she gets half the surplus.

In other words, as the Master has analyzed the thing, the entire thrust of the California position is that she first charges Arizona -- Arizona rights with two million acre-feet on the tributaries against the 3 (a) limitation which therefore puts in the mainstream two million more feet of water for surplus.

And she says now, we get our four million four out of this plus half the surplus.

Justice Hugo L. Black: Your argument is as I understand it, under the Master is that that -- all water available (Inaudible) but not which have been -- giving that meaning so that they would get more that that four million six or four.

Is that right?

Mr. Mark Wilmer: Well, I would -- again that it is yes Your Honor.

I would -- I would -- I believe it is.

Justice John M. Harlan: Oh I thought -- I thought maybe I'm -- briefly misunderstood the argument, too.

I thought there were two facets to California's position.

One, that the California limitation related to a system-wide water are not merely mainstream water.

Mr. Mark Wilmer: That is correct.

Justice John M. Harlan: And therefore if they were right on that the question of whether there was a contractual method of allocation and what now would disappear from the case because there will be plenty of water around for everybody.

Then I thought their second string was that if they were wrong on the system-wide aspect of it and their rights were conferred to mainstream water then the question arose as to whether there was a contractual allocations so-called as distinguished from -- as applied to shortages at least the application in the conventional water right rules of prior appropriation and that could've been apportioned.

I thought there were two strings to that law.

Mr. Mark Wilmer: Well Your Honor, I probably should not attempt to interpret California's position.

I have understood it to be one --

Justice John M. Harlan: Well --

Mr. Mark Wilmer: Excuse me.

Justice John M. Harlan: That leads me to ask you another question, supposing that the second string to their bow is taken, what would use namely that their -- that you're right as far as the limitation of being -- to the mainstream is concerned, tributaries are out.

And that their right as to the question of there being no contractual allocations so-called in those circumstances, what would you say would be the desirability or the necessity of sending it back for further proceedings on that the defendant supplies.

Mr. Mark Wilmer: May I to be sure I understand Your Honor's question?

If the position of Arizona is correct that this Project Act dealt with mainstream water but our position and the Master's position is wrong that there was a -- an allocation of mainstream water.

Oh, I would answer that this way Your Honor.

I do not conceive it to be -- let me paraphrase that, if this is a navigable stream and if Congress has in the exercise of its dominant servitude taken control over that stream and has stored that water, then I think only Congress has the right to say who shall take it out of that stream and how that stream shall be operated.

Justice John M. Harlan: But then that's begging the question?

Mr. Mark Wilmer: No, I disagree Your Honor.

I -- I don't mean to do so.

Justice John M. Harlan: You don't concede there's any possibility, any conceivable possibility that California might be right in any part of this case?

Mr. Mark Wilmer: I'm not that unreasonable, Your Honor.

Almost -- no, I beg Your Honor's --

Justice John M. Harlan: No (Voice Overlap) --

Mr. Mark Wilmer: I didn't mean to evade your question.

I -- I would simply say this, as I understand the question of the -- the thrust of your question, it is one, this is in fact a mainstream project.

Congress has in fact stored this water as Justice Brandies held pursuant to the authority of Congress under the Commerce -- under the -- its Commerce Clause power.

I would then braving the question Your Honor if anyone but Congress has a right to say how that water is to be used because it is done so pursuant to its power under the Commerce Clause.

That was the --

Justice John M. Harlan: I (Inaudible) by hypothesis the California argument on this date is that the Project Act properly construed would mean that in the allocation of the water in the absence of a statutory or a contractual secretarial allocation that the Project Act properly construed meant that Congress intended that the water should be distributed in accordance with conventional water right of law.

That's the argument as I understand it.

Mr. Mark Wilmer: But that's the conclusion, I quickly answer it Your Honor, it would have to go back.

Justice John M. Harlan: You would -- that's --

Mr. Mark Wilmer: (Inaudible)

Justice John M. Harlan: -- my question is directed to that because unless I had misinterpreted that argument, that's one facet of the -- their basic argument.

Mr. Mark Wilmer: Well, I -- I think that is correct Your Honor, yes and I would -- I don't see there's any escape from that.

Justice John M. Harlan: Your answer to that is that we'd have to go back.

Mr. Mark Wilmer: I see no escape from it because to -- to distribute it in accordance with the rule laid down in Nebraska versus Wyoming and otherwise many more findings was to be made than has been made here, many more would have to be made.

Justice Felix Frankfurter: (Inaudible) Mr. Ely says those three -- if they were three California (Inaudible) establishments or corporations, those three --

Justice William J. Brennan: Project.

Justice Felix Frankfurter: -- project has seniority rights on the top of this (Inaudible)

Mr. Mark Wilmer: May I -- excuse me.

Justice Felix Frankfurter: Therefore, (Inaudible)

Mr. Mark Wilmer: Well, may I answer --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Except for this one thing Your Honor that if the present perfected rights has senior rights which the Master interpreted, they are well within the ceiling which the Master has placed.

Unknown Speaker: (Inaudible)

Mr. Mark Wilmer: They're well within the amount available to California for those rights that's why I corrected my statement earlier that it was 2,159,000 and that it was a Johnson claim.

Justice Felix Frankfurter: (Inaudible) -- mainstream water they allocated (Inaudible) then California, California cannot have affected those (Inaudible) except on that theory (Inaudible)

Mr. Mark Wilmer: Assuming their contract rights are not satisfactory.

May I just say in -- in passing Your Honor, there is -- I indicated earlier great question in our mind at least as to the validity of the California appropriative rights.

They were taken by contract from Old Mexico, not by virtue of diversions from the stream.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: No, I -- its why I answered Justice Harlan as I did that if that is the rule that governs this case then there's many more days of testimony to be taken.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: So that -- I -- I would answer you directly Mr. Justice Harlan that if the rule of this case with respect to the disposal of this stored water is appropriative rights and according to their seniority that that can be done upon the question that this case is not ready for adjudication.

Justice John M. Harlan: Well, to turn around the other way, in other words, the only premise on which this case could be finally disposed of up here is on the acceptance of the Master's contractual arrangement allocation.

Mr. Mark Wilmer: Or our suggestion that it's a formula, a re -- mandatory formula --

Justice John M. Harlan: Or -- or that it's just --

Mr. Mark Wilmer: Yes.

Justice John M. Harlan: -- statutory formula.

Mr. Mark Wilmer: Yes, I -- I agree with the (Voice Overlap) --

Justice John M. Harlan: That's independent whether the California limitation is mainstream or tributary.

Mr. Mark Wilmer: If Congress didn't divide the water Your Honor, I -- I -- that's it.

Justice Felix Frankfurter: May -- may I ask you --

Mr. Mark Wilmer: Sure.

Justice Felix Frankfurter: The fact that (Inaudible) that California is (Inaudible) suppose the Master is (Inaudible) how far ahead will the limitation into the Act with reference (Inaudible)

Mr. Mark Wilmer: Well Your Honor, I am very hopeful that you will be here but I fiddled out for about being back --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: -- here myself.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: I --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Your Honor, may I just bring this to your attention.

And that's what I started to discuss briefly this matter of water supply.

One thing that has not been emphasized has not been made clear is the fact that we're talking about many years in the future.

In the opening brief of California, she made the statement and that is answered in our answering brief that they were participating projects in the Upper Basin storage which had been approved for priority of completion.

We responded in our answering brief that she had misstated the statute that they were approved for priority of planning for completion.

She has not denied that.

She now comes back in our answering brief with an excerpt from a hearing held in 1961 and the testimony of a gentleman by the name of Palmer.

I'm merely asking that the Court make note of this in their brief because as it stands it is not servicing.

It is headed in her brief as a footnote, testimony of a Mr. Palmer with respect to future development in the Upper Basin.

In the hearing from which it is taken, this is the caption, "Estimated Stream for Depletions, Upper Colorado River Basin, 100 Year Period Ending 2062."

The table which is reproduced does not have the caption which says, "Present and Future Depletions Upper Colorado River Basin, 100 Year Forecast Beginning -- Ending 2062."

The thing that Justice Frankfurter has brought in my mind -- supposing this was the second year of the Civil War and we're looking ahead a like period of time.

I don't know of any hundred year forecast, a hundred years ago would do very similar as to conditions today.

That is the whole problem that is inherent in this lawsuit in the California water studies.

They're based upon assumptions.

They're based upon forecast of water supply that may possibly be used a hundred years hence and as United States said that they had mortgaged Arizona's future today for their needs of tomorrow.

Justice Hugo L. Black: May I ask you, I -- (Voice Overlap) --

Mr. Mark Wilmer: Yes, certainly, Your Honor.

Justice Hugo L. Black: I had (Inaudible) the Master's solution whether right -- if he's right (Inaudible) that it would go into the indefinite future.

Mr. Mark Wilmer: That's right.

Justice Hugo L. Black: A test maybe as to minor things (Inaudible) on other matters that might require readjustments (Inaudible) the formula which -- if they can (Inaudible)

Mr. Mark Wilmer: Your Honor, that is the basis -- excuse me.

That is the basis upon which the Master distinguished Nebraska versus Wyoming and the other cases.

He said this is a case in which there is a stored water supply.

This allocates by a flexible formula the water that's available any one year, and I completely agree with Your Honor's statement but that is true.

That it is a flexible formula, good into the indefinite future unless changes occur and --

Justice William J. Brennan: But Mr. Wilmer, if -- if --

Mr. Mark Wilmer: Yes, Your Honor.

Justice William J. Brennan: If you're right and we interpret the statute your way which supports the Master and the rate of (Inaudible) develops that had been told may very well with growing industry and everything else, is this going -- the next time you have problems for us or for the Congress?

Mr. Mark Wilmer: With Congress, certainly.

Justice William J. Brennan: Well, I mean, how can it get back here afterwards, I don't understand that.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Well, the Secretary has contracted for all of the water, Your Honor -- the Secretary has contracted for all of the water.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: For a permanent supply, yes, sir.

Justice William J. Brennan: That should be (Inaudible)

Unknown Speaker: (Inaudible)

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: No sir, not under the statute.

It says, shall be for permanent service and that's what the Master has held that it's for permanent service.

Now I take it, the only thing might happen would be if somebody doesn't need the water, he reallocates it, maybe you might have a problem but --

Justice Felix Frankfurter: (Inaudible) the effect that it might have --

Mr. Mark Wilmer: That is why we have contend it, if it please the Court for the mandatory formula.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: That is why we have contended for the mandatory formula that we believe that that will settle for all time the -- the question of who gets what water.

I think that is --

Justice Hugo L. Black: (Inaudible) State of California against (Inaudible) the State of Arizona gets (Inaudible) to that.

Mr. Mark Wilmer: If the water is there.

Justice Hugo L. Black: (Inaudible) then they need to rule it as to appropriation.

Mr. Mark Wilmer: That is correct, Your Honor.

Now, I -- my time is running short, I had much more to cover.

I am not going to attempt to do it.

I would simply say this, that California has made many assertions of shortage.

We have stated and now stated to the Court and Master found that there are substantial wastage in the Imperial Valley.

In the draft report, the Master made no finding of waste.

We didn't think it was material.

We asked for no findings on it.

But California made such a commotion about a shortage that he made a finding in his report filed with this Court that undoubtedly, there was substantial wastage in the Imperial Valley and that water could be far more economically used.

Now, I would like to if I might just to (Inaudible) there was introduced in the course of the trial below for a purpose of demonstrating in quick fashion whether or not there is waste in the Imperial Valley.

Because we say, that if there is waste -- if there is waste, if California is throwing away water, then while it's none of our business in so far as our present usage are concerned, it is our business if she's claiming a water right on it.

This if it please the Court, this plaintiff's Exhibit Number 237 in evidence admitted on the 7th -- 5th of July 1957.

This is the Alamo River looking upstream from the bridge near the mountain.

Now that, if it please the Court, is not the inflow into the Imperial Valley.

This is the discharge from the Imperial Valley.

This is the amount of water in one river every minute flowing out of the Imperial Valley and into the Salton Sea.

Now it is said that a picture is worth a thousand words and if anyone can look at that picture and not say there is waste occurring at that point, of course, that privilege.

Now, that is only one.

Justice Hugo L. Black: What difference does that make to the interpretation?

Mr. Mark Wilmer: It has reference Your Honor only to one thing.

We offered it only because of California's talked about rights and shortage.

And the only purpose of this is to say that if California is in short supply, quit throwing that water in the Salton Sea a million acre-feet a year and start using some of that for a -- for a metropolitan.

Justice John M. Harlan: Just to take the edge of their argument?

Mr. Mark Wilmer: Well, it's to demonstrate, if it please the Court that -- that if they are claiming a phase shortage, they have a source to turn to as well as Arizona's supply.

We would welcome this amount of water in Arizona and we would put it to beneficial use (Inaudible)

Justice Felix Frankfurter: You're arguing that's the -- (Inaudible)

Mr. Mark Wilmer: This, if it please the Court is the other stream, flowing out of Imperial and into the Salton Sea not just one, two.

I simply submit to the Court that they can talk about leeching but I know --

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Surely, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. Mark Wilmer: Your Honor has correctly interpreted my motives.

I think I remember once someone saying with a long practice (Inaudible) in discerning motives, that it -- I do -- because if I do interpret yours, the depth of your base heart, that my heart isn't based but you have correctly interpreted my motives, Your Honor.

I think I can conclude to that Your Honor because we went to another subject unless the Court desires to sit beyond two thirty with me.

Justice Hugo L. Black: (Inaudible)

We'll recess.

Print this transcript Transcript:

Argument of Chas. H. Reed

Mr. Chas. H. Reed: It is my purpose to discuss and review the claims asserted on behalf of the United States for its federal establishments.

Arizona is naturally concerned both from the standpoint that such water is charged against the total entitlement or allotment that goes to the State of Arizona, also because substantial quantities of water are involved in an area which is in short supply of water.

The claims asserted by the United States in this litigation aggregated a total diversion of water both mainstream and tributary, of an excess of 1,360,000 acre-feet per annum which would roughly equal a consumptive use of an excess of some-700,000 acre-feet per year.

With respect to claims on tributary waters, the Master held that none of such claims presented a judicial -- a justiciable controversy except with respect to the tributary of the Gila River.

The rights in that stream were adjudicated and the Master did submit a recommended disposal or disposition of the rights in those waters.

In addition, the Master upheld the claims asserted by the United States as to mainstream federal establishments.

The amount of water allowed or recommended for those mainstream federal establishments aggregate a total diversion per year of 818,801 acre-feet which roughly would amount to a consumptive use in the neighborhood of 420,000 acre-feet per year.

Justice John M. Harlan: What was the first (Inaudible)

Mr. Chas. H. Reed: The million odd figures, 1,360,000, I can give it to you precisely, 1,361,231, that is the amount of water that would required to be diverted if all the claims asserted by the United States were allowed.

Justice William J. Brennan: I'm sorry.

I should have followed you when you opened.

Are you speaking now only of United States claims in the Lower Basin?

Mr. Chas. H. Reed: No, in Arizona.

Justice William J. Brennan: In Arizona?

Mr. Chas. H. Reed: Yes.

Justice William J. Brennan: I see.

Mr. Chas. H. Reed: I'm confining myself to the claims made against waters in -- within the State of Arizona.

Justice William J. Brennan: And are you going to identify for us --

Mr. Chas. H. Reed: Yes, in a moment --

Justice William J. Brennan: The location?

Mr. Chas. H. Reed: In a moment, I plan to do that.

Our concern is not lessened by the fact that, in this litigation, the United States for the first time, so far as I know, has broadened its claim of ownership of water to include navigable waters in the public land states.

Hereto fore, and I believe for about a half-a-century, the United States has urged upon this Court that it accept the principle that it owns all the unappropriated, non-navigable water within the public land states.

So far as I know, this is the first time that that claim has been extended to include the navigable waters within the public land states as well.

Justice Felix Frankfurter: To include what?

Mr. Chas. H. Reed: To include navigable waters.

In other words, the assertion of ownership in a proprietary sense by the United States is now made against not only the non-navigable waters within the public land states, but the navigable waters as well.

Justice Felix Frankfurter: By private rights, does it mean titled ordinary --

Mr. Chas. H. Reed: Yes, I assume just --

Justice Felix Frankfurter: Ordinary property title?

Mr. Chas. H. Reed: Just as they own the public lands, as I understand their position.

In no sense, a sovereign capacity except the Government's ownership of property of course, is not the same as an individual's.

Justice Felix Frankfurter: Do you think a title or conventional common law title interest is essential to -- maintenance of such a claim is essential to their claim?

Mr. Chas. H. Reed: The Government so considers it and, in fact, so says in its answering brief that, without the ownership of those waters, the government would have been powerless to reserve or set aside these waters.

To give the Court an idea and quickly of what this means so far as Arizona and other public land states are concerned, I'll first take up the situation that exists in Arizona.

I'm not going to bore you with figures.

Our figure is the only way -- figures are the only way in which I know to make this clear.

Within Arizona, the total land area is 72,688,000 acres.

Of that 72 million plus acres within the state, 54,066,080 belong to the United States or 74-3/10% of all the lands within the State of Arizona.

Some-9,000 acres are owned by the State of Arizona.

Likewise, some-9,000 plus are in private ownership, the lands in private ownership in the states being only approximately 13% of the total area.

Now, the total lands owned by the United States within Arizona, they have been withdrawn or reserved so that they no longer occupy the status of public lands, that this lands which maybe disposed of and private interests required.

Those public lands constitute only roughly 24% of the government's total holdings in the state.

In other words, there has already been withdrawn and reserved and placed in a withdrawn category a little more than 75% of the lands which the government owns in the state.

Justice Potter Stewart: I'm sorry.

I didn't mean -- I just didn't follow that.

Withdrawn in what sense?

Mr. Chas. H. Reed: Under the power to remove them from the category of public lands which are open to acquisition of title and rights by private individuals.

The distinction has long been recognized.

It's referred to in the Pelton Dam case.

It forms one of the distinctions and basis for the holding in that case by this Court.

Justice Potter Stewart: So, what you're saying is that of the lands owned by the government in Arizona, 75% have been withdrawn --

Mr. Chas. H. Reed: That's right.

Justice Potter Stewart: From any possibility of private acquisition?

Mr. Chas. H. Reed: Unless those withdrawals are in some fashion cancelled and the land restored to --

Justice Potter Stewart: Dedicated again.

Mr. Chas. H. Reed: The category of public lands.

Justice William J. Brennan: How you've withdrawn for special uses of parts?

Mr. Chas. H. Reed: Yes, in each instance.

I have the figures.

I hesitate the use the time to --

Justice William J. Brennan: Well, don't.

Mr. Chas. H. Reed: Relate them.

Roughly, the amount withdrawn for any of the reservations is, in excess, 21 million acres.

The next largest category is forest services plans, the national forest, some-11,381,000 acres.

Justice William O. Douglas: That -- does that include Taylor Grazing Act, may I ask?

Mr. Chas. H. Reed: I have no category in that capacity.

Justice Felix Frankfurter: Any mining law?

Mr. Chas. H. Reed: No, Your Honor.

I'll roughly give you the category so you know what we're talking about.

The Bureau of Land Management is the agency now in charge of the public lands, lands that are still available for acquisition of private rights.

That was, as I said, some-13 million.

Permanent Service is 1,000,481 plus -- 481,000 plus acres.

You're -- the reclamation land is 1,000,350 plus, Fish and Wildlife Service 1,526,000 plus, Bureau of Indian Affairs, this is not Indian Reservations but land held in connection with the office -- Indian Office in the administration of its duties.

Others 1 acre, I don't know what that is.

Forest Service 11,381,000 acres, Soil Conservation Service 20, others 25 acres.

Now, the Department of Defense, as for the Air Force 2,601,844 acres, the Army 971,000 acres, the Navy, what the Navy is doing in Arizona, I don't know, 968.

Justice Felix Frankfurter: Naval reserve, that might be my question.

Naval withdraw for use of material --

Mr. Chas. H. Reed: That was a small attempt on my part to be humorous, Your Honor.

Justice Potter Stewart: The Navy is going to need at least that much water.

Mr. Chas. H. Reed: Corps of Engineers 19,000, Indian Reservations, as I mentioned a moment ago, 21,000.

So that the total lands held by the Federal Government in Arizona, which themselves are -- aggregate 74% of all lands in Arizona but, of those federal lands, over 75% have been withdrawn to not occupy the state as public lands and are not, at this moment at least, subject to the acquisition of private or individual rights therein.

Justice William O. Douglas: You don't want us to do something about that, too, do you?

Mr. Chas. H. Reed: Well, I'll explain to Your Honor why I'm mentioning these figures in a moment.

I don't suppose there's anything this Court couldn't do for that matter.

The impact of the claim of the United States owns all waters, both navigable and non-navigable, in the public land states.

On those public land states, I think I can briefly indicate, by these statistics --

Justice Potter Stewart: Before you do that, I -- enlighten my ignorance.

By “a public land state,” you mean a state where there are any public lands at all?

Mr. Chas. H. Reed: No, it means the States of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Washington, Wyoming, and Utah.

Justice Potter Stewart: And why are they public land states?

Mr. Chas. H. Reed: Because the government, when it acquired those lands from the preceding sovereignty, became the owner of all the lands within those states.

Justice Potter Stewart: Before they were a state?

Mr. Chas. H. Reed: That's right, and held them during territorial status.

Upon that fact is predicated the claim which the United States asserts as to ownership of water, the fact that it owned the land, but I had planned to come to that in a moment.

Justice Potter Stewart: I don't understand your term of reference.

Mr. Chas. H. Reed: Have I made myself clear?

Justice Potter Stewart: I think so.

Mr. Chas. H. Reed: Now, the total acreage in those public land states that I have just enumerated is in excess of 418 million acres.

Of that amount, there has been withdrawn, so there's now -- does not occupy the status of public lands by the Federal Government, 240 million-plus acres.

In addition, there are, in the category of public lands within the public lands states, some-177 million acres.

Now, so much for the statistics, if we can turn now to the drawing at my back, perhaps I can make clear what particular federal establishments we are dealing with and which -- for which the Master recognized he's right.

And if you will start with the Colorado River Indian Restoration, to point out the location, the area -- total area of that reservation is some-260,000 acres.

Justice Potter Stewart: Do we have such a map in our --

Mr. Chas. H. Reed: Yes, that is an enlargement of the Government's exhibit.

The Government, itself, plan to use this in its oral argument and very kindly offered us the use of it.

Justice Potter Stewart: Not in any -- attached in any of the brief.

Mr. Chas. H. Reed: I believe not --

Justice Potter Stewart: In here?

Mr. Chas. H. Reed: I believe not.

Justice Potter Stewart: I'm not certain where the Government number appears on it.

Mr. Chas. H. Reed: You ask exhibit 100?

Justice Potter Stewart: Well, actually (Inaudible)

Mr. Chas. H. Reed: Now, that reservation was established by Act of Congress in setting aside 75,000 acres.

Justice William J. Brennan: Which one was that down there?

Mr. Chas. H. Reed: Colorado River.

That's the largest reservation and the largest use --

Justice William J. Brennan: Yes.

Mr. Chas. H. Reed: Involved and I st -- for that reason, I start with it.

It was subsequently expanding by Executive Orders to reach its present total of some-260,000 acres.

The total tribal population of the Colorado River Tribes, that is, that means all there are on the roads, regardless of where they live, on the reservation or off the reservation, even out of Arizona or even abroad.

That total tribal population is 1,300.

I might explain to Your Honors that there was no Tribe of Indians known as the Colorado River Tribe.

That name comes from the fact that that reservation was created and some of the Indians have settled to form the tribal organization on that reservation and are now known by that name.

Justice William J. Brennan: That reservation entered the state route?

Mr. Chas. H. Reed: Oh yes, 1865, it was created, the original 75,000 acres.

All of the Executive Orders antedate statehood.

In fact, there's only one reservation, Indian Reservation known to the mainstream that does not and that is the Cocopah Reservation, which we'll come to in a moment.

Justice Felix Frankfurter: Can I ask you, just out of curiosity, do I understand you to say that the government cannot be (Inaudible)

Mr. Chas. H. Reed: I will give --

Justice Felix Frankfurter: Is that what you're saying?

Mr. Chas. H. Reed: In order to give the correct answer, perhaps I should detail a little bit what the situation was.

The Indian Agent by the name of Poston, who later was elected to Congress for the territory, met with the Indians of five tribes, either in 1963 of 1964 -- 1863 or 1864, I forgot which.

Now, those tribes were the Yumas, the Mohaves, the Yavapais, the Hualapais and the Chemehuevis.

It was estimated, and only an estimate of the total population of those five tribes, some-10,000 Indians.

Subsequent events have shown that estimate to be somewhat excessive, quite a bit excessive.

Poston, through the Interior Department, recommended that those five tribes which, for the most part, had traditionally lived somewhere in that area along the river be given a reservation so that they could call that their home and that they take up agricultural pursuits and farm such of the reservation land as was needed to establish an agricultural economy.

The success of that effort I had planned or plan, I should say, I had expected to discuss later.

That is the background of it.

I might say briefly that only one branch of the Mohaves and some Chemehuevis, for the main part, had taken advantage of that offer.

And, in fact, for each of those, as well as the other Indian tribes in Arizona and California, there has been another separate and distinct reservation created which is the home or abode of the various tribes.

Justice Felix Frankfurter: But there is a tribe (Inaudible)

Mr. Chas. H. Reed: That's right.

Justice Felix Frankfurter: (Inaudible)

Mr. Chas. H. Reed: That's right, Your Honor.

Now, of the total tribal population of some-1,300, the evidence did not permit -- of a finding as to the exact number which actually resides and live on the reservation and make their home there.

The Master estimated it was in the neighborhood of 1,100-1,200 but that is merely an estimate.

Unfortunately, the evidence was not presented in this case with respect to any -- well, I'll modify that, with respect to any of the mainstream reservations as to the number of Indians actually living on the reservation, so that the figures I give you here include those who may be falling away to economy or some other occupation elsewhere.

Justice Felix Frankfurter: Reach the position of what you're now addressing yourself, who is going to be making (Inaudible)

Mr. Chas. H. Reed: Yes, I think it would.

Justice Felix Frankfurter: (Inaudible)

Mr. Chas. H. Reed: Yes, they wouldn't be meaningful and I wouldn't be taking --

Justice Felix Frankfurter: (Inaudible)

Mr. Chas. H. Reed: -- the Court's time with them.

Justice Felix Frankfurter: The relation of these mean the (Inaudible)

Mr. Chas. H. Reed: That's right, in ascertaining what is a just and proper amount of water for those Indians and for those reservations.

Now, the number of Indians actually --

Justice Felix Frankfurter: It couldn't be allowed in the question of (Inaudible)

Mr. Chas. H. Reed: Not at all, as I -- so far as I can see, not all.

I'm quite sure but -- the number of Indians actually farming the Colorado Reservation lands in 1951 were 276.

By the year 1957, which is the last year of record, that had dwindled to 148 Indians who were actually farming the Colorado River Indian Reservation lands.

Justice Felix Frankfurter: The population (Inaudible)

Mr. Chas. H. Reed: That is a matter that's in dispute, Your Honor.

I think a fair answer is that it is increasing somewhat slightly.

And the Government will not agree with that and thinks it's rapidly, and it's part of the population explosion, as it's called in Arizona.

We don't view it that way.

As I say, unfortunately, the evidence was never made available throughout the course of the trial so that you could really get your teeth in the subject.

Justice Felix Frankfurter: (Inaudible)

Mr. Chas. H. Reed: No.

No Your Honor.

Justice Felix Frankfurter: The issue whether this is a matter of (Inaudible)

Mr. Chas. H. Reed: Only in this fashion, Your Honor, and the Government did introduce, or I'm not sure whether this particular exhibit was -- it might have been introduced by California with mark at least for identification by the Government, had figures as to the total tribal population of the Colorado River Indian Reservation.

I forget the number of the exhibit.

I'll supply it in a moment.

Going back to the preceding section, quite obviously, those figures are not meaningful because they will show, for instance, a neighborhood of 10,000 in one year and the next year drop down to 700 with nothing to account for it.

It's just different criterion, different methods obviously were used.

That may not be true as to the later years but, so far as I know, there's no truly reliable evidence upon which the Court could predicate any specific finding either as to the rate of growth, the trend of living on or living off of the reservation, certainly nothing with respect to the amount of water used by Indians or their needs for individual or for family, none of that was going on into that was presented.

Justice Felix Frankfurter: This is a matter merely of what's the total million (Inaudible)

Mr. Chas. H. Reed: This is Colorado?

I'll have to get that cleared, Your Honor.

Now, on the Colorado Indian Reservation, as a result largely of the construction of Headgate Rock Diversion Dam, authorized by an Act of Congress in 1935, there had been, at one time or another but never at any one time, subjugated and irrigated on that reservation approximately 40,000 acres, not all by Indians but some portion of it being by White lessees or non-Indian lessees.

The total amount farmed on that reservation, total acreage in 1953, was 29,534.

Of that total acreage, some-18,719 in that year was farmed by the Indians themselves and 10,000 plus the balance by non-Indian lessees.

In 1954, practically the same amount of acreage was cultivated, a little larger, 29,957 but the Indians that year only farmed 15,153 and the non-Indian lessees framed over 14,000 or 14,804 acres.

In 1955, which is the last year of record, of the 29,271 acres farmed on the Colorado River Indian Reservation, only 14,512 were farmed by Indians and by non-Indian lessees 14,759 or more than being farmed by the Indians themselves.

One other fact I think is pertinent with respect to that reservation, and that is that the constructed works built there by the government are capable of serving some-60,000 acres with the addition only of laterals and subjugation of the land.

It would require no extension of the main canal.

The diverting structure itself has a carrying capacity sufficient for the irrigation of 105,000 acres.

Now, for that reservation, the recommended decree presented to this Court finds in Arizona 99,375 acres of irrigable lands, in California some-800 -- 8,213 acres or a total of 107,000 plus acres of irrigable lands.

The Master recommended that those lands have a diversion right from the mainstream, that is the Arizona portion, of 662,402 acre-feet per year or roughly a consumptive use, although it was not couched in that language, of some-330,000 acre-feet per year for the Ind -- for the Arizona portion of the Colorado River Indian Reservation.

On the California side, he recommended a diversion right of 54,000-plus acre-feet per year which would equal a or result in the consumptive use of some-27,000.

So, the total consumptive use of that reservation per year would be 358,589 or at least it would be -- the water would be available for consumptive use if the land was ever used to that extent.

The diversion requirement would be some-770,000 acre-feet per year.

I'm going to pass on quickly to the other reservation, the Fort Mohave Indian Reservation, that includes an area of roughly some-31,000 acre-feet -- 1,000 acres.

That was just originally set aside as the military reserve for military purposes in 1870.

It was transferred to the Department of Interior on September 18,, 1890 for the purpose of an industrial training school for Indian Youth.

Subsequent the Executive Orders, it expanded the area to include additional lands.

The total of lands ever irrigated on that reservation, the largest amount was 23 acres in the vicinity of the Indian school.

The evidence shows that, although they are on the tribal roads, some-450 Mohave Indians, actually only one family lives on the Nevada portion of the reservation, none on the Arizona or California portion.

Justice Potter Stewart: Is it still a school?

Mr. Chas. H. Reed: No, the school had been abandoned quite some time ago.

The 23 acres are no longer being irrigated.

There's no irrigation.

There are no irrigation facilities.

I will go into that more, later.

Justice William J. Brennan: Only that one must have given with ignorance, at least in Nevada, than you have in the west.

Well, I don't quite understand it.

I think you showed us that, on the Colorado Indian's Reservation, an actual diversion of 770,000 --

Mr. Chas. H. Reed: 770 --

Justice William J. Brennan: Acre-feet is necessary to realize half that -- amount of --

Mr. Chas. H. Reed: Yes.

Justice William J. Brennan: -- irrigation?

Mr. Chas. H. Reed: Yes, Your Honor.

That's due to the fact that it's -- of course a budding initiation to their river in there would be a large return flow.

Justice William J. Brennan: Oh, I see.

I see --

Mr. Chas. H. Reed: The diversion was computed --

Justice William J. Brennan: Oh.

Mr. Chas. H. Reed: In this way, an amount sufficient to meet what the master concluded was the consumptive use requirement.

Justice William J. Brennan: Yes.

Mr. Chas. H. Reed: The first had consumptive use in his draft -- figures in his draft report.

I'm certainly arose as to whether those figures were in terms of diversion less return, as had been adopted throughout the balance of the report and that, for that reason, he abandoned that approach and put it in terms of diversion right plus the right for whatever quantity of water was needed for the proper irrigation of the number of acres he specified, or whichever was the lesser --

Justice William J. Brennan: What will the --

Mr. Chas. H. Reed: -- of the two.

Justice William J. Brennan: What was the -- was what you just said mean that the actual demand on the river comes down to 330,000 because whether it diverts 770 --

Mr. Chas. H. Reed: That's right.

Justice William J. Brennan: There is a return which gives you a net of 330, isn't it?

Mr. Chas. H. Reed: Yes.

Justice William J. Brennan: I see.

Mr. Chas. H. Reed: I don't want to mislead Your Honor.

331,000 acre figure is a calculated figure which is based in this way.

There was evidence introduced by California as to consumptive use on that reservation in terms of diversion less return.

As I recall, it was 3.58 acre-feet per acre.

We simply multiplied that times the number of irrigable acres, and not irrigable acres, and got that amount.

The Master made no finding with respect to that.

As I say, the question arose as to the reliability of the figures or not reliability but where they actually were in terms of diversion less return.

Justice Felix Frankfurter: These -- these figures or all these reservations of rights on certain people who's come in are not protected.

They're not (Inaudible) from the quantity of the reservations, is that right?

Mr. Chas. H. Reed: Oh, yes.

For instance, the Fort Mohave isn't the outstanding example of that.

They are -- the diversion requirement for that reservation, as set by the Master, would be 122,648 acre-feet.

No Indians, except the one family and I'm not sure of that family but --

Justice William J. Brennan: So that means that's only a potential for that family --

Mr. Chas. H. Reed: That's right.

Justice William J. Brennan: Do you mean that's actually being --

Mr. Chas. H. Reed: Yes.

Justice William J. Brennan: -- being withdrawn from the river.

Mr. Chas. H. Reed: And with the right to consumptively use or which diversion would result in a consumptive use of an excess of 60,000 acre-feet a year.

Justice Felix Frankfurter: Comfortably, potential frequent use (Inaudible) what is available for Arizona to use.

Mr. Chas. H. Reed: That is the result, whether ever used or not.

Justice Hugo L. Black: What if that should change and Arizona got (Inaudible) Indians that needed it.

What would be the situation?

Mr. Chas. H. Reed: Well I -- it's difficult for me to see how that situation could ever develop because you can't finance the --

Justice Hugo L. Black: What if you could?

Mr. Chas. H. Reed: Project.

Justice Hugo L. Black: As I understand it, that's the part of the term that's been used in the decision.

Mr. Chas. H. Reed: I didn't so understand that decision.

Justice Hugo L. Black: But why -- why do you think it did reserve such a fixed amount and make the finding of that broad of a certain fixed amount that he used on that reservation?

Mr. Chas. H. Reed: Well, all we could go by is the Master's -- what he says in his report.

The basis of his recommendation is this, that when these reservations were created, the United States intend for the Indians to live on them and to follow a farming way of life.

He also said that it's not to be expected that those Indians would remain static or die up.

In a natural course of events, the population should increase.

Someday in the unforeseeable future, they may reach the number where they will require all the irrigable acres on that reservation.

Justice Hugo L. Black: What I'm trying to find out today is this.

If your counter to the action of the Mohave in that regard, based on the argument that he had no right, no power, should not have seek an amount which must be held there for the Indians so that it wouldn't be taken away and diverted for other purpose?

Mr. Chas. H. Reed: No, Your Honor.

I think we would have to concede that during territorial status, when the United Stated was the local or municipal sovereign as well as the national sovereign, that it had the power or disposal of those waters.

I think the cases which I had planned to come to after a while show that that -- there is a presumption against that disposal.

Also, that -- with respect to that property which the government holds in a trust capacity for the future states, there is a presumption against the invasion of that trust, if I can express it in that language, s -- and that there must be a clear intent on the part of Congress to make any disposal of naval water for the reason.

One, that it holds it in trust for the beneficiary state and the trustee is not supposed to use trust property for his own ends to accomplish his own ends and equally important, and maybe more important, is that to the extent that those waters are disposed of, the full sovereignty of the future state is contracted and diminished so that it cannot become a member of the union on an equal footing with the older states.

Those principles of law, I think, are quite important in arriving at what was the congressional intent.

Justice Hugo L. Black: Well, is that the challenge on which -- what I'm trying to get -- you've been arguing seemingly, at one leg, that maybe they're -- in a way the reservation has been abandoned and then you said something about potential and they couldn't use it now.

Mr. Chas. H. Reed: Well, I haven't really meant to argue it at all.

Justice Hugo L. Black: You had not?

Mr. Chas. H. Reed: Yes, Your Honor.

I was trying to get the actual --

Justice Hugo L. Black: That was what I was trying to find out.

Mr. Chas. H. Reed: Is that your --

Justice Hugo L. Black: You're basing it on the ground that he has misconstrued what Congress has done in connection with the reservation, is that it?

Mr. Chas. H. Reed: I can give Your Honor that argument now.

I would prefer to --

Justice Hugo L. Black: No, it's alright.

Mr. Chas. H. Reed: To give the --

Justice Hugo L. Black: It's alright now.

I was just a little -- I didn't quite understand just which point you relied on.

Justice Felix Frankfurter: This is a pictorial tour you're making.

Mr. Chas. H. Reed: Yes.

Justice Felix Frankfurter: Is that it?

Mr. Chas. H. Reed: A guide.

Justice William J. Brennan: Well, I'm probably responsible for some of this, Mr. Reed, but I am confused.

Mr. Chas. H. Reed: Well, I would like the Court to understand --

Justice William J. Brennan: For example, on this Mohave -- is that the one you were talking about, the one where there's nothing used now?

Now that water comes past, obviously, doesn't it, because it's not being used, is that true?

It goes --

Mr. Chas. H. Reed: That's right.

Justice William J. Brennan: -- right past the reservation.

Mr. Chas. H. Reed: Through it.

Justice William J. Brennan: Right through it?

Mr. Chas. H. Reed: Yes.

Justice William J. Brennan: And none of it is being used or diverted?

Mr. Chas. H. Reed: None at all.

Justice William J. Brennan: So, I gather, until it's actually used or diverted, in connection with rights which the Master's found the Indians there have, it then becomes available for apportionment below, doesn't it, to Arizona or California and anyone else, doesn't it?

Mr. Chas. H. Reed: That's right.

I would like to point this out.

But, in order to accomplish irrigation in that area, it requires huge investment and projects.

Justice William J. Brennan: But -- but my point is that, at the moment at least, Arizona is losing nothing in the way of actual water by reason what the Master has found to be the condition as regards to that reservation.

Mr. Chas. H. Reed: That's correct, Your Honor.

Justice William J. Brennan: Except what you were about to say that you have to be able to count on it because it involves a capital expenditures of some --

Mr. Chas. H. Reed: Well, the bank won't loan --

Justice William J. Brennan: Substantial dimensions.

Mr. Chas. H. Reed: The bank won't loan you money, but when you're entitled --

Justice William J. Brennan: Yes.

Mr. Chas. H. Reed: It's all good.

If someone else owns it, that --

Justice Hugo L. Black: You'd have a cloud on your title, as, I gather, what you're arguing, was the basis of what the --

Mr. Chas. H. Reed: I don't think a cloud --

Justice Hugo L. Black: -- the Master was saying.

Mr. Chas. H. Reed: -- would be an absolute title vested elsewhere.

Justice Hugo L. Black: But that you could use temporarily wouldn't help you, I gather, you're saying.

Mr. Chas. H. Reed: Well, of course you can always use water in the area there is and when you get to go whenever you can.

That's just the way we have to operate out there, but --

Justice Potter Stewart: But it does require quite a good deal of capital expenditure to irrigate efficiently.

Mr. Chas. H. Reed: Yes and, for instance, what -- really what this brought this lawsuit and what caused this lawsuit was the desire of Arizona to build the central Arizona Project in the central part of the state which is a water starved area suffered -- suffering such critical shortages as to actually force large acreage out of cultivation.

That, coupled with the increasing demands of a growing population and increased and expanding industrial and commercial uses, has produced a very acute situation.

To the extent that this Court commits the water elsewhere, we can't go before Congress or anywhere else and say "here is the extent of our water rights.

We can use this number of acre-feet and that would justify or make economically feasible and desirable funds for the rebuilding of the project to such-and-such a size.

Justice Potter Stewart: This Congress could -- by legislation could recommit anything that this Court had found here.

Mr. Chas. H. Reed: Yes, I -- it would of course be forced with -- the federal government would be forced with lawsuits in the Indian court of claims.

Justice Potter Stewart: While we are at a little bit off field here, could you answer this question?

As I understand it, under the Master's report, the various federal reservations or photos are taken away from the state appropriations or photos.

Now, Arizona no longer has any quarrel with that basic system, does it?

Mr. Chas. H. Reed: No, Your Honor.

He -- the entitlements for the government are charged against the --

Justice Potter Stewart: State.

Mr. Chas. H. Reed: -- (Voice Overlap) -- each state where the use takes place.

Justice Potter Stewart: That's right.

Mr. Chas. H. Reed: None of the parties has, except --

Justice Potter Stewart: There was originally some difference of opinion about that.

Mr. Chas. H. Reed: Well, I think, originally, the United States argued for and still thinks it should have, I believe, a separate allocation --

Justice Potter Stewart: Yes.

Mr. Chas. H. Reed: -- to it, quite apart from the allocation to the states.

Justice Potter Stewart: But now it comes out of the state's allocation, --

Mr. Chas. H. Reed: That's right.

Justice Potter Stewart: Appropriation, or entitlement.

Mr. Chas. H. Reed: Yes, and every acre-foot of water that's reserved for an Indian Reservation which they surely won't use for a long time, and maybe never, it's just that it's an acre-foot less for the center of Arizona Project or --

Justice Potter Stewart: For the rest of Arizona.

Mr. Chas. H. Reed: That's right.

Justice Hugo L. Black: But you (Inaudible)

Mr. Chas. H. Reed: And other federal statutes, surely, and we have no quarrel with that.

Justice Felix Frankfurter: And that -- that problem arises.

Mr. Chas. H. Reed: That's correct.

Justice Felix Frankfurter: (Inaudible)

Mr. Chas. H. Reed: That's quite right.

He had planned to do without the --

Justice Felix Frankfurter: (Inaudible)

Mr. Chas. H. Reed: That's what I expect to argue when we get to it.

Now, the -- one other Indian Reservation within Arizona is the Cocopah.

That is a small reservation of some-500 acres.

The population in the tribal roads is only 90.

The number of Indians living on that reservation was not established.

The Master made no finding.

Justice William O. Douglas: Were these park reservations all established in the last century?

Mr. Chas. H. Reed: I beg your pardon?

Justice William O. Douglas: Before 1900?

Were they all established before 1900?

Mr. Chas. H. Reed: No, this reservation was established September 27, 1917 and after statehood.

The two I have just mentioned were both established and enlarged before statehood.

To make the picture complete, there is the Chemehuevi Indian Reservation located entirely within California, but the population shown on the tribal roads of 300 and with no Indians residing on the reservation.

And, the remaining Indian Reservation mainstream is the Yuma Reservation likewise located entirely within California, surf through the facilities of the All-American Canal.

The tribal population or population on the tribal roads is some-1,200 Indians with approximately 900 residing on that reservation.

In addition to the Indian Reservations, there is the Lake Mead Recreational Area.

Will you outline generally the area there?

As you can see, that's an area surrounding Lake Mead and, in that vicinity, I'm going beyond that.

There are some-1,899,000 acres-plus in that reservation, of which 1,209,000 are in Arizona, the balance being in Nevada.

That was established by Executive Order May 3, 1929, enlarged by Executive Order April 25, 1930.

The Master, with respect to that reservation, concluded that the evidence was not sufficient on which to base a finding as to the ultimate needs but held -- found they had the right to use mainstream water in quantities reasonably necessary to fulfill the purposes of the area.

And there is Havasu Lake National Wildlife Refuge, being approximately some-40,000 acres in Arizona and California.

No breakdown was made with respect to how much was within each state.

That was established January 22, 1941 by Executive Order and enlarged by Executive Order in 1949.

The Master recommended a diversion right of 41,839 acre-feet per year and, here, he used the consumptive use because the evidence permitted it or a consumptive use of 37,339 acre-feet per anum, whichever is less.

That, likewise, was not segregated as to what state that should be charged against.

That poses a small problem.

In addition, there's the Imperial National Wildlife Refuge.

That was established by Executive Order February 14, 1941.

The total area located in Arizona and California is 50 -- some-51,000 acres.

The Master recommended an annual diversion right of 28,000 acre-feet per year or a consumptive use of 23,000 acre-feet per year, or whichever is less, and that was not segregated or divided up as between states or as to which state would -- the allotment would be subtracted on amount.

Now, roughly, that covers the background as to the federal establishment on the mainstream.

With respect to the tributary claims, the Master, as I indicated, refused to make an adjudication with respect to any claims of the government or any other parties on any of the tributaries except the Gila River.

I will discuss the tributary water aspect to the government's claims later.

Now, one thing I think I should make quite clear before I proceed further is that Arizona's quarrel with the -- these findings and these conclusions of law of the Master do not amount, as the Government assumes in its brief, to a contest, on the one hand, between the Indians in Arizona and, on the other hand, the non-Indians in Arizona.

To make that quite clear, all I mean to do is to point out to Your Honors that, as we mentioned a moment ago, the central Arizona Project is the motivating cause of this litigation.

Now, within that project, there are more Indians than the total number involved on these mainstream reservations, Indians who are in desperate need of water, as is much of the balance of that area.

On the Gila River Indian Reservation, which is for the Pima-Maricopa Tribes, the Master found that there resides on the reservation 5,700 Indians.

That reservation is a part of what is known as the San Carlos Federal Irrigation Project.

It -- within that project, there are 50,000 acres of Indian-owned lands and 50,000 acres of non-India-owned lands.

It's a sort of a partnership.

It was built as a result of the Act passed in 1924 by Congress providing for the construction of Coolie's Dam.

The government fixed its estimate of the needs of the Indians when it found that that needs could be served by subjugating and irrigating some-50,000 acres of land.

It, likewise, was discovered that it was not economically feasible to build that inexpensive project for only 50,000 acres.

So, an additional 50,000 acres of White-owned lands were included and it formed sort of a -- it is sort of a partnership between the Indians and non-Indians and, to my way of thinking, represents one of the best examples of how the Indians can join in the way of life of the non-Indians and improve their life.

However, at the moment, their lot is, I must confess, is fairly pitiful.

That area is almost invariably pointed to as the horrible example of what happens when you build a project and establish an economy, depend it on water from it, and the water either doesn't materialize or, for some reason or another, is substantially decreased.

The facts are that, of that 50,000 acres on the Indian Reservation, on the average for the years 1939 through 1955, the last year of record, the Indians were able to farm only half of it, less than half, 24,584 due entirely to water shortage.

Justice William J. Brennan: That's on the Gila River?

Mr. Chas. H. Reed: Yes.

Justice William J. Brennan: Well, now, would that benefit from the Central Arizona Water Project?

Mr. Chas. H. Reed: Yes, that is a portion of the Central Arizona Plan, that area.

And on -- it -- I would say, in my way of thinking, I might be a little prejudice with respect to that area since that's where I live but it's conceded that the need for water there is more acute than any other area in central Arizona, perhaps with the exception of one other area.

There is sort of a contest dividing as to who is in the worst shape.

Justice William J. Brennan: How much of the non-Indian is 50,000 acres?

Mr. Chas. H. Reed: I beg your pardon?

Justice William J. Brennan: How much of the non-Indian is 50,000 acres are being upon?

You said only half or less than half of the Indian is 50,000 acres.

Mr. Chas. H. Reed: Yes, it's a comparable figure.

I didn't bring those since we were dealing only with -- I use this only to point out that for every acre-foot that's reserved and set aside for the mainstream Indian Reservations, just by that much is the chance of the Indians, as well as the non-Indians, in central Arizona to meet their need.

The situation is this.

We know very well that the amount of water that's available or will be available certainly won't be added, but to rescue all the areas in Arizona that need supplemental water supply is going to be a process of choosing and selecting.

It has to be that.

You have the situation where the amount of acreage which has the need for water is larger than the water supply can be in any event.

So, no one can say at this time precisely who's going to get water.

I suspect there'll be trouble about that later on but, certainly, those Indians in that reservation is within the Central Arizona Project plan.

As I say, it's used as -- the Indians and their non-Indian partners are used as the horrible example of the effects of an insufficient water supply.

In addition, there is the Salt River Indian Reservation, which is 10 miles east of Phoenix, having a total area of only 47,000 acres, presently irrigated on that area some-12,000 acres, and there reside on that reservation members of the Pima-Maricopa Tribe aggregating approximately 1,500 Indians.

Then, again, there is the Fort McDowell Indian Reservation which abuts on the northeast corner of the Salt River Indian Reservation.

That's inhabited by 300 members of the Fort McDowell Mohave-Apache Tribe.

The irrigable lake which is of that reservation is some-1,300 acres.

Its total area is 25,000.

In addition, there are other reservations in Arizona.

The one I particularly call to mind is the Fort Apache Indian Reservation, while not within the Central Arizona Project area, the plan is at least are that by process of exchange of water, you see, they occupy the area in the White Mountains where they use water from White River which is -- in turn goes -- it flows into the Salt which in turn is the water supply for the area around Phoenix.

There is litigation pending at present between the Salt River Valley Water Use Association and the tribe or its representatives over activities of the tribe in building dams for small lakes for recreational purposes.

It would certainly ease that situation.

However, I make no representation as to --

Justice Hugo L. Black: Mr. Reed, I don't want to interrupt you in the middle of your argument.

You've used -- your time is almost half over.

You've been describing the -- a little more, you've been describing these reservations.

It would certainly help me, I don't know about the others, if you would tell me who you think should choose and select what water goes to the Indians and what are your arguments as to the rules that -- of law that are to govern it.

Mr. Chas. H. Reed: I'm coming to that.

Justice Hugo L. Black: If you would come to that point as soon as you can, I would much -- I could much better understand the statistics and picture you've been giving.

Mr. Chas. H. Reed: Your Honor it's quite right and I regret the use of time.

I have --

Justice Hugo L. Black: Well, no.

I'm not --

Mr. Chas. H. Reed: -- questions of the Court to --

Justice Hugo L. Black: -- complaining about it.

But I just have not been able to understand it as well as I would.

If I could know from you what you say the Master has done is wrong, who does have the power to choose what a matter in the water in the reservations have?

Has that choice been made?

If it's been made, it's been wrongfully made and, if so, why?

Mr. Chas. H. Reed: I'll proceed to that immediately.

I thought, however, Mr. Justice Black, that I --

Justice Hugo L. Black: It's been very, very helpful.

I'm not --

Mr. Chas. H. Reed: I thought I did indicate or state precisely the amounts which the Master had set aside.

Justice Hugo L. Black: I understand -- I know about the amount, but why is it wrong?

What are the standards that should control, that he has failed to observe?

What are the standards that should be observed and what should we do with reference to it?

Mr. Chas. H. Reed: I'll be happy to enumerate what we think are vital factors which were not even considered or taken then to account in arriving at the recommended allocation.

For instance, regarded as not significant, it's playing no part on the resolution of this issue was a fact of whether the waters were navigable or non-navigable, whether the reservations were created before or after statehood, whether they were treated -- created by a treaty, a statute, or executive orders.

It didn't make any difference.

Neither was there, as a basis or taken into account, the number of Indians living on the reservation or the trends of Indians as to either living or not living or moving away from the reservations.

No consideration was given to water uses by the Indians, either past or present, as forming any basis for the conclusion reached in the recommended decree, nor as to the trend of the Indians as being farmers or following that occupation.

Justice Hugo L. Black: Well, did -- did the Master not say -- am I wrong in thinking that he said what was so materialist of whether they were using it personally?

It was the amount of water that was due to go to that reservation and do you challenge that?

Mr. Chas. H. Reed: Yes, and maybe I can make it clear if I explain exactly what the Master did and his reasoning for doing so.

Although I thought I did explain that, maybe I didn't make myself sufficiently clear.

The Master approached the problem this way, that those reservations were set aside by the government in the performance of the duty it owed to its Indian Lords and with the intent and expectation that they would farm those lands and establish a farming economy on them.

The criteria which --

Justice Hugo L. Black: Well --

Mr. Chas. H. Reed: -- he used --

Justice Hugo L. Black: -- suppose this farming economy is used there but not used by Indians.

What is your position with reference to that?

Mr. Chas. H. Reed: Well, the Master's position, if the Court please, I might explain that, is that it makes no difference, that forever that right is attached to those lands and, even if disposed of to non-Indians, it will still carry with it the right.

It's a right in perpetuity whether ever used or not and regards as to the amount of use.

He classifies it, those -- as to -- with respect to those reservations that were withdrawn prior to the effective date of the Project Act in 1929, as being a special category of present perfected rights, as his report clearly states.

Justice William O. Douglas: He takes -- his standard is the amount of acres within the -- that each --

Mr. Chas. H. Reed: Irrigable --

Justice William O. Douglas: -- reservation there could be irrigated.

Mr. Chas. H. Reed: That's right, the sole test --

Justice William O. Douglas: Whether or not it is irrigated, has been irrigated, or may foreseeably be irrigated.

Mr. Chas. H. Reed: That's right.

I plan to go into all of this if I have enough time.

Justice Felix Frankfurter: And that's because, in setting aside those lands as reservations, executive officials, the Executive Department of the Government is carrying out a policy to authorize explicitly or implicitly by Act of Congress.

Is that right?

Mr. Chas. H. Reed: Well, I don't know that the authorization by Congress was even considered.

Justice Felix Frankfurter: I mean, you could -- the Secretary of the Interior can't, out of his own free will, determine what shall be Indian Reservation, except --

Mr. Chas. H. Reed: We certainly --

Justice Felix Frankfurter: Insofar as --

Mr. Chas. H. Reed: -- contend so.

Justice Felix Frankfurter: -- fund it.

Mr. Chas. H. Reed: We certainly contend so.

I don't believe the Government agrees with that.

Justice Felix Frankfurter: Well, except insofar as his authority is implied from general legislation regarding the duties of the government.

Mr. Chas. H. Reed: Well --

Justice Felix Frankfurter: I don't want to get on that.

He can't -- he isn't -- he isn't (Inaudible)

The authority of the Secretary of the Interior doesn't flow from his own will, does it?

Mr. Chas. H. Reed: No, if the Court -- if Your Honor please, our position is this.

That the executive, in the absence of enabling legislation by Congress and that the -- from which that power must come under the Property Clause of the Constitution.

Only if that enabling legislation is enacted in the Executive Department Act, now, it may be, as was held in the midland or Midwest Oil land case, that certain acquiescence on the part of Congress may be inferred from the peculiar circumstances or that --

Justice Felix Frankfurter: What I meant by --

Mr. Chas. H. Reed: Right.

Justice Felix Frankfurter: -- especially implied --

Mr. Chas. H. Reed: Yes.

Justice Felix Frankfurter: Well, he doesn't -- again, he doesn't operate by virtue of his own will.

He has delegated authority.

The delegation that's made may be found either by explicit name provisions or from other authorizing authority.

Mr. Chas. H. Reed: I thoroughly agree and I think it has particular application to navigable waters which are held in trust by the national government.

Justice Felix Frankfurter: What about the reservation, the establishment of reservation?

Mr. Chas. H. Reed: The lands that's --

Justice Felix Frankfurter: The land itself is derived from some granted authority to him.

Mr. Chas. H. Reed: Yes.

Justice Felix Frankfurter: How so ever the grant is established.

Mr. Chas. H. Reed: Yes, either directly or by implication, that's correct.

Now, we regard all of those matters, as well as the further matter that no -- the Master felt that the -- he need not examine into the source of the authority of the United States to reserve water.

He considered that matter established by the Winters case and his report so states explicitly that we need not -- he need not, at least, and did not, I presume, inquire with respect to the source of that authority.

Now, we regard all of these matters as of vital importance and I'm going to have to just hit the high places I can see with respect to our contention.

In the first place, the water involved on the mainstream is navigable water.

Now, soon after the formation of this nation, this Court adjudicated with respect to the rights, on the one hand, of the national government and, on the other hand, the states regarding navigable water.

Imported, as a part of the common law from England, was the concept that navigable waters are public waters, that they affect and concern the people as a whole in such vital respects as to demand or require that they'd be classified as public water, held, if held at all, by the sovereign and by the king in trust for the -- for the people.

On the other hand, non-navigable waters in England were regarded as not being public waters and not being of that significance to the people at large or as a whole, and they're classified as private water in which private rights might be obtained.

That distinction has been carried forward to this day.

I think we should keep in mind always that the basic classification is public water and private water, not navigable and non-navigable.

It so happens that, in England, navigable waters fell under the category or classification of public water and non-navigable under the classification of private waters, but the basic fundamental distinction is whether or not the water is of such importance to the people as a whole as to justify its classification as public water.

Now, it was early recognized that while -- during territorial status, while the United States held those lands as local, as well as national sovereign, that it held only in trust for the benefit of the future states and the people of that state.

That, upon the admission to statehood or the creation of a state, automatically, that trust property went to the state and the state obtained full sovereignty and control over.

The theory, of course, being that, under our peculiar form of government, actually the people are sovereign and, except as they have delegated sovereign attributes to the national government, they remain in the people or the states for them.

And, the courts held that this was one respect in which sovereignty or sovereign prerogatives were not vested by the Constitution and the national government, so they remain and reposed in the states.

Now, that rule has been followed without exception by this Court.

It's the law today just as it was then.

It's predicated in part on the requirement of a quality between states that the new states be permitted the same sovereign prerogative as ours in control as the older states.

Obviously, a disposing of the navigable waters within a state prior to statehood means a contraction or lessening of the sovereignty of the state with respect to those waters.Now, that has an important bearing, as we see it, upon this case.

In the first place, as to the federal establishments created after statehood, the national government simply have no power, and had no ownership, no authority, or no sovereignty by which it could dispose of those navigable waters for the benefit of its own establishments.

That power had ceased and it held it only as local sovereign while the territorial status remained.

But, upon the attainment of statehood, the only prerogative that the national government retained in navigable waters is under the Commerce Clause.

That power of course is in terms, as this Court has said, is in terms of power and not of property and the limitations on that power, although the power is quite broad and extensive and much has been done by the national government pursuant to that power, obviously, there is a real distinction between the authority under the Commerce Clause with respect to navigable waters and, on the other hand, an ownership or complete sovereignty over those waters in the states.

The fact that the waters are navigable also have, we think, this very vital bearing on the case and that is with respect to the manifestation of an intent due to -- let me explain that.

Due to the trust character in which these navigable waters are held by the national government and due to the fact that their disposal means a denial to some extent of sovereignty to the later state, the cases recognized that there is a presumption against disposal during territorial days by the federal government.

That to overcome that presumption, they -- there must be either an expressed statement of intent to do so or that intent must be made very clear from the evidence.

It need not be stated in so many words but there must be no doubt of what the government intended to dispose of that navigable water during the territorial days.

Now, the Master, in disposing of this phase of the case, and let me say now that I -- what I have been saying is not in criticism of the Master.

Actually, we didn't give him much help, none of us did, on this.

I -- as he charitably remarked in the report, the attention and energies of the parties were devoted to other aspects of this case, and I plead guilty for Arizona in that respect.

I think it's true of all the parties.

We simply were occupied with other matters and we did not make the presentation that we should've made with respect to these serious and intricate legal questions.

Now, the Master found that all that was necessary was an implied intent and he relied upon circumstances as supplying that implied intent.

Justice William O. Douglas: That's what the court did in the Winters case.

Mr. Chas. H. Reed: Yes, but that was non-navigable waters, Your Honor.

Now, I make this distinction and the cases recognize it.

As to non-navigable waters, there's no presumption against disposal.

It's not held in trust, nor does it impair the sovereignty of the states that disposed of it.

Justice Felix Frankfurter: You and the Master do not disagree on the applicable legal principles and the issue between you gets down to whether or not the circumstances on which the Master drew allowing him -- allowed him to refer to the use or incur the intent which the legal principle which you invoke requires, isn't that right?

Mr. Chas. H. Reed: Yes, I think we have this difference.

We -- we can't --

Justice Felix Frankfurter: There's difference in application but would there be difference beyond that?

Mr. Chas. H. Reed: No.

Both agree there must be intent.

We deny that can exist by implication.

We -- it is our position that --

Justice Felix Frankfurter: You don't deny that it can be found through implications.

Mr. Chas. H. Reed: Circumstances may be such as to make --

Justice Felix Frankfurter: That --

Mr. Chas. H. Reed: A clear manifestation --

Justice Felix Frankfurter: Therefore --

Mr. Chas. H. Reed: -- which is --

Justice Felix Frankfurter: -- the whole --

Mr. Chas. H. Reed: That's right.

Justice Felix Frankfurter: Therefore, the issue is as to what the circumstances, summarized by the Master, allow inference from, is that right?

Mr. Chas. H. Reed: That's correct, Your Honor, and --

Justice William O. Douglas: But it is difficult, isn't it, to imagine a buyable reservation in a desert -- semi-desert country without any water?

Mr. Chas. H. Reed: I'm not sure I follow, Your Honor.

Justice William O. Douglas: Well, I --

Mr. Chas. H. Reed: You mean the very circumstances -- the fact that it was expected the Indians would live there and they have to have water to exist.

Justice William O. Douglas: In a dried semi-desert area.

Mr. Chas. H. Reed: Yes -- yes, and I think that was the basis of the Master's holding.

In that respect, I think the Master felt that the only way that the purpose of the government, which admittedly was that the Indians would use water, could be accomplished was by reserving the water.

Now, that's where we differ with the Master, and I want to briefly refer to the circumstances which we think establish beyond all question that Congress itself did not intend to reserve the water.

In the first place, this is back in 1865 when there was an abundance of water.

Literally, millions of acre-feet per year flowed by that reservation unused and wasted into the gulf.

The water was there for the taking.

All you had to do was dig a ditch, get some other diversion structure, and put it to the land.

Now, under the Arizona Law that existed at that time, that's likewise all you had to do to get an appropriative right.

You only had to use it.

You didn't even have to post a notice.

The statute respecting notice that was not passed by the Arizona territorial legislature until 1893 and the court held that, even then, its only application was with relation to the doctrine of relation back.

If you didn't file a notice, you could not as you could previously relate here right back to the time when you first formed the intent and start to work to perfect the appropriation.

So, to say that the government thought that the Indians -- “intend the Indians should use this water, therefore, it thought it must reserve them” does not follow because the mere use of it, which the government intended, would establish an appropriative right so that it was not at all necessary or essential to accomplish the end that Congress had in mind that it reserve, set aside, place in a safety deposit box, or some other fashion earmark a given quantity of water to make sure that the Indians got it.

There was no competition over water rights in those days --

Justice Felix Frankfurter: You and -- but you and the Master move in a different circle.

Your circle is that there was enough water at that time.

Ergo, no reservation of additional water is desired.

The Master said what was reserved at that time is their right to be an agricultural community and whatever is involved in being such a community.

And, therefore, when the water was no longer in abundance, what was necessarily implied was that they should have some other water that's stackable.

Mr. Chas. H. Reed: For the future, Your Honor means.

Justice Felix Frankfurter: No, not for the future.

With reference to waters that function to the land there and what the Master is saying that you have to have water and, therefore, there's the reservation or whatever potential needs of getting that water was available to them.

Mr. Chas. H. Reed: Yes, Your Honor, but by the mere use it, they acquired a vested valid right prior to any subsequent uses.

So, you had the same protection.

Justice Felix Frankfurter: But you're saying, now, there isn't that abundance of water.

It doesn't come to them that way, does it?

Mr. Chas. H. Reed: Well, that's true, but that's -- our hindsight of course is much better than the foresight of --

Justice Felix Frankfurter: But the --

Mr. Chas. H. Reed: -- those --

Justice Felix Frankfurter: -- foresight was that they should be a -- what is said just a minute ago, called a viable agricultural community.

Mr. Chas. H. Reed: Yes, I think, undoubtedly, it was the intent of Congress.

But, I wouldn't like to really examine this question now.

It's assumed that it was the obligation and duty of the government to set aside an amount of water that would meet the ultimate needs of those Indians in the indefinite future.

Now, I question that and I seriously question it.

I don't believe that it was the thinking at that time or that is the thinking now that we'll take Indians and set them aside on a reservation that they'll stay there for the rest of their lives, farm little Indian ghettos, if you please, that they will not join the non-Indians in their way of life for -- at anytime forever.

I think and I have viewed the intention of the government in this way.

That was a first step to take care of an underprivileged, untrained, untutored group of human beings.

I don't think it was regarded nor is it regarded by Congress now as the final step to help and to see to it that the Indians get the same privileges as the other members of the human race are entitled to.

Justice Felix Frankfurter: May I -- may I suggest that you're viewing some hindsight now?

Can it be that in -- are you suggesting that, in the 60's, the thought was that the Indians would be absorbed in the general mass of the population of this Country?

Mr. Chas. H. Reed: I think if the Court would -- Your Honor would read the report made by Mr. Poston when he recommended the establishment of this reservation, you'll see he had a rather broad outlook on the proper way in which the Indian problem would be met with in the future.

It all depends --

Justice Felix Frankfurter: But it --

Mr. Chas. H. Reed: It --

Justice Felix Frankfurter: But it wouldn't allow today if this whole thought received currency among appropriate men, but that to me has answered the real solution or the real adequate source of the Indian if they should become merged within the mass of our population.

Am I wrong about that, Mr. Reed?

Mr. Chas. H. Reed: Well, I don't know what Your Honor means by current.

It's so happens that --

Justice Felix Frankfurter: I mean the last -- whatever is entered into what it is.

Even then, there was strong resistance with their own qualities.

Their own specialized life should not be diluted by being having them absorbed in the general life of the American community.

Mr. Chas. H. Reed: Well I -- I would say this, Your Honor.

That, 30 years ago, that's my first combat with this problem.

There was a difference in the view point but, at that time, there was a large segment.

The people who concerned themselves with such things who felt very firmly that the worst thing you could do for the Indians was what we were doing, that you destroy their initiative, you prevent them from reaching a status of equality with the non-Indians by the very fact that you place them on a reservation, you exercise control over them as their guardian, they get dependent upon the efforts of the government and the funds supplied by the government.

And, as a consequence, they lose the incentive.

I also have heard the argument on the other side, which I will not repeat unless Your Honor would like to hear it.

But, I do think this, that the real answer to that is turn to the things that Congress did and then we will see its intent, and I want to stress that aspect of it.

The best evidence I know of what Congress intended is what Congress itself said and, of course, it is a rule that subsequent Acts and actions by Congress may be used to interpret and construe legislation passed by Congress.

Now, to go over this quickly, and I wonder if the Clerk can tell me how much time I have remaining, 17?

I want to direct Your Honor's attention first to the Act of April 21, 1904 whereby the Secretary was expressly authorized to include the Colorado River Indian Reservation and the Yuma Indian Reservation in a reclamation project.

And, if that were done, the Secretary is hereby authorized to divert the waters of the Colorado River and to reclaim, utilize, and dispose of any lands in the said reservation.

It also goes ahead to provide there that there shall be reserved for and allotted to each of the Indians belonging on the said reservation 5 acres of irrigable lands.

The remainder of the irrigable lands, the lands irrigable in the said reservation, shall be disposed of to settlers on the provisions of the Reclamation Act.

Now, that is followed by a long series of Acts, which I want to briefly discuss, but the notion that these lands should be included and authority given to include them within a reclamation project which, by its terms, provides that state law shall govern, that beneficial use shall be the basis, the extent, and the measure of the right to use water is wholly inconsistent with any thought that there had been reserved water for those reservation lands.

Justice Hugo L. Black: I didn't understand what you were reading from there.

Mr. Chas. H. Reed: I was reading from the Act of April 21, 1904, 33, Step 224.

Justice Hugo L. Black: Which reservation?

Mr. Chas. H. Reed: Colorado.

Also, in 1911, that Act was amended to increase the allotment from 5 acres to 10 acres per Indian.

The same provision was retained and it was -- retained the provision that the entire cost of the irrigation of lotted lands shall be reimbursed to the United States from any fund received from the sale of surplus lands of the reservation or from other funds that may become available.

Now, this Court construed that Act in United States versus Arizona at 295 US 174, it's cited in our brief.

Speaking of that Act, the Court said it was merely to empower the Secretary if the circumstances stated, that is inclusion of the reservation within the reclamation project, if the circumstances stated should arrive to reclaim lands in these reservations by use of water to be taken from that river, the authority granted was no more than permission to appropriate them, that is the water, for the purpose specified.

Now, you certainly didn't need any consent to divert water or to appropriate water if the government had already, back in 1865, reserved that water in perpetuity for those Indians.

But, more significant is later legislation of Congress.

By the Act of April 4, 1910, Congress appropriated $50,000 for the use on the Colorado Reservation to build canals and laterals and a pumping plant and, mind you this and I want to emphasize this, for the purpose of securing and appropriation of water for the irrigation of approximately 150,000 acres to be reimbursed in the sale of surplus lands.

Now, there simply could -- you can't reconcile these two things, one, that Congress had intended to and had, either directly or by authority conferred on the executive, set aside all the water that would ever needed by it -- be needed by those Indians for all the time to come with the notion, on the other hand, that they needed to acquire rights for that reservation by appropriation, yet --

Justice Hugo L. Black: I don't quite follow you, why this would be ir -- why couldn't reconcile those two.

Mr. Chas. H. Reed: Well, the reserved right, as it has been determined here, is whatever amount of water the Indians may need.

Justice Hugo L. Black: But --

Mr. Chas. H. Reed: What occasion is there for additional water?

Justice Hugo L. Black: The evidence that we're not getting it in here was a provision made by Congress to see that they did get water in a way which should be available to them.

I don't see why that would --

Mr. Chas. H. Reed: Well, if the Court please --

Justice Hugo L. Black: Would negate the original purpose to supply them --

Mr. Chas. H. Reed: Well, I --

Justice Hugo L. Black: With water to run the reservation.

Mr. Chas. H. Reed: I would like (Voice Overlap) to examine that closely because I think it's very vital to our position here.

The fact they weren't getting the water wasn't due to any shortcoming in the reservation of water concept.

It was due to the difficulties of building canals.

Justice Hugo L. Black: At that time?

Mr. Chas. H. Reed: Yes.

Now, all Congress need to have done was appropriate $50,000 to use the water it had reserved, if it had reserved it.

Justice Hugo L. Black: Both --

Mr. Chas. H. Reed: It certainly did not need to go ahead and say “for the purpose of acquiring rights under the appropriation doctrine."

Justice Hugo L. Black: Why would it not have been perfectly consistent that they had agreed to let them have the reservation where they could have water and decide to give it to them in the most convenient and least expensive way at that time?

Mr. Chas. H. Reed: Well, I --

Justice Hugo L. Black: Why would that have --

Mr. Chas. H. Reed: If I may say so, I think Your Honor is confusing the efforts in the furnishing of bonds with the point that a Water Act, if already existing, sufficient to supply their ultimate needs would make feudal and needless the appropriation of any water.

Justice Hugo L. Black: What if they were getting the water at that time?

Mr. Chas. H. Reed: It makes no difference, Your Honor.

Justice Hugo L. Black: They could get it at this time.

Mr. Chas. H. Reed: Under the reservation concept, they have the right if they never used the water.

It's always there.

So, you don't need to appropriate it to get it.

Your right is established by the very reservation itself.

Justice Hugo L. Black: Your right is there theoretically until you can get the water.

Mr. Chas. H. Reed: Well I'm -- I'm sorry.

I can't --

Justice Hugo L. Black: I don't just quite see why these two are irreconcilable?

Mr. Chas. H. Reed: I beg your pardon?

Justice Hugo L. Black: You may be right, but I just didn't see why the two are irreconcilable.

Mr. Chas. H. Reed: I'm sorry I can't make that clear to Your Honor.

I feel very strongly that the two are completely incompatible, that they're mutually incom -- that you cannot reconcile the two approaches.

Now, as bearing on the -- that legislation, the Secretary of the Interior wrote a letter recommending the enactment of that legislation to the Chairman of the Indian Affairs.

In that letter, he makes the significant statement that, "findings are being made by citizens and corporations upon the water to this river and, if rights are to be initiated,” rights are to be initiated, in other words, you don't have any.

"for these Indian lands, the work should be started at an early date with a view to making a proper appropriation."

And he goes and have to add, "in this manner, a just claim upon sufficient water to irrigate 150,000 acres on the Indian Reservation can be established."

Now, if they already have a reserved right to whatever amount they need, there's no occasion to initiate rights, there's no occasion to establish rights.

They have the best water right to -- in the whole country.

You can't, to my way of thinking, reconcile those two things.

That initial Act of April 4, 1910 was followed by identical Acts for the next nine years with the exact language for the purpose of securing appropriation for water.

So, for 10 successive years, Congress appropriated funds to enable the Indians in the Colorado River Reservation to secure a right in water by appropriation or pursuant to the appropriations doctrine.

As we view it, that was another action that indicated that Congress thought, particularly since it was navigable water, that the local laws and custom should be controlling and governing with respect to the acquisition of that right and that, also, it did not intend to impair the sovereignty of the future state by reserving or disposing of that navigable water in a special fashion or a special or a preferred use.

It's completely consistent with the many factors explained by the fact that the United States holds navigable water in trust for the benefit of the future states, but that isn't all with respect to the Acts of Congress.

Congress went on, following the Act of 1919, and continued to appropriate water -- money in connection with the building of irrigation facilities and referred back to the original Act of 1910 for the purpose of that Act.

That continued, as I recall, up to the year 1935 or 1936.

Following that, there was a series of legislation on the part of Congress appropriating funds for the purchase of water rights and to ensure or protect against loss of water rights.

Now, neither of those concepts can be reconciled with the reservation period.

You don't buy water rights if you already have a reserved right and you can't lose your water rights if you have a reserved right.

It's there for all time to come regardless of the extent of the use.

Now, I see that my time is rapidly being exhausted.

I haven't, by any means, covered all the things that I intended to cover.

I'm going to briefly proceed, in a hit in cover and -- or to hit-and-run fashion, some of the more significant points that, unfortunately, I won't be able to elaborate on.

We take a special exception to the irrigable acreage test as the criteria or the measurement of the Indian life.

I think in order to get in proper perspective to examine that criteria, one has to appreciate the peculiar characteristics of water.

Unlike most things, if you don't use it, it's gone forever.

It flows on by and the use of it is forever gone.

In the arid West, conditions simply demand that there'd be a maximum utilization of that water supply because it forms the ceiling of growth and development.

So that any approach to water which would result in a carving out, earmarking, or setting aside of a segment of the total supply which may not ever be used and certainly will not presently and for sometime to come be used is just simply an improvident way to deal with a product or a commodity or a substance to attend short supply.

The whole effort in the arid area is to arrive at some sort of system or solution which will permit the broadest and widest utilization of that scarce resource rather than creating special rights and prerogatives in it which will not be used.

You just -- we just don't do that with regard to water where it's so terribly valuable in such short supply.

Now, there's one other thing that I think I should bring out to this Court here, a number that I would like to but I think I should clarify the position which we take in our brief with respect to the doctrine of equitable apportionment.

I don't believe that we clearly stated the limiting factors or the limited circumstances under which that doctrine may apply.

Certainly, if this Court follows the reservation concept, if it likewise follows the recommendation of the Master with regard to present perfected rights, construes Section 6 of the Project Act as he's construed it, then the Project Act, in effect, has made an allocation to the Indians in that way.

It recog -- it's not the source of the right anymore than it would be the source of other present perfected rights, but it recognizes and preserves them and, to that extent, makes a disposition of water.

Now, if that's done and if the Court considers that to be the law, one, that the reservation concept is correct, second, that it's a present perfected right and that present perfected rights are preserved.

And, of course, there's no room for the application of the doctrine of equitable apportionment even with respect to Indian uses on the mainstream versus uses elsewhere in Arizona because the Project Act, having dealt with that matter, Congress having spoken, having made that distribution, there simply does not exist any situation in which the doctrine of equitable apportionment should apply.

One other matter has a bearing on that and that is that the Master construed the Arizona contract as authorizing the Secretary to contract with whom he pleased and for whatever amount he pleased in Arizona for the use of Lake Mead's water.

We did not truly appreciate the significance of that ruling at the time as bearing on the equitable apportionment thing particularly and the rights of the Indians, but we have not accepted the Master's construction of our contract.

We think it's right.

Now, if that's right, the Secretary is the one to contract with everyone in Arizona.

Indians and non-Indians, it doesn't make any difference.

You can only get a right by contract.

We can't buy the notion that he need not contract with himself, therefore, need not have any contract with the Indians.

As Your Honors know, quite often, there are so-called memoranda of understanding between departments or bureaus within the same department and certainly, for the sake of clarity and certainty, with respect to water commitments, a contract should be made with the Indians even though it's called a memorandum of understanding so that we'll all know exactly what the Secretary has done in that respect nor do we concede he has unlimited discretion.

I'm sorry, I see my time is up.However, we have briefed the points -- most of the points that I had intend to cover very fully and I am content that our position be presented by our brief.

Thank you.

Argument of Burr Sutter

Mr. Burr Sutter: Mr. Justice Black and may it please the Court.

The United States is a party to this litigation because it controls the waters impounded behind Hoover Dam and the associated works along the mainstream and, consequently, as Your Honors will recall, it was ruled in one of the earlier cases between Arizona and California that the United States was a necessary party to the adjudication of rights in the stream.

In addition, the Master has held, rightly we think, that the system for allocating or dividing, I use the word loosely, this water stems from a -- partly from a federal statue and partly from its implementation by the Secretary of the Interior.

And, we are in the case for that reason, too, because we think it appropriate to express our view as to the Acts of Congress and to explen -- explain and defend the contracts made by the Secretary of the Interior.

Being in the case for those reasons, it seemed appropriate to my predecessor, as well as to myself, that the United States should speak for what we conceive to be the general interest in the apportionment of this water, the national interest in the best development of the whole South West Region.

And, finally, we are here of course on behalf of the Indians to whom the United States has a duty as trustee and, to that aspect of the case, we make what perhaps might be called “proprietary claims” as distinguished from the general governmental position.

It's helpful I think if I begin by trying to outline the main divisions of this case.

I find it convenient to think of it in three parts.

The first I would describe is the interstate controversy over the waters of the Colorado River, the mainstream and some associated waters, which just arises between California and the other Lower Basin States.

In the second division, I would put certain incidental questions which arise assuming if the Court accepts the main thesis of the Master's report.

Without stopping now to state them in detail, one illustration is the question of whether the mainstream above Lake Mead should be treated as subject to the apportionment, whether the Secretary's contracts are valid in that respect or not, and there's certain other incidental questions of that kind.

Then, the third division is the one which has been discussed this morning by Mr. Reed to what the claims of the United States for water for the Indian Reservation.

I'll discuss the three main divisions in the orders I've just states.

The first division then is the interstate controversy over the apportionment of the waters impounded by Hoover Dam and controlled by the federal works along the mainstream of the Colorado River.

Here, instead of listing the issues, I find it convenient myself, and perhaps the Court will, well, to think of this as a contest between two main conceptions of the way this water is to be divided.

One, I shall state it as that of the United States for it's essentially the same as that of the Master and of Arizona and, on the other hand, California's concern.

Our view takes it as a premise that the Colorado River Compact apportions seven-and-a half million acre-feet to the Upper Basin, subject to the obligation to deliver an average of seven-and-a half million acre-feet every 10 years, 75 million feet over a decade, at Lee Ferry.

So, that might, under certain circumstances in terms of supply, cut into the seven-and-a half million feet that the Upper Basin may have.

What we'd -- I want to make it plain that there is nothing that the Court should do here as a matter of law or should necessarily decide as a matter of implication that would constitute a precedent the future, cutting into the Upper Basin's seven-and-a half million acre-feet subject to its Article III (d) obligation.

Now, whether the Upper Basin can ever use seven-and-a half million acre-feet is a question of fact which has been discussed on.

There are some people who think they're inherent physical limitation.

I don't urge them.

I'm simply stating the reason for the references to that.

We take it, that they're to have their seven-and-a half million acre-feet subject to the obligation to send 75 million down every 10 years.

Within the Lower Basin, with decisive fact in our judgment, is that the United States built Hoover Dam and the incidental work, thereby, making the Colorado River manageable and greatly increasing the supplies of usable water.

Project Act, as we see it, is concerned with the disposition of those impounded waters, with the disposition of the waters of the mainstream flowing down from Lee Ferry and with the tributaries flowing into Lake Mead above Hoover Dam.

Justice William O. Douglas: On this part, you agree then with the position of Arizona as distinguished from the position of California?

Mr. Burr Sutter: No, I think I would state it the other way around.

We think that the Master erred in invalidating the provisions of the Secretary's contracts which say that, out of Arizona's share of the water covered by the contract, 2.8 million acre-feet, there is to be deducted anything Arizona takes out above Lake Mead.

We think mainstream means mainstream all the way down the river and not -- I'll have the maps changed at lunch, and not depart that Mr. Ely said -- quite properly said.

The Master had truncated above Lake Mead itself.

So, on that part, we disagree with the Master.

Arizona agrees with the Master and, I take it, that California thinks it was a silly division, although the conclusions it draws are somewhat different than ours.

Justice Hugo L. Black: Pardon me, Mr. Sutter, I don't want to delay you but you made one suggestion there that Ariz -- that the Upper Basin would not be disturbed so long as it sends down seven-and-a half million feet.

Does that mean that we have to decide here or that we could decide so it provide in the Upper Basin?

They're required to send 7,500,000 feet, although they do not yet use that much in the Upper Basin.

Mr. Burr Sutter: I don't -- I don't think -- I didn't do anymore -- mean to do anymore than state what I understood to be an accepted meaning of the Compact.

If there is any doubt about that, then I think it should not be adjudicated here and it could not be properly adjudicated here.

I didn't want to simply say seven-and-a half million acre-feet because there is this Article III (d) obligation, whatever it may mean, but I don't think its meaning has to be adjudicated or should be really it's required and what's really required to reason about it in this case.

Certainly, not reason about it in a sense of deciding.

One may wish, as Justice Frankfurter suggested, to consider the relationship.

He has to consider the relationship of the Compact with the statute, but I don't think he has to reach any conclusion about the meaning of the Compact.

We also think, like the Master, that the Project Act supplies the guidelines for an apportionment of the waters impounded behind Boulder Dam and that it authorizes the Secretary of the Interior to implement that statutory plan.

It states, you'll recall, that there should be no rights in any water impounded except by contract with the Secretary of the Interior.

It then states that present perfected rights are all to be protected and, in our view, this established cutoff point, to use Justice Black's expression of a few days ago, at 1928 and said rights that were vested before 1928 are to be protected.

As to the rest, we're going to have a new start in accordance with the scheme envisaged by this statute.

Section 4 in the California Limitation Act in effect, also they used the words "limit," gave California 4.6 million acre -- 4.4 million acre-feet out of the waters of the Colorado River, 4.6 out of the first 7.5 and then one-half of any waters in the Colorado River in addition to the 7.5.

Nature, itself, pretty well supplied the rest of the apportionment.

Everyone agreed, at that time, that Nevada needed only 300,000 acre-feet.

It could use only 300,000 acre-feet, and even Nevada's higher estimate didn't go much over 400,000 acre-feet at the trial.

The suggested Compact in the second paragraph of Section 4 (a), we think, gave further guidelines to the Secretary.

And then, rounding this out, in our view, the Secretary's Comp -- the Secretary's contracts within the guidelines laid down by the statute did make a final interstate apportionment of seven-and-a half million acre-feet 4.4 to California, 300,000 to Nevada, and 2.8 to Arizona.

Justice John M. Harlan: Could I ask you this question?

Does the United States agree with Arizona's position that there was a statutory allocation by virtue of the Project Act?

Mr. Burr Sutter: No, not quite.

I think the difference is this.

It seems to us that the Project Act left -- gave the Secretary sufficient guidelines so that there were limitations of what he could do but it also was left to him to move around a bit within the guidelines and to fill in the structure and flush out the bond by his contract, which we think he did by the contracts in evidence that I'll refer to later in detail.

Justice John M. Harlan: He could go a little under or little above.

Mr. Burr Sutter: He could go a little under or a little above --

Justice John M. Harlan: Subject to the Calif --

Mr. Burr Sutter: At least so far as Arizona and Nevada were concerned.

Justice John M. Harlan: But he was bound by the California Limitation Act.

Mr. Burr Sutter: I think he was bound -- he's clearly bound by the California Limitation Act, and I would emphasize that nature did a good deal of the rest of it for him.

Print this transcript Transcript:

Argument of Cox

Mr. Cox: -- the Court.

Before the recess, I had set forth a summary of our view on the first division of the case.

That view as I said is essentially the same as Arizona's and essentially the same as Nebraska, although there are differences in emphasis and differences on subsidiary points notably that they had served the waters above Lake Mead.

California's view at the --

Justice William O. Douglas: But you -- you go with Arizona in the -- as respects the water and the tributary?

Mr. Cox: We would say that the tributaries flowing in the Lake Mead should be treated the same way as the mainstream above Lake Mead.

Justice William O. Douglas: Yes.

But, below --

Mr. Cox: With the effect to the --

Justice William O. Douglas: -- below Lake Mead.

Mr. Cox: Below Lake Mead, we say that the Gila is Arizona's.

And the real substantial difference here when you come right down to it is that California wants to apportion the waters of the Colorado River plus the Gila, and Arizona wants to keep the Gila and the portion of the waters in the Colorado River.

Justice William O. Douglas: As far as I --

Mr. Cox: That's the hard one.

Justice William O. Douglas: As far as I said earlier --

Mr. Cox: I misunderstood and I was thinking of the upstream tributaries.

Justice William O. Douglas: You're more with Arizona than the --

Mr. Cox: Where -- with respect to the Gila, we're completely with Arizona and therefore, we're much more with Arizona in the whole Justice Douglas.

Justice William J. Brennan: But Mr. Solicitor, I gather in the stretch above Mead up to Lee Ferry.

Do you think the Secretary has contract powers to divert it --

Mr. Cox: Well I think he --

Justice William J. Brennan: -- before the water get to --

Mr. Cox: -- well, I think he has power to do two things.

We think he had power to say to Arizona, “We will give you 2,800,000 less your existing upstream uses” because we think he had power to give in the neighborhood of 2,800,000.

Second, we think he has the power to say, “If you do divert from saying the little Colorado that then I am going to give you less water out of Lake Mead.”

Justice William J. Brennan: Why would the same thing be true to him?

Mr. Cox: Because the Gila is not part of the supply that the Congress thought it was apportioned.

Justice William J. Brennan: Into the Lake?

Mr. Cox: In the Lake.

Justice William J. Brennan: Into the Lake, yeah.

Mr. Cox: Into the Lake, yes.

It was quite plainly, I think quite frankly that I think I can show this.

Justice William J. Brennan: Quite of what?

Mr. Cox: Quite plainly allocated to Arizona.

I think one could see this if he follows down the legislative history in the way I'm trying to emphasize that.

Justice William J. Brennan: Excuse me, I still don't think I'm clear about your position as to that Secretary's power of contract in respect to diversion before water gets to Lake Mead after this differ.

Mr. Cox: Well, we don't find it necessary to argue here or indeed to discuss whether the Secretary has power to contract out of water into Little Colorado River before it gets to closer to the dam.

I would assume that he has not, that his contracts relate to water coming out of Lake Mead.

But, I had -- so that I'll state the whole thing.

I say that he does have the power to say, “I'll give Arizonians 2,800,000 feet out of Lake Mead as long as you Arizonians do nothing to diminish the supply going into Lake Mead.”

I think he has a power to say that if you diminished it, I'm going to take that away from you.

Justice William J. Brennan: Or charge it against --

Mr. Cox: Charge it against you, that's the right description.

Yes.

Justice William J. Brennan: Thank you.

Justice Felix Frankfurter: (Inaudible) you prefer you give Gila's, Arizona of (Inaudible) tributaries part of the river on the basis of a different (Inaudible)

Mr. Cox: Yes, yes

Justice Felix Frankfurter: In other words that's the (Voice Overlap) --

Mr. Cox: And -- and partly on the basis of the language of Section 4 of the Project Act Your Honor, both, I have in mind particularly the second paragraph of Section 4 of the Project Act which I will -- I was really just trying to outline it now.

Justice Felix Frankfurter: Does your view (Inaudible) there is difference (Inaudible) of the significant with contrary to legislative history of the treatment so called (Inaudible)

Mr. Cox: A decisive difference between the Gila and what I call the upstream tributaries, yes?

It's decisive.

Justice Hugo L. Black: -- (Voice overlap) -- did I misunderstand Mr. Wilmer?

I thought you said that Arizona was not taking any effects on the upstream tributaries, (Inaudible)

Mr. Cox: Well, he said that there were some uses as our preference of all uses he said along the Little Colorado.

There are not -- they don't mount to verify.

Justice Hugo L. Black: Be above Lee Ferry?

Mr. Cox: That would be above -- that would be below Lee Ferry, between Lake Mead and Lee Ferry.

He said --

Justice Hugo L. Black: What does he said it then in the project?

Mr. Cox: Well --

Justice Hugo L. Black: I'm just wondering whether that (Voice Overlap) --

Mr. Cox: It's not.

It's the -- there isn't enough water to be worth flushing about really.

Justice Hugo L. Black: I thought they get the possibility rather than reality.

Mr. Cox: I think it's a possibility, a theoretical point that comes into the analysis rather than a practical difference in the use of water.

Justice Hugo L. Black: Do they have a permit to do this from the Federal Government if they want to take the water out of the -- above the Lake?

Mr. Cox: I don't think so.

No, no.

No.

Because not unless -- no is the answer period.

California's analysis as I understand it is that the Project Act is irrelevant to the interstate allocation of this water.

In all but one respect, they do conceive that Section 4 puts a limitation on the amount of water that California can have.

They say that the universe that Project Act apportions is all the water in the basin, the mainstream plus the Gila to put in pragmatic terms, and that they are entitled to 7.5 million plus one half of the amount over 7.5 million of all the water in the basin so that we --

Justice John M. Harlan: 4.4?

Mr. Cox: Excuse me, 4.4 so that the -- did I say 4.5?

Justice John M. Harlan: You said 7.5.

Mr. Cox: I should have said 4.4 out of 7.5 plus one half of the remaining water in the basin where as we say the universe being apportion, is the Colorado River was and specifically excludes the Gila.

That Colorado -- California's apportion as I understand it, foreseeing its price saying that first what should estimate the total dependable supply of the amount, there on the basis of present guesses is not to be assured.

And that that water should be apportioned between Arizona and California on the basis of the priorities, the time of appropriation under western water law.

The water in the surplus, the excess over 7.5, there would also apportion of partly to -- to existing project.

I am not quite clear frankly whether California's position is the law of prior appropriation governs as to the apportionment of the excess over 7.5 or whether it does not.

I think the thesis, central thesis of their whole case is that the law of prior appropriation does govern as to the whole thing.

But this is the point which seems to me not to be clear on the briefs or oral arguments.

Justice William J. Brennan: Of California's based?

Mr. Cox: Yes.

Now, it maybe worth pointing out in practical terms just how the water would be divided under these two rival views, and I have taken in breaking it down the dependable supply as one assumption because that's what California asks us to make.

And the assumption that there is a total of 7,500,000 acre-feet in the mainstream, which is the assumption that Congress made.

Taking the 5,850,000 first, you would find that under California's view, California would get 4,400,000.

Arizona -- under California's proposal, they would get 4,400,000.

Arizona would get 3,400,000.

I'm sorry I'm lost by my own table.

I'm talking of -- I'm going to divide it, California proposal and Master's report.

California out of the assumed dependable supply would get 4,400,000 their proposal and 3,000,000 for on the Master's report.

Nevada out of the same assumed dependable supply would get 120,000 on the California theory and 234,000 on the Master's report.

Arizona's, out of the total supply of 5,800,000 roughly would get 1,100,000 on the California theory and 2,100,000 on the Master's report.

So there's a difference of something over 1,000,000 acre-feet between Arizona and California and that assumption of the flow of the stream.

Now, if you assume as Congress did in 1927 and 1928 that there would be 7,500,000 acre-feet a year.

It works out this way.California on its proposal would get 5,400,000.

On the Master's report, it would get 4,400,000, again, about 1,000,000 acre-feet of water.

Nevada on the California proposal would get 300,000 in either event.

Arizona would get 1.8 under the California theory and 2.8 under the Master's report.

So, there's about 1,000,000 acre-feet of water difference in the two --

Justice Charles E. Whittaker: Why would California?

Mr. Cox: Oh California gets 5,400,000 because they get 4,400,000 plus half of the --

Justice Potter Stewart: 2,000,000 (Voice overlap).

Mr. Cox: That's right.

And to calculate what it would be --

Justice Potter Stewart: I see.

Mr. Cox: -- on the whole if there is 7.5 in the mainstream, I took California's assumption that it was 2,000,000 in the Gila.

Justice Potter Stewart: Right.

Mr. Cox: I should say that is an assumption.

It depends on contested issues with respect to measurement, a very sharply contested issues that Master's report was rejecting, but it seemed -- one have to take some figure and it seem as well take this one.

Justice Potter Stewart: It's 2,000,000 in the Gila plus the Bill Williams River.

Mr. Cox: Yes, which isn't worth -- really isn't much worth wearing on that.In fact I assumed 2,000,000 in the rest of the basin, not just for Gila.

In choosing between these two basic approaches throughout plus the number of subsidiary issues, but the central ones, the ones which I should try to focus on concerned first the definition of the universe that is being divided here whether it is all the water in the basin as California said or whether it is the mainstream including some of the upper tributaries as we say along with the Arizona and to some extent massive.

Then the second issue of course is how once the Universe has been decided shall claims against it the rank in order of priority according to the law of prior appropriation as California says or shall the available supply be distributed pro rata on the basis of the Project Act and the statute as the Master says, the Arizona content as we think is proper.

I would emphasize -- I think I said this before, but I would like to emphasize that it does not seem to me here necessary to reach any final decision on the meaning of the Compact.

It is relevant.

There are possible meanings to the Compact that one surely has to take into account.

But on our view of the case and on the Master's view of the case, there's no necessity for reaching any final judgment on any question concerning the meaning of the Compact because we think regardless in which way those questions are decided, the result should be the one the Master recommends, something to my mind are difference.

I would also like to point out now if I may a little more detail.

The questions that arise if the basic theory of the Master is accepted because there are a number of them, maybe helpful at least to have them in mind as we examine that theory in more detail.

Justice Hugo L. Black: Do you mean by basic theory, the -- it is the interpretation of the Project Act?

Mr. Cox: I do.

His -- his basic interpretation.

The reason I used basic theories because the first of the questions that arises even if the Court contempt its basic theory is whether he was right in -- in validating the clauses that pertain to the upper tributaries and the mainstream above Lake Mead.

Of course, we say that it was wrong.

A second question is whether Nevada users require additional contracts with the Secretary of the Interior or whether the contract intended to the Master's report is a sufficient contract to give them the right to use the water.

But we think that further contracts with users in addition to the bear allocation to the state is required.

There is a problem which was mentioned --

Justice Felix Frankfurter: Well, the thing required to be -- that's (Voice Overlap) --

Mr. Cox: Required before they have any right to the one.

Justice Felix Frankfurter: That's their duty to -- if the motion on the Secretary --

Mr. Cox: The Secretary must contract --

Justice Felix Frankfurter: -- (Voice Overlap) not that he may -- the power but he must.

Mr. Cox: But he has power to choose with whom may will contract.

That's the important thing.

Justice Felix Frankfurter: But the power can give it (Inaudible)

Mr. Cox: Not unless the State is going to be a user in gross in this -- yes.

We're saying he is confined to contracting with users.

Another question which is of no importance in this case but therefore I should ask the Court --

Justice Felix Frankfurter: (Inaudible) the State may choose to be to consider (Inaudible)

Mr. Cox: We would say --

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: We would say that the Act does not contemplate that, that the Act contemplates the actual man who applies the water is to have a contract with the Secretary.

The Master -- another subsidiary question concerns priorities intrastate.

The Master indicated in his report and in his decree the goals were to be determined according to state law.

We think that that was a wrong and unnecessary determination on his part.

I shall argue particularly that it was unnecessary and that the issue is not right for determination now that simply that the decree should say nothing on one way or the other about question of intrastate priorities.

Justice Felix Frankfurter: What -- couldn't you tell us why?

Mr. Cox: Oh yes.

I was just trying to put this in focus.

I may be complicating it by listing so many.

But then of course, there is the further question concerning the meaning of present perfected rights in which there's an issue and finally, there is the big question concerning Indian Reservation.

Now, what further preliminary point?

I do think it's important to suggest to the Court the difference that in the disposition of the case at this stage, it would do well to focus on upon whether to accept or reject the essential thesis of the Master's report that if it determines to accept it, then some of these other questions may be appropriately decided.

But then if it rejects the essential thesis, the basic thesis of the Master's report, that it would be unwise to attempt on the basis of these briefs and this oral argument to determine any of the remaining questions because there are large number of questions.

Now, I would just like to indicate their nature which were exceedingly complex of which have been assumed for the purpose into the present argument by a number of us, which don't matter very much in determining the sound as to the essential thesis of the Master's report, but which have not been adequately kept.

Justice Felix Frankfurter: Combining essential use (Inaudible) regarding the dependant grounds of the distance of the 1,000,000 acre-feet.

Mr. Cox: Yes.

The two points, the meeting of the limitation -- what the Universe being decided is -- and whether there are to be priorities or ratable apportion.

If you reject the notion that his definition of the universe or if you reject his notion of a ratable reduction at the event of shortage, then there are such a hostile questions that I suggest to the Court that it would be unwise to attempt to determine them on the present briefs which it --

Justice Felix Frankfurter: Do you think that if you reject the first (Inaudible)

Mr. Cox: I think it would.

I think I do indeed.

Justice Felix Frankfurter: So what's about the two, first one is enough.

Mr. Cox: I think -- I think it really either of them, certainly the first one.

Justice Felix Frankfurter: Yes.

Mr. Cox: For example, if you reject either branch of the main thesis, then there comes the question, should there be an estimate, a finding on the dependable mainstream supply?

And if so, what is it?

That is something on which as of now there is no finding.

There's no question (Inaudible).

If you reject his essential thesis, there is a major issue as to what becomes of what we call the Article III (b) (1), the 1,000,000 acre-feet allocated to the Lower Basin and in addition to the 7,500,000.

There's no dispute about that so long as the Master's recommendations prevail.

But if I understand the history of this case is extreme dispute about it then I can see many grounds of dispute if that is rejected.

Again, if Arizona is to be charged for the use of the water on the Gila River, it becomes a question as to how you measure those uses, a question that has been very hotly argued at times in the past.

Do you measure them by beneficial uses along the stream or do you measure them by the amount that those uses reduce what flows in to the mainstream of the Colorado River?

You get very different answers according to your method of measurement.

If just to mention one more, if there is to be a compact of apportionment, that is to say one must determine the meaning of Compact, there're two questions arise.

One is how do you charge evaporation loses in Lake Mead?

Maybe they should be charged against beneficial use.

Many of my associates think they should.

That's not important in the present posture.

Again, if you are going to determine the meaning of the Compact because that determines the meaning of the Project Act, I would think the Court after this closer study of the case by -- well, I wish to determine whether the Upper Basin States didn't have to be heard.

So that all I'm trying to do is to indicate that there is a great deal of this isolated theory theory and it shouldn't be assumed that it's all been canvassed here.

Justice John M. Harlan: With that respect, you're in an agreement with Mr. Wilmer's position in colloquy in the Court yesterday?

Mr. Cox: Substantially.

I hesitate a little bit be candid because I am not quite certain whether there should simply be a further argument with briefs in this regard or re-argument or whether it should go back to the Master for further evidence.

Justice John M. Harlan: Your view being the latter?

Mr. Cox: With some hesitance.

Mr. Wilmer is being clearly that it should go back.

I don't feel quite so sure.

I have one reason to be candid.

I -- if I were the Master that had worked this hard and adapted this certain theory then it was sent back to me and I had told the theories are all wrong, well it could be awfully hard for me to really put my back into it Justice Harlan the next time around that I don't mean to --

Justice John M. Harlan: And so you mean consideration.

Mr. Cox: Well, (Inaudible) other and it certainly implies no reflections at times, had rifted it all.

I'm just stating the way I would react.

I don't know how he would react.

I come that (Voice overlap) --

Justice Felix Frankfurter: And that the lower court, the lower court that constantly confronts to invest water, lower court that constantly confronts (Inaudible)

Mr. Cox: Yes.

Justice Felix Frankfurter: After the (Inaudible)

Mr. Cox: That's true.

Justice Felix Frankfurter: And beside, wouldn't you mind define the orthodoxies (Inaudible)

Mr. Cox: Well, there are certainly some things on which further evidence would have to be taken.

And I guess that while I perhaps taken more time and I should to express my hesitance as to whether it wouldn't be well to have a further re-argument.

I suppose I come out the same way as Mr. Wilmer here.

First, if we go to the tributary, their upstream Indian reservations as their rights, we would contend it should be adjudicated and the Master did not ask the States to put in all their evidence of those questions.

So clearly, they couldn't be adjudicated without that evidence being put in.

The mainstream controversy, it seems to us that the dominant fact is that it was the vast expenditures of the Unites States for the Hoover Dam and the related works which tend to Colorado River that made so much of its waters subject to beneficial use, irrigation along the Colorado dates back to very early Indian times.

But until the building of Boulder Dam, virtually all of those projects where occurs first by flood and then by drought.

For example, there were occasions where the Palo Verde, one of the first (Inaudible) here the middle of the lower river and the Colorado Indian Reservation Irrigation work just had to be suspended because of the flood.

Downstream at the Imperial Valley, there were even more spectacular droughts, not only where the shortages in some seasons but there were at least two occasions where as a results of their diversion work, the Colorado River changed its course and began at empty into Salt Sea.

And indeed, one can say that if it had not been for the taming of the river by the Federal Government that it might well be emptying into the Salt Sea today and the Imperial Valley would not be as prosperous and luxurious as it is.

The major step in the development of the Project, the Project Act was the Fall-Davis Report in the early 1920s.

I mentioned it because it expressed the conclusion that everyone concerned, subscribed too, that the problems of the Colorado River were in such magnitude as to be beyond the reach of other than a national solution.

And after the report recommended, the building of a dam either at Boulder Canyon or at Black Canyon which is just a little way up stream and also and further canal down here so that it would run entirely within the United States and the Imperial Valley uses would not be subject to recurring difficulties with the Mexican Government.

Justice John M. Harlan: Would you mind indicating roughly where Black Canyon is.

I can't find it on the map that I'm seeing this (Inaudible) so far.

Mr. Cox: Well I have -- I separate it from the term (Inaudible) but I have told that it's just further up above Boulder Canyon and I think it would be between Boulder Canyon and Bridge Canyon.

I have wondered at times whether they aren't -- Black and Boulder aren't two dams for the same plates.

Justice John M. Harlan: So I was wondering.

Mr. Cox: But if they are separated, it's just a little further upstream and it's not as far up as Bridge Canyon.

Although there was agreement by the mid-20s on -- pretty much agreement on the physical aspects of the project, they were very considerable political problems which have been described the Upper Basin, was afraid that the Lower Basin would develop first and rather then open the door to federal expenditures for Lower Basin development, they wanted to have something set aside for them.

Arizona was afraid that California would develop first therefore, she wanted to be protected before she would vote in the support of this project.

Eventually, the political difficulties were resolved by the Colorado River Compact and the enactment in 1928 of the Project Act.

And when then had constructed this very elaborate and expensive federal work is not only starting at the top of the river, in the Hoover Dam and the Lake Mead area that when -- then comes down to Davis Dam, Parker Dam, Palo Verde which the Irrigation District paid for and finally the Imperial Dam.

So this is a succession of works all along the river.

And they are -- I suggest in a very real sentence, the works which control and make manageable and therefore useable these waters.

California talks a great deal about their appropriations of the waters of the Colorado River.

I think two things should be emphasized.

In the first place that the water actually being put to use in 1928 and this is a rough estimate but it shows the proper order of magnitude, was only 3.2 million but what she talks about today as existing project it's not water that is being used today, the water that California hopes to use through those projects.

The Metropolitan Water District in 1928 was a gleam in somebody's eye.

They've spent some money on engineering.

It was a big thing.

But there had been no physical works construct to take the water out of the Colorado River.

And indeed if the Federal Government had not come along with this project, I think it's fair to say that this simply would have been no opportunity to divert water for Metropolitan, Los Angeles.

Under these circumstances, I think it's unnecessary to argue that the United States had the constitutional power to allocate the waters impounded and controlled by this federal works.

The point seems to me to be established by the Ivanhoe Irrigation District case.

I understand it not to be contested on the basis of what was said here on the oral argument and I don't plan that (Inaudible) Indians.

The question becomes whether the United States Congress did make an allocation of the waters of the Colorado River as controlled by Hoover Dam and the related work.

And that takes us to a more detailed examination of the Project Act for the purpose of saying whether the allocation was made.

The core of the act I find in Sections 1, 5 and 6, and I shall refer and talk into the act to the print in the back of the Master's report.

That's in sets one that we can all conveniently put our hands on.

The exact words of Section 1 are not important.

It simply authorizes the Secretary of the Interior to construct, operate and maintain the Hoover Dam and the All-American Canal down at the lower end of the river.

Section 6 of page 387 provides how the dam at reservoirs will be used.

The dam and reservoir provided for by Section 1 shall be used first for river regulation, improvement and navigation and flood control, second for irrigation and domestic uses and satisfaction of present perfected rights pursuant from Article 8 of the Colorado River Compact and third for power.

You will note that it emphasizes federal ownership and operation and that it cause for the both protection of present perfected rights.

A perfected right is one which has vested in the sense that the owner of the right, claimant to the right has not only claimed to one but he has done the work necessary to bring the water to his land and to apply it to his land.

And it's not a perfected right until he has actually made beneficial use of the water.

Justice Potter Stewart: Now, this is a matter of definition (Voice Overlap) --

Mr. Cox: This is a matter of definition which as I understand it --

Justice Potter Stewart: Is not --

Mr. Cox: -- is not disputed by anyone, certainly as the Master's definition.

And then I --

Justice William O. Douglas: And the rep -- and the standard would be state law.

Mr. Cox: The standard would be for that state law I think, yes.

It was a term that – it was a work of art which I think have no different definition anywhere.

So that when I said it would be state law it was – it would be the general law.

I didn't mean to indicate that one must refer to state law to determine whether it had been perfected.

Justice William O. Douglas: Well, is there any other ways since the 1907 in the Western States determining water rights and reference to state law?

Mr. Cox: Well, I should think that Congress could use words that were familiar in -- in water law with a federal meaning.

Justice William O. Douglas: Well, that's a theoretical intervention.

I'm saying is there in the body that law -- since 1907, is there any body of law that does not refer to state law to define water rights in the Western States?

Mr. Cox: Well, I think there are certainly some rules with respect to water rights laid down by the federal statutes.

It was the case for example dealing with the 4860 acre lot, the Ivanhoe case.

Justice William O. Douglas: That's a – in terms of quantity, what -- how much may be -- (Voice overlap) --

Mr. Cox: If it didn't lay down to federal rules --

Justice William O. Douglas: But the mechanism -- is the mechanism provided by the state law for protecting a right.

Mr. Cox: Well I think --

Justice William O. Douglas: I don't know how important this is but --

Mr. Cox: It does seem to me that it is important.

I think the reason I --

Justice William O. Douglas: Just so to want me --

Mr. Cox: (Voice overlap) -- there are some questions with respect to state law that I will come into later.

I don't think there's any controversy about whether you look to federal law or give a federal substantive meaning to the term perfected rights.

Justice Felix Frankfurter: But if you look at the state law, there might be a difference in view that it is important (Inaudible)

That, I don't know.

Mr. Cox: It could be.

The Master reserves the problem of what qualified as present perfected rights.

He gave his definition and said a perfected rights, that think this is true at every State is one where the water has been applied to the actual use on the land.

And he said that a present perfected right is one which has been perfected as of the time that the act speaks because that's the only thing that it could add.

It meant a right that presently been perfected in 1928.

Justice William J. Brennan: Which is the (Voice Overlap) actually was being taken.

(Inaudible)

Mr. Cox: To the extent that it was being beneficially used, yes.

Justice John M. Harlan: I understood Mr. Ely draw a distinction between perfected rights under the contract and prior appropriated rights under California law.

Mr. Cox: Oh yes, yes.

Justice John M. Harlan: So that --

Mr. Cox: For example, Mr. Ely and I think is 00 the part could be illustrated with reference to Metropolitan Water District.

Justice John M. Harlan: Yes.

Mr. Cox: Mr. Ely would say that the Metropolitan Water District had a prior appropriated right going back to the time they filed a claim of some time in the mid20's for the water and began to a do some engineering and then gradually built project.

And under California law hence under the law I think of all the Western States you get -- what you do complete -- if you do complete the project and deprive the water, it relates back the concept of present perfected rights as the Master defined it would exclude those for every use of the water came after 1928, and would say that it covered only those which have been perfected by the use of water before 1928.

That's why I say that 1928 is cut off.

Justice William O. Douglas: But that construction might in fact change state law of governing water rights.

I'm sure it was in the State of Washington.

I don't know about California.

Mr. Cox: Well, it would mean that certain rights were not respected, were not given priority for the purposes of this Act in accordance with the state law of water act.

Yes, because this Act lays down a federal rule with respect to present perfected right.

It doesn't say go and look to --

Justice John M. Harlan: Well, (Voice Overlap) is up on a question as to whether that's the exclusive case.

Mr. Cox: Oh yes.

Oh yes.

Justice John M. Harlan: Or it doesn't foreclose the argument, there's no allocation here, federal allocation.

Mr. Cox: Not at all.

I think it bears on it all -- really all I was trying to suggest was that Section 6 contains some guidance.

It does a partial job of the allocation.

It says that you are to honor a present perfected right, that's one of the first things.

And I may say that the legislative history cited in our brief quoting to Congressman Douglas from Arizona and Congressman Colton seems to me that it makes it very clear that not only this sentence in Section 6 but the critical sentences in Section 5 which right now as the Court to turn do contemplate an allocation through, “The Secretary of the Interior.

On the first sentence of Section 5, on page 384, the Secretary of the Interior is hereby authorized, under such general regulations as he may prescribe, to contract for the storage of water in said reservoir and for the delivery thereof at such points on the river and on said canal as may be agreed upon.”

Running on down, “Contracts respecting water for irrigation and domestic uses shall be for permanent service and shall conform to paragraph (a) of Section 4 of this Act.

No person shall have or be entitled to have the use for any purpose of the water stored aforesaid except by contract made as herein provided.”

This seems to us to be the clear as to indication that henceforth right charges stem to have contracts with the Secretary but the Secretary is to determine what uses shall get those contracts.

Justice John M. Harlan: Are you going to deal with the legislative history of how that clause got into the Act?

Mr. Cox: It got into the –-

Justice John M. Harlan: (Voice Overlap)

Mr. Cox: Yes, I come to it a little later.

The previous sentence which I slid over a little shall perform to paragraph (a) of Section 4 of this Act, we think it could use the Secretary still further instructions because it tells him that he is to make his contracts within the arrangement visage by Section 4.

And we think Section 4 is really the key to the scheme visage by the Project Act reading it in conjunction with the provisions that I sought to emphasize out of Section 5.

I should emphasize I think that Section 4 in its interpretation which I'm currently now in some detail is important for three reasons.

It's important first because I say I think it is the key to what the Master thought and we thought was the scheme of federal apportionment.

Its interpretation is important for second reason because whether one rejects that view or accepts it.

Section 4 imposes a limitation on our friends from California.

It's important for a third reason.

It's part of the Secretary's instruction, therefore a part of the limitations on his power and we must of course show that his contract conform to those constructions so that this in essence is the heart of this part of the case.

Now, the issue with respect to Section 4 as I understand it turns essentially a part with meaning of words found on page 382 down in the last quarter of the page.

The earlier part says that the actual not take effect until the Colorado River Compact has been ratified or until California has accepted this limitation upon her rights that her users shall not exceed 4,400,000 acre-feet, waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact plus not more than one-half of any excess or surplus waters of the apportionment by said Compact.

The Master took the view as I have said before that this reads in terms of a universe of Colorado River waters that it does not include the tributaries below Lake Mead.

California takes the opposite view.

California imposes -- that we briefed, of course, with the best.

California imposes the issue in a way which it seems to me to be false.

California says, “Do these keywords waters apportions of the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact referred to Article III (a) of the Colorado River Compact.

Well, of course they do.

I don't dispute that.

I don't think the Master really disputes that.

The Master as I understand it was saying essentially this, “Congress are questionably referred to Article III (a) of the Colorado River Compact.

It did this supposing that Article III (a) apportion to the Lower Basin 7,500,000 acre-feet out of all the waters in the mainstream.”

The Congress may have been wrong in that.

He, in fact -- the Master goes on and says, “The Congress was wrong in that, that the true meaning of the Compact is that Article III (a) apportions a universe or apportion 7,500,000 out of the universe of all the waters in the Lower Basin including the Gila.

But Congress was wrong” so the Master says, but that was the last Congress put a meaning which is quite clear from the legislative history and for the words of the Project Act on the Compact and we must did interpreting the Project Act, give effect to what Congress thought it meant rather than what we now in our after the event wisdom may concluded that it means.

And I think what can put the issue fairly so sickly by saying that the question is whether Section 4 (a) of the Project Act to these critical words should be read to incorporate the meaning of the Compact had which Congress suppose it had.

Now, as a matter of fact -- which is had -- I mean which suppose the Compact had.

As the matter of fact, Arizona read -- argues that Congress's assumption as the meaning of the Compact was correct.

And if you were to delve into that, I think you would conclude that there was a good deal to be said for that view.

If Arizona is right in its meaning about Compact, then there is now a departure from the literal meeting of the Section 4 (a) of Project Act.

There's now departure from the proper meaning of the Compact and therefore knowing consistency in the words.

If the Master is right in saying, "Oh, that's not the meaning of the Compact" then of course we are not putting a literal interpretation.

Compact and we are not giving the quite of reference, the meaning which it truly has but rather the meaning which Congress opposed it to have.

Justice Potter Stewart: And you --

Mr. Cox: We say that it is not only -- not only unnecessary but would be inappropriate to determine here what is the proper meaning of the Compact.

Justice Potter Stewart: Well, I understood your brief, just disagree with Arizona's (Voice Overlap) --

Mr. Cox: I don't think we intended to disagree with Arizona with that.

We say even if Arizona is wrong about that, the Master's interpretation of the Project Act is still right.

Justice Potter Stewart: Yes.

Mr. Cox: And I take it, we therefore go to the point of saying that we are willing to have the Project Act construed on the assumption that Arizona is wrong and California is right about the Compact.

Really what I'm trying to suggest and all I'm trying to suggest is that the meaning of the Compact was not beyond debate and that therefore, there is nothing very cruel or -- about saying, “We're going to give it the meaning that Congress thought it had” and -- rather under that what we know -- think is the actual meaning.

Now, I would like to turn to the implications both in the statute and in the legislative history, which indicate that Congress refer to the Compact supposing that if apportioned that, therefore as way of apportioning but I call loosely the mainstream water, the mainstream and the waters in the upper tributaries above Lake Mead.

I found the first indication of that in the Project Act itself as the Master said.

It seems to me that there are three -- well, it seems to me that once you doubt first that no one spouses here a completely literal meaning of all the documents.

For example, California while it contents for a literal meaning of the Compact and a literal reading of the words 4,400,000 acre-feet of the waters apportioned to the Lower Basin States by Article -- by paragraph A of Article III of the Compact says, “We should read those literally and should read the Compact literally.”

When it comes to the phrase not more than one half of any excess or surplus waters unapportioned by a said compact, it doesn't want to read the Compact literally because the only time that unapportioned by the Compact comes in to the Compact is it one of the closing articles where it says it preserves those waters for later apportionment after 1963.

At the 3b water cannot be called, we think water unapportioned by the Compact if one is govern by the literal work.

Now, Arizona is not willing to have a literal meaning put on the Compact and have it been literally incorporated into the Project Act neither as the Master and neither as we, and neither are we.

So that all of us agreed that what cannot resolve is by an absolutely literal meaning that some construction is necessary.

And I don't think anyone advances the case where I thought by saying, "Oh well, you are trying to go behind the words, what has to go behind the words?"

Now, the second thing which I would emphasize about the Project Act itself is that the second paragraph of Section 4 contains three strong indications that the Master is correct in his reading of the first paragraph.

Subdivision 1 of the second paragraph, “The states of Arizona, California, and Nevada are authorized to enter into an agreement which shall provide water.

That those 7,500,000 acre-feet, annually apportioned to the Lower Basin by paragraph A of Article III of the Colorado River Compact.”

Now, there you see, Congress indicated quite plainly that it sought that paragraph A of Article III of the Colorado River Compact was at apportionment of 7,500,000 acre-feet, which was not present -- or which is not mentioned in the first paragraph.

And the two paragraphs are quite plainly belong together as opposite have of the same apple or opposite has at the torn piece paper and indeed if the edges on one piece of paper have been sculpt and rumpled and obliterated, I think you could find the meaning, find their true shape by lucky get the other half of seeing how they fit together because this obviously were meant to fit together.

The second indication that is important is that enclosed to, the second paragraph of Section 4 (a) says that the State of Arizona may annually use one-half of the excess or surplus waters of apportion by the Colorado River Compact.

Well now, currently says given the half to California, half to Arizona.

If Congress has in mind all the waters in the Lower Basin, it's authorized these three states to take all of them, excluding the New Mexico, Utah and gives that nothing at all which is something which would seem most extra ordinary.

Furthermore, if that were the meaning, Congress is undertaking to divide between these two states without qualification.

The water had switched the Compact it selves speaks off as subject to further apportion that measure.

On the other hand, if you read the whole thing on the Colorado River water excluding the Gila then this speaks in terms of the States that had accessed to the river water and of course leaves the tributaries out and the rights of New Mexico and Utah are not impaired.

Third, the third subdivision that the State of Arizona shall have the exclusive beneficial consumptive use of the Gila River and its tributaries within the boundaries of said States.

It seems to me that nothing further is required to be said to show that this obviously gives the Gila to Arizona in addition to the waters apportioned as 7,500,000 acre-feet, add one half of the excess or surplus.

Now, California says that they have seen this.

Well, this is just a specification that Arizona is to be able to take her share out of the Gila that out of Arizona's 2,800,000 apportioned by the earlier subdivisions.

She used to have the right to take it out of the Gila.

But what they normally looked back to say that there was no need to make any declaration to that effect.

California can't take water out of the Gila and Nevada certainly can't take water out of the Gila.

Furthermore, as you read this second paragraph through, I think it will become quite clear that each of this is an addition to the previous subdivision that there should be this one addition which is a sub-specification of the meaning of an earlier subdivision, just as not in keeping with the general scheme of gratitude.

California has a broader argument as I understand it.

She says in her brief, I think I'm stating it accurately that well paragraphs one and paragraph two of Section 4 (a) were alternatives, it was never thought that they would both take effect at the same time.

The paragraph 2 contemplates tri-state compact, if you've got the tri-state compact, there would be no problem about getting ratification of the Colorado River Compact.

And therefore, there would be no reason for the Limitation Act ever to come into play.

I think that there are several complete answers to that.

The first one is that the first paragraph of Section 4 (a) requires ratification of the Compact within six months and says that the California must adopt their Limitation Act unless the Compact is ratified within six months.

There is no such time limitation of the second paragraph of Section 4 (a).

In other words, if six months runs, California must enact its Limitation Act.

There still would be an opportunity for a tri-state compact under the second paragraph.

Now, there's an indication in Section 8 (b) which I think makes it fairly clear that the Congress did visualize that the tri-state compact might be negotiated after the Project Act had taken in effect.

And that would mean had almost surely had taken effect pursuant to California's adopting a Limitation Act.

Section 8 (b) contains further instructions about the way the United States is to manage the river.

And it instructs the United States down at the very bottom of the page, the last word of the third from the last line.

Shall observe and be subject to and control anything contrary not withstanding, by the terms of such compact if any between the States of Arizona, California and Nevada, skipping some words which may be negotiated and approved by said States and to which congress shall give its consent on approval on or before January 1, 1929.

And the terms of any such compact concluded between said States and approved and consented to by the Congress after said date.

So, in that Section talking about something that would happen after January 1, 1929.

And then it says, provided that to the latter case, such compact shall be subject to all contracts if any made by the Secretary of the Interior under Section 5 Gila prior to the date of the approval and consent by Congress.

So there was, at least a possibility that the Secretary would make contracts under an effective Project Act before the tri-state compact became affected.

I may say this is also further evidence that Congress did contemplate the Secretary making an interstate allocation because it says that any later arrangement by the States as to what their allocations must be is to be subject to the contract he has already made, which certainly speaks in terms of a Secretary of interstate allocations.

Then the third reason for assuming that these were concluding, that these two paragraphs of Section 4 (a) go together is in the legislative history because I shall saw in a moment all the way through to the last page, the paragraphs where in terms of the conjunctive and the chains that was made to make the second paragraph permissive.

It was not in terms of its operating as an alternative to the first.

Our third reason for thinking that the statute does contemplate a federal apportionment is simply as a matter of commonsense, the commonsense logic to the situation.

Congress was concerned with water which the project would make available when the water that would come down for Lake Mead -- from the Lake Mead.

And what would be more natural in the event of despite between the State than for Congress to indicate how the water was to be allocated and to authorize its delegate to fill in the gaps that it left.

Indeed, I find out --

Justice William O. Douglas: That would be true -- I suppose the first federal then -- the reclamation then, when was it 1997?

That would be true of any federal dams, that argument, wouldn't it?

Mr. Cox: Well, as I understand it, under most of this project --

Justice William O. Douglas: The law has been quietly opposite as you know.

Mr. Cox: The Secretary has frequently decided with whom he would contract.

I don't know any -- I don't know of any decision by this Court Justice Douglas that says the States determine with whom the Secretary shall make his contracts.

The Court has held at the Gerlach case that if rights are destroyed by the federal project rights under state law that they must be compensated.

But the court --

Justice William O. Douglas: The Secretary is not on this -- does not form a dispensing function under our decisions up-to-date, he sets to determine under state law who has the perfected right, who has priority, who has the -- and then he issues it at to them.

Mr. Cox: As I understand it, certainly therefore isn't what was done in the Gerlach case and I don't recall --

Justice William O. Douglas: It's at the Section 8 of the Reclamation Act.

Mr. Cox: Well, Section 8 of the Reclamation Act has been applied to the exact meaning has been a matter of some argument.

The farthest I know the court had gone was --

Justice William O. Douglas: The Ickes case, we have it up to --

Mr. Cox: The Ickes -- the Ickes case held that where the Secretary had started the project had made contract.

Justice William O. Douglas: This argument, same arguments was made in Nebraska, Wyoming.

Mr. Cox: But in those -- in that case as in the Ickes case.

The question that what the court held was that after the Secretary had started the project, after the Secretary had made appropriations, after he had let contracts with the users then, certain rights under state law vested but --

Justice William O. Douglas: I wonder Mr. Solicitor General why you didn't refer us to Section 14, Section 18 of the --

Mr. Cox: Well, simply that I hadn't reached that part in the sequence of my argument, I'm sorry.

I think that since I've been dealing with 4, if I might finish dealing with it --

Justice William O. Douglas: I'm sorry.

Mr. Cox: -- with its legislative history.

Justice William O. Douglas: In your own time.

Mr. Cox: And then I do, I assure you --

Justice William O. Douglas: Yes.

Mr. Cox: -- it tend to come to Sections 14 and 18 because they are, of course, an important part of California.

Justice William O. Douglas: Yes.

I thought you have reached that point.

Mr. Cox: I would like now to ask of course to turn if I will to a consideration of the legislative history.

It seems to me that the legislative history and I won't -- I'm trying not to repeat all the ground, which been covered.

But I do think that there are three conclusions that emerged up.

I want to state them now and then show how they develop because the important thing to me here is the lesson from the sequence of the legislative history and not simply reading various statements by the Senate.

The three things which I ask you to keep in mind, there're three of us running through it, what I think were assumptions of the basis of which everyone discussed this case.

I mean the statute in Congress.

The first was that the waters of the Gila River went to Arizona and that appears as an assumption all the way through, besides the sequence show.

Second, that what Congress -- that was being dealt within the Project Act and what was the subject matter of Section 4 in the Limitation Act was 7,500,000 acre-feet of water coming down the mainstream, deliberately just little but of vague because I think the Senators would just a little bit vague.

I said three things.

I was going to say dealing with the mainstream waters and an assumption that there was 7,500,000 acre-feet which was very clearly in their assumption all the way through.

The background of controversy was outlined and outlined very accurately as I see it by Mr. Wilmer.

The problem was to get some kind of assurance for the Upper Basin States that the Lower Basin States wouldn't appropriate all this water once Congress had made it usable in order to assure them since they anticipated that they would develop later that there would be some water left for it.

And the problem also from California's point of view since she would be the first in the Lower Basin of the use water was to find some way of getting Arizona to go along or to state converts Arizona either have to be satisfied sufficiently to go along or else there had to be some kind of a provision written into the Act whereby all the rest of the States were willing to say, "Well Arizona, you can go your own way, fight it out.

We are satisfied with this and we think this sufficiently protects the Upper Basin.”

Now, the history as I understand the evolution of problem goes back at least until 1925.

In that year, there were direct -- I'm using Arizona's legislative history, the fatter one.

In that year, there were direct negotiations between Arizona and California.

And I ask you first to look at the proposals made by California in 1925 which appear beginning at page 144 of the Arizona legislative history.

Justice Hugo L. Black: 44?

Mr. Cox: 144, 145, I'm going to begin on.

Article III (a), the States of California and Nevada hereby release to the State of Arizona any and all claims of every kind or nature to the use of the waters of the Gila River, Williams river, the Little Colorado and all their tributaries, so they said we put all refers for Arizona, the waters would be --

Justice Hugo L. Black: What are you reading from?

I'm very sorry that I --

Mr. Cox: Page 145 of the Arizona's legislative history.

Justice Hugo L. Black: 145?

Mr. Cox: Yes sir.

Justice Hugo L. Black: Yes, I see it.

It does go that far (Inaudible)

Mr. Cox: Below that the Article III, begins just about the middle of the page.

Justice Hugo L. Black: Yes, thank you.

Mr. Cox: What I was seeking to emphasize was that the first bit of the allocation gave Arizona the Gila.

Now, in return for that, California, the latter part of that paragraph, gets 1,095,000 acre-feet that to come out of the Colorado River.

Then Nevada was given her 300,000 acre-feet that nobody has ever thought about.

The Arizona was given 232,000 for her present perfected rights then California was given something over 2,000,000 for her present perfected right and the rest was divided equally.

Justice Hugo L. Black: May I ask you there?

I assume at that time, they were not thinking of present perfected rights according to the definition, the masticated year, was it?

Mr. Cox: Well, I think they used the word in the same sense.

I can't find any direct proof of this but.

Justice Hugo L. Black: I mean with reference to claim or with reference to existing projects.

Mr. Cox: No, I think they were using it with reference to existing beneficial users and not simply that claims based upon hopeful.

Because as I -- I can't claim be an expert in water level but as I read to the Kenny and the other books, giving through them, looking to get a sense of the used word.

I understand them to speak of the -- as it (Inaudible) rights until the water has been applied to Gila, throw the title dates back.

Once you applied it to use but if it's a perfected right, you've done everything necessary to perfect it.

Justice William J. Brennan: And they're actually using the water.

Mr. Cox: They're actually using the water.

Justice William J. Brennan: That's what makes it perfected --

Mr. Cox: That's what perfect --

Justice William J. Brennan: -- in Utah.

Mr. Cox: That's right.

And therefore, it isn't the perfected right unless waters has been put to you.

Now, what's Master have to answer that is that -- I take it was --

Justice William O. Douglas: You would surprise I assure you, lot of western right lawyers to that statement in terms of what it is the perfected water right.

Mr. Cox: You mean --

Justice William O. Douglas: I don't speak of California as I don't know or Arizona.

Mr. Cox: Well, I did bring with me this -- I certainly -- I could bring -- will bring in the morning a statement from Kenny saying that if perfected right is one where everything necessary to the right including the application of water to the land that has been accomplished.

I pretend to anything -- no ones beyond what I read in the books that is clearly an objection.

Justice John M. Harlan: This proposal of course looked towards a disposition of the Lower Basin water in terms of an interstate compact.

Mr. Cox: That's correct.

The points that I'm tying to make concerned are really two.

One is Gila went to Arizona.

Justice John M. Harlan: Yes.

Mr. Cox: Two, that they then and divided up to Colorado River, meaning the mainstream.

Now, let's look at Arizona's reply to them.

Justice Potter Stewart: Well, Arizona, how much did Arizona get in addition to the Gila?

Mr. Cox: Arizona got 232,000 and in addition, they got half of the Colorado River and to subtracting 300,000, 232,000, well after he subtracting the amounts allocated in California and --

Justice Potter Stewart: California did get the (Voice Overlap) --

Mr. Cox: They got a lot going, oh yeah.

Justice Potter Stewart: In other words, it could be argued that the dedication of the Gila to Arizona was a -- was a charged against but the Arizona were otherwise have gotten from the mainstreams.

If these --

Mr. Cox: Well I don't --

Justice Potter Stewart: -- these figures rather.

Mr. Cox: Well, it was thrown into the part with a sense in that stage.

On the other hand, I think you will see as we go through here that the debate, that the argument began to focus at the mainstream, and that the Gila was assumed to be what something what Arizona got all the time and leave.

They are now going to find about the division of something else.

Justice William J. Brennan: Well, after all, this was California and Nevada's proposal which --

Mr. Cox: Yes.

Justice William J. Brennan: -- which is not the Arizona's liking (Voice Overlap) --

Mr. Cox: No.

Now, we get with Arizona, we get with Arizona proposed that begins at 149 and you find it the critical words over 150.

Arizona proposed all the waters and tributaries if the Colorado River which flow into the river below Lee Fairy, or hereby allotted and appropriated exclusively in perpetuity to the States in which such tributaries are located, and this must specifically meant to the Gila went to Arizona.

Then they went on and gave about a 300,000 acre-feet and divided the waters, the mainstream waters 50/50, but I emphasize again that the -- there's no fight about the Gila.

The fight is about who gets what, out of the mainstream.

Then hey went to the conference because the so called Governor's conference which was described yesterday and we know for the legislative history that when they went there, the fight had narrowed to this point.

The California wanted 4,600,000 out of the river leaving 300,000 for Nevada and the rest, which at that State would have been 3,000,000, something 3,100,000 for Arizona.

Arizona -- and Arizona takes the Gila.

Arizona said, "No.

California should have only 4,200,000."

Justice William J. Brennan: This was in 1925?

Mr. Cox: This was a following.

Justice William J. Brennan: What page is that?

Mr. Cox: It was 27.

Justice William J. Brennan: 27.

Mr. Cox: In 1927, the Governors' conference made these recommendations that appear on 158 to 159.

And they divided it 300,000 to Nevada, 3,000,000 to Arizona, 4,000,000 to California.

And in addition, they made it perfectly clear that Arizona was to get the tributaries, and then they found out in paragraph 3 at the bottom of the page.

So that it is perfectly clear that in talking about the allocation at the Governors' conference.

They are talking about an allocation of water in the river and are in addition giving Arizona the Gila.

Justice William J. Brennan: What's the (Inaudible) the second paragraph?

Mr. Cox: The second paragraph has to do with a complicating, and I find complicated question.

Arizona was interested into two things.

She was interested in getting the used of the Gila as against the rivals in the United States.

She was also interested in having the Gila exempted for -- from any charge for getting water to Mexico.

As a practical matter you see, the Gila either has to be used in Arizona or used virtually in Mexico.

There maybe a little you can divert out, but it's pretty much one or the other.

And they want to -- they didn't want to have the Gila charge with water perfection.

And you will find that also in one of the subdivision of the second paragraph of Section 4.

But now, after the Governors' conference whereas I say there was apparently no dispute about tributaries that where attention was out focusing set -- was an allocating 7,500,000 other than the water at tributaries.

We turn to the situation in Congress.

In May 1928, there was a debate in the Senate on this subject.During the course of that debate, Senator Pittman introduced what really became after some changes, the substance of Section 4 (a) of the Project Act.

He said it was -- it's found at pages 24 and 25 of the Arizona legislative history.

He said, "This was based on the recommendations of the Governors' conference."

Except that in the interim, something has been discovered.

They discovered that they forgot about 1,000,000 acre-feet in the mainstream in addition to the 7,500,000.

And so he drew up a proposal which attempted to incorporate the Governor's recommendations plus an equal division of that additional 1,000,000 acre-feet.

And if you read, I will check to it now.

If you read his proposed amendment through, you will find two things about it.

First, you will find that it has the heart to these two paragraphs in Section 4 (a) and that they are plainly treated as being conjunctive as I say, opposite halves of the same full.

Because to the middle page --

Justice William O. Douglas: What page are you on now?

Mr. Cox: About 24 and 25.

In the middle of page 25, the start of the second paragraph as it then read said, "The said ratified act shall further provide."

In other words, it was going to be something in addition to what was done under the first paragraph.

And if you take the Pittman Amendment as a whole, there is just no way of reading it other than saying that it was talking about the mainstream that gave the Gila to Arizona, which I can't see any other way in briefly.

We come to the climax of the Senate debate in December, 1928.

There was a very revealing debate there at that time, and the Act was passed in that same session in the closing days of the year.

The parliamentary situation, there is a little impart.

There was bill before the Senate, which has been introduced by Senator Johnson of California.

It proposed to break this impasse by giving California 4,600,000 acre-feet.

I didn't say anything about Gila and so far as I can see, it didn't say anything very revealing one way or the other on the issue before us except that it used 4,600,000 acre-feet.

Then Senator Hayden introduced as amendment to the Johnson bill.

An amendment is exactly the words of this Pittman proposal.

It would have differed from the California proposal from the Johnson bill clearly and then it limited California to 4,200,00.

It would also seem to me but I'll take judicial argument if that clearly gave the Gila the tributaries of Arizona and we clearly come -- clearly concentrated at the mainstream.

The debate that -- debate will call it became one over the difference between California's claim to 4,600,000 plus one half of the surplus.

And Arizona's insistence that California should have over 4,200,000 plus one half of the surplus.

There was very little explicit mentioned of the fact but it seems plain that everyone at that time was talking about 7,500,000 acre-feet plus an uncertain surplus of mainstream one.

I say that's clear because of the two halves to the Hayden proposal if you read both halves, if you read one in the light of the other.

The Gila necessarily was not included.

I would say it furthermore because the light of the Governor's recommendations.

No one who was taking in terms of the apportionment of anything other than the mainstream could possibly have said as a number of them did in that State that the difference was oddly between 4,600,000 and 4,200,000.

Now, there were in fact expressions from all the Senators prominently engaged with the debate.

Let me say the word in fact expressions from this -- from the Senators most prominently engaged in the debate would seem to me to indicate that they all knew or assume that they were talking about mainstream one.

Senator Pittman is quoted on page 67 of the Arizona legislative history.

There is practically nothing involved except in dispute between the States of Arizona and California with regard to division of the increased water that will be impounded behind the proposed dam.

That is all.

Now skipping down to the end of the quotation of the 7,500,000 acre-feet of water let down that river they have gotten together within 400,000 acre-feet.

They've got to get together that not Congress should bring them together.

Senator Hayden repeatedly spoke of the amounts of water to be received from the Colorado River.

Senator Johnson himself -- I'm now reading from 70 (Inaudible) record at the page 237, spoke of what was the fight was about.

He said that the discussions relating to the use of water in California, in Denver and indeed here and elsewhere, it is the -- it is only the mainstreams that Your Honors will recall that has been discussed.

The tributaries of the Colorado River in Arizona have a flow of at least 3,500,000 acre-feet.

Arizona's claim in writing on some occasions that it runs 6,000,000.

So what it is proposed that California will take 4,200,000 acre-feet and Arizona at 3,000,000 acre-feet plus one half at each instance from the surplus water.

It means in reality that California shall be accorded 4,200,000 acre-feet plus one half of the surplus and then at least 6,500,000 acre-feet plus one half of the surplus shall go to Arizona.

So he had no doubt that he was representing California that they were talking about the mainstream.

And then he says, a little further down, “To divide the mainstream 4,600,000 acre-feet to California and 2,600,000 acre-feet to Arizona still gives Arizona more than 60% of the water from the Colorado River.”

He meant and tributaries there clearly or nearly two thirds there up.

So that -- I think this -- well, it's to 70 congressional record 237.

Justice Hugo L. Black: Who was that speaking?

Mr. Cox: This was Senator Johnson of California.

So we have expressions from Senator Pittman, Senator Hayden and Senator Johnson who are certainly three of the main figures of the debate.

Now, California quotes in her brief, a statement from Senator Phipps of Colorado saying, "Well, you've got to remember that Arizona gets the water to the Gila."

As I read that, he was saying that in deciding between 4,600,000 and 4,200,000, you've got to remember that Arizona is also getting the Gila.

That's what Senator Johnson was arguing that in addition to what we do here or as the Gila for Arizona.

Now at that this stage, there was a change in the parliamentary situation.

Do you remember I said it was the Johnson Bill, in which itself was a substitute for the pending house bill.

And then there had been the Hayden Amendment.

Senator Phipps then offered an amendment which was designed to give California 4,600,000 instead of the 4,200,000 which was proposed in the depending Hayden Amendment.

There could have been a vote or straight out on the Phipps Amendment as a matter of parliamentary law.

Well, the Senate decided not to do that because there were two differences according to Hayden Amendment and the Phipps Amendment.

One difference was in the amount of water specified in the California Limitation Act.

The other difference was that while the Hayden Amendment contemplated a seven State Compact but it would have still made the whole act in addition to Arizona's ratification.

The Phipps Amendment contemplated a six State Compact plus the California Limitation Act.

That Senator Hayden desired to have these two issues was voted on separately.

And so what they did was they'd agreed that Senator Hayden would withdraw his Amendment that the Phipps Amendment would be offered proposing 4,600,000 and a six State Compact.

And then Senator Hayden simply moved to strike out the 4,600,000 and substitute the 4,200,000.

Senator Phipps' motion lost.

Senator Bratton then proposed the 4,400,000 and that motion was carried and was certain perfected changes the Phipps Amendment became the first paragraph of Section 4 (a) of the Project Act.

Now, I repeat once more that the whole debate seems to me to focus especially when one remembers the prior historical incidence and the assumptions in the prior proposal that they were allocating the mainstream and the Gila would go to Arizona as indeed, remember it did clearly in the second paragraph of the Hayden Amendment.

But at that point, Senator Hayden now has left with the second paragraph of his Amendment hanging.

So he rose and moved that the second paragraph of his original Amendment be added to the Phipps Amendment which had already been adopted.

You will find the second paragraph which is much like -- which is identical with the second paragraph of the Pittman proposal and the original Hayden Amendment set forth on page 98 and 99 of the Arizona legislative history.

The part that I wish to emphasized is in his statement reprinted over on page 102 where he said, “The first part of my Amendment is a mere corollary to the Amendment offered by the Senator from Colorado.

It provides that the remainder of the 7,500,000 acre-feet there apportion to this -- there shall be apportioned to the State of Nevada of 300,000 acre-feet to the State of Arizona 2,800,000 acre-feet, which combined with the 4,400,000 which the State of California will use completely exhaust the 7,500,000 acre-feet apportioned in perpetuity to the Lower Basin.”

Now remember, he was describing the first part of an Amendment which in the third part gave Arizona the Gila in addition to all of this, as is the case in the third part of the second paragraph of 4 (a) statement.

So then it grew up opposition to Senator Hayden's proposal in only one respect that this goes to provide for Judge Stewart phrase later.

One of the subdivisions of Senator Hayden's proposal said that the Gila should be free from any burden with respect to the perspective of Mexican Treaty that Senator Johnson objected very vigorously to that.

He didn't object so far as I can find anywhere in the record to the recitation that Arizona was getting the Gila in addition to the apportionment made by the Phipps Amendment.

Indeed, the language of the debate indicates that he knew very well what had happened and that the only thing he was currently fighting about was the attempt to exempt the Gila from part of the burden of the Mexican treaty.

At 70 conversional record, beginning at page 466, what has a long debate to dial -- to find myself to his little (Inaudible) as I can between Senator Hayden and Senator Johnson about this proposal.

In the course of it, Mr. Johnson said, "What Arizona says that she has but 2,800,000 acre-feet of water."

That's what she just had been given by the Phipps Amendment.

“To that, there must be added the Gila River with its 3,000,000 and 3,500,000.”

That's very little.

“And then it will be found that Arizona has in reality two thirds of the water of the Colorado itself.”

Then he goes on to say, "If we should exempt as possibly we may -- should this Amendment be inducted, the Gila River from any burden or any servitude that might thereafter attached because of water to Mexico.”

We should then exempt from burying its just share to paraphrase.

And a little later, there is a -- in the colloquy between Mr. Hayden and Mr. Johnson.

Mr. Hayden said, “The Senate has settled it by a vote that California may have 4,400,000 acre-feet of that water.

It follows logically that if that demand is to be conceded as everybody agrees, the remainder is 2,800,000 acre-feet for Arizona.

That settles that part of the controversy.

Senator Johnson, “How much from the Gila?”

“Whatever is in it", Mr. Hayden replied."

That is ours anyhow.

It's yours anyhow?"

“Yes.”

“Then your Amendment is of no use?

If that is yours anyhow then you're already on your tributaries, what are you putting this in for?”

And the reply was that, “I'm putting in to except it from the Mexican treaty.”

There are two different problems here.

One is the allocation.One is the burden of treaty.

And when he said that's the burden of the treaty, Mr. Johnson said, “That's exactly what I objected.”

And then Mr. Johnson after bringing that out and saying he objected said, "Alright, I'll accept your figure of 3,500,000 for the Gila."

Now, in the division of Mr. Johnson, now, in the division of water with Senate sought it to impose yesterday, Arizona had 2,800,000 acre-feet and 3,500,000 from the Gila, did it not?”

“That is correct.”

Then Mr. Johnson goes on and said, "Then you wish to put on the California and Arizona equally the burden of the Mexican treaty" and says that's what he objects it.

So it seems --

Justice John M. Harlan: Is that (Inaudible) here?

Mr. Cox: I understand it's on page 119.

I couldn't find it.

Justice John M. Harlan: Well, some of it is but all --

Mr. Cox: Some of it -- I couldn't find it all there.

Justice John M. Harlan: We can have it citation.

Mr. Cox: Yes sir.

It's 70 Congressional record, beginning on page 466.

I was skipping over about three pages, 466 to 469 would cover it.

I may say incidentally that the full debate of this December session of the Senate is not terribly long and I found it myself more convenient to read it in here that -- while this is a very helpful job of excerpts, really isn't so long that one can't get the feel of it and going through the whole thing in reasonably short time.

The part that I was seeking was one further thought that I was wish to emphasize that in this debate, after Senator Hayden and Senator Johnson got at loggerheads about burden of the Mexican treaty, then Senator Pittman came in and said, "Well, I don't think it's right to impose a tri-state compact terms of which we have specified as a condition of this active Congress being effective.

Let's tell the States that they can enter into this Compact and we'll give them advance ratification.

But let's not impose it on all three of them the way we imposed the California Limitation Act on California."

And Senator Hayden agreed to that.

And they changed was then made, which you now find in the beginning of the second paragraph of Section 4 (a) which says the three States may enter into this treaty rather than they must.

But it would have been extraordinary at that stage having treated this as two parts of the same thing, all the way through to have jumped and made this permissive thing an alternative to the first paragraph, and then the discussion was certainly in terms of being two parts of the whole.

And I submit therefore that the meaning of one throws a great deal of light indeed if it is not controlling.

Justice Hugo L. Black: At the time of the discussion you've just read between Senator Johnson and Hayden that the Amendment then pending contained this provision, two and three with reference to reservations of the Gila River above here.

Mr. Cox: Yes sir, it did.

Justice Hugo L. Black: It did so.

Mr. Cox: It was in -- except for the first few words which in -- are you in the act today?

Justice Hugo L. Black: Yes in the act.

Mr. Cox: Well, it was the same as this, the same as the act Mr. Justice Black except at the very beginning what is now at the bottom of page 382 of the Master's report, where it said the States of Arizona, California and Nevada are authorized to enter into an agreement.

It said instead the ratifying act -- that the ratifying act is becoming affected should be conditioned upon they're entering into such an agreement.

Otherwise, it was the same.

Justice John M. Harlan: Do you think that the change over from a proposed requirement, a factual requirement of two States to a permissive requirement has any barring on the contractual sectoral allocation of area domestic?

Mr. Cox: Well, it would be hard to say that it is irrelevant and I think it led some comfort to the California argument that Congress apparently was not willing to go the whole way here and say to each of the three States, "You must take this."

And we do allocate this.

On the other hand, I think it is quite plain that Congress came very close to that so far as California was concerned, they didn't say, "You must take this."

They said, "Here is the apportionment we made.

If you want the project, you must take this."

And California enacted the Limitation Act that did consent this so that you had California's agreement.

Justice John M. Harlan: That may be a fine distinction too, but still it didn't take the form of compulsion, did it?

Mr. Cox: It still was something added for the same reasons since California's consent came in.

There was something less and then an out and out congressional compulsion with respect the apportionment.

They said, "You can take the choice between what the apportionment we proposed here or nothing at all."

Justice John M. Harlan: Well, (Inaudible) how much -- argue when that blew up over this question of State rights, wasn't it?

Just let her debate on it?

Mr. Cox: Well, it's an indication.

I wouldn't deny it.

I don't think that it's anywhere enough to describe the theory especially as what Congress did do here, taking the language to the Project Act at the legislative history together, and I do emphasize that the California was given a choice.

They could ascend not ascend before the Project Act became effective.

Now, so far as Nevada was concerned, there was never any argument that she was going to get 300,000 acre-feet.

Arizona possibly retained some rights whatever they might be.

She was told in effect, you could come along on these terms or you can stay out and fight.

She chose to stay out and fight after getting nowhere from protected period and she finally chose to come in and signed the contract with the Secretary.

There's one other California argument that I think I should deal with that California says that if there was just 8,500,000 acre-feet apportioned to the Lower Basin by the Compact, not the act, the Compact.

And if we assumed that there are 2,000,000 acre-feet in the Gila then California would not get the 4,400,000 acre-feet.

The Congress plainly contended third half and therefore, she argues that this camp have been what Congress intended.

Justice Charles E. Whittaker: Do I understand that's treating, the 2,000,000 feet in Gila as being in the mainstream at Lee Ferry?

Mr. Cox: Well Congress of California -- now, I don't think that's quite right.

Let me restate it.

I'm not sure if I understand you but let me, if I restate it what I tried to say I'll make it clear.What California says, "We were intended at a minimum yet 4,400,000 acre-feet."

Now, the most you can say that was apportioned to the Lower Basin by the Compact is 8,500,000 acre-feet.

This means that if we say 2,000,000 for the Gila, it would be 6,500,000 in the mainstream.

And if Arizona gets the Gila plus this allocation of the mainstream according to Master's report.

This allocation of 6,500,000 in the mainstream then we won't get the 4,400,000 that Congress clearly intended as to have.

And therefore, the assumption that the Gila is to be excluded from the accounting must be wrong.

Now, I think there are two faults, two evident faults in that argument.

In the first place, Congress assault beyond question that there were 7,500,000 acre-feet available in the mainstream.

And with respect to determining what was the intent of Congress during the course of this debate of what can make an assumption contrary to the assumption that Congress was making.

The second difficulty with this is that saying, "Two million --” that it making the Compact counting and charging 2,000,000 for the Gila, this assumes a disputed question about the way in terms of water, the Gila uses are to be charged in disputed question as to whether the charge is the depletions of the mainstreams fly or divergence less returns to the stream, upstream.

Another assumption that make which is certainly debated is that the reservoir losses are not to be included in the account, the evaporation that Mr. Ely was talking about.

But if one goes to a compact counting, it doesn't make much difference under the Master's theory.

That question too would have to be looked at.

But I think that the really basic point is that the Congress -- one of the three essentials assumptions it made was that there were 7,500,000 acre-feet.

And therefore, you can't interpret what the Senator said by making a different assumption what they do.

Justice Charles E. Whittaker: That's get back to what I -- the question that was asked for whether or not this (Inaudible) was relevant.

If the figure 7,500,000 acre-feet, it seems -- it seems at the point where the (Inaudible) and likewise, the other one is (Inaudible)

So the water in the Gila is not racking into it in those complications, is it?

Mr. Cox: Well, I supposed that the -- I think to say about itself that the Senators did mean 7,500,000 acre-feet at Lee Ferry.

The Master says that they didn't.

We don't think that it is really necessary to decide in order to resolve the present case.

What gets appealing that there was a -- that they didn't think much about this probable evaporation loses or other stream loses between Lee Ferry and Lake Mead, and that maybe they didn't think about the additions in it.

They spoke more generally of water let down.

Well, that would seem to me Lee Ferry but it was simply in terms of water in the river without this kind of precise measurement, which is certainly necessary here in the writing the appraisal.

So the way it lies in my mind is that the core of their meaning, it was made mainstream and not the Gila is presently clear but their precise definition of mainstream is pretty hard to get out of the debate.

If there is anything that prevails, it is the 7,500,000 coming down at Lee Ferry as you suggest.

Justice Potter Stewart: Well, that would be -- indicate that perhaps that 3 (d) in mind rather that it's 3 (a).

Mr. Cox: Well, I think that would -- one way -- yes it were or one could go step further and say the Master rejected it.

And say that they equated 3 (d) with 3 (a) that they really didn't see there was any difference, that adds it to this and they could go here that's going to be average of 7,500,000 over ten years, a Boulder Dam is -- it's perfect.

It's going to be given out in the big years and the bad years.

Well, if you get 75,000,000 ten years, you get 7,500,000 each year that you could use that 7,500,000.

Justice Potter Stewart: But physically, just a matter of physical facts that you are not correlative, is that right?

Mr. Cox: Just as a matter of physical facts, they can be correlative because you have evaporation ---

Justice Potter Stewart: And additional (Voice Overlap) --

Mr. Cox: Evaporation, transpiration, plant is taking it off --

Justice Potter Stewart: Additional tributaries.

Mr. Cox: You have additional tributaries coming in and there is -- you can't physically get it together.

Now, there are various ways you could lessen the -- lessen the difference, narrow the gap if it were necessary to relate what is done here to the Compact.

For example, you could say Mr. Justice Stewart that evaporation out of Lake Mead is chargeable to each of the States as part of their beneficial consumptive us.

After all the Upper Basin, if you think of yourself as being in Colorado.

You might very well say to Arizona.

If you thought it's going to store the water there for ten years so that half has been evaporated, it's not fair to charge that to be.

You're the fellow who's -- whose benefit is being held there, that should be charged to you.

That's one of the reasons as I said if you reject it the Master's theory down on a readable shape.

I had put it in absolute terms that what has to face this kind of question and his recommendations concerning it, I think would that be accepted by all parties as they're willing to accept if the thesis of his decree stands.

I've now completed with the legislative history simply summarizing very briefly the conclusions that I draw from it, are that all the way through after those early negotiations, there was an assumption that the waters apportioned by Article III (a) for 7,500,000 million feet of mainstream water and that the excess was the mainstream waters in excess of 7,500,000 acre-feet which would include the Article III (b) (1) since not everything in excess of 7,500,000 acre-feet and borrowing the questions about the diversion above Lake Mead that of course is the conclusion that the Master has written.

Conversely, it seems to me to have been assumed and agreed by everyone concerned from the initial direct discussions between Arizona and California on that Arizona was getting the Gila in addition to whatever allocation was made out of the mainstream.

Now, I come to the question that was raised earlier.

And that is don't, Sections 14 and 18, indicate that Congress was not making a federal allocation but rather that the entire right -- the entire question was to be decided in accordance with state law.

The Master partly accepted and partly rejected that notion.

So far as the interstate controversy is concerned, he wholly rejected the notion and as he said, “There is nothing in Section 14 and nothing in Section 18 that quite in a different direction that all the indications in Sections 4, 5 and 6 that there is to be a contractual allocation by the Secretary.”

He accepted the notion Justice Douglas to this extent.

He did say that once the Secretary decides with whom he will contract from thereon, the relative priorities between those people intrastate is to be determined according to state law.

Justice William O. Douglas: I understand him to say something quite different that at the bottom of page 203, he talks about interstate rights and priorities being controlled by state law.

Mr. Cox: I'm sorry.

I don't understand the difference between that and what I just said.

Justice William O. Douglas: Well, if that's what you said I misunderstood you.

Mr. Cox: I didn't say -- I said that that was what he said.

I didn't say I agreed with it.

I said that -- I meant to say that that was what he said that he said -- let me repeat so we could go -- start off from the place that he said that interstate, the act in the Secretary's allocation control.

Justice William O. Douglas: That's right.

Mr. Cox: Intrastate, the Secretary has the right to determine with whom he will contract at least in Arizona that in Nevada, he doesn't have that right because he's already contracted for the full amount with the State of Nevada that once he does contract with users then their relative priorities shall be determined according to state law.

That's my understanding of the Master's brief.

Now, we agreed that the Master is correct so far as the proposition that Sections 14 and 18 have nothing to do with the interstate allocation is concerned.

We agree that the Master was correct in sharing that the Secretary of the Interior has the power and duty to determine who will use the water within Arizona.

We think that the Nevada contract is not a contract with users and the Secretary was directed to allocate the water by contracts with users and that therefore and a Nevada person wish he could use the water must to get a contract with the Secretary.

As to the relative priorities among people who have contracts with the Secretary, we think that it's a matter of principle that the Master was wrong.

We think that that question is one to be determined as part of the contractual system.

However, I --

Justice Potter Stewart: Rather than by state law?

Mr. Cox: Rather than by state law.

Justice Potter Stewart: I'm talking about relative priorities within any --

Mr. Cox: Yes.

Justice Potter Stewart: -- given state.

Mr. Cox: After the contracts have been made.

Then a fortiori, we think state law doesn't determine who should get the contract.

Justice Hugo L. Black: Is that the way contracts for the sale of power are made?

Mr. Cox: The Federal Government as I had recalled it makes a complete determination about contracts for the sale of power here but I -- I haven't concentrated on those Sections.

Justice Hugo L. Black: There was an argument as I recall it, there is figures argument in the sentence that the State should have a right to determine to whom this -- the power would be sold (Voice Overlap) --

Mr. Cox: There are expressed provisions in the act Justice Black, and I think anything I might say now would only be confusing.

Let me overnight review those and try to answer your questions, because I got to concentrate on that.

Justice Hugo L. Black: Your power to sell water -- your power to sell water and the power to sell power are given in the same Sections.

Mr. Cox: Yes, although there are far more detailed provisions --

Justice Hugo L. Black: That's right.

Mr. Cox: -- with respect to the power.

Justice Hugo L. Black: That's right.

Justice William O. Douglas: But on the water irrigation, water rights, you disagree then with the Master on page 217 when he says that, “Only Secretary has authority to make delivery contracts.

He has no power to make a delivery contract with the person who is under a disability to receive the water according to state law,” about the middle of the page.

Mr. Cox: We think the Secretary -- our position in principle is the Secretary shall whose briefs determined with whom he will contract --

Justice William O. Douglas: Without --

Mr. Cox: --regardless of state law.

Justice William O. Douglas: Regardless of state law.

Mr. Cox: Regardless of state law.

Now, I would like to follow that right --

Justice William O. Douglas: I will say that the Federal Government has been consistent throughout the years in trying to get our -- this Court to hold that --

Mr. Cox: All -- all I want to try to get you to do now is not to hold the upstream.

That is our position, no question about it.

What -- what we say is that this is not a question which it is necessary to decide in order to resolve this controversy and indeed that it would not be timely to decide it, that by a reason to take -- that it would -- is not necessary and would be untimely is that we don't have any specific controversy here where there is a clash between some decision taken by the Secretary and some alleged provision of the state law.

It -- it seems to me that there must be some room for state law in this overall system.

Your Honor pointed in the -- what are the interstate apportionment cases that once the contracts had been left and the users had contracts that then the state law took hold of that.

And as I understand it's something for the contract, the time of the character of the users, rights and subject to contracts, the rights between users.

Justice John M. Harlan: Well, unless we -- unless we come -- unless we accept the California's thesis that you reject on the limitation, is that to come to briefs in this problem, the other problem on a much broader problem?

Mr. Cox: Well, I don't think that you do have to consider whether Sections 14 and 18 --

Justice John M. Harlan: No, not 14 and 18, we've got to decide whether it contracts your allocation or state law governed to the allocation of this water?

Mr. Cox: Oh yes, yes.

But you don't have to -- I must have become confused.

I said you don't have to make any decision now about the relative rights of users within the same State other than the claim about the Indian reservation.

What -- what concerns me frankly here is that I'm very reluctant to argue in a generality how far the state law control the Secretary's rights to contract intrastate.

I can think of a great many difference specific questions that might come up.

For example Justice Douglas, the Secretary has entered into a number of contracts on reclamation projects providing that the event of a shortage for water on those projects, the users so far should be ratably diminished.

Now, if we have that specific question that we could debate whether state law prevailed over those contrasts.

If we had a question as to -- such as I think that come up, if my memory is right in the some of the lower courts as to whether a State can say, “No, you shade the water to enable the establishment” then we could debate on that specific question.

But what I fear the Master has done here, and I'm not sure if they've been through because the decree doesn't reflect this to certain extent, has to say generally without reference to any specific dispute of rights interstate determined by a state law what will --

Justice Felix Frankfurter: Mr. Solicitor, can you (Inaudible) the relationship between the power of the Secretary grant licensees (Inaudible) enter relationship those two in connection with the utterance relevant to state law that was enacted by (Inaudible)

Justice Hugo L. Black: That question was based on this general idea.

During this debate, there was quite a fight or controversy over the sell of power.

The argument being made that the Government, although it had the constitutional right to build the dam, build the dam.

He did not have a right to dispose a power and the same argument related to some extent to the right to sell water, so those -- that -- the two -- two do bear or rather close relationship in some assets although there is a distinction with reference to water run and the power to sell power.

Justice Felix Frankfurter: Because there -- hence the water right, there were three (Inaudible) claims upon.

Mr. Cox: Up to a selling.

Justice Felix Frankfurter: Up to -- yeah.

Justice Hugo L. Black: Up to that time.

Justice Felix Frankfurter: And after elected use of the water, the one who (Inaudible) made to be creative but there may had been some -- some (Inaudible)

Mr. Cox: Yes, in fact there were two kinds of claims of course with respect to water, one was for what we call -- had been going prior perfected rights, the good claims, the ones -- and then there were the -- what I called the gleam in the Metropolitan Water District's eye.

The things it hoped to do and it's take out our which there were some debate in the Senate about how good those were.

Justice Felix Frankfurter: May I (Inaudible) tomorrow, the discussion in (Inaudible) important right, and present perfected rights, (Inaudible)

Mr. Cox: I mislead you.

Justice Felix Frankfurter: I don't (Inaudible) debate.

Mr. Cox: If I said there was any discussion of present perfected rights, I misled you.

I meant to say there was a discussion -- they -- the phrase perfected rights was used.

Justice Felix Frankfurter: Even better (Inaudible)

Mr. Cox: Well, I don't know about (Inaudible) Kenny.

Justice Felix Frankfurter: Alright.

Mr. Cox: Kenny I believe is --

Justice Felix Frankfurter: Well, (Inaudible) but I just like to --

Mr. Cox: Yes I will.

Justice Felix Frankfurter: And I wonder whether this is a new (Inaudible)

Print this transcript Transcript:

Argument of Cox

Justice Hugo L. Black: Solicitor General.

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

There are a number of questions which we're left open at the end of the session yesterday that I would like to try to deal with at the beginning of the sessions this morning.

The most convenient one to discuss first is to say a word about more -- about the meaning of perfected right and to tell the Court what I have been able to find about the usage of that term.

To acquire or to avoid begging the question, I will call a complete water right.

It's clear under the law of all the western states, as I believe, that a series of steps are required.

One begins perhaps by making a claim and, as I understand it, under the law of some states, this may be done by making a -- posting the claim near the stream under statutes that may be filed, and so forth.

After one makes claim, he then begins to construct the works for diverting the water.

He may make the claim, say, and begin the construction of works in 1950.

Then he goes on, goes the work.

He may have completed the works in 1955 and begun his diversion of the water, let us say, in 1957 and applied it to beneficial use later in the year 1957.

Now, as I read all the authorities, he does not have a complete appropriation or complete water right until he has either diverted the water which appears to be the law in California, at least earlier, or has actually applied it to beneficial use which appears to be the law in most of the other states.

Now, it is at that stage in 1957 that his right is complete.

It is also true that when he completes the work in 1957 and applies the water to the land, or under some of the California decision makes the diversion that it gets it all there to apply to the land, that he has an appropriative right.

When that is done, it relates back to 1950.

So that, he would come ahead of someone else who perhaps had completed the whole business in 1955 and he would have the prior right.

Now, the usage is also not uncommon, I would say common, to speak of what's done in 1957, the series of steps to speak of what he then has as a perfected right.

For example, Hutchins in the California law of water rights, on page 108 says, “It was said in an early case that an appropriation consist of a series of steps which, taken together, make the right perfect.”

Of course, this is our usage in speaking of liens, and gifts, and other things but the final step is what perfects it.

Similarly, in killing on irrigation in the water rights, in the second volume, the first sentence of Section 728, the appropriation becomes perfect only when the dams, ditches, or canals, or other works necessary are entirely complete.

The water diverted from the natural stream or other source of supply had actually used for beneficial purposes.

He says, “That is when the right is perfect.”

Will does not use, so far as I can discover, the term “perfect” at any stage.

We weren't able to find it last evening in any event, but he does lay down, he summarizes, the rules that I've just stated without using the word “perfect.”

In Section 398 of the third -- this is -- I'm reading from the third edition, Section 398.

Now, it's interesting to note that --

Justice Tom C. Clark: What section?

Mr. Cox: 398

Justice Tom C. Clark: Thank you.

Mr. Cox: There are other related sections but that's the recapitulation.

It's interesting to note that, during the debate on the Project Act, Mr. Brat --

Justice Potter Stewart: Before you leave this --

Mr. Cox: I'm still on it.

Excuse me, sir, I didn't mean to interrupt.

Mr. Bratton, in the debate had another suggestion with respect to the Project Act.

So, we have something not colored by any of these claims.

He was proposing that people who had perfected rights should not be charged by the -- for -- by the Secretary for the impounded water, but those who didn't have perfected rights who are getting new rights after the project was completed should be charged.

That's of no importance here and it didn't carry but, in the course of making that suggestion, Mr. Bratton showed how he understood this term “perfected right” and he suggested that there should be a disti -- the distinction I mentioned between those who have perfected their water rights by the actual application of water to beneficial use.

And he used that term -- this is 70 Congressional Record 73, and he uses a similar expression over on page 74.

Justice William J. Brennan: You say Senator Bratton?

Mr. Cox: Senator Bratton, yes, sir.

I find that perfected was used again by Mr. Brandeis in 283 United States in Arizona against California, where he says on page 459, “Under the law of Arizona, the perfected vested right to appropriate water within the state cannot be acquired without the performance of physical acts through which the water is and well in fact be diverted to beneficial use -- is and will in fact be diverted to beneficial use”, so that, he spoke of perfected as something that happens when all these acts have been done.

And, just one last reference to show that this isn't unique by any means, I find in the head note, through rocky deposer, 48 Colorado 134, describing the decree in an earlier case.

It said all other rights were left inchoate and became absolute only upon application of the water the beneficial uses within a reasonable time, and whether a perfected right to the enjoinment of the water had vested was left to be determined in some future appropriate proceeding, in other words, whether it had been appropriated to the beneficial use.

One also finds Senator Hayden frequently using the term in this sense in the debate on the division of the water but of course that's, to some extent, self-serving and I think the more significant one is Senator Bratton's use of the term in connection with something quite different, where he wasn't arguing a case about existing rights in the river.

Now, the -- so, I take it, that as a matter of usage, that perfected right is one which you have because you've done all the acts, including the application to beneficial use.

Justice William O. Douglas: Well, that would -- the significance of it -- of your statement, Mr. Solicitor General, is that this is precisely the local law question?

Mr. Cox: Well, I was addressing --

Justice William O. Douglas: What it -- whether what is perfected when a water right is acquired.

This is not in the -- this is not -- the practice, at least in the eight western states, is on the basis of statutes and court decisions as to when it is perfected.

And, I have no doubt of what -- you're generalizing it and putting it in a bold type for a hornbook if what you say is true, but the important thing is that it's a local law question, isn't it?

Mr. Cox: Well, it seems to be that there, in a sense if I may say so, begs the question.

Congress used the term here, “present perfected right”, and I would think that the --

Justice William O. Douglas: But Section 14 ties it into the Reclamation Act, and we know from the Reclamation Act that that was -- all of these rights had been built so far from state law, maybe not by reason of the constitution, but by reason of practice or statute.

Mr. Cox: Well, but to a considerable extent, this rights had been built under state law.

Under the Reclamation Act, the rights were defendant, as I understand it, first, on contract with the Secretary.

They might later then take on many characteristics from the state law.

Justice William O. Douglas: Oh, I'm sure you're wrong on that, Mr. Solicitor, but that's not relevant here.

Mr. Cox: I think here, the relevance of the discussion of perfected right was, first, this is the base of so much of the argument that it's important we have the terms clear but, second, the term we are of course directly concerned with is not simply perfected right but present perfected right.

And, the question that would finish off this discussion, in my judgment, is what was added by putting present in front of perfected.

And to me, it suggests that the Congress and the authors of the Colorado River Compact and the authors of these various proposals that led up to the Project Act, when they used the term, all met rights which are now perfected.

The rights that are presently perfected rights, in other words, that have been perfected, not rights that might be perfected in the future and then, by the process to the state law, relate back.

In other words, it's the addition of the adjective “present” that the Master thought, and which we think, establish this cutoff point on the date in 1929.

I said 1928 yesterday.

I should have said 1929 when the Project Act became effective, because that's about the only meaning present perfected right, current perfected right can, in my judgment, have.

Now, insofar as the division between Arizona --

Justice William O. Douglas: Well now, before you --

Mr. Cox: -- and Cali --

Justice William O. Douglas: Before you go to that.

You see, in the part of the country where I grew up and briefly practiced law, you have a -- you have a great traffic in water rights like chattel or chattels that have no relationship to any of the things that you have said in terms of what other states may make their local law.

This is a very complicated problem.

It's just --

Mr. Cox: I recognize that, Mr. Justice, indeed.

Justice William O. Douglas: And what I'm saying preliminarily is not to engage you in further questioning, except this question.

Do you think any of these problems are necessary for decision in this case?

Mr. Cox: Well, I was going to say that I thought most to them were not.

Indeed, that it's because -- I would say this, that there are unquestionably many aspects of the rights of water uses deriving who get water under contracts with the Secretary on reclamation projects.

There are many aspects of those rights which are governed and has to be governed by state law.

And, the traffic that you speak of, to the extent that it is permitted by the Reclamation Act, is undoubtedly governed by state law and I take it, it's evolution of the rights that's governed by the state law, and so forth.

There are, we think, certain other rights which the Secretary has, at least for many years, is certain which are governed by the Secretary's contracts under the Reclamation Act.

Justice William O. Douglas: Well, are there --

Mr. Cox: Now, --

Justice William O. Douglas: -- aren't -- in any of these situations in this record, are there two claimants to one water right?

Mr. Cox: No, that's why I was just going on to say that we have no specific instances, with respect to which it is necessary to draw a line intrastate which were -- to resolve a conflict between users intrastate which would require the court to decide whether the state law or the Secretary's practice control it.

And, it's for that reason that I submit that those references to this issue in the Master's report intrastate should be struck out.

Now, so far as the rights among the states go, it seems to me that one would come to the same determination.

Whether present perfected right is to be determined simply by interpreting it in the federal statute or whether one was to look at law of someone or all the state, he would still find that the California claims, which had been staked out before 1929, were not in 1929 present perfective rights by whatever law he decided.

And consequently, it doesn't seem to me that this issue needs to be resolved and I would think that it was important in view of the -- this being a serious issue on which their conflicting opinion not to undertake the result.

Justice Hugo L. Black: Do you think we are not required to do so by the attack which is made on the Nevada contract?

Mr. Cox: I don't think that the Nevada contract -- that the attack on the Nevada contract requires any resolution of that issue.

In one sentence, the reason of our difficulty with the Master's ruling on that point is that the Secretary is authorized to enter into contracts with users.

And we say that the State of Nevada is not a user, that there are may be users people, who are going to use water within Nevada but there is no right to the water until the Secretary has entered into a contract with users.

Now, there would be an issue, in theory, as to whether state law governs with whom he might contract if we have those specific problems of that kind here because there aren't competing bidders for the contract at the present time.

So I think, in this respect, our attack on the Nevada contract rest on the language of the federal statue, to which you can make contracts with users.

Justice Potter Stewart: The California contracts are of course made directly with users, aren't they?

Mr. Cox: They are made with the users.

Justice Potter Stewart: And the Arizona contracts.

Mr. Cox: The Arizona contract is clearly a contract with the state.

Justice Potter Stewart: Yes.

Mr. Cox: Not for the use of water but a -- an agreement with the state to give contracts -- for the Secretary to give contracts up to a million a --

Justice Potter Stewart: To users --

Mr. Cox: -- to Arizona users.

Justice Potter Stewart: I see.

Mr. Cox: So that Arizona can't make the argument that Nevada makes, and the Master recognized that they couldn't.

Justice Felix Frankfurter: Before you move on.

Are you finished?

Mr. Cox: I was going on to the power question.

Justice Felix Frankfurter: Before you move on, I actually have a question (Inaudible)

As I understood you, you said that all the western states are in agreement regarding perfected rights.

If one is perfected, that they relate back to the original notice of claims, didn't you say that?

Mr. Cox: That's my understanding.

Justice Felix Frankfurter: If that is so --

Mr. Cox: There may be some little variations, --

Justice Felix Frankfurter: Yes.

Mr. Cox: -- but in general.

Justice Felix Frankfurter: But essentially, if that is so, is that doctrine of relation-back could be read into present perfected right in the statute?

Mr. Cox: We think that the purpose for putting the word --

Justice Felix Frankfurter: The word “present.”

Mr. Cox: “Present” in was to make plain present perfected rights.

It means those already perfected, those now perfected.

And therefore, the doctrine of relation-back is excluded by the adjective “present.”

Justice Felix Frankfurter: What is -- what -- is there any authority except the appealing reasoning from the word “present?”

Is there any --

Mr. Cox: No.

Justice Felix Frankfurter: -- light that's shed except the addition of that adjective?

Because, according to -- I misun --

Mr. Cox: I have been able to find that, as I've been --

Justice Felix Frankfurter: I misunderstand.

According to western water rights notions, once it is perfected in the way it is required, it becomes a present perfected right.

Mr. Cox: I have never --

Justice Felix Frankfurter: And he is making the law --

Mr. Cox: Well, it would --

Justice Felix Frankfurter: -- (Inaudible) hang on that word “present”, isn't it?

Mr. Cox: It does make the law hang on that word “present” and it is a word --

Justice Felix Frankfurter: I'm not sure you can -- it can't --

Mr. Cox: No.

Justice Felix Frankfurter: -- carry it, it can't waive it.

Mr. Cox: No, I was about to make one further concession, and that is that the term, neither our researches nor, I think I can say from conversations with counsel last evening, anyone else's researches, have developed any lawyer's art meaning that -- in which the term “present perfected right” has been used elsewhere.

It's apparently been used in the Colorado River Compact and in this statute and in the discussions of this statute.

And I am told that that's about the end of it.

We've turned up with no use of it.

It's not even the standard words.

Justice Felix Frankfurter: It may take an interest in legal consequence.

Mr. Cox: It's a -- it's -- it is a very -- it is almost the --

Justice Felix Frankfurter: Yes.

Mr. Cox: Critical point.

There's no --

Justice William O. Douglas: I'd assume that it was in most of our western --

Mr. Cox: Present perfected right?

Justice William O. Douglas: Because of the -- to prevent the speculators from coming in and acquiring water rights by filing as you do for mining claims in some States?

I don't know.

I haven't looked into it, but I assume --

Mr. Cox: Well, I --

Justice William O. Douglas: -- it's rather common.

Mr. Cox: -- confess I'm relying on a very short conversation largely with Mr. Ely in his assumptions, but they tell me that they haven't been able to find any technical usage of present perfected right.

I think the common sense of it here, Mr. Justice Frankfurter, does go to establish the notion that there was to be a cutoff point, but it does rest on that word.

Now, remember the first place it comes into our story was in the Colorado River Compact and the Upper Basin was willing to recognize some claims of the Lower Basin.

But, remember that it was -- the whole purpose of the Compact was to see that the Lower Basin, which would develop fast, wouldn't get in ahead of it.

And, they said present perfected rights, this is in the Compact, shall be recognized.

Well now, I take it, if -- what reads this together with the notion of getting away from these rights to appropriate that it says, in effect, what's vested and what's complete.

Justice Charles E. Whittaker: What kind of term would you think of as if you expressly felt immediately than to say rights that are now perfected?

Isn't that what “present” you're saying?

Mr. Cox: Well, it -- I agree with you, Mr. Justice Whittaker.

Justice Charles E. Whittaker: It isn't in there, is it?

It would be with a body of law which needs protecting to relate back, then it isn't going to like the use of words.

Present perfected right doesn't mean what it means in the accepted usage of those communities, those states.

Namely, it is a present perfected right in the sense that, until an event takes place, the rights in becoming seen but, when it does take place, it's the right that is recognized in the body of law in the other states.

Mr. Cox: Well, I would --

Justice Charles E. Whittaker: This is a question of etymology of reading this word.

Mr. Cox: Well --

Justice Charles E. Whittaker: It's a question of how it's translated.

I'm not asking you about it.

All I'm saying is I'm troubled with the verb being coupled to make it all depend on a word like “present”, and I can perfectly feel and perfectly mean that it has reached that finality which, if it can reach, had asserted legal counsel.

Mr. Cox: Well, that makes two suggestions.

One is that, in support of Justice Whittaker's suggestion, the word “present”, if the etymology is of significance, it may not be conclusive but it certainly is significant.

I added -- it has been added in a -- for the apparent purpose of putting some limit on what otherwise would be the meaning of “perfect.”

Now, the second thing that I suggest to you is that to speak and say, well, once the final acts are done, there is a present perfected right in the usage of the people in the west, in the states affected is, I suggest, to look at the situation as of the time when everything has been done.

But, the statute looks at it as of the time when it was enacted and, it's the -- it's the words, it's the instructions given by a man speaking as of 1929 that we're it concerned with.

Justice Charles E. Whittaker: It's more -- this merely convinces me, personally, but I never followed it in construction of my judgment, except water right is to truly (Inaudible)

Mr. Cox: Well, I'm act -- we'll agree with the first part of that statement.

Unfortunately, we have no alternative either of this to --

Justice Charles E. Whittaker: One last point.

We might --

Mr. Cox: Enter it as best as we can.

Justice Charles E. Whittaker: We might --

Justice William J. Brennan: I thought you told me what you needed --

Justice Charles E. Whittaker: Maybe we don't have to decide it?

Justice William J. Brennan: Yes.

Justice Charles E. Whittaker: You might be -- that might be a very good reason to avoid this action no more than it's actually compelling us to work with the issue we would take.

Now, this may be one of that --

Mr. Cox: I would -- I think this is one that cannot escape.

The only -- may I say one last word on this point then I think I ought to go on.

Justice William J. Brennan: Are you changing your answer to me?

You said that that wasn't necessary to decide.

Now, you say it has to be decided.

Mr. Cox: I understood that I said to you that there was necessary -- no necessity of the deciding any issue as to what law governed the rights of competing users within a single state.

Justice William J. Brennan: Intrastate?

Mr. Cox: Intrastate.

Justice William J. Brennan: Yes.

Mr. Cox: I think one has to decide the meaning of present perfected rights in order to resolve the controversy between Arizona and California.

Justice William J. Brennan: On the intrastate --

Mr. Cox: Yes.

Justice William J. Brennan: Phase?

Mr. Cox: Yes.

That's what I was directing myself to in answer to Justice Frankfurter.

Justice Felix Frankfurter: Well, why if each is by contract, getting more water than if involved in just (Inaudible)

Mr. Cox: That -- that is true -- would be true, except for the bearings which present perfected right has on the question, whether Congress intended a pro rata reduction of the share of each in the case of shortage.

Let me -- let me postpone, if I may, the discussion of the power provisions and go along as deposer here, then, I think that that will supply a clearer answer to Your Honor's question and if I try to give it in a single sentence.

Our theory of statute, as I've said many times, is that it contemplates a federal interstate apportion.

That it lays down the general guidelines and gives the Secretary of the Interior the power to flush out skeletons and to determine, out of the water that California doesn't get, exactly how much Nevada will get and exactly how much Arizona will get.

The statute gives guides.

Nature virtually made that division, but the Secretary had power, in our view, to finish it out by contract and he did in the early 1940's, give Arizona 2.8 billion acre-feet, and Nevada by 0.3 billion acre-feet, and he gave Arizona one-half of the surplus.

I point out in passing that his Act can be squared only with our reading of Section 4 (a).

That, although the contract say it's Arizona's legal right, it's perfectly plain that the Secretary acted on the view that the mainstream was being apportioned 4.4, 2.8, and 0.3.

And, we say that those contracts, as the Master said, constitute an allocation of those amounts among the states provided that there is 7.5 million acre-feet of mainstream water.

Then, the question arises.

Well, suppose there isn't 7.5 million acres-feet of mainstream water.

What do we do then?

And, we come to what Mr. Ely stressed as the priority branch of his case.

There would seem to be a prior right, three possible answers to that question.

One, that the law of prior appropriation governs, and of course that's California's claim.

Two, that the Secretary has power to make the allocation.

The Secretary hasn't provided for this.

So, until he does something and does say who shall be the users in this event, the matter simply stands unresolved.

Nobody is arguing for that position but it certainly is one of the possible readings.

The third possibility, the one which the Master followed and the one which we think is correct, is to say that there should be a ratable deduction -- a ratable reduction on each of the states subject, as you point out Justice Whittaker, to the qualification that present perfected rights, as I've defined, must first be protected.

The Master recommended the ratable deduction, and we think it's proper, because it is the most consistent, as we see it, with what we know about policies and aims of the Compact and the Project Act and in deriving insight into the aims and policies of the Compact and the Project Act.

With the respect to this matter, to which nobody addressed himself explicitly, the Master laid and we laid a great deal of stress on the term “present perfected right” because we think that, in both instances, it shows an intension to establish a cutoff point as of the date on which those documents speak and to start over again with the new federal allocation as of that time.

One of the reasons we're doing that or, being that the claim is to the river which had not been perfected previously were -- disputed many of them, unknown.

Some of them, like that of Metropolitan Los Angeles, couldn't really mean anything until the Boulder Dam was built -- the Hoover Dam was built, and the water was brought under control by the federal government.

And this is the sense in which the term seems to be used in the legislative history.

A second reason for concluding that there was to a ratable deduction is that there is every indication that also the shares of the states differed in size.

They were thought to be of equal dignity and that, therefore, there should be equality of right.

This would seem to imply in the event that there wasn't the 7.5 million acre-feet to go around.

Now, the Master stressed that instruction, first, to protect present perfected rights for two reasons.

In the first place, he said there's no reason to put this in the statute if priority of appropriation is to be controlling in the event of shortages because that would supply with a system for protecting not only perfected rights but imperfect rights, speaking as of the time the statute was enacted.

Second, in some instances giving protection -- prior protection to present perfected rights is inconsistent with the law of prior appropriation because you might have a case where a man started his appropriation in 1950.

He worked on it and he perfected it in 1960, but somebody else came on and started in 1955 and finished in 1957.

Now, under the present perfected rights as the Master points out, the intermediate fellow would be protected if the statute were enacted in 1958 instead of 1928, whereas, under the law of prior appropriation, it would come out the other way.

One of the other important factors, it seems to us, with respect to the matter of a ratable reduction, is that it has been the practice of the Secretary of Interior in entering into contracts under the Reclamation Act to provide that if there is a shortage, the available water shall be shared ratably.

And it's partly to protect those contracts in that practice that I had the difference apparently with Mr. Justice Douglas and urge the Court not to embark in this and discussing this point in its opinion in the case.

But to delete those parts of the Mater's report.

Justice Felix Frankfurter: I understand that.

Mr. Cox: I said that it had been, under the Reclamation Act, the practice of the Secretary of the Interior in many instances to set up, in contrast with state law, a provision for ratable reduction in the event that there wasn't enough water among users on the project to go around, and it's the Master's statement that state law controls intrastate.

It seemed to me this throws some doubt upon that practice since we have no conflict here between two users in the same state.

I was urging the Court to disapprove those parts of the Master's report.

I understood Justice Douglas to be for the purpose of discussion, expressing the view the Master had expressed.

Justice Felix Frankfurter: And meaning that the existing the litigation.

Mr. Cox: If it ever arises.

It's -- we don't know --

Justice William O. Douglas: If we disapprove it, we would be deciding that.

Mr. Cox: I just think you could say that you neither approved nor disapproved the pass of judgment on it.

I don't care about the form of word.

The -- part of the decree should simply be that is involved should simply be deleted and nothing put in its place.

Justice Felix Frankfurter: It has bearing on the omission.

Mr. Cox: Yes.

Justice Felix Frankfurter: It has no issues but this issue -- may I just say something.

Are you going to suggest -- are you suggesting it's a matter where there's enough left in this litigation to leave it open, keep the communication open (Inaudible)

Mr. Cox: I don't think there's any need to keep the litigation open --

Justice Felix Frankfurter: No, I mean about --

Mr. Cox: -- for this question.

Justice Felix Frankfurter: That's a huge burden upon it to keep it open as you have this Master forum below, then go and --

Mr. Cox: I stated -- no, no, not at all.

I mean it should be left for a separate lawsuit in which the parties interested would bring in the lower courts.

I think you should simply say it's not here.

Justice Felix Frankfurter: All being -- is that -- is that true, is that true, with respect to all completeness, you need not be in progress now (Inaudible) that you'd all wait in getting the future conflicts and (Inaudible)

Mr. Cox: No, we think that the Master's retention of jurisdiction to determine more specifically who are the holders of present perfected rights and in what amount, for example, is profit and that that should not be left to future lawsuits if I may put it that way, because that is an important thing to clarify.

I would deny to the development of this area.

Justice Felix Frankfurter: To that extent, he wouldn't even deny it.

Mr. Cox: Oh, yes.

Justice Hugo L. Black: I don't quite understand it.

You mean to bring in all the projects that might possibly have affected rights and --

Mr. Cox: Well, he --

Justice Hugo L. Black: If I had a lawsuit --

Mr. Cox: He contemplated that these states would speak for the parties in that respect.

Justice William J. Brennan: Well, at what time?

Mr. Cox: He sets forth the precise time schedule in the decree, page 359 and item 6.

I hesitate to take the time to read it now, but he sets forth the manner in which he contemplates that present perfected rights will be more particularly identified and adjudicated.

Justice Felix Frankfurter: By the way just so I could put my foot in, just to make clear your argument.

You will come back to the power problem (Inaudible)

Mr. Cox: I hope in the next six --

Justice Felix Frankfurter: I don't mean now but before you get through.

Mr. Cox: No.

The next six minutes, I've got to deal with the power problem and the Indians.

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: With the respect to the power problem, I think the most convenient way to state it is this.

That in the Congressional consideration of the Project Act, there were apparently three issues relating to power.

One was whether the federal government should get into the power of business, as it was put, and there was considerable difference of opinion about that.

Some put it on grounds of policy, some on constitutional grounds.

That was resolved by clearly giving the Secretary authority either to construct and operate a power plant who can sell the electricity, or to lease the water rights necessary to generate power.

He was given a choice.

The second issue before the Senate at least, and I think before the whole Congress on this question, was how shall the power produced be divided among the states?

There was apparently an informal agreement about that at that this famous Governors' Conference.

In any event, the problem of making the allocation was given to the Secretary.

In accordance with rules or regulations that he might promulgate, and he did promulgate regulations which make a division among the several states.

That is in our ex -- the Government's exhibit -- Government's exhibit 51.

It is also a public document, Boulder Canyon Project Final Reports part one, and I am looking most particularly at page 1131 which shows the allocation of energy among the states.

Justice Felix Frankfurter: What's the state of that project?

Mr. Cox: Washington D.C., 1950.

It's a government printing office.

Justice Felix Frankfurter: The title of it is Boulder Canyon Project?

Mr. Cox: Boulder Canyon Project Final Reports.

The third issue, which was before the Congress during the debates, had to do with the -- compensating the states for what they conceive would be the loss of tax income or tax revenues if the federal government built a power project where a private utility might have put it because the private utility would be subjected to tax.

And I judge that this related to some of the developments which later came in under the Tennessee Valley Authority because there was a feeling that these state should lose the revenue.

Those who had that feeling turned out to be the minority but in this Act they were partly compensated because there is a provision in the Project Act calling for paying specified percentages of any income in excess of what was necessary to finance the project to the States of Arizona and Nevada.

Now, each one gets it's in -- on page 384, each gets 18-and-three quarters percent of the excess revenue, page 384.

Now, in one sentence, Mr. Justice Frankfurter, I draw the two conclusions from the provisions of the statute dealing with power.

One is that a com -- that a detailed federal plan for the allocation of power and the choosing of who would get the contracts for either the operation of this power plant or the distribution of the energy and the decision as to where it would go was all left to the Secretary of the Interior without the regard to state law, and he was to explicitly -- is given authority to resi -- to decide between conflicting appellees.

That authority is given in Section 5 in the very same section and in the very same sentences indeed that gives the authority to let contracts for water, and we think that this supports the view that a federal allocation was contemplated because it is clear in one case and the other allocation is made pursuant to a similar power given in the same sentences and we think that -- therefore implies that the two were to be parallel.

Justice Tom C. Clark: Did you look at it enough to know if it -- I haven't looked at it carefully, but was that based on the resolution of dispute by the Power Company and those who spoke to the Power Company and particularly asserted that the government had no power to control the water or any preference except navigation and anything --

Mr. Cox: That position --

Justice Tom C. Clark: -- anything it got from it, from water or anything else, would have to be left to the states?

Mr. Cox: That position was argued although not on the debates I read last night very strongly.

It may have been argued by the Power Companies outside of the halls of Congress.

It was pressed by Senator Ashurst on the constitutional ground you suggest, and Senator Hayden said, “Well, I think Congress has the power but they shouldn't exercise it.”

And, Your Honor may recall it was an effort to amend the Act by saying that, “Well, if a Power Company will give a satisfactory contract, then the Secretary must give it to the Power Company”, but that attempt was debated -- was defeated and the Secretary was left with the full power to choose.

He ended contracting with the City of Los Angeles in Southern California Edison to operate the power plant.

Now, the other -- I'll have to leave to my brief, I'm afraid, the question of validity of those clauses at the Arizona and Nevada contracts which provide that the share of those dates of the impounded water shall be reduced in the amount of any water that they take up ups -- take out upstream.

The Master ruled against us on this.

We think -- I could put it in two sentences that the Master was wrong because the basic assumption on which the Project Act was enacted was that 7.5 million acre-feet would go down into Lake Mead.

And we think it was within the implied power of the Secretary in contracting to say that if you, Arizona or you, Nevada, prevent the supply then -- from developing, then I'm going to reduce what I give you in the amount that you have shorted the supply, if I could be very colloquial.

That's the gist of our argument.

We think this is an incidental power to make good the assumption on which the Project Act was based, and we think that the Master's arguments somehow are predicated on the assumption the Secretary was giving a license to state users to take water out up above.

We don't think he was doing anything like that.

He was leaving that to whatever law governs it saying, “If you take it out, then I'm not going to give you as much as I otherwise would.”

Now, the other exceptions that the United States filed, I will also have to leave to the brief.

I would like to spend about five minutes on this matter, the Indian reservation.

Justice Hugo L. Black: Before you do that, may I ask you just one question that you can answer if you wish.

The statute provided for the payment for what was bought from this place necessary, as I recall it, to liquidate in the certain time the indebtedness and with much interest in whether or not the government was going to bear unnecessary expenses.

In carrying out his power, what has been the position of the Secretary with reference to compensation for water and for power, and is there any difference?

Mr. Cox: I'm afraid I would have to ask to leave this matter in a statement in answer to that.

We'd be glad to do it but I don't have that knowledge.

With respect to the Indians and the other federal reservations, we think the Master was quite right in holding that the claim of the United States to water appurtenant to the Indian reservations and certain other federal establishments, which was reserved prior to the passage of the Project Act, is a prior perfected right and is therefore, to be protected within the allocation to each state.

Originally the United States argued that its claim should come off the top, but the Master ruled against us on that and we have not accepted that part of the decision.

We do think he was right in saying that each Indian reservation and other federal establishment on the mainstream is entitled to the amount of water which he finds necessary to carry out its purposes.

Now, in terms of the Indian reservations we are talking in points of fact about the quarrel.

The Cocopah Reservation down here, Yuma Indian Reservation, the big one is the Colorado Indian Reservation with much or most of the point, and I shall add the Chemehuevi Reservation, Fort Mohave Reservation above.

Our theory is very simple.

We claim the title to the userfrot, that is the right to use this water on the appurtenant land in this manner.

We say it passed to the Unites States as part of the public domain under the treaty with Mexico, the Treaty of Guadalupe Hidalgo with Mexico.

That when these reservations were set up, we impliedly reserved under the Winters Doctrine the water necessary to carry up the purposes of the reservation to make them a useful agricultural, farming, and gracing community for such Indians as might be settled on it, that having reserved those rights, nothing took them out of it and the title is still in the United States.

Justice Hugo L. Black: Now, this use is not an opinion?

Mr. Cox: I think this use would not defeat a claim of the federal government of water or defeat any other federal titles.

Justice Hugo L. Black: I mean (Inaudible) population to use.

Can you seek it here?

I'm not saying you can.

Mr. Cox: Well, the use has never been at the full scale.

There has been no irrigation of the Mohave.

The Colorado River has been irrigated.

We --

Justice Hugo L. Black: I mean if -- if in fact the use for the reservation as to which (Inaudible) should be done and, sadly, that needs to be -- or has shrunk, I think it comes to light in the doctrine of (Inaudible).

Don't let (Inaudible) go to waste.

Mr. Cox: Well, the use of these reser --

Justice Hugo L. Black: -- (Voice Overlap) was dedicated for a purpose.

Mr. Cox: The use of these reservations changes from time to time.

The policy of the federal government with respect to the Indians changes from time to time.

I suggest that the failure to appropriate more money in a particular year or even series of years should not imply a permanent abandonment by the government of its right to --

Justice Hugo L. Black: Well, it's one thing to have an (Inaudible) but if it's all gone, then you can go make your (Inaudible)

Mr. Cox: Well, there has been -- there has been no doubt.

There has been part --

Justice Hugo L. Black: There's no doubt if it's correct.

I know you want to think so.

You want to make (Inaudible) allocated to a vast expansive water, otherwise, it might be (Inaudible)

Mr. Cox: Well, on the big reservation, it is nothing like that one.

It applies to this unique --

Justice Hugo L. Black: Do you think --

Mr. Cox: -- situation of the Mohave.

Justice Hugo L. Black: Do you think it has strong significance?

It kind of draws the basis on which the planning they have the right measure of the right.

Mr. Cox: The measure of the right, we think the Master was correct in saying that the measure is the amount of water required to make the to -- is required to properly irrigate the irrigable lands.

Justice Hugo L. Black: The land as such.

Mr. Cox: The land as such.

That this is the only meaningful measure of what purposes of the reservation, and that's what the implied reservation is for are because Indians -- more Indians maybe settled there.

The original purpose was not simply for a particular tribe of Indians at the Colorado River Reservation.

It was to settle Indians of this general region.

There had been talk about settling some of the Navahos over there.

The policy in this matter changes from time to time and the number of Indians may grow from time to time.

Furthermore, I suggest that the fact that an Indian moves off the reservation or just as somebody moves off reclaimed land should not indicate that he or his tribe has been deprived of the use of that land just because he doesn't live on it.

He and his tribe, without attempting now to divide between them or to be too precisely, would seem to be entitled to the practical use to them in form of income or state, or call it what you will, of that land that has been set apart for them.

Justice Hugo L. Black: May I ask you if that is in somewhat the same philosophy that Mr. Justice Douglas have suggested in Washington?

In other words, if they get -- when the reservation was created, it implied that they should have enough water to irrigate the land?

The land stayed with them is there.

If the property being sold, it still -- that right went to the public.

Mr. Cox: I think it is, yes.

I'm afraid my time has expired.

I'll simply have to submit the details of the argument about Indians on our brief.

Justice Hugo L. Black: Mr. Hartley.

Argument of Earl E. Hartley

Mr. Earl E. Hartley: Mr. Justice Black.

Following 14 hours of continuous argument, there of course arises a question of whether anything new to be said on the subjects that have been discussed eloquently and lengthily.

On the other hand, the State of Nevada, while the amounts of water involved are small, is so-situated that it probably will be the most direct -- directly and precisely affected by the outcome of this litigation than any state involved.

For that reason, after the institution of the action, the state through its then Attorney General, Mr. William T. Mathews, and who has been in the case throughout, is accompanying me here today, intervened on the theory that Nevada, as one of the three sovereign Lower Basin states, had an interest which would be inevitably affected by the outcome of the action.

Nevada's situation is along the western and northern side of the Lake Mead Reservoir and the stream immediately below as shown by the map which has been placed on the easel and also it is indicated by the map B which California supply.

A brief description of some of the geographical features I think is in order because they affect particularly the issues between the United States and Nevada on the two exceptions the United States has taken to the decree.

Nevada finds itself in this perhaps unique position.

It was an intervener in the action and, now, when the case has reached this posture, it finds itself more completely supporting the Master's theory than any other party to the case.

The -- on geographical feature of Nevada divided generally into two faces.

Generally to the North of Lake Mead, there are streams entering the Virgin River which originates in Utah, comes across the corner of Arizona, and comes down into the reservoir.

Prior to the construction of the reservoir, the Muddy River which came in from the northwest, with the long tributary called the Meadow Valley Wash, flowed into the Virgin before it run into the Colorado, but that amount has been obscured by the reservoir itself.

As I understand, answering a question of one of the justices yesterday, the dam itself merely in the -- what would be the upper end of Black Canyon or somewhere in the part of that, there was Black Canyon where Nevada is.

There was a -- kind of an open flight stair in that big canyon with an old pioneer fork and then the Boulder Canyon is immediately above.

So, into a Black Canyon and Boulder Canyon are practically contiguous and they are in the reservoir which extends to the north, flows by as water that is impounded and backed up into the Valley of the Virgin River, sometimes known as the Virgin R, as in reservoir.

On the Virgin River and the Muddy River, there was what was for that area a very early settlement, starting along in the 1870's by pioneers most of whom came down from Utah and were of the LDS Faith.

And for a long time, and -- that was the only settlement in that area because there was only place where it was possible to divert water for irrigation and there on those tributaries, at long standing existence is an irrigated area with a consumptive use somewhere in the neighborhood of 50,000 acre-feet of water.

I will come back to this again later, but that is one of the questions where we argue with the United States as to whether our 300,000 acre-feet, which everyone says Nevada was always going to be given, should be diminished by not 50,000 acre-feet of pre-existing consumptive use.

Justice Hugo L. Black: When did you say that would start?

Mr. Earl E. Hartley: Initiated, Mr. Justice along in 1870, 1880, and 1890, along in there.

There was no substantial other development in that area, except a small railroad division point around Las Vegas which lies in the west of the dam and is situated in what is known as the Las Vegas Valley.

In that Las Vegas Valley, there was a -- there is some underground water.

The evidence shows that that's a closed basin, what water is there drains in from the mountains to the west which are small in area the rain fall is very scant and, at the time of the authorization of the Boulder Canyon Project, there were some-3,000 or 4,000 people only living in that area.

There is no place in the lower Colorado basement leased that is more dependent on the Colorado River water than that Southern section of Nevada.

There just is simply and precisely no other source of water, good, bad or of any quality, and the -- it has all the characteristics, I've been inclined to say, as the oasis up in the Sahara Desert.

The ultimate development of that area is going to be purely and simply controlled by the amount of water that is allotted to Nevada out to the Colorado River.

At that point, in fact the reason the dam is there is that there is this deep canyon but even with the dam of the height that it is and the water impounded in it.

It is still necessary to raise the water from the dam over into the Las Vegas Valley by pumping.

The first pump at that time was installed by the Bureau of Reclamation as a part of the construction of the dam to supply Boulder City, which has now become a very beautiful garden spot by reason of the application of water.

The use of water in -- the expanding use, I should say, that is involved in this case is that in the Las Vegas Valley area and the several surrounding valleys which extend to the south and to the north and to the east.

Being confronted with a situation where California was saying Nevada can have water for existing use and no more, as has been repeated here.

Nevada employed a group of the most eminent experts that she could obtain, had detailed analysis of the lands made, had economic studies of possible future growth developed, had studies made of the mineral possibilities, evaluation of the excellent transportation facilities that exist in that area.

The climate which is the type that is currently drawing into the southwest this great migration of people, and endeavored to make the best possible study that could be made as to what would reasonably be the population and the requirement of water in the year 2000, not assuming any increase in irrigation but assuming uses for domestic use, industrial uses, and municipal use.

The belief of those making the study in the State of Nevada was that, as a sovereign state, it had a inherent right, as one of the Lower Basin states, to apportion of the water of the river.

It was not the thought to assert that right by any extravagant claims that we should take this precious water and use it for irrigation purposes, but if the area was to grow, if there were to be people there, by then it was going to be necessary to bring in this Colorado River water up.

Probably, the second biggest step in bringing the water was done in conjunction to the United States of America building the great Henderson Magnesium Plants during the war.

The United States Government assisted to the extent of several hundred million dollars there.

The closeness of the great power supply, the availability of the water supply, and so forth created this great complex which supply of practically all the magnesium which was used during World War II.

Those plants have now been transferred over to private enterprise where there is a complex of chemical and other similar industries there.

Then the water district of -- it supplies domestic water to the City of Las Vegas and its environs found that it was running very short of water because its underground basin, the only source of water, was being overdrawn to extend 20,000-25,000 acre-feet every year.

It isn't necessary to stop the drilling of additional wells.

And so, through the Colorado River Commission which I will mention in detail later, which is the body of the State of Nevada created approximately simultaneously with the creation of this project to take and handle Nevada's share of this precious water and to see that it was distributed in the correct and the most beneficial way.

This Colorado River Commission participated in increasing the size of this pumping plant from the river and bringing the water over for de -- beneficial use in that area, and there are continuing plans for a continually expanding use.

The point that I am particularly emphasizing is that this need of water in Nevada is principally for the -- just the plain support of human life, and the number of people that are going to ever be able to live in that area is going to be fixed by the amount of water available.

If we assume -- these engineer's designs have many figures, but if we assume an average gallon per day consumption of around 300 gallons per day, which seems to be fairly acceptable for all of them, an acre-foot of water will support about three people for a year.

And if we're -- if California is saying that you don't get your 300,000 acre-feet, you only get 120,000 acre-feet, the hundred -- the missing 180,000 feet would be your water supply for roughly around half-a-million people.

And, whenever the Nevada's participation in the Colorado River water has reached the maximum of it, that will inevitably be the maximum or top of the development where there is no seawater to be converted, there is no brackish water to be converted and, so far as anything now known in even the most penetrating crystal ball, there is no other source of water.

Passing to the subject that we -- that has been discussed at so much length here, it has occurred to us that a good deal of the confusion is due to the fact that, in the one Act which we call the Project Act, there has been taken two steps which in most common historical custom, at least in the west, has been accomplished separately.

And, those two steps is the ratification of the Compact between sovereign states and the United States, on the one hand, and the other is the authorization of this great project which combines the dam, the reservoir, the power plant, the diversion dam down in Imperial, and the Great All-American Canal.

The -- ordinarily, as I say, those were probably been done separately.

In other words, the states after their meeting which has been discussed at such great length came over to Congress with the Compact.

I think it is -- as it has been said, it is only necessary to hear and determine those parts of the Compact which perhaps as definitions are by reference used in the Project Act and the language which has caused much of the confusion.

But so far as the Compact itself, it isn't so theoretically complicated.

As we read it, they agreed that there would be set aside for beneficial use up to 7.5 million acre-feet annually in the Upper Basin and 8.5 million acre-feet in the Lower Basin.

That the Upper Basin then always permit 75 million acre-feet in this rolling ten year period to encompass Lee Ferry, plus any amounts it might be required to contribute to the Mexican burden.

They agreed that the Upper Basin would not withhold nor would the Lower Basin ever require the delivery of any water unless it was actually needed for beneficial consumptive use.

In that Compact, they originated this what I think, unique term “present perfected rights” as being unimpaired to the Compact.

And they used it -- and they used it alone in that one sense.

Elsewhere in the Compact, they talk about appropriations.

Again in this action it seems to me, since the final decision is going to be a construction of the Project Act, it becomes important to think of that term “present perfected rights” only because by reference it is carried over into the part of the Act which authorized this great project as separate from the part of the Compact.

And then there is one other provision in the Compact that has -- I believe some impact on a construction of the Project Act, and that is the provision which, so far as the Compact is concerned, says whenever there are five million or more acre-feet of storage in the Lower Basin that this present perfected rights are to be supplied from it.

By “it”, I mean the storage water.

Justice Felix Frankfurter: If you want, you could present that right now.

Mr. Earl E. Hartley: I am not aware of it Justice Frankfurter.

The -- and then as I mentioned that languages by reference carried over into the project.

Now, the Congress made only one change in that Compact.

If at that time they hadn't been bothering about building -- or authorizing the construction, rather of the project itself, the only they said, "If the seven states can agree on this contract within six months, we will approve it in six states in agreement, provided that California passes the limitation which has been referred to so repetitiously in this action.”

That's the only change in the Compact that was made by the Congress.

And the Congress and the Compact, if we think of it, segregated out and think of it as a separate document, therefore, stands as an agreement between the states covering the points that I have mentioned in with this California limitation.

Obviously, the Compact did not endeavor to allocate the water between the states of the Upper Basin or the Lower Basin.

As has been mentioned, the Upper Basin states were able to agree and have themselves allocated the water.

The Lower Basin states, I -- they are no more in agreement in 1962 then they were in 1922.

That situation remained static.

But certainly when Congress affirmed the Compact, it was not in the Compact sense, in any sense attempting to allocate the waters between the Lower Basin States.

I don't -- it's been pointed out and it's obvious from this lengthy legislative history, it was repeatedly stated by the senators affected that they were not going to write a Compact for the Lower Basin.

That they were not going to make it mandatory on any of the states in the Lower Basin to do this or to do that.

And that they were no more attempting to do that for the Lower Basin than they were for the Upper Basin.

But it was absolutely necessary, if we look at the other part of the situation and think of the authorization of this project, that the Congress must of necessity make some provisions where the disposition of the water that was going to be stored in and delivered from that project.

And that's as inevitable as day following night and I believe it is the logical interpretation of this Act that all of this discussion of this 7.5 million acre-feet that's going to be divided.

Always 300,000 to Nevada, except today when we find it cut down, and 2 million acre to Arizona and this fluctuating amount to California, that that inevitably must be considered to be a determination of a distribution of water that was going to be controlled by that project and derived from it and resulting, as I will mention it in a moment, from the water right of that project.

It seems to me that the one gap in our thinking and are arguing here is what was the water right of that project?

But, before I go to that, the Congress must consider, how the waters that were going to originate when this great reservoir was created?

How it was going to be divided just as much as it would as the power, as mentioned by Mr. Justice Black.

They were the inherent results, the only reason, for expending this great amount of money.

Now then, this suit in some way turns upon the argument of California which is based upon the assumption that the water priorities that existed on that river survived the project.

That is a corner stone of the California briefs, both before the Mater and before this Court in the argument here.

And the fact is, I believe that that whole body of argument is just as valid as the basic exemption and no more.

And I think it is -- the basic exemption is contrary to what actually happened when the United States of America, through its Congress decided to enter upon this navigable stream and build this combined power and water project and in effect preempted if I might say, the river.

There has been some facetious remarks that there was a Red River there which on one of the maps, I think this map chart A -- chart B as starts at the upper reaches of Lake Mead and continues down to the Mexican boundary.

Well, the color is not particularly significant.

There are certainly can be no doubt that at this time, that that separate river is a very real and a distinct thing because that entire area of the river has been taken under control by the United States by the series of dams starting with the Hoover Dam, the Lake Mead, or the Davis Dam, the Parker Dam, the Headgate Rock Dam, the Imperial Dam, and all of the others.

There is a body of water extending from Lake Mead to the Mexican border which is being handled and controlled by the United States as a separate and distinct entity.

And I am inclined to think that Judge Rifkind was entirely logical.

In his result, we may quarrel with his language but he found before him as he sat and listened to these millions of words, that there was that section of river, a reservoir, and a series of dams, and the diversion from it, that the United States was handling, that it was controlling and, out of which, the water had to be delivered and concerned which -- the Secretary had made contracts for the delivery of water.

Now then, of course the basic water supply for this whole complex along the river, one -- I think one of the most magnificent in the world.

What was the water right for the dam itself?

As it had been pointed out by questions from the court, it is the general custom of the Bureau of Reclamation, the same entity that built this dam, Secretary of the Interior.

He goes out to build the dam on the Yakima River or the Boise River, the Snake River, and any other rivers and all the rest, he acquires a water right.

He acquires the right to take over the flow of that stream and now there are other people there with other water rights and many times older ones.

They got there first because in some ways on the western streams the United States is what may be called a Johnny-come-lately, and that's the water right for the project.

It's the one that, under Section 8 of the reclamation law, it has been the custom of the Department of Interior to acquire under state law in every instance, so far as I know, except that of the Boulder Dam.

If this normal procedure had been followed by the Secretary of the Interior, he would have gone to the State of Nevada where one end of the dam is located and the State of Arizona where the other end of the dam is located and say, “I am going to build this project and I want to take the necessary steps to get a water right for it.”

Justice William O. Douglas: I understood that, in the case of Nevada, that what the Secretary did was to enter into a contract with an agency of the State of Nevada.

Mr. Earl E. Hartley: That's for the water out of the dam, Your Honor.

Justice William O. Douglas: Yes.

Mr. Earl E. Hartley: But not the water flowing pass, not the water in the river.

Justice William O. Douglas: Oh, I'm sorry.

Mr. Earl E. Hartley: I am distinguishing and I think, if I may make it clear that it is -- the failure to make that distinction is the basic reason for much of the trouble in this action because the United States must, of necessity, have some kind of a right for the waters of the Colorado River which is -- which it takes and which it stores, and which it said, "Nevada, you can have so much under your contract.

You California people can have so much under yours."

And -- and I think the legal inquiry here is, what is the right of the United States?

And I'm inclined to think that this, being a navigable stream and following the deci -- numerous decisions of this Court starting with the appellants in the case in Chandler-Dunbar, the Twin City Power, and all the rest.

That the United States took over the control and the management of the whole of the Colorado River with the right to dispose of it by contract as provided in the Project Act, Section 5, except only those rights which might in that area be nominated for present perfected rights.

Justice William O. Douglas: Were there any such rights in the --

Mr. Earl E. Hartley: The only rights, at that time, existing in Nevada were those above Lake Mead on the Virgin and Muddy Rivers.

There were no diversions from the main river.

There were some diversions in Arizona and the California diversion.

And I cannot say how any priorities can be said to be an existent today, any conflicting claims to the waters of this river against the claim of the United States to take the water and start, except those which were specifically preserved by the Act itself and called denominated present perfected rights.

Justice Arthur J. Goldberg: They were (Inaudible)

Mr. Earl E. Hartley: No, that's just the minimum amount of Nevada, Your Honor, up in -- above the reservoir.

What I am speaking of more is the group of rights down in California in the order of three million acre-feet.

Justice Arthur J. Goldberg: Is there about 50,000 acre-feet (Inaudible)

Mr. Earl E. Hartley: Well, I don't know whether they could even be characterized as that.

And 50,000 acre-feet is a consumptive use figure of uses above Lake Mead and that comes into effect here more in our controversy with the Government over deductions from the Nevada contract than they do from a determination of what are the rights in the mainstream itself.

But as -- I think this is true that, from the action of the Congress in the Project Act, the Secretary of the Interior in making his contracts for the California users was charged with the necessity.

He must recognize those present perfected rights and he couldn't not take them into account as well as he was by the limitation which would put the ceiling on the total amount of water that California could take of out of this project.

Now, such a determination, in my opinion, would be consistent with the entire body of water law in the west.

I think we should look at, since the major thrust of this whole contention here is what were the rights of the California parties, as to what their rights were at that time that would in -- unquestionably come in as present perfected rights.

There were the old rights of the Yuma District and of the Palo Verde District which have been described here.

Under any interpretation of the Master's decree, those rights would be ineffective.

So, I see no reason to spend any particular time talking about them.

They were old in time.

They're given the oldest priorities in this intrastate seven-party California agreement.

They have, I am sure, however, changed their character before Boulder Dam was constructed.

They were simply running the river rights.

If the river was there running enough water to supply them, they got the water.

If it wasn't there, obviously, they didn't.

The next in point of quantity and perhaps the breaking point are the rights of the Imperial Irrigation District.

And it seems to me that there has been a radical change in those rights and that they -- and I think very wisely, transformed their right from whatever it was, as has been mentioned before that, there was an appropriation from the river by a Mexican company which took the water down into Mexico and then the amount of water that the Mexicans didn't take flowed back northerly into the United States and was used in United -- in the Imperial Valley.

They've heard the story of tremendous floods.

There were shortages in the dry months of the summer time.

As a result of the construction of this complex of the storage reservoir in the Boulder Canyon, the Imperial Diversion Dam down below, the great All-American Canal there was created a new and different diversion from the river, and they were assured a constant supply of storage water.

And, I would think that any decree that would be ultimately entered aligned with the Master's suggestion should reserve to that entity the amount by which they had a present perfected right at the time that the Act became effective.

But in my opinion, the Metropolitan District does not fall in that category but, as they thought of it, there were some engineering work been done, it has been described by somebody as a gleam of somebody's eye but it certainly wasn't a perfected water right by any definition that I know of in the law of the western states.

Its -- it obtains its water by a contract from the Secretary.

It is water that is stored in this project that was authorized by the Congress.

I fail to see any inherent numbers between its contract rights and those of the State of Nevada.

By coincidence they are the only two that pay any money for.

The -- but it was simply a contract right.

Now, I think all of this is of materiality in assessing the impact of the Master's decision.

He -- to cover it very briefly, upheld the validity of the California contracts within the boundaries of the limitation, the validity of the Arizona contract for 2.8 million acre-feet and that of Nevada, 0.3.

He provided that, in times of shortage, present perfected rights should be perfected or be protected.

Even if it required taking the allotment from the other states and in doing that I believe that he fulfilled every priority that could be established as a priority as against the storage water in the dam in any suit and in any form under any rule that might be laid down.

As it had been mentioned, he provided, in times of shortage, first, there should be this proration.

And it seems to me that that was a very logical and consistent thing to provide because, as it's been mentioned at length, what the flow of the stream is going to be is probably unknown to man.

The -- if -- when there is a shortage in the amount of water that emanates from that project then, to provide for this proration accompanied by the protection of the present perfected rights, I think everyone is protected that needed to be protected.

It hasn't created any threats or a fear against the Upper Basin.

There is no evidence that anybody in California or the small present perfected rights on the Arizona side will be adversely affected.

I should mention in passing that it's very clear that these California rights have never been considered by anyone to have been preserved in their original character, what I'd call normal flow of rights or running the river rights which is all they could have been prior to the construction of the project.

No one has ever suggested that that characteristic has been preserved since the construction of the project.

Next, the situation that confronted the Court in these interstate streams such as Nebraska versus Wyoming, Colorado versus Kansas, and so forth, there, there were -- old rights were still being protected.

There were also rights for federally constructed reservoirs.

And, this question of the -- whether or not a right retains its original characteristic after the government comes in with a project was considered by the Court in the North Platte River.

And it's cited in our replied brief at page 24 United States versus Tilley, in which this Court denied certiorari and that case is of interest in pointing out what steps would've been necessary to followed if there had been in this last three decades, any thought or belief that there were some California prior rights being preserved as against the Secretary of the Interior in his right to stop the water in Lake Mead and hold it there unless and until it was discharged inconjuct -- in pursuance to the existing contracts.

And that I believe, is the real test and that is I think where many of us have wondered astray perhaps in this sometimes academic discussion of priorities.

Now, in --

Justice Charles E. Whittaker: (Inaudible)

Mr. Earl E. Hartley: Not any more, as against the Secretary of the Interior.

In my opinion and if that -- is this the inevitable result of the authorization and construction of that project.

As I say, by a strange turn of the wheel, it might be determined Little Nevada is here, perhaps more, well precipitously supporting the Master's theory than any of the other parties of the case that I think it is a logical sound and workable solution.

Justice Charles E. Whittaker: (Inaudible)

Mr. Earl E. Hartley: Perhaps, if that's possible in any counsel.

Now, Nevas -- Nevada's basic position, however, has been that it is entitled to this 300,000 acre-feet allocation, under any theory upon which the case might be decided.

We presented a volume of evidence and we think it is persuasive that as that portion of Nevada which as I mentioned earlier, is absolutely dependent upon the Colorado River for survival, if we even take the year 2000 as a cutoff, it would be an excess of the amount that is awarded in our contract.

If there was no contractual allocation scheme at all, let's make that assumption either permissive or mandatory in the Project Act and the Secretary had constructed the dam as he did and we were under general reclamation law.

It is our contention that that is a valid contract, that it must be taken into account and that in any court decree purporting to apportion or allocate the waters of river we would be entitled to that amount of water under that theory.

Or if we go the whole way and assumed there was no allocation and it's being thrown open to the doc -- division of the water under this doctrine of equitable apportionment.

Then it is our contention that because of the situation of Nevada as a sovereign state.

And again accompanied by the contracts and the uses which we have initiated and, in each respect, expanding and growing, that an allocation of the like amount of water would be justified.

The only point that I wish to mention very briefly under the general subject to the California limitation -- the California limitation is this, that it's been touched on I think by some who had preceded me.

California says that there -- their admi -- their four million four is to come out not of the mainstream allocation from the project that the Secretary have created, but from a system wide pool in which the Gila of course, is the main contributor.

But when we come over to their rights under the water the million acre-feet allotted to the Lower Basin by Article III (b) of the Compact.

They then do not read the Project Act literally because to the extent of the excess or surplus water in Section 4 (a) of the Project Act, California has given in addition to this four million four, plus not more than one-half of any excess or surplus waters unapportioned by said Compact not in excess of 3 (a) or anything at that time.

And if you look to the Compact only has an aid in construing the Project Act, I find to believe that the Master, and perhaps very properly lean quite away over on the side of California in finding contrary to the position of Nevada and others that this 3 (b) water was not excess or surplus water.

It seems to Nevada that the Master likewise was acting quite properly in providing to put in his decree for a future determination of these present perfected rights.

I am inclined to think that perhaps Nevada was the one which initially requested that addition to his draft report.

The reason for that is this.

As I say, by -- I think there can be no denial that, under the Project Act, they're going to be given priority and, in assessing the future growth and development of that section of the river in that part of the United States, they must be taken to an account.

It's our thought that any engineer that is going to determine the feasibility of water supply for new and additional projects must necessarily know the amount of water which had prior claims as present perfected rights.

To take our Nevada situation, each time there is additional diversion of water, there -- it is necessary to install extensive and expensive pumping installation along pipelines and, obviously, any bankers that are going to put up any money are going have to be persuaded that there's water available and so also for the people who will be taxed for it.

And knowing that these rights are prior, it is quite vital to know the extent of it.

I think that the discussion this morning has cleared up a good deal of the question of what a present perfected right is.

A perfected right is a well-known term in irrigation in the west as different from an in-court right or an initiated right.

Appropriations sometimes is a pretty loose term.

It has been used pretty broadly in various courts and various legislative body, but the term “perfected right” is certainly a definite and precise term and the addition of the word “present”, I think, was unique and intentional and required.

It -- like as I mentioned earlier, originated in the Compact.

And from all the discussion, is whether -- one thing is obvious and that is that they were trying to get a cutoff at some time and to get that cutoff, it had to be something definite and certainly should not be something dangling out in the future.

If the Colorado River is typical of most of western streams, probably if we went up and down the stream there could be found at that time pending a multiplicity of notices of appropriation in the filing.

I think a mention has been made that there's someone in Arizona had made one up upstream above the reservoir.

And I have no doubt that there were many other all along.

Now, if we would taken an interpretation of the present perfected rights which would say that any right that came along in the future that was perfected, that was in existence at some time -- of some character that time, I think we destroy one of the fundamental aspects of the decision that was made by those who drew the Compact and by those who hammered up the Project Act.

The -- it could even amount to opening the door to unlimited priorities.

There has to be a cutoff somewhere on any kind of a water right determination.

It's inherent in it.

I want --

Justice Hugo L. Black: What do you mean by that?

Mr. Earl E. Hartley: That unless there is a cut off date as to -- on water rights, why, that prevents others who maybe have done something prior to coming in ahead of you, why you never know whether you have a valid right or not under this doctrine, first in time and first in right.

I think it all show -- also should be mentioned that even though a decision should be made that this is not a statutory allocation suit, as has been stated, that doesn't necessarily turn this into a priority suit.

I think there had been some question raised about that.

The -- we think that the Secretary had the right to make these allocations that he made by contract and that they're valid.

If for any reason, I can't foresee there'd be a contrary decision as to whether the Project Act told him to authorize him to make either as specific allocation or as Government counsel contend, a flexible authority to make allocations, certainly under the Project Act, anyone getting water out of that reservoir had to have a Compact.

And under the General Reclamation Act, a contract is the basic scheme.

The -- in my opinion any valid right, for instance what the Metropolitan Water District has is a contract right and that if, for any variety of reasons it was decided that this case can not be decided under the allocation theory then I can not concede of any situation that would require to be thrown back into priority suit.

That in addition to the fact, that I doubt in any suit or variety of suits, the multiplicity and intensity of evidences under the record in this case could be equaled, let alone exceeded.

Now, it seems to us that that just necessarily could not follow.

Justice Hugo L. Black: Can I ask you a question?

Mr. Earl E. Hartley: Yes, sir.

Justice Hugo L. Black: (Inaudible) fact that one gets the water unless they have a contract in your argument that (Inaudible)

Mr. Earl E. Hartley: The Master did not say that.

It's the United States that says that.

Justice Hugo L. Black: What I mean is --

Mr. Earl E. Hartley: No, I'm coming to that.

No, I think there's no inconsistency at all.

Justice Hugo L. Black: I was wrong.

Mr. Earl E. Hartley: I think that they're -- on the contrary, they're entirely inconsistent, and I might discuss that for a moment at this point.

The State of Nevada is in an entirely different position with reference to its contract than is that of Arizona.

The basic situation is determined on -- dependent on the facts, as I stated them.

It was readily recognized early in the picture that to develop this Las Vegas area, there was going -- and to handle the power that was set aside for Nevada also, that there needed to be a unifying body that -- to prevent a scramble for them, for the power and for the water and so forth, and that could supervise the gradual and it was hoped, the most well-planned development in that area.

So, the State of the Nevada passed this Act, which is set out in detail in our briefs, both in the body and appendix.

It is in our reply brief, for the last time, at page 14, and -- I beg your pardon.

That is the contract itself, and the references to the Act --

Justice Hugo L. Black: That's on (Inaudible)

Mr. Earl E. Hartley: Yes.

It's in -- it's covered in the briefs, and it created a body politic acting for the state, and then Commission was established by the legislature and it -- the -- and it particularly authorized the execution of a contract that is involved in this action.

It authorizes the Commission to receive the water covered by the contract for the State of ida -- of Nevada and to make the necessary appropriation for it.

It authorizes the Commission to make all necessary leases or subleases or contracts for the use of the water.

And the -- that entity has been the one that has been taking the water out of Lake Mead.

Justice Hugo L. Black: Is it also authorized to (Inaudible) compact to represent power?

Mr. Earl E. Hartley: It authorizes this Commission to take the power that's allocated to Nevada and to distribute it those who are entitled to use it.

And --

Justice Hugo L. Black: (Inaudible)

Mr. Earl E. Hartley: It has a very large and elaborate power organization, I might call it.

The power engineer he testified in this hearing and the record shows the extent of the quantity of power and it's been used throughout the development through that whole southern Nevada area.

Lines running north clear to the extreme northwestern boundary of Colorado River Basin, as is depicted on the map.

Justice Hugo L. Black: (Inaudible)

Mr. Earl E. Hartley: They have REA's and mining developments in municipalities and --

Justice Hugo L. Black: (Inaudible) generally.

Mr. Earl E. Hartley: Yes, very generally.

And it's been a profitable and a successful operation, and the State of Nevada is -- this body of the State of Nevada is actively engaged in trying to promote other part developments in other dams that may be constructed in that area.

It's a growing concern.

Justice Hugo L. Black: Suppose -- suppose the government decides to (Inaudible)

As a matter of fact, the Compact is (Inaudible)

Mr. Earl E. Hartley: Well --

Justice Hugo L. Black: (Inaudible) which the statute makes different.

Mr. Earl E. Hartley: So far as state statute is concerned, it doesn't make any difference and I'd not be inclined to think that the Project Act makes any difference rather than the other.

Now, the whole of the Nevada contract --

Justice William J. Brennan: Mr. Hartley.

Mr. Earl E. Hartley: Yes?

Justice William J. Brennan: (Inaudible) takes the position now, of course, that's invalid, in excess of the Secretary's power.

Was there any animation of that at the time the Compact was made with the Nevada agency that the Government believed?

Mr. Earl E. Hartley: I don't -- I'm not aware of any animation of that until the course of this argument.

It was discussed at some length before Judge Rifkind and it's a New York argument where in his original draft he said that everybody in Nevada had to have a contract like Arizona.

He coupled the two together.

We filed specific written exceptions to that part of his draft report and Government counsel, there, argued, as I understood it, not that Nevada's contract was invalid, but simply that it had to be accompanied by these other subsidiary contracts.

Now, the thing that bothers us is just a practical matter.

The State of Nevada is acting to its Colorado River Commission that's in business and has facilities, and it's delivering water to factories, and it's delivering water to small landowner users along the line, putting water into the water system of the Las Vegas Valley Water District.

Now, another -- we aren't -- in Nevada, confronted with a situation such as down in Arizona where it's a question of irrigation projects and where each farmer is going to make a contract for his irrigation water.

If you say contract with the users, how far are you going to go?

Because every man has a tap in his yard in the Las Vegas Valley and he's using this water that pumps out of Lake Mead.

Is he going to have a contract with the Secretary of the Interior?

It seems to me, it just leads inevitably to observed results.

Justice Hugo L. Black: Is it part of this water going to industries, too?

Mr. Earl E. Hartley: Yes, this large chemical plants and --

Justice Hugo L. Black: Is there any question about that?

Mr. Earl E. Hartley: I haven't heard any raised and we think it's the but -- the most efficient use have been made by the water in the Colorado River Valley, and those who drew the contract with the State of Nevada, for instance, the contract itself says that, the United States shall deliver to that state in Article IV (a).

And, now, on the contrary, the Arizona contract, the comparable paragraph says that it will deliver water to such political subdivisions of Arizona as may contract with the Secretary.

I can't see any magic where a political subdivision of Arizona can have any greater standing than the State of Nevada acting through its own agency.

It seems to me it's of higher decree, and that the State of Nevada clearly can qualify as a user, as a person using water under the general broad language of the statute.

And -- the contract with Nevada particularly provides that Nevada shall pay a charge of 50 cents per acre-foot and that the State shall pay it.

And all the way through the whole body of the contract is a relationship in which the state is the user.

Now, and I am inclined to think it's an efficient way to handle the situation that the -- any other situation would lead only to chaos.

Now, I don't think there's any question of what -- Nevada has the right to this water and if we take the extreme wording that this contract is invalid, I think we impressively have -- would have the right to go back and say here, "We want to do a different contract and I can't believe that there's any contract could be written which would work more efficiently."

Now, I think perhaps we're overly belaboring what might be a minor point but it is of considerable importance to the State of Nevada, just from an operating point of view.

Justice Hugo L. Black: It says in several places that the sole purpose of irrigation and domestic purposes --

Mr. Earl E. Hartley: Yes.

Well, I think domestic, Your Honor, is generally been interpreted broadly enough to include industrial uses and, as I say, this water is so valuable that the major use there in Nevada is for domestic use.

Print this transcript Transcript:

Argument of R. P. Parry

Mr. R. P. Parry: -- the validity -- upon the validity of this contract was asserted.

I had some discussion with Solicitor General during the recess and if I could state it correctly, it is still the United States' position that the contract, not that the contract is invalid but that it must be implemented by independent contracts.

Unknown Speaker: Is that (Inaudible) simply -- that was simply not in the contract (Inaudible)

Mr. R. P. Parry: Precisely that -- I think that is rather the fundamental leverage between United States and State of Nevada.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: I think the state of the record is this.

The Master recommends that the contract stay as it is.

That's the report now.

And if -- if affirmed, that's the way it would stand.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: Pardon me.

As the Master's final report now stands and he recommends that the Nevada contract stand as it is.

The Government accepted to that point.

If the Master report were affirmed, the contract would stand the way it is and Nevada would be the party who would receive the water, would pay for it and would make the distribution among the various people in the area.

And I might add there's been disinteresting developed through in the Congress, one of the -- a valley that adjoins the Las Vegas Valley is the El Dorado Valley and the Congress of the United States has passed legislation authorizing the State of Nevada to take 115,000 acres of land over in that valley at an appraised price which, I'm pointing, which this water will be used for people living on that land, all the sides.

And also another separate act of Congress for a similar handling of 15,000 of ac -- acres down near the Mohave Indian Reservation and then the State of Nevada working list, the Department of Interior in the last appropriation got tons for a study for putting this water on there.

So, it's a partnership operation between the State as such and the -- and the Federal Government and it is our taking not to belabor the point that, as I said earlier, there's no difference say between the State of Nevada and -- and any irrigation district of the State might be -- might create nor is there any difference say between the State of Nevada and the Metropolitan Water District.

Unknown Speaker: Can I ask you?

Mr. R. P. Parry: Yes.

Unknown Speaker: As a matter of (Inaudible)

Mr. R. P. Parry: I think so.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: No, I think --

Unknown Speaker: Most of the legislative (Voice Overlap) --

Mr. R. P. Parry: As I say the Congress has already authorized the latter to be -- become a little like north to go to (Inaudible) and takeover this land.

And if they takeover the land and people who live on it, they will have to give them water downtown to drink and to use.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: I think so as it --

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: As there as -- as the record now stands.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: Yes

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: I read so --

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: No.

They -- this -- the history of it, the -- the industrial user originally was the United States of America or an agency on that.

In other words, I mentioned during the war --

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: -- that those big magnesium complex there and a part of this, Neva -- and Nevada water went to that industry.

That's what made it possible.

And now as it's divided up around and I think I'm correct to say, none of those have a direct contract with the United States but it's all --

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: Yes, they --

Unknown Speaker: The Commissioner (Inaudible)

Mr. R. P. Parry: Yes, they could have and I think, perhaps, even prevent them.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: Well, so far as this has been a purely academic argument that is typical or less but just been going head out there.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: I suppose.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: I suppo -- I -- I think that is a good speech of (Inaudible) and I want to find out about it if you could have another lawsuit or that way.

The final point that we wish to discuss a little bit is another point where the controversies between the United States and Nevada and that is a provision that Nevada's 300,000 acre-feet shall include all other users in the State.

Now, as I mentioned in the beginning of my comments and the support -- the old settle area in the northwestern part of the State, just north and west of the reservoir along the Virgin River and the Muddy River, has a consumptive use.

In other words, the -- the difference between the diversions and the term clauses estimated to be approximately 50,000 acre-feet.

As the United States interprets this Nevada contract, Nevada is not going to get this 300,000 acre-feet but it's going to get 300,000 less this 50,000 and it become so -- we -- become 250,000 less the 300.

It has been -- I think it was commented on by the Solicitor General and others if there was one thing that was consistent all through the discussion of this Project Act, setting up the project was that Nevada had said they would limit their demands to 300,000 in order to have 300,000.

And now, we find that in one paragraph of the -- the Secretary drew, they -- there is -- this language which reduces the 300,000 by uses that existed there before the reservoir was ever dreamed of.

Justice Hugo L. Black: But you're --

Mr. R. P. Parry: And --

Justice Hugo L. Black: -- saying -- but you're saying that is not -- you say you're not, out of the 300,000, are you but they said you would not (Inaudible) 300,000 plus this other water (Inaudible)

Mr. R. P. Parry: That's -- that is -- that is not, perhaps, the more accurate way of stating it.

Now, there seems to us have no reason to -- in the world that -- however you analyze that penalizes --

Justice Hugo L. Black: Where is that water coming from --

Mr. R. P. Parry: From --

Justice Hugo L. Black: -- precisely?

Mr. R. P. Parry: -- from the -- from springs mainly.

Justice Hugo L. Black: (Inaudible)

Mr. R. P. Parry: Springs that feed into the Muddy River and the Virgin River, two small streams out there.

In other words, the sta --

Justice Hugo L. Black: (Inaudible)

Mr. R. P. Parry: Yes, and that solely from the tributaries, their whole uses, they were there before the comeback and the stream and other were there before the project was conceived and the Master entered into quite an extensive discussion of the reasons for it.

I'm not attempt to take the time now to repeat it and he found that that was not a correct exercise of the Secretary's power in putting that language in which resulted in that diminution of the -- of Nevada's rights.

In other words, under their report, again as it -- the final report as he has filed it, that portion of the Nevada -- of the Nevada contract is deleted so that the three full 300,000 is that Nevada's contribution or Nevada's right in the storage in the reservoir.

Justice Hugo L. Black: What is --

Mr. R. P. Parry: Now --

Justice Hugo L. Black: -- the similarity between the arguments you're making with reference to the use of water there, that is Arizona as to the use of water in the field?

Mr. R. P. Parry: I think quite similar except that ours happens to be geographically located above the reservoir.

Now, the Gila's belong entirely with them.

Justice Hugo L. Black: Both from tributaries?

Mr. R. P. Parry: Yes, they're --

Unknown Speaker: (Inaudible)

Justice Hugo L. Black: Pardon?

Unknown Speaker: (Inaudible)

Justice Hugo L. Black: Yes.

Unknown Speaker: (Inaudible)

Justice William J. Brennan: Those two are amended (Inaudible)

Mr. R. P. Parry: Yes, I think.

Thank you.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: (Inaudible) speak of having this small area here (Inaudible) is the Muddy River that comes down to northwest very small stream begins as some large springs.

There is enough natural rain flow that creates stream but there's some springs there and have water taken off irrigation land, that adjoin the upper end of the reservoir where the -- the Muddy -- the Meadow Valley washed come down to the North and the Virgin River that heads in Utah just about the corner.

There's some diversions of (Inaudible) that river, I think all over the state line and bring some water around for irrigation.

Unknown Speaker: I think it's your (Inaudible) the joinders (Inaudible)

Mr. R. P. Parry: Yes, originally the Muddy River flowed in to the Virgin and the flat nature of the land there has well indicated by the back -- that's where the water backs up the reservoir, that's why the reservoir was there.

And there was this flat land, that these pioneers could irrigate.

Justice Felix Frankfurter: (Inaudible)

Mr. R. P. Parry: We might be talking about present perfected rights.

Justice Felix Frankfurter: (Inaudible)

Mr. R. P. Parry: If they're (Inaudible)

Justice Felix Frankfurter: (Inaudible)

Mr. R. P. Parry: Its a present perfected right in every, not any -- every variety of definition I can think of.

And now, the reason that it was given for not allowing it is that it diminishes the water in the reservoir.

If you follow that theory you would go clear to the head waters of the reservoir and penala -- of the river system and penalize everyone and I think no one has any thought that that should be done.

Unknown Speaker: I think that (Inaudible)

Mr. R. P. Parry: From the beginning of this action we have and it was due to Nevada's request that the Master rule as it then was briefed and presented to him fully.

It's discussed at length in his report better than I can do it here.

Justice Felix Frankfurter: Mr. Parry --

Mr. R. P. Parry: Yes.

Justice Felix Frankfurter: -- do you think you should make this one (Inaudible)

Mr. R. P. Parry: That was one of the -- Nevada's request, Your Honor.

And it has been our thinking that the Secretary is in the river in so many different capacities for proprietary with respect to the Indians, with respect to power, with respect to various federal projects that the type of Anglo-Saxon justice that we at least try for would, perhaps, be better satisfied if there was an independent commissioner there operating under specific rules and regulations.

So there wouldn't be any question of favoritism or and that everyone would be treated alike.

Justice Felix Frankfurter: What kind of duty do you see that should be (Inaudible)

Mr. R. P. Parry: The first thing would be the accurate compilation of the water available for that division among these contracts annually and fair enough it advance so that the users could plan their use.

Justice Felix Frankfurter: (Inaudible)

Mr. R. P. Parry: Yes -- yes, and what a real water master has all the varieties of duties that a water master should have.

And I think that there will be grave questions as a policy to be determined, probably, of how much should be safely discharged from this reservoir prorated among the contracts.

Justice Felix Frankfurter: (Inaudible)

Mr. R. P. Parry: I think it is of a highest potential in that way.

That's been the history.

If there's anything in the West that people fight over is water.

Perhaps, this litigation is a good evidence of it.

And it's our desire and thinking and I believe California has agreed with us on that.

That an independent commissioner, probably, with an advisory board representing the States who could participate in and advising even ahead of time, would remove much incipient friction and perhaps prevent hearings coming back to this Court.

Justice Felix Frankfurter: The Secretary(Inaudible)

Mr. R. P. Parry: I believe he could.

And I believe that's one of the suggestions that -- that has been thrown into the record.

But again, we have thought that it's a -- someone was in there which it was a kind of judicial capacity.

This is of such great importance to all of this vast area for water is so tremendously needed that it seems to me -- seems to us, a logical way of handling it.

Unknown Speaker: They did in the Congress (Inaudible)

Mr. R. P. Parry: I do not know that it has been put up to the Congress.

Now, you see --

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: Well, I would think that the Court, in the usual practice in such cases of this, has probably going to reserve some type of jurisdiction, it's put at the decree and that the Court would re-divest in the --

Justice Felix Frankfurter: You're saying --

Mr. R. P. Parry: -- most efficient way of doing it.

Justice Felix Frankfurter: You're saying that (Inaudible) judgments withdrew (Inaudible) will make adjudication regarding this application?

Mr. R. P. Parry: It does.

Justice Felix Frankfurter: And therefore, the (Inaudible) would be accurate, would effectuate that decree you mean that the (Inaudible) attached to it as well as the inspection of the effectiveness of the decree?

Mr. R. P. Parry: And that -- and --

Justice William O. Douglas: Such as we appointed in the Nebraska-Wyoming --

Mr. R. P. Parry: Yes, Your Honor.

Justice William O. Douglas: -- litigation.

Mr. R. P. Parry: Yes, Your Honor.

The continuing jurisdiction of the Court, I think is --

Justice Hugo L. Black: Where will get the apportionment?

Mr. R. P. Parry: Well, I think --

Justice Hugo L. Black: Are these necessities called?

Mr. R. P. Parry: Yes, I think so, (Inaudible) the waters or something.

Unknown Speaker: So this is the (Inaudible) matter of (Inaudible)

Mr. R. P. Parry: Pardon me?

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: Yes, Your Honor, they are permanent.

And --

Justice William O. Douglas: That was true in Nebraska case?

Mr. R. P. Parry: I believe, that's my memory, Justice Douglas, if that was a permanent one thereto.

Unknown Speaker: (Inaudible)

Mr. R. P. Parry: Yes.

Thank you.

Argument of Attorney General

Mr. Attorney General: Mr. Justice Black, may it please the Court.

It is my desire very briefly to state the position of the State of Utah in this case.

Utah was impleaded as the party defendant by order of the Court but only in its capacity as a Lower Basin State.

Utah's principal interest in the Colorado is, of course, as a member of the Upper Basin.

The portion of the Lower Colorado River Basin located within Utah lies in the extreme southwest corner of the State.

In its north-south dimension, it is about 35 miles.

In its east-west dimension, it is about a hundred miles.

Unknown Speaker: (Inaudible)

Mr. Attorney General: Where the Virgin River comes through.

The principal streams are the Virgin River System, Kanab Creek and Johnson Creek and they enter into the Colorado below Lee Ferry.

Of these three streams, the only one which contributes any appreciable quantity of water to the Colorado River is the Virgin River.

By its pleadings in this case, Utah asked for a decree awarding it the right to the consumptive use of 125,000 acre-feet of water per annum from these tributaries of the Colorado River flowing through the Utah portion of the Lower Basin.

This included approximately 50 -- 58,000 acre-feet of water for present uses and approximately $67,000 -- 67,000 acre-feet for future development.

The future development consisted principally of an irrigation project known as the “Dixie Project” on the Virgin River.

As the hearings before the Master progressed in this case, it became evident that no other State of the Lower Basin challenged any -- in anyway Utah's present uses.

Only California expressed any objection to Utah's proposed development.

On the -- and the California objection in that respect wasn't made only as a part of its general contention that because of the inadequate water supply in the mainstream, no new project should be permitted.

In this date of the record, the Special Master held that no justiciable controversy was presented so far as Utah's present or future uses were concerned.

In fact, the Master's ruling applied not only to Utah but he declined to adjudicate any main stream rights to inflow from the tributaries.

Likewise, he declined to adjudicate any rights as between the tributary states.

He did say, the Special Master, that in the event that the dispute arose that such dispute should be settled by application of the doctor -- doctrine of equitable apportionment.

Although Utah naturally would have preferred a decree from this Court affirming to it the rights it claimed as to present uses and future uses, we did not take any exceptions to the Special Master's Report and recommended decree.

This, for the very practical reason, that so far as the report and recommended decree were concerned, it left us free to continue our present uses and to pursue our future development.

Presently irrigated acreage in the Utah portion of the Lower Basin is about 25,000 acres.

The Dixie Project, the plans for which have already been implemented by state action, will increase this amount of irrigated acreage by about 13,500 feet.

If the Court please, Utah is not directly concerned in how the Court may choose to divide the waters of the mainstream of the Colorado as between the States of the Lower Basin located on the mainstream, particularly, a division based upon a construction of the Project Act as distinguished from the Colorado River Compact.

It is our considered judgment that the Lower Basin rights of Utah are left unimpaired by the Special Master's Report and recommend decree.

And we are --

Justice Felix Frankfurter: That means -- that means that California (Inaudible) new Senators (Inaudible)

Mr. Attorney General: That is --

Justice Felix Frankfurter: -- new function.

Mr. Attorney General: That's my understanding of the report.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: That's my understanding.

Justice Felix Frankfurter: That is I'm not quite (Inaudible)

Mr. Attorney General: I -- per -- perhaps, they are -- both, I would think Justice Frankfurter.

We at one time, made a claim before this Court on the joinder issue that it was de minimis.

And although, the Master didn't couch his holding in those terms, he did say that we were in effect seeking the declaratory judgment and he didn't think it was right for such a judgment.

Unknown Speaker: (Inaudible)

Mr. Attorney General: 58 -- 58,000 acre-feet of water.

Unknown Speaker: (Inaudible)

Mr. Attorney General: We are using 58,000, irrigating 25,000 acres and --

Unknown Speaker: 58,000 of water would be an addition to (Inaudible)

Mr. Attorney General: Would be an addition of the Dix --

Unknown Speaker: (Inaudible)

Mr. Attorney General: And we are claiming the right to an additional 68 -- 67,000 acre-feet of water which would be a supplemental water supply for the present acreage which is inadequate, actually, as well would bring new acreage in the cultivation.

Justice William O. Douglas: You didn't file any brief at all?

Mr. Attorney General: We didn't file any brief.

Justice William O. Douglas: Yes.

Mr. Attorney General: Mr. Justice Black may it please the Court.

The issues are in recommendations of the Special Master that our primary concerns in New Mexico have not been discussed by the other parties to this action.

As defined in the Colorado River Compact, New Mexico is both a part of the Upper Basin and Lower Basin.

Where Lower Basin's State by reason of the fact that the Little Colorado and the Gila both originating in New Mexico have their confluence with the mainstream below Lee's Ferry.

Upon motion of the defendant, the State of California and the cause of our tributary interest in the Lower Basin, this Court ordered us to be made a party to the action and the order of December the 12th, 1955.

As the hearings progressed, it became increasingly more evident that our interest in the principal controversy was more academic than real.

However, in view of our important, though by comparison de minimis, uses of water from the two aforementioned tributaries, New Mexico had a great expense prepared and submitted to the Special Master, evidence of these uses both present and contemplated.

Since there had not heretofore been an apportionment of the waters of the two streams between the States concerned, we precede on the premises of -- of equitable apportionment as previously enunciated by this Court in the case of Nebraska versus Wyoming, 325 U.S. 589, to sustain our burden and because of certain rulings of the Special Master as to evidentially matter to be received was necessary to take the deposition of something over 200 witnesses comprising a deposition of some 3,700 pages.

And this deposition was for the purpose of proving or providing direct evidence of present uses of water for irrigation in New Mexico, largely from the Utah River.

The Special Master found that there was no present controversy as to the waters of the Little Colorado and thus no -- thus no apportionment of those waters was necessary at this time.

However, as to the Gila River and the tributaries, we found it is presently over appropriated and therefore, apportionment was necessary to this end and in keeping with the principles of equitable apportionment.

It awarded New Mexico the uses that he found present.

Now, you mentioned that our uses are de minimis, however, I would be remised with my duties to the people of my State if I did not emphasize to this Court the extreme necessity of this water to maintain even the present low-level economy of the Southwestern potion of our State which is based primarily on ranching and mining.

The --

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Yes.

Justice Felix Frankfurter: You said that the (Inaudible)

Mr. Attorney General: Yes, sir.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: As the uses --

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: It's between New Mexico and Arizona primarily, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Of the simple reason that the problem was found to exist once we were brought into the case that the --

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: -- water for over appropriated.

Justice Felix Frankfurter: That's between Arizona and --

Mr. Attorney General: And New Mexico.

Justice Felix Frankfurter: And to that effect, the appropri -- the appropriation of what (Inaudible) have among the other State?

Mr. Attorney General: Not at all, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Yes, sir.

Justice Felix Frankfurter: And that question was (Inaudible)California case against Utah for the State Congress (Inaudible)

Mr. Attorney General: What they perhaps would always or rather.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: First, we are in here involuntarily, Your Honor.

We'd be doing very -- the best -- very best we could under the circumstances that evidence loss induced the --

Justice Felix Frankfurter: (Inaudible) driving me out?

Mr. Attorney General: Now at this point, no sir.

We -- we think we had gained a few things worth retaining.

Unknown Speaker: (Inaudible)

Mr. Attorney General: No, sir.

Unknown Speaker: No one here?

Mr. Attorney General: No one here.

Unknown Speaker: (Inaudible)

Mr. Attorney General: Yes sir.

We have in the --

Unknown Speaker: (Inaudible)

Mr. Attorney General: We hope too, Your Honor.

We -- the -- the potential future development down there is also great, the Gila wilderness being the greatest undeveloped recreational area in the United States at this time.

My co-counsel has some further remarks.

Mr. Attorney General: May it please the Court.

On behalf of the State of New Mexico, I would merely like to mention a few factors in -- as to how the report of the Master was arrived at.

The New Mexico had, after it had been brought into this case involuntarily, did request equitable apportionment as to its uses on the Gila River and its tributaries in New Mexico.

The Master in his report did make his decision with reference to the uses on the Gila River between New Mexico, Arizona and the United States on the theory of equitable apportionment and with which willingly we're very much pleased.

However, it is true that we felt in the draft report that there had been considerable limitation of the actual uses in the Gila on the New Mexico side of the line and that we were unhappy with that result and filed our comments to the Master's Report with him on that matter.

Subsequently, Representatives of Arizona and New Mexico entered into negotiations to attempt to compromise as to the actual uses on the Gila and its tributaries within the State of New Mexico and after considerable negotiations that compromised was affected and a stipulation was filed with the Special Master.

The Special Master adopted in full the findings of facts, conclusions of law and even provisions of the decree dealing with these uses in accordance with the stipulation between the parties.

As a result, the -- although New Mexico did improve its situation, we were not completely happy as -- as true in most cases in negotiating a compromise but we did improve our situation and we are here to request this Court, at this time, to adopt in full the findings of fact and conclusions of law and the provisions of the decree insofar as applies to New Mexico and its uses.

At this time, however, there is one slight error in the decree which is really an omission and it's obvious, which I think that I should call to the Court's attention and which should be corrected.

On page 340 of the Master's report -- 341, about the middle of the page under the heading of owner, appears the name Chris Dotz, D-O-T-Z.

Justice Hugo L. Black: Under the heading of what?

Mr. Attorney General: Under the heading of owner on the left hand column of page 341 about halfway down the figures.

Justice Hugo L. Black: Chris Dotz.

Mr. Attorney General: Chris Dotz.

And under that, you will note that there are two separate and distinct lines involving legal descriptions of land.

Now, in drawing the decree, on page 356, which -- an examination of disclosed copies, verbatim, the ownership, subdivisions and descriptions in the finding, to which I had called your attention, at the bottom of page 356, is the name, again, Chris Dotz but it will be noted that the second line of the description, as shown in the finding of fact on page 341, has been omitted and we merely request that the decree include this description the same as it is shown in the finding of fact on page 341.

Now, as to one other matter, I would like to request at this time of the Court and that is that specifically, the provisions of Article 9 of the proposed decree be incorporated in the final decree of this Court.

We appeal it is every important to New Mexico as well as to the other parties to this case that the future -- the Court retained its jurisdiction and if future circumstances should warrant New Mexico, for example, to come in and ask for additional relief that it be permitted to do so and we think that is of extreme importance and we respectfully request this Court that that article be retained in full.

Thank you.

Unknown Speaker: What page is (Inaudible)

Mr. Attorney General: Article IX.

I call it your attention to (Inaudible)

Unknown Speaker: 360 (Inaudible)

Mr. Attorney General: 60 yes.

So --

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: No, no.

If the Court please, we -- we request that it be retained as it is written in the final decree.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: I hope not.

Justice Felix Frankfurter: (Inaudible) Mr. Justice Black (Inaudible)

Mr. Attorney General: Certainly, sir, thank you.

Mr. Attorney General: May it please the Court.

I shall endeavor during the course of the remaining times to answer some of the questions that have been asked here.

But in the preliminary way, Your Honor, I should like to place this in the perspective.

As Mr. Justice Harlan observed that yesterday in a question or a comment relate, California does have two strings to its bow.

One is a so-called “limitation issue”, that is our contention that the claims marshaled against us on the main river should not be 3,100,000 acre-feet but should be only of the order 1,100,000 because 2,000,000 of the 3,100,000 from which we are excluded are accounted for by the advantages, the beneficial use which our neighbors make on the tributaries.

The second string of our bow is that if there is less than 7,500,000 acre-feet available for consumptive use in Lake Mead and below then the burden of shortages should be adjusted by application of the rules of equitable apportionment and should not fall pro rata upon this contract users irrespective of any of the elements of equitable apportionment, namely, priority of their inception of their use nor the magnitude of their existing users.

I shall deal first today with that second problem, namely, assuming, for the moment, that there is a shortage that is that the Secretary of Interior cannot deliver from Lake Mead and below as much as 7,500,000 acre-feet of consumptive use in any year, how shall that shortage be borne?

With respect to that string of our -- on our bow, we have two errors.

One is that the statute did not either set up a -- an apportionment, an allocation among these States nor authorize the Secretary of Interior to do so but if he did do so then he did not impose a federal apportionment a proration scheme upon us but he preserve the doctrine of priority.

I shall take up first the question of what the statute did.

If any authority is to be found in the Boulder Canyon Project anywhere for the imposition of a federal apportionment absent a -- I presume, an interstate compact, that authority must be found in Section 5, no other source is suggested by anyone.

This is a section which directs that the Secretary of Interior is authorized a contract with the storage and delivery of water and second that no person shall have the right to use of the water stored as aforesaid without a contract.

Did or did not, that language delegate to the Secretary of the Interior, the authority to “impose a federal apportionment” those are the Master's words.

Upon these three States absent the consent of their legislatures to a tri-state compact.

Now, as a preliminary matter, this Master is quite firm -- quite firm in rejecting Arizona's contention that the Section 5 language, which says that such contract shall confirm to Section 4 (a), means that the Secretary was given a mandatory formula by Section 4 (a) which he should impose by his contracts.

The Master is unequivocal upon that point.

He says that the authority in Section 4 (a) to these States to enter into a compact is permissive only.

It was never entered into and has no operative effect whatsoever.

It did not control the Secretary.

That means so if the Secretary did impose a contractual allocation scheme upon us, it was by the exercise of his own discretion at some later time and the Master says that he voluntarily looked to the apportionment which might have been made by an interstate compact had one been made in the pattern of Section 4 (a) and more or less adopted that scheme and, hence, imposed it upon us against our will a compact which our legislature had rejected.

We find that to be an extra ordinary piece of statutory construction.

We looked to the language of the statute and we look to the temper, the time, the spirit, the language of the debates.

This was a Congress which was acutely sensitive to the necessity of proceeding by a consent of the States and not by a mandate of Congress attempting -- attempting to divide water.

That is inherit in almost every section of this Act.

Have this been the simple problem above Congress laying its mighty hand upon the river and dividing up the water.

There was no occasion whatever for the Colorado River Compact in the first place, the cumbersome device of first, an authorization by Congress in 1921 to the States to negotiate.

They send in of a federal commission to preside and then bringing back that Compact for a consent of Congress.

Second, there was no necessity had they to offer to the legislature of California a limitation agreement to be made effective by the legislature of that State.

All Congress had to do was to make the division on the phase of the statute and that's all it was to it.

Why go through to this cumbersome device of the -- of the consensual arrangement?

And third had Congress indented to divide up the waters among Arizona, California and Nevada, why not say so and do it?

Why again go through the cumbersome device of inviting these three States to agree in either in the pattern here offered or in some other pattern in the latter event bring it back for the approval of Congress?

Why throughout these Acts set up the -- the enthronement, as the Senate Committee called it, of a compact clause of the constitution, use that device to bring about agreement rather than impose it by a federal mandate, for the very good reason, for the very good reason that all of the Senators who address themselves to this subject denied the existence of the constitutional power in Congress to affect any such division of the waters.

They control the sovereignty, the jurisdiction and the, let us say, ownership of the waters vested in the States and not in the Federal Government.

Whether they were right or whether they were wrong in their constitutional analysis is beside the point.

There was a complete absence of intent by Congress to make any such division.

And of course, a fortiori, a complete absence of any attention to delegate to the Secretary of the Interior an authority which the Congress itself denied that it possessed.

Let me read to you a few examples of what the Senator said.

But first may I call the Court's attention to a compilation of -- on this subject of the legislative history.

You have it before you.

It is captioned, legislative history appendixes accompanying the reply brief of the California defendants to the answering briefs of the United States, Arizona, Nevada is dated October 2, 1961.

This contains a collection of the -- what was said by the proponents and the opponents of the -- of the bill upon five related topics.

Appendix A, beginning at page 7, is a collection of extraction, the debates evidence in Congress view the Congress had no power to allocate the waters of the Colorado River System.

Appendix B, beginning at page 31, is a collection of the extracts from the debates showing that both the proponents and the supporters of the Swing-Johnson bills clearly and consistently denied that the bills purported to make or to authorize any federal allocation of water among the States.

In Appendix C, beginning at page 79, says the legislative history items selected by Arizona do not relate to any Federal allocation within the Lower Basin but rather to substantial effectuation of the Colorado River Compacts apportionment to the Upper Basin without Arizona's ratification.

Appendix D, beginning at page 103, makes the point that the legislative history refused Arizona's contention that the proponents and opponents of the Swing-Johnson bills believe the Project Act would abrogate interstate priority principles within the Lower Basin.

And Appendix E, beginning at page 134, makes the point that the legislative history of the Section 5 requirement that water delivery contracts executed pursuant thereto shall conform to Section 4 (a) refutes Arizona's argument that Congress, unilaterally, imposed a federal allocation of Colorado River waters upon Arizona, California and Nevada.

The specific items that I would like to call the Court's attention to are these.

Let me start with a Senator who was disinterested not for any of these States, Senator Borah.

This -- the extract I am about to refer to is in page 75 of the legislative history compilation.

And the particular statement appears at 70 Congressional Record 391-92.

He says, "I can see how Arizona might loose her rights not by reason of this legislation but by reason of Acts of appropriation and going on, and going in carrying out the terms this bill in case Arizona did not assert her rights in the Court.

If she stood by and water were appropriated to beneficial use in other States, she might loose her rights.

She would not loose it, however, by reason of this legislation but by reason of the Acts of appropriation.”

And he goes on to say “Undoubtedly,” referring to page 92, “Undoubtedly, if Arizona stands idly by and does not protect her rights either by appropriation or by such action in the Courts as will protect them, she will loose her rights ultimately.

That is one of the penalties of living under the doctrine of prior appropriation.

If an individual has a farm or a ranch and the water is running by it, he does not use his neighbor below him or above him can appropriated and taken away from him ultimately.”

So, here, I presume, if Arizona should not act, she perhaps would be prejudiced by this legislation in the sense of the Acts carrying out would result in appropriation by others.

It would not be act to Congress which took away her rights however but the acts of appropriation following as a result of it.

Senator Pittman, Congressman White, Congressman Bankhead others all made statements to the same effect.

Senator Bratton said -- he -- his expressions are the same effect, I shall not take your time to review it.

All of this, Your Honors, points up the points of appearance.

It seems to us that Section 5 when it use the expression “That no person should have a right to the use of waters stored aforesaid without a contract” was talking about the incremental supply not therefore appropriated.

The Court may recall that in the last time the Court wrote an opinion on the Colorado River case in the 298 U.S. 558, the Court denied to file on the ground of United States was unnecessary party to Arizona's suit brought against the States of the Colorado River Basin for what it has been called a judicial apportionment of the unappropriated waters.

Now, there, the Court to Mr. Justice Stone said this, I -- what -- the point and want to emphasize is that the Court construed the Boulder Canyon Project Act as dealing in its authority delegated to the Secretary where the unappropriated waters.

The unappropriate waters, what is the fond of water?

The water stored as aforesaid to which the contractual power shall relate, and the Court said this, at page 565, “It is conceited both by the bill of complaints and the returns that all the States in the Colorado River Basin except California and California so far as material to the present case apply the doctrine of appropriation to the waters of flowing streams in their respective territories.”

Under this doctrine, diversion and application of water to a beneficial use constitute an appropriation and entitle the appropriator to a continuing right to use the water to the extent of the appropriation but not beyond that reasonably required and actually used.

The appropriator first in time is prior and right over others upon the same -- same stream and the right, when perfected by use, is deemed effective from the time that purpose to make the appropriation is definitely formed and actual work upon the project has began or from the times statutory requirements of notice of the proposed appropriation or complied with provided the work is carried to completion and the water supplied to have beneficial use with reasonable diligence.

At page 567, this Court said, “A judiciable controversy is presented only if Arizona, as a sovereign state, order citizens, whom she represents, have present rights in the unappropriated water of the river or if the privilege to appropriate the water is capable in division and when partitioned maybe judicially protected from appropriation by others pending it -- its exercise.”

Now, the question is when Congress delegated to the Secretary the authority to make contracts and directed that no one should have the right to use the water stored as aforesaid saved by a contract, did it mean as the Master oblige that it cut off, took over all of the -- all of the waters not there before in fact put to use by 1929 and cut off all appropriative rights to the extent they had not been in fact put to use by the use of water, took that appropriation away and that the Secretary may now contract out that appropriated but it's -- as yet unused water to others or did the Court -- did the Congress says we believe, especially in the light I have just read from 298 U.S., mean that it was not cutting off appropriative rights but was dealing with the unappropriated water.

The distinction is this, the Master construes a present perfected right as being a right measured by the quantity of water in fact put to use by June 25, 1929.

There were, as of June 25, 1929 as everywhere on every western stream, appropriative rights perfectly valid, vested, existing property rights to the -- to quantities in excess of those in fact used as of that date.

Let me illustrate.

When you build a great project, it may take years to put all the water to use.

A municipality that doesn't build ahead 25 years ahead of its requirements is delinquent in its duty.

A federal reclamation project automatically under the reclamation law allows a ten year period of development in which the farmers pay nothing toward repayment of the cost of the project because everyone recognizes it takes time to get farm started.

You can't begin to grow crops and pay up.

The history of the west is if the water used gradually increases on every project.

You don't put it to use the day after you complete your -- your dam and your canals.

That is a very reason for the requirement of diligence.

It is a reason for the law of relation back.

Did or did not Congress, in Section 5, intend, without saying so, to abrogate a doctrine of relation back and to recognize and protect then the valid appropriative rights only to the extent that the water had been applied to use.

That would be a remarkable conclusion to read into this statute written by western Senators acutely conscious of the -- of the fact that water rights depended in all of their States on the law of appropriation and it -- either on state law.

Unknown Speaker: (Inaudible)

Mr. Attorney General: Yes, sir.

The word “present” is derived in -- in the statute from the use of the word “present” in Article VIII of the Colorado River Compact which provides that this present perfected rights are unimpaired by this Compact and in the Second Section provides that when a storage has been provided on the main river to the extent of 5,000,000 acre-feet, those present perfected rights shall attach to that stored water in effect releasing up stream flow for use by junior appropriators in the Upper Basin.

So far as the matter of statutory interpretation is concerned in Section 6 of the Boulder Canyon Project Act, all that Section 6 did, written by Upper Basin representatives, Mr. Carpenter of Colorado, as he explained was to designate that this reservoir, Boulder Dam -- Hoover Dam is the reservoir referred to in Article VIII.

That when this reservoir has built, a present perfected rights in the Lower Basin attached to that reservoir and or not to remain operative against the Upper Basin pending the completion of a dam say Glen Canyon in the Upper Basin.

Why they use the word “present perfected rights” is not apparent.

It is not apparent.

It has -- as used in the Boulder Canyon Project Act, surely, not the -- the implication that we are restricting the recognition of appropriative rights to the quantities in fact used as of June 25, 1929.

There are two reasons.

One, the Master gives is why that can't be so.

He treats as a present perfected right as of June 25, 1929, the full requirements of Indian Reservations created prior to that date even though they hadn't use or drop the water.

To him, present perfected right as to a federally created reservation doesn't mean the water put to use as of June 25, 1929, it's the ultimate requirement of the irrigable acreage of the reservation even though he may not discover that until a land of -- utilization surveys made 20 years later.

Second, a more controlling from our view point, is the fact that this Act offered to California a limitation applicable to her rights which may now exist, rights which may now exist.

Article III of the Compact provides that the 7,500,000 acre-feet apportioned to the Lower Basin shall include the water necessary to supply “rights which may now exist”.

That is a different definition and a greater right than a more restricted “present perfected right”.

Did Congress, did Congress in offering to California a -- an agreement which would limit the quantity of water available for our “rights which may now exist” intend without saying so to redefine and limit that expression down to the quantity in fact used in 1929.

In short, when we get onto the discussion of what is a present perfected right, we are on a subdivision of the true problem which is what is a right which may now exist as of 1929, a right which may now exist.

If I may have your attention to Section 4 (a) at page -- on top of page 382, start at the bottom of page 381, if you please which is a direction of the Act shall not take effect until conditions are met.

But this is a pro -- language of the prohibition.

This Act shall not take effect, no authority be exercise so forth and so on then as return the page and no water rights shall be claimed or initiated here under and no steps shall be taken by the United States or by others to initiate or perfect any claims to the use of water pertinent to such structures unless meant held.

These conditions as to the enactment -- limitation are met and ratification of the Compact.

But two thirds the way down the page appears the language of the limitation which California is to enact.

The quantity stated is to include all uses under contracts made under the provisions of this Act and all water necessary for the supply of any rights which may now exist, any rights which may now exist.

Consequently, we say, Your Honors, that our rights which may now exist as of June 25, 1929 were preserved, not cut off as of the magnitude of the quantity of water there before put to use and that those rights are entitled to retain their interstate priorities as against Arizona.

We think that the language of this Court in the first of the Colorado River cases, 283 U.S., is precisely to that point because there, the Courts speaking through Mr. Justice Brandeis relied upon Section 18 of the Act to accomplish precisely that result in reassuring Arizona that her appropriative rights were not cut off by the statute as against us.

Section 18, appears 395 of the report, and this provides that nothing herein shall be construed as interfering with such rights as the States now have either to the waters within their borders or to adopt such policies and enact such laws as they may deem necessary with respect to the appropriation control and use of waters within their borders except as modified by the Colorado River Compact or other interstate agreement of the United States gives out or Arizona that gives that language inter-basin affect only as to practically Upper Basin.

The Master gives it intrastate effect.

He relies upon it to preserve the priorities intrastate within Arizona, let us say, as between contract holders and appropriators under state law.

We say that Mr. Justice Brandeis speaking for this Court gave an interstate effect because the claim of the State of Arizona was that the Project Act had in effect cut off its right of control of appropriation and for that reason was unconstitutional for variety of reasons.

The Court rejected that claim relying upon Section 18.

Now, the -- to pursue this line of thought for a moment, the distinction between what the definition of what our water stored as aforesaid which the contracts of a right shall relate.

This question came up early for administrative determination.

And in 1930, the Secretary of the Interior advised the Palo Verde Irrigation District which was then had a problem before of whether should or should not apply for a contract.

It had used since 1877 the natural flow of that.

And on July 31, 1930, the Secretary of Interior wrote to the Palo Verde Irrigation District.

This is California Exhibit 351 and he construed Section 5 of the Project Act as relating only to the incremental stored water.

He said, “If no stored water is required by the Palo Verde Irrigation District, no contract between that District and the United States will be required.”

Those possess their priority rights to the unregulated flow of the river will be privileged to continue the enjoinment of those rights without an interference by storage in the Boulder Canyon reservoir.

As a result, the Palo Verde contract and all of the contracts subsequently made in California provide for the delivery of so much water from storage as together with all other waters diverted, all of the waters diverted, equally stated quantity.

We think that when the Master disowns and rejects the contention that Section 4 (a) imposed a mandatory proration formula, he thereby holds under opinion out the many contention that the Congress made any division of the water.

And we do not find in Section 5 any delegation of authority to the Secretary of Interior to do that.

What Section 5 does say is that the Secretary shall make contracts for the storage and delivery of water and those contracts shall be for permanent service.

Why?

The Master twice explains the phrase “permanent service”.

It is required, he says, in order to give a project a reasonably stable and reliable source of water, legally and -- and physically available.

That is precisely the policy, the purpose of the law of priority of appropriation.

So that he who has by his efforts to put water to use shall not be deprived of it at a later time by some administrative proration.

The Secretary did in fact enter into a contracts before California agencies.

There are not many contracts involved here to control these problems.

There are contracts in existence with four California agencies, two with the State of Nevada, one with the State of Arizona.

We do not find in Section 5 any authority to the Secretary to make any interstate allocation.

These are to be, in our mind, contracts with such as those that had been made for years under the reclamation law.

Section 8 of the 1902 Reclamation Act provides that beneficial use shall be the basis of the measure and the limit of the right.

United States doesn't issue patents or grants to water rights.

The States don't.

The United States beginning in 1902 has followed the pattern established by the state law, which is that possession, beneficial use measures the right.

The State doesn't issue you a grant or patent to water rights anymore than does to wild flower or fish in the rivers.

It gives you a license to appropriate them, to take possession of them.

The right is possessory in character.

You establish it by self-help.

It is measured by what you do for yourself.

There is no such thing in the doctrine of any States water law or until this moment, until this moment in the laws of United States which delegate to any administrative officer the power to set aside to reserve or as this Court said in 298 U.S. to somehow apportion, judicially apportion irrespective of use to set aside.

That isn't the way of life for the West.

Water is not locked up in that way.

It is made available for use to the extent its use, the right is acquired.

Now, the Congress intend to generate some new kind, some new kind of a water right never there before heard of in the western water law, of course not.

It was dealing against the -- the background, the pattern, the whole tapestry of the water law of the West and it took care not to tinker with it, not to tinker with it.

If Congress, if these Senators disclaim that the United States the power to divide up the water, if they insisted that the legislatures of the States do -- do so, it is inconceivable that they've delegated this great power to any Secretary of Interior.

Now, I turn to the second phase of this problem.

If the Congress didn't divide the water and didn't delegate to the Secretary the power to divide it, the search ceases.

No such creature as a contractual allocation scheme imposing a federal apportionment likely now a priority exist.

But if did delegate any such power to the Secretary, where is the piece of paper that made the apportionment?

And if we can find that piece of paper, does it throw out the window the law of priority or does it preserve it?

Let's embark briefly upon that search.

Yesterday afternoon, the question was asked by Mr. Justice Black and by Mr. Justice Frankfurter about the power -- disposition of electric power to Hoover Dam.

Now, that opens up a very interesting comparison.

Section 5 of the Boulder Canyon Project Act in the one section provides for the disposition of power and the disposition of water.

With respect to power, with respect to power, it provides for contracts with States.

With respect to water, it does not, it does not.

With respect to power, the -- as Mr. Justice Frankfurter indicated, there weren't any preexisting rights to power, there were as to water.

There wasn't any preexisting pattern as to how you allocate power.

This was a new resource being freshly created.

There wasn't existing pattern of water law.

What did the Secretary of the Interior do under the authority of Section 5?

First, let's glance at the statute itself.

It appears that at the bottom of page 384 of the -- of the report.

“The Secretary of the Interior is hereby authorized, under such general regulations as he may prescribe, to contract for the storage of water in said reservoir and for the delivery thereof at such points on the river and on said canal as may be agreed upon for irrigation and domestic uses.”

I'll stop there in a minute.

That looks and sounds like a delivery to a water user and not to a State.

Next, “And generation of electrical energy and delivery at the switchboard to States, municipal corporations, political subdivisions and so on upon charges that will provide revenue adequate”, and so on.

Then it goes on with the language in which it will become familiar here, “Contracts respecting water for irrigation and domestic uses shall be for permanent service and shall conform to paragraph (a) of Section 4”, and so on.

Now, did any in Secretary of Interior construe this language as authorizing him to make an interstate apportionment of water?

Did he construe this language as authorizing him to make an interstate apportionment of power?

The answers are diametrically opposite.

Here is what in fact happened.

The Secretary of the Interior in 1930 did sign general regulations for the -- governing the allocation of power to be generated at Boulder Dam not Hoover Dam.

These appear in special Master's Exhibit Number 4, the Hoover Dam documents at page A237.

Here you find the piece of paper we're looking for with respect to power.

It is a general regulation signed by the Secretary of the Interior which does make allocations to the State of Nevada, to the State of Arizona, to main power users in -- in California in percentages, in percentages of the power to be generated.

It is unquestionably an --

Justice Hugo L. Black: May I ask you about (Inaudible) percentage claim here is water or just (Voice Overlap)?

Mr. Attorney General: No, there is no correlation at all, Your Honor.

The California power users were required to obligate themselves to take and pay for or to pay for if not taken the entire firm power production at Hoover Dam subject to the right of the Secretary to draw back 36% of that power for subsequent contract with Arizona and Nevada if they should want it.

They did take it at a later time.

The Metropolitan Water District at Southern California was looked to by the Secretary as a major contractor for this power, 36%.

That power is, however, earmarked and restricted to be used solely for pumping water into an (Inaudible) to put it in a --

Justice Hugo L. Black: Does the contract provide (Inaudible) for the water?

Mr. Attorney General: No, the Metropolitan had another contract that did require to pay for water stored and taken.

Justice Hugo L. Black: Are all the Metropolitan contracts require payments for water?

Mr. Attorney General: Yes well -- yes, sir, the Metropolitan's contract does.

All of them require payment for -- in two components.

These are the power contracts you're asking about?

Justice Hugo L. Black: No, I'm asking about water now to the United States, does it require payments to the United States for the water?

Contract is to be either (Inaudible)

Mr. Attorney General: This is for irrigation or domestic use or for power?

Justice Hugo L. Black: -- (Voice Overlap) yes.

Mr. Attorney General: Irrigation and domestic use.

Justice Hugo L. Black: For both.

Mr. Attorney General: For both.

Justice Hugo L. Black: Irrigation and domestic.

Mr. Attorney General: The irrigation and domestic use a statute.

In Section 1, provides that no charge shall be made for the storage and delivery of water in the Imperial and Coachella Valleys for the announced reason of the Senate Committee that, “They already had a water right.”

Justice Hugo L. Black: What about the other (Voice Overlap) --

Mr. Attorney General: With respect to the Metropolitan Water District, it was required by its contract to pay 25 cents per acre-foot for water taken for domestic use stored in the dam.

And with respect to the Arizona contract, it also provides for a charge not to exceed 25 cents per acre-foot.

I am speaking of the water contracts, not the power contracts.

Justice Hugo L. Black: (Inaudible)

Mr. Attorney General: But where the provision, Mr. Justice Black, that no charge shall be made for the storage and delivery of water to anyone who has a present perfected right and the date of that contract, I suppose present means now, is 1944.

Throughout days and -- not -- not a penny has ever been collected from any Arizona water user for the storage and delivery of water under that provision, nothing.

Nevada contract does provide as the Metropolitan does that that State shall pay for water, 25 cents or 50 cents in the case of water taken above the turbines for domestic use.

And Nevada has paid, the Metropolitan Water District has paid but Arizona has paid nothing.

The contract provides, nothing shall be paid with respect to water taken for any present perfected right and not withstanding the fact that the bulk of the users in Arizona originated after 1929.

The projects weren't built until after then, the (Inaudible).

Nevertheless, no charge has ever been collected from Arizona for irrigation, domestic use of water.

Nothing has ever been collected from Palo Verde Irrigation District in California, yet, also had a water right.

The practical administration of the Project Act, I've -- I've switched now to talk about these water contracts, has been not to collect from anybody except the Metropolitan Water District.

And that is for the reason that its right, clearly, is dependent upon the existence of storage.

The others had preexisting rights.

But I started on the trail of telling you about these power contracts and the power regulations of 1930 for the reason that here is the interstate percentage pro rata allocation made by the Secretary of Interior under Section 5 of the Project Act dealing with power.

Now, did he do that with respect to water?

He did not.

Instead, he wrote the letter, I've referred to, to the Palo Verde Irrigation Districts and you don't need any contract at all if you have a natural flow right.

He never made any, by he -- I mean, any Secretary of Interior.

Never put his pen at any piece of paper like the power regulations that make any interstate allocation of water.

Justice John M. Harlan: What is the exhibit number?

Would you give me the document you (Voice Overlap) --

Mr. Attorney General: Yes, sir, this is Special Master's Exhibit Number 4.

The particular page for the 1930 power contract general regulations is page A237.

Now, to follow the power story unto a little further, in -- by -- by 1940, it had become necessary to readjust the Hoover Dam power rates to bring them in more nearly in the competition of those established in Bonneville.

The seven States said the Colorado River Basin adjoined, for the first and last time that I know of, the 14 Senators or sponsors of a single bill to reestablish the rate basis of Hoover Dam.

The statute that did that is called the “Boulder Canyon Project Adjustment Act”.

It is the Act of July 19, 1940, 54 Stat. 774.

Now, under that statute, again, the Metropolitan Water District of Southern California was set by the Secretary of Interior as a primary obligor.

It pays for 35% of the cost of Hoover Dam, a dam from which it will be denied all water whatsoever if the Master's decree is approved and if the Colorado River Compact is ever enforced, which it will be, to restrict the water supply in the main river.

As I mentioned earlier, the Metropolitan Water District's water rights by a federal contract as well as by the terms of the state priorities enforced in these contracts are junior to agricultural priorities in California to such an extent that if the Colorado River Compact has ever enforced against the Lower Basin, this great district that face 35% of the cost of the dam that makes all of the water here in dispute available, gets not one drop of it.

Unknown Speaker: (Inaudible)

Mr. Attorney General: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Attorney General: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Attorney General: Yes, sir.

In 1930, the first of these suits was brought here, Arizona versus California 283 U.S.

Before I take up what happen in that suit, may I say that --

Unknown Speaker: (Inaudible)

Mr. Attorney General: Oh, pardon.

Unknown Speaker: (Inaudible)

Mr. Attorney General: Well, it is perfectly clear that the -- the same, that the setting up of internal priorities of California, which subjugated Metropolitan to the agricultural users was delayed until about a month after the decision came down in the first of these cases 283 U.S.

And the priorities that Mr. Justice Brandeis bare said should have interstate effect, under Section 18, had to be recognized and were recognized as senior to those, the Metropolitan intrastate.

The great tragedy we now face is with those same senior priorities are blunted and denied interstate effect so that the Metropolitan is impaled by them.

But to answer your question directly, the -- the internal division of California was made after the decision of 283 U.S.

Subsequently few years later, the Secre -- Secretary Wilbur had signed regulations setting up a draft of a contract with Arizona and Secretary Ickes withdrew them on the basis of the decision made in 283 U.S. saying in retrospect that now appears that the appropriative rights of Arizona are unaffected by anything done under the Boulder Canyon Project Act and it seems therefore unwise for us to attempt by a contract to make any reservation of water for Arizona, her appropriative rights have continue.

Justice William O. Douglas: That was because she had not read or have the Compact?

Mr. Attorney General: No, Your Honor, it -- it truly, I -- I think it's fair to say that that may have been the political motivation for -- for it but it had nothing to do with the -- the intra-basin, the rights of Arizona versus California.

In 19 -- in 1930 -- does that answer your question?

I would like to follow through this trail of the power contract for a minute because of the contrast of what the Secretary did about the water.

Under the 1940 Boulder Canyon Project Adjustment Act when it was pending, the Senators of these seven States wrote in to Section 14 of that Act precisely the language of Section 18 of the Boulder Canyon Project Act that nothing herein shall be construed as interfering with the rights of the States with respect to the waters -- within their boundaries and so on.

And it went on to restate that Sections 13 (b), (c) and (d) of the Project Act should continue in full force in effect.

Those are the sections that make the Colorado River Compact controlling in every respect in the interpretation of the Project Act.

Now, Secretary Ickes, pursuant to that authority, again signed general regulations affecting the division of the -- of the power, interstate by -- by percentages.

Those appear at page A279 of the same Special Master's Exhibit 4.

At page A281 appears a schedule to the State of Nevada so much, State of Arizona so much, Metropolitan Water District so much and so on.

Now, here is a type of an administrative action you'd expect if the Secretary of Interior was going -- so in the Section 5, the same Section 5 any authority to him to make a pro rata interstate apportionment of water.

The same two Secretaries, Wilbur and Ickes, did nothing of the kind.

They did the reverse.

Secretary Wilbur instructed his representative, who is a man named Van Noorden and who had written that he was about to attend an interstate meeting on the water allocations.

He instructed him by telegram in September 27, 1929, this is California's Exhibits 7553 for identification.

It read “Your message is here.

We have endeavored to keep out of all controversy regarding allocation of Lower Basin water.

Do not consider this our field once your help on technical questions but do not want you to represent me in any conference on allocation of Lower Basin water.

What you may do individually is a different question.”

That's kind of blunt instructions.

Secretary Wilbur was not a man to talk shorthand.

He wrote to the State of California and to the -- to the agencies in California requesting that they submit to him a proposed division of the water to be made internally in California.

And this is beside the priority question for a moment.

But again, to illustrate the chair with which the Secretary of Interior on 1930 was keeping out of the water allocation business.

And here, he requested the -- the States to submit recommendations of this sort.

He's -- this is over Ray Lyman signature, Ray Lyman Wilbur signature and he submits a draft of recommendations to be made by the California Division of Water Rights to the Secretary of Interior.

This is California Exhibit Number 1810.

And he wants the State to send back this recommendation to him, leaving -- he gives blanks that I want filled in, says he.

It is recommended that the water which maybe available to California under the Colorado River Compact is limited by the Boulder Canyon Project Act.

The apportion as follows: One, of the water which maybe available to California by paragraph (a) of Article III of the Colorado River Compact.

Now, that the Secretary of Interior talking shorthand when he says paragraph (a) of Article III of the Compact --

Unknown Speaker: Bring here map (a) please?

Mr. Attorney General: Is he talking about the something other than paragraph (a) which encompasses tributaries?

Is he talking about the Red River?

He doesn't say so.

Now, that's beside the priority question.

That's the limitation question.

But in chronological order, I want to get before you as graphically as I can what these four Secretaries of Interior did.

Where is this illusive piece of paper that somebody must have signed to make an interstate apportionment?

It's either Wilbur or Krug -- Wilbur or Ickes or Krug or Chapman.

Those are the four.

And who done it?

Who done it?

You won't find the corpse because there isn't any.

And you won't find that any Secretary of Interior did it because nobody ever signed this piece of paper.

What they did was precisely the opposite.

In direct contrast with the power regulations, we did make this interstate allocation.

When Secretary Ickes made his contract with Arizona in 1944, here, if anywhere, you must find the interstate allocation.

Bear in mind that for 14 years, there had been in existence only the regulations contract signed by Wilbur and the two in Nevada signed by Ickes, one at Nevada.

Now, none of these purport to make an interstate allocation.

The California projects had been built.

They were in existence.

Now, are we going to read in Section 5 handwritten, the subliminal message, “To California, if you accept this Limitation Act taking 4,400,000 as the ceiling on your appropriation should do so with the implied knowledge that some Secretary of Interior is going to come along 14 years later after your projects are built and then impose an allocation on you.

Or do your contracts for “permanent service” give you what the Master calls the assurance of a stable water supply.

We've built, we've built.

283 U.S. have come down in which the quote to Mr. Justice Brandeis said in effect interstate priority survive.

292 U.S. have come down of which Arizona had sued to perpetuate the testimony of the -- of the Colorado River Compact negotiators.

And here, this Court said that the limitation related the California Limitation to the III (a) and III (b) waters in the sense of the system.

Arizona had sued to stop the -- the United States had had to sue Arizona to stop the military interference of the building of Parker Dam.

And this Court, in that case, had said that Arizona owns the bed and banks of the stream from the thread of the river at East and had a right to appropriate.

And this is what this Court said in that case in denying the right of the United State to enjoin Arizona's military interference with Parker Dam's construction.

Arizona owns the part of the riverbed that is east to the thread of the stream.

Her jurisdiction in respect to the appropriation use and distribution of an equitable share of the waters flowing therein is unaffected by the Colorado River Compact or Federal Reclamation Law.

So that Secretary Icke, in 1944, had had the advantage of reading four decisions of this Court dealing with the Colorado River question and he surely could not find in any of those decisions, any determination aid that the -- the reference to the Colorado Red River Compact means something other than the Compact, the fond of water that I -- Secretary administering is different from that which statutes seems to talk about nor could he find in that statute any obligation of priorities.

So that when the Arizona Water Contract was signed in 1944, it doesn't purport to be an interstate allocation at all.

Secretary Ickes was just as careful as Secretary Wilbur to stay out of that business.

Let's look at the Arizona Water Contract.

Here, if anywhere, you find the piece of paper which is the interstate apportionment and what do we find?

This begins at page 399.

The very first preliminary paragraph says this contract is made as such in such a date under the Act of Congress approved June 17, 1902.

That's the reclamation law enacts amendatory thereof and so on including the Boulder Canyon Project Act.

Now, the fundamental of the reclamation law is Section 8 which provides a beneficial use shall be the basis to measure the limit of the right.

Did this contract attempt to setup anything other than beneficial use says the basis to measure the limit of the right?

Did this put in deep freeze, so to speak, 2,800,000 acre-feet?

Now, turn to page 400.

Here is Article VII (a), Delivery of Water, subject to be availability thereof for use in Arizona under the provisions of the Colorado River Compact in the Boulder Canyon Project Act.

United States will deliver, top of Page 401, a maximum of 2,800,000 acre-feet up to a maximum.

And how is he going to do it?

It is -- he's going to deliver to actual users.

Thereafter shall make contracts for the Secretary of Interior.

It is simply a -- an expression of intent.

The Government is quite explicit about this in saying that this about this contract.

And this is from page 47 and 48 of the -- of the United States answering brief.

It is our understanding that this contract with Arizona does not, by itself, authorize the actual delivery of water in compliance with Section 5 of the Project Act since that Section requires that the contracts be entered into with the actual users of water.

We think so too.

United States goes on.

Rather, this contract is in nature of a commitment by the Secretary to enter into contracts with users in Arizona up to the limit of 2,800,000 acre-feet.

In this sense, it is an allocation by the Secretary, that amount of water for a future contractual use.

We say there's no such authority in the Boulder Canyon Project Act of the Secretary of Interior to make any allotment for future contractual use.

He's authorized a contract with users.

And to deliver to them a specific name points on the river or on the canal.

Any contract by the Secretary of Interior that seems to take over the authority to make an interstate apportionment is ultra vires, ultra vires.

And Secretary Ickes didn't attempt to do it all.

Here's what he go on say.

He says at page 40 -- page 405, Article X.

“Neither Article VII”, Article VII is the one that provides for delivery of water, “neither Article VII nor any other provision of this contract shall impair the right of Arizona and other States and the users of water therein to maintain prosecutor defend any action respecting and result prejudice, too, any of the respective contentions of said States and water users as to: One, the intent, effect, meaning and interpretation of said Compact in the said Act.

Two, what part, if any, of the water used or contracted for by any of them falls within Article III (a) of the Colorado River Compact.”

Now, let me pause there a minute.

Is Ickes talking shorthand when he says our paragraph (a) of Article III of the Colorado River Compact?

He was not a man inclined to use shorthand either.

Now, it passes all understanding that every Secretary of Interior for all of these decades was talking shorthand by paragraph (a) of Article III something other than the Compact said.

Here, he goes on to say, “And furthermore, if the Master is right, this is wholly irrelevant question.

What part falls within Article III of the Colorado River Compact?”

That's nothing to do with the case.

Ickes' goes on to say “Three, what part, if any, is within Article III (b) thereof?

Four, what part if any has excess or surplus waters unapportioned by the said Compact.

And five, here's my point, "What limitations on use, rights of use and relative priorities exist as to the waters of the Colorado River System provided however, by -- by these reservations?

There's no intent to disturb the apportionment made of Article III (a) of the Colorado River Compact", same article “between the Upper Basin or the Lower Basin.”

Now, how can you use reference to Article III of the Colorado River Compact in the disclaimer at the end as meaning of something other than the same Article when he refer to it as relating to their respective rights of these Lower Basins States, all in one sentence.

But the significant thing is if the Secretary of Interior had made an interstate apportionment that wiped out relative priorities.

Why in the world, in 1944, Secretary Ickes announcing that this contract that does not make any determination with respect to relative priorities.

If the Master is right, it didn't exist.

And they ceased to exist by the Secretary signing of this very piece of paper.

This is the piece of paper if any is.

You can't find anything that even touches it.

Because until 1944, until 1944, by no one's contention was there any interstate apportionment made.

No contractual allocation scheme was completed or came into existence until Harold Ickes signed this piece of paper and this doesn't do the job.

I have to turn back to page 403.

You'll find that in -- in paragraph -- paragraph (l), the last sentence, “Present perfected rights to the beneficial use of waters of the Colorado River System are unimpaired by this contract.”

As of 1944 -- present, I suppose means 1944.

Now, at the same time the Secretary Ickes signed that contract, he promulgated a decision dated February 9, 1944.

He'd held hearings before he signed that contract.

This appears the Special Master's Exhibit Number 4 at page A567.

This is a decision in which he explains what he's done.

You won't find here the statement I have “forever allocated” or I have “determined priorities” or I have substituted proration with priorities, not at all.

He says, Article X, that's the one I read to you a moment ago that made these reservations, was purposely designed to prevent Arizona or any other State from contending that the proposed contract or any provision of the proposed contract resolves any issue on the amounts of water which are apportioned or unapportioned but the Compact, any amounts of apportion or unapportioned of water available to their respective States under the Compact and the Act.

It expressly reserves for a future judicial determination any issue involving the intent, effect, meaning and interpretation of the Compact and Act.

The language of Article X is plain and unequivocal and adequately reserves all questions of interpretation of the Compact and the Act.

Now, there is not the announcement by the Secretary Of the Interior that -- that I had made an interstate apportionment, I have forever allocated, I have substituted proration with priorities.

Here is an announcement by the Secretary of the Interior that all questions as to relative priorities are reserved.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Well, yes, Your Honor, the -- the Master reaches his result by interpreting these documents as affecting the contractual allocation as making it --- being a contractual allocation scheme, the Secretary apportionment.

We say they conflict in the sense they just don't do any such thing.

They just claim it.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Yes, Your Honor, we think they empathically are.

With respect to California contracts, these -- first, those are the ones that would be undermined and in effect destroyed.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: That is correct, quite so.

Justice Felix Frankfurter: But beyond that (Inaudible) Secretary of the Interior (Inaudible)

Mr. Attorney General: Well, if I can sort out my reply to that in two or three components.

But first, Mr. Justice Frankfurter, the -- we -- we conceive the contracts made under Section 5 with the California users has been true Section 5 contracts to the type the United States talks about the contracts with -- with users for permanent service.

We treat those and any Section 5 contract that conforms to the requirement and being a contract with the user as being in a sense, a -- an initiation of an appropriation stored water under federal law.

These contracts to us are licenses or permits to appropriate stored water.

No one may have the use of stored water without a contract.

But having a contract, he has the same thing as a license to hunt birds or a permit from the State to appropriate water.

He doesn't have any grant or patent.

He may then put the water to use.

And thereupon, Section 8 of the Reclamation Act of 1902 becomes controlling.

That is a control over the effect of Section 5 contract's beneficial use.

These are basis of measuring the limit of the right.

As the Court said in Ickes versus Fox, United States is a carrier of water under its contracts to the man who is establishing the right to -- right to that water by its user.

And under Section 8, in general, that water is appurtenant to land as a property right.

The law of relation back applies.

To our mind, the contract with Arizona is not that at all, it doesn't purport to be.

If the United States puts its finger right on it, it is not a Section 5 contract at all, at all.

It is -- if given that effect as an apportionment, as a reservation and perpetuity for Arizona, it's ultra vires, secretary didn't have it.

The wrong, the Master's (Inaudible) is by his -- creating the Arizona contract of 1944 as only it were authorized by statute to be and it in fact was an apportionment in substitution for interstate compact.

There just isn't any such creature contemplated by the statute.

The Arizona contract re-visualize as nothing more than an announcement by the Secretary of the amount of to which he will contract with individual users in Arizona just as the California Limitation Act was a determination of the ceiling up to which he might contract with users in California.

He didn't call it limitation by agreement if you like.

It's -- if the Limitation Act is not a grant of anything to California as the Master concludes, and I -- I think he's probably right about it, then the Arizona contract is no grant of anything that Arizona.

It's a statement of the conditions on which he will contract with individual users up to a ceiling that may or may not ever be reached.

And if this tri-state compact had been signed between Arizona or ratified between Arizona, California and Nevada.

That's where the Master says that the Secretary got these figures and I don't doubt he did.

But if that -- if that interstate compact had become effective, then, as to Arizona and Nevada, it, too, was a ceiling on appropriations.

Merciful heavens if the Colorado River Compact itself is just a ceiling on appropriations in the Master says and if the limitation on California is a limitation, not a grant, it's inconceivable that this tri-state compact, we were invited to sign, is somehow a limitation on California but a grant to Arizona and Nevada.

They have same effect on all three of us, some sort of a reciprocal ceiling on appropriations.

Now, the Arizona contract certainly can't do anymore for Arizona than the ratification of that tri-state compact would've done.

Even assuming that the Secretary did somehow, somewhere get some authority to impose a federal apportionment on us.

So, it is not so much, Mr. Justice Frankfurter, what this Master has done that violates -- the effect of the contracts.

Its 40 years read into Section 5 and into the Arizona contract is just isn't there and never intended to be there.

Now, I -- I like to make this plain.

I want to make it clear that we are not saying, we are not saying that our second string to our bow the continuation of a -- principles of equitable apportionment depends upon our proving to you that we have somehow a State generated right to control the United States in the disposition of the water stored at Hoover Dam.

That is not it at all.

Now, for purposes of argument, I would start with the position that if this statute had said, “We impound the unappropriated.”

I emphasize unappropriated waters, that in Hoover Dam and we direct that they'll be put in tank cars and taken to New York and sold as bottled water, that the statute could have done so and that the Secretary of Interior wouldn't have to come to Arizona or Nevada or California for permission to do it either.

And much as in the Ashwander case is -- the Government can dispose a power.

That's not it.

The question here is one of statutory interpretation, what did the United States intend with respect to the newly created resource?

And what is the newly created resource?

It's the water unappropriated.

By unappropriated, I mean the water beyond -- beyond that to which valid existing rights are attached under state law even though not fully put to use as of 1929.

I don't think this statute wiped out the law of relation back.

But the question is one of statutory interpretation, what did Congress intend with respect to this newly created -- newly created research?

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Well, the -- we don't deny that.

It's the incremental supply.

Justice Felix Frankfurter: Yes.

Mr. Attorney General: We say, we offer --

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Yes, because we -- we have proof in the record, Mr. Justice Frankfurter, on anticipating that for our issue.

How much could we have taken out of the unregulated river by our own efforts?

And the proof uncontroverted is that it could, by our own works and taking the regiment of the river as it existed prior to regulation, had actually diverted and used in California about 4,500,000 acre-feet per year.

We could not have used the 6,000,000 that Hiram Johnson talked about.

The true figure developed by the engineers on the stand, subject to cross-examination is that the -- we could, without Hoover Dam, storage have taken and used in California about 4,500,000 acre-feet per year under appropriations that were in excess of that and all of them senior to Arizona's appropriation.

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: -- I did not --

Justice Felix Frankfurter: Both opinions (Inaudible)

Mr. Attorney General: Well, the proof was that the -- taking the river as it came, high and low.

We could have, in fact, have obtained that quantity out of the year.

The proof is that in only some 54 months out of -- out of something over 600 months of the period involved in the study, would there have been any reachable shortage at all.

Now, what the -- this -- the specific problem is, and what I'm attempting to say, is that the Congress of the United States intended with respect to the incremental stored water, however you define it, to apply to that water the principles build up by this Court in the doctrine of equitable apportionment.

I am taking the instance now in which the -- the hypothetical project is using water that would not have existed at all before the creation of Hoover Dam.

This is, we'll say, stored water by anybody's definition and ignoring what the definition maybe.

And we have competitors who each hold a contract for the use of stored water.

There is not enough to satisfy both of them.

What happens?

The Master's very clear if these two competitors are within the same State, Arizona let us say.

They both depend on contracts.

Neither of them had any antecedent right under state law.

They're both revealing solely with incremental stored water.

Priority applies, state law controls.

The very question says he of whether a contract constitutes a water right is to be controlled by state law.

Now, that's quite a concession.

That the very question of whether a contract with the United States constitutes a water right at all, it's a question of state law says he.

But in any event, if these competitors are both in Arizona, priority controls, priority is applied.

If they're both in California, priority controls.

If one's in California and the other is in Arizona, but above Hoover Dam, priority controls.

We're invited to come back to this Court to sue anybody that depletes the flow of the river by a new diversion above Hoover Dam.

Priority will control even though the right we here assert is that solely of a contract user, a -- a contract holder has no preexisting right in -- under state law at all, priority preserved.

Now, the very narrow question is did or did not Congress intend, having to recognize priority of appropriation and surviving everywhere except in this narrow little field of competitors on opposite sides of the river below Hoover Dam, didn't intend somehow, but I'm saying say so, that priority maybe abrogated by the Secretary of Interior if he feels like it, it's his discretion and then did any Secretary undertake to do it?

The answer is no in both instances.

Why write into the statute Section 12 which defines reclamation law of Section 14 that says that this Act is a supplement to the reclamation law which shall control unless otherwise specifically provided.

Unless they intended that Section 8 of the reclamation law be given effect, that beneficial use is the basis for the measurement of the limit of the right and why put in Section 18 after Senator King, it's author had ex -- expressed his vast discontent with the notion that the Federal Government somehow delay its mighty hands on the river dividing up the water except for reassurance that state priorities are to be preserved?

And why did this Court say in 283 U.S. of Section 18 should have precisely that effect and therefore Arizona was not wounded by the passage of the Project Act?

And why in offering to California the limitation referred to California as right which may now exist if they're cut off at the level of the users therefore made of them?

These things are all -- are all in the notion that somehow priorities were abrogated is foreign to anybody's thinking in -- in this basin or in any litigation here from the beginning.

It cannot be found.

Now --

Justice Hugo L. Black: Are you talking about the power because I -- I get a little confuse, I just (Voice Overlap) --

Mr. Attorney General: Yes.

Justice Hugo L. Black: -- before 1929 or as of 1929, the administration of the Act --

Mr. Attorney General: I'm talking, Your Honor, of two kinds of priorities with the same result.

One is a right of a project, let us take the Palo Verde Irrigation District with State generated water rights, priority is dated from 1877.

And we'll assume that this prior to Palo Verde Irrigation District had a valid appropriative right for, let us say, 400,000 acre-feet per year, take any figure you like if that will do, was proceeding to put that water to use with due diligence, came 1929 and it had in fact put to use say 100,000.

We say that the priority of the Palo Verde Irrigation District continues and is not struck down by the Project Act to the full 400,000 acre-feet if that water is put to use with reasonable diligence after 1929.

The period of reasonable diligence been affected by the magnitude of the project, the quantity of water.

That's still good against Arizona.

We think this Court said so in 283 U.S. to Arizona against us with respect to any Arizona project similarly situated.

Second, with respect to a -- a water right that was initiated, let us say, after the passage of the Project Act in 1930 by the signature of a water storage and delivery contract by someone else, it happens that all of the California projects had initiated appropriations under state law prior to 1929, the most recent of them being the Metropolitan Water District which had filed this notice of appropriation, spent $2,000,000 in -- in truly gigantic preliminary work.

But let's say that we had no such project with any -- any roots at all prior to 1929, this is project X, I don't what project that is going to exist, but let's preposterous say that here's a California project that nobody ever thought of before 1930 and it came into the Secretary of Interior and got a store -- water storage and delivery contract and it did went ahead and built that project and put the water to use and then now comes along a project in Arizona, which in some later date, 1933 let us say, came to the Secretary and got a contract and built this project, put that water to use and comes a time when there's a shortage on both these contract holders cannot be satisfied, what law shall govern in -- in distributing the shortage?The Master would say proration.

He would go further than that and apply proration even though our California project is one that builds and operating along before 1929.

Justice Hugo L. Black: (Inaudible) proration -- proration or must the State according to the figures given in the Act?

Mr. Attorney General: Yes, sir.

That's right.

And I'm trying to simplify this by assuming just one project in existence on each side of the river for the moment.

We say that the doctrine of priority of appropriation of all interstate apportionment applies between these two competing projects, one in Arizona, one in California, even though they both derived their water right wholly and solely from contracts with the United States relating to incremental new stored water.

And that Congress did not intend to abrogate the principle of priority in the distribution of shortages of stored water between contract holders.

We do not depend upon the fact or accident that one or the other of them may have roots in an appropriation filed under state law.

We say Congress intended to apply this great principle hammered out by this Court for the adjustment of shortages in the Western States.

You do it by priority of appropriation.

And it doesn't any just doctrinaire notion.

It's founded on the necessity of life in the Western States.

The stability of water supply depends upon your keeping what you're put to use.

Is -- you don't jump a mining claim.

You don't jump an appropriative right.

They're both originated at the same time and by the same doctrine of necessity as this Court has said in the Gerlock (ph) case.

And that Congress recognized that.

It didn't intend that if a man built and spent $1 or hundreds and millions of dollars in building his project, it's going to be destroyed, destroyed by proration with some latecomer at a later time that it intended, it priority to apply.

And --

Justice Hugo L. Black: You had concrete -- I think I could understand that it's late to ask you a question --

Mr. Attorney General: No.

Justice Hugo L. Black: -- concrete, what do you claim so far one quantity of water do you claim California had previous protected water rights in 1921 when the Act was passed?

Mr. Attorney General: Yes, sir, I have those figures.

We say this, Your Honor, if I answer to you comes in -- in under three -- I'll give you three figures.

First, we say that we had valid vested appropriative rights owned by projects built and in existence to the -- in which could have been satisfied out of natural flow unregulated, to the extent of 4,490,500 acre-feet per year.

Justice Hugo L. Black: Well, may I stop you (Inaudible) do you claim that you're entitled to get (Inaudible) in view of your limitations agreement?

Mr. Attorney General: Yes, these two are not related and I -- I do enter the (Inaudible) two lesser figures in the moment before I'm held to this one.

But the -- the limitation is 4,400,000 acre-feet plus one-half of the excess or surplus.

We think that the dependable supply, this river, is not over 6,000,000 acre-feet for a division on Arizona, California and Nevada.

If we're right about that, then our share of excess or surplus would be, perhaps, 250,000 acre-feet and consequently, if -- if we prevail and if you took our rather sovereign to serve the user of the water supply, we would obtain on a dependable basis of about 4,600,000 acre-feet.

We say the Limitation Act gives 4,400,000 or rather limited as to that and that the translated into figures, it means about 4,600,000 because there's no more than 400,000 acre-feet of service.

Justice Hugo L. Black: Are you claiming that California does file what is to be as of 1929 give enough more water 4,400,000 to review the 2,800,000 (Inaudible) that Arizona would get?

Mr. Attorney General: Well, Arizona --

Justice Hugo L. Black: Will get under that, under (Inaudible) that apportionment.

Mr. Attorney General: Under -- well, I have to sort this out again, Your Honor.

Arizona's 2,800,000 to a couple of those two works -- expressions together, Arizona's 2,800,000 acre-feet is derived from a contract made in 1944, not from the statute the Master so holds, the statute made no apportionment.

Justice Hugo L. Black: Well, the statute -- statute does state (Inaudible)

Mr. Attorney General: It authorizes the States to agree upon that figure and they did not agree.

Justice Hugo L. Black: -- (Voice Overlap) -- well that's a fact (Voice Overlap) --

Justice Felix Frankfurter: -- (Voice Overlap) -- on California.

Mr. Attorney General: But to limit on California, that paragraph is operative until our mind, the 2,800,000 that did refer to as to Arizona includes the Arizona uses on the tributaries.

Justice Hugo L. Black: (Inaudible)

Mr. Attorney General: Yes.

Justice Hugo L. Black: But assume that -- what I found (Inaudible) with argument leads to the -- (Inaudible) California had a right despite its Limitation Act to depend water of the United States and get water as of 19 -- when do you say that, 1929 which would refuse Arizona the load of 2,800,000.

Mr. Attorney General: Oh, yes, just as Arizona had a right by what it did after 1929 to put to use of water which might diminish the quantity that California might get.

It's not the fact.

It was done before or after 1929, Your Honor.

Justice Hugo L. Black: Well, Arizona, didn't have a limitation right.

Mr. Attorney General: That is correct.

But nevertheless, to the extent that's her appropriations were put to use whether before or after 1929, it might substantially reduce our quantity available for us.

Justice Hugo L. Black: Well, then I am correct that in your argument, California's argument leaves inevitable to the conclusion that by doing something after 1929, California, whether right or wrong, I'm not guessing, California could get water at the expense of Arizona loosing the 2,200,000 -- 2,800,000 which is supposed that they had the right to give.

Mr. Attorney General: Well, on your -- say thought it had a right to, I -- I'll put that --

Justice Hugo L. Black: Well, I (Voice Overlap) --

Mr. Attorney General: -- in italics.

Yes, I'll put that in italics.

Justice Hugo L. Black: -- 2,800,000 acre-feet --

Mr. Attorney General: Oh, yes, Your Honor, yes, to give you a direct answer, the answer --

Justice Hugo L. Black: How far --

Mr. Attorney General: -- the answer is yes.

Justice Hugo L. Black: How far does that go?

Mr. Attorney General: If we prevailed --

Justice Hugo L. Black: How far does that go?

Mr. Attorney General: -- if we prevailed here, we would -- California would -- if 6,500,000 acre-feet is truly available under -- on the mainstream to the Lower Basin States of that quantity, California might have 4,400,000 acre-feet plus half the surplus and the surplus in -- on this hypothesis would be 1,000,000 acre-feet.

We'd have 4,900,000 of the six and a half million.

And Arizona and Nevada would have, out of the main river, 1,600,000, the residue of the 6,500,000.

Justice John M. Harlan: That of course, they will be subject to your proving your priorities if they request it?

Mr. Attorney General: That is correct, Mr. Justice Harlan.

Justice John M. Harlan: Not --

Mr. Attorney General: That is correct.

Justice John M. Harlan: -- necessarily in this lawsuit.

Mr. Attorney General: You are quite -- quite correct.

That is a ceiling.

Justice Hugo L. Black: (Inaudible)

Mr. Attorney General: Now --

Justice Hugo L. Black: (Inaudible)

Mr. Attorney General: Excuse me, sir.

Justice Hugo L. Black: (Inaudible)

Mr. Attorney General: Well, in united -- what date they arose or how it approved in here?

Justice Hugo L. Black: Could you based that on something you did to get the --

Mr. Attorney General: Well --

Justice Hugo L. Black: (Inaudible)

Mr. Attorney General: No, our priorities, in all respects, relate back to dates prior to 1929.

Justice Hugo L. Black: Does that depend on considerations whether the Government (Voice Overlap) --

Mr. Attorney General: No.

Justice Hugo L. Black: -- to be construed as you --

Unknown Speaker: Not anymore.

Justice Hugo L. Black: -- could relate it back (Inaudible)

Unknown Speaker: No.

Justice Hugo L. Black: (Inaudible)

Unknown Speaker: No, it wasn't (Inaudible)

Justice Hugo L. Black: (Inaudible) as perfected right?

Mr. Attorney General: Yes, Your Honor, we do not feel that we are restricted to present perfected rights in any respect.

The limitation refers to water for the satisfaction of "right which may not exist" that is a less restricted quantity.

Justice Hugo L. Black: That is affected?

Mr. Attorney General: Yes, sir.

Justice Hugo L. Black: What rights may now exist?

Mr. Attorney General: Yes, sir, they are in two ways.

The Article III (a) of the Compact provides that the apportionment of 7,500,000 acre-feet to the Lower Basin in perpetuity shall include all water necessary for the supply of any right which may now exist.

Justice Felix Frankfurter: That -- that is 29?

Mr. Attorney General: That's -- no, that's in the Colorado River Compact, Article III (a).

The statute, the Boulder Canyon Project Act in Section 4 (a) proposes to a California a limitation in quantitative terms which shall apply to two categories of water in the Act of it.

One is right which may not exist.

The other is uses under contracts made under the provisions of this Act.

We say that rights which may now exist are intended to be protected within the apportionment made by Article III (a) and that Arizona in ratifying the Compact in 1944 agreed with California, she agreed with the other States and that was so.

And hence that our 4,400,000 acre-feet is intended to be out of a category of water is earmark for the protection of rights which may now exist.

Justice John M. Harlan: Under your theory of priorities, what room is left for the play of the -- of present protective right of the --

Mr. Attorney General: The --

Justice John M. Harlan: Or what would -- could you give me an example of --

Mr. Attorney General: Yes.

Justice John M. Harlan: -- how would it apply?

Mr. Attorney General: Yes, may I first complete the -- the -- when Mr. Justice -- may I complete this (Voice Overlap) --

Justice John M. Harlan: I didn't mean to interrupt you.

Mr. Attorney General: I will --

Justice John M. Harlan: I was --

Mr. Attorney General: -- come to that if I finish giving the answer to Mr. Justice Black as called.

You asked for us a figure and I give you 4,490,500 as the magnitude of California's natural flow rights as of 1929.

The question now is that, Mr. Justice Harlan asked and I'm intended to give few -- anyhow, Mr. Justice Black, what do we claim within that to be present perfected rights as of 1929?

If we take as a magnitude of present perfected rights, the quantity that could have been diverted by actual existing structures in existence in 1929, the figure would be 3,707,100.

These two figures should have supported by citation, the 4,490,500 acre-foot figure, you will find in California's supplemental findings and conclusions, Part IX (C) that is bound into our volume called “responses” filed before the Special Master.

The figure of 3,707,100 is in the same document and it is finding 19 (d) 201.

We have a third figure.

If we are restricted as the Master would do to the quantity in fact used in 1929 and the figure then becomes 3,275,000 acre-feet that is shown in our findings and conclusions in 19 (d) 202, also bound in the responses.

Now, we say, Mr. Justice Harlan, that first of all, when we speak of present perfected rights, we're on the wrong railroad track as measuring the -- the magnitude of the State generated prior -- pre-1929 rights.

They're bigger than present perfected rights by any definition.

They are rights which may now exist which include the right of relation back and that consequently the figure of 4,490,000 is the proper measure of them.

But if -- if the Master should be sustained that present perfected rights are measured by the quantity in fact put to use in 1929, then our figure becomes 3,275,000 thereabouts and Arizona is about 250,000 and Nevada is substantially zero.

We're talking about an aggregate of about 3,500,000 acre-feet.

Now, the Master would add to that in the category of present perfected rights, the ultimate requirements of Indian and other federal reservations.

We don't agree with that.

But if you have those in, then you increase the Arizona figure to about 600,000 and you just my total of to about something less than 4,000,000.

But if -- if present perfected rights are restricted in this manner, then the provisions of the report and of the decree, which provide for two years of attempted negotiation, failing that determination by this Court of a magnitude and priorities of present perfected rights, really results in a supplemental decree that is not likely to ever have a great deal of utility because nobody forecasts that the flow of this river is ever going to get down to 4,000,000 acre-feet.

You're never going to reach a point where you are subsisting on present perfected rights only because the river is that low that no -- no there's no evidence to support that -- that notion at all.

The true significance of a determination of -- of present perfected rights, it seems to me is this.

If the Master's formula is approached for correcting every other respect is wrong in this, that he has lumped together in his numerator and his denominator 44/75ths, 28/75ths, 3/75ths, this present perfected rights that didn't depend on storage at all, though should be subtracted.If you're dealing with an allocation of “water stored as aforesaid”, the incremental stored water then the power to allocate doesn't go further than the power to store.

The Government had the right to interrupt and store the unappropriated water.

Now, we said the inappropriate water is much narrower margin because valid appropriative rights should all be subtracted but if he subtracted only the present perfected rights then he's got the wrong equation because he's much in the position of saying I -- I agree that bonds have our priority ahead of stocks or the ventures.

But in the event of insolvency of this corporation, I'm going to give you pro rata as your numerator of your fraction on your total holdings.

Present perfected rights being bonds and stored water stocks and the denominator, the total quantity of the water that I'd like to be able distribute, total amount of resources.

And it's why it is wrong in lumping together gold and silver having the same value.

But the --

Justice Hugo L. Black: May I ask you just one more thing?

Mr. Attorney General: Yes, sir.

Justice Hugo L. Black: If it's alright with you.

I want to find out.

Do you claim that under any circum -- or do you claim -- do you agree that you -- California is bound by the Limitation Act by Section 4 to a limitation under which it will never go beyond, for California, 4,400,000 acre-feet plus one-half of any excess or surplus?

Mr. Attorney General: Well, that is our assertion, Your Honor.

That is our assertion that we --

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Yes, right.

Justice Felix Frankfurter: -- present perfected (Inaudible) perfected right.

Mr. Attorney General: We agree that that includes our present perfected rights, that limitation they entered.

Justice Hugo L. Black: Do you agree that you are limited to that amount you -- you argue (Inaudible) that the method by which the computation of (Inaudible) to what is separate was wrong?

Mr. Attorney General: No, it is much more serious than that, Your Honor.

It involves that --

Justice Hugo L. Black: (Inaudible)

Mr. Attorney General: -- may I -- you --

Justice Hugo L. Black: -- you claim that is (Voice Overlap)?

Mr. Attorney General: That is a one feature but the surplus question is of minor importance to us because if we're right about the water supply, there isn't much surplus.

Unknown Speaker: (Inaudible)

Mr. Attorney General: If we were right --

Unknown Speaker: (Inaudible)

Mr. Attorney General: That is right.

Your Honor -- yes, if -- if we are right that Congress intended to preserve the -- the principle, the theory of equitable apportionment, whether you're dealing with incremental stored water or old rights then we don't -- this question of definition of person perfected rights is really immaterial to us because -- it's really immaterial because we're contending for the principle that priority applies whether you're dealing with incremental stored water or water that you could've taken out of natural flow.

We only reach the question of what's a present perfected rights if we're driven back to away from that and you prorate the store water, we then say, well, we'll certainly entitled a full protection of the priorities of our preexisting rights and they're not limited to present perfected rights.

And as a third line of defense, we say that if you are going to respect only the priorities of present perfected rights, he's got to -- he's got to a (Inaudible) definition we're entitled to --

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Well, it's -- I -- well, I -- I misspoke, Mr. Justice Frankfurter.

What I mean to say is quantitatively, if we're sustained on the application of priorities to the incremental stored water and sustain upon the principle of priorities with respect to the rights in natural flow, the question of how much of the rights in natural flow of water to be called present perfected rights doesn't concern us because it's a -- it's a small portion of the -- of the argument --

Justice Felix Frankfurter: (Inaudible)

Mr. Attorney General: Yes.

Now --

Justice John M. Harlan: That was the question I intend to convey by my earlier question.

Mr. Attorney General: Yes, sir.

Justice John M. Harlan: Namely, if you're theory of priorities is correct, what purpose is the statutory raised present protected rights served?

Mr. Attorney General: Well, it had a -- a definitely defined source.

It came into the statute on the demand of an Upper Basin representative, not in the Senate but in the House that he wanted to get in this statute some indication of the -- of the dam that was going to satisfy the function prescribed in Article VIII of the Compact.

Article VIII of the Compact says first present perfected rights are unimpaired by this Compact.

And second that when storage to the extent of 5,000,000 acre-feet has been provided, then present perfected rights are to attach to that storage and he wanted this dam named as that storage and he did it.

And he was very careful to say, this is Mr. Carpenter of -- of Colorado, he was very careful to say just prior this was being done, and that purpose was to, as I've indicated, to protect the Upper Basin.

And he made it very clear, indeed, that he wanted to designate this -- this dam as -- that to which the present perfected rights were apply to trigger Article VIII.

“It had nothing to do”, he said with a determination of rights between Arizona and California.

Indeed, Arizona and Nevada are both quite empathic here in saying that Section 6 of the Project Act has only inter-basin effect.

And we don't think that the presence of Section 6 in the statute thereby demand of an Upper Basin representative.

That's anything at all to do with limiting the doctrine of equitable apportionment in Lower Basin to the protection of present perfected rights.

And now, if you'll bear with me Your Honors, I'd like to return briefly to this other problem, the other string to our bow of -- of the -- the limitation question.

You only reach this problem of priorities.

If you hold against us, if you hold against us upon our limitation issue, and let me just briefly answer some of the things that has been set here about that, the question is not, is not whether California shall get it's 4,400,000 acre-feet out of the stream below Lake Mead what I call the “Red River”, of course, it will.

That's the only place it can now go unless they builds a new aqueduct to confine above Lake Mead.

The question is may or may not the 3,100,000 acre-feet from which we're excluded be claimed against the Red River, Lake Mead and below or must it be asserted against the whole Lower Colorado River System including the tributaries?

That is the question here.

You don't reach your question of shortage unless you decide that question against us because the flow of the resource of the Lower Basin including the tributaries of 2,000,000 acre-feet and the -- the mainstream is adequate to sustain the 8,500,000 acre-feet to which the Lower Basin is restricted by the Colorado River Compact.

You run into the problem of shortages only if you honor the 3,100,000 acre-feet of claims that we can't have and which we perpetuated against the stretch from Lake Mead and down.

Now, as to this, as to this, there is in the Master's Report this relationship between Section 5, on which I have devoted so much time today, and Section 4 (a).

Section 4 (a) authorize the Compact among Arizona, California and Nevada to which it had been ratified would have divided up the waters of the Lower Basin.

Now, the Master says that when the Secretary of Interior under Section 5 made water delivery contracts, he voluntarily, although not obliged to do so, looked to Section 4 (a) to the figures these States would have adopted in their Compact and they ratified it and picked those out and made them effective.

Note this, Section 5, by its terms, operates only with respect to the Red River water stored and Lake Mead and below.

Does Section 4 (a)?

Of course, not, of course, not.

Whether or not Section 4 (a) encompass the Gila, which was the subject of the -- of the legislative material offered yesterday by the Solicitor General, it is perfectly clear from the debates that Section 4 (a) as a minimum comprehended that main river from Lee Ferry down and not just from Lake Mead down.

There's no doubt about that.

The Master relies upon Senator Pittman and Senator Hayden.

But those Senators were not contending, that's the Compact opposed in Section 4 (a) was one that dealt with the stream from Black Canyon or Boulder Canyon to Mexico.

They were identifying, they were misconstruing the Compact as dealing with the main river from Lee Ferry to Mexico.

Now, there's a vast difference.

The inflow between Lee Ferry and Lake Mead is approximately equal to the Gila River inflow at the mainstream.

All the tributaries in the Lower Basin in the state of nature contributed about 3,000,000 acre-feet per year to the river.

And though that the Gila contributed about one-half.

So we are -- there is a disparity between Section 4 (a) arithmetic that resource was dealing with and then the resource dealt within Section 5 to the extent of 1,500,000 acre-feet per year.

They can't mean the same thing.

Now, if you, consequently, if you -- you cannot restore the rationale of the Master's argument by correcting his truncation of the river at Lake Mead.

If you drew that river back together again, you do not restore, you do not give validity to his interpretation of Section 5 as taking into -- putting into effect the tri-state compact because it can't.

We are dealing with entirely separate bodies of water.

May I have that map, the pictured map?

Unknown Speaker: It's about time.

Mr. Attorney General: Now, before I sit down, I want to call your attention to -- to all these pictures of yesterday of the -- the water flowing out of the Imperial Valley in the Salt Sea.

But he did not tell you, it's -- the salt content of this river as he call it is higher than the salt content of the Colorado flowing into Mexico which has occasion this current international crisis to which Mr. Justice Douglas referred to.

The Mexicans are complaining because the water reaching them in the main Colorado River has a salt content of three and a half tons per acre-foot and they can't irrigate with it.

This water that is leading the Imperial Valley has a salt content of four and a half to five tons per-acre foot.

We can't irrigate with it anymore than the Mexicans can and this water is agricultural sewage.You see it the sewer flow and that's all there is to it.

We are content.

We would happy to have in this decree exactly the same provision before California as for Arizona that there shall be no waste of water.

We applaud that, we will -- our projects were held to a higher standard of efficiency in their shore.

And let -- nobody be misled that there is vast amounts of water wasting to the contrary.

Now, Your Honors, in -- in the closing, I -- I would like to come to this.

We are defending here California projects built at a cost in excess of $600,000,000 over the past 30 years.

The youngest of them, 20 years old, serving 7 million people or more built and rely and it's upon an agreement with the United States, the statutory compact that our legislature accepted in good faith.

The great principle at bay here at stake is whether a State may safely enter into an agreement with the Congress of the United States unambiguous on its States, unambiguous on its States.

And they rely upon it, built our projects and then find that 30 years later that they are to be destroyed by an interpretation of the federal statute that no one has suggested in five previous trips to this Court.

Yesterday the -- someone objected to what do you call -- to my epithet describing this as a patentable novelty.

That was the Special Master description of his severance of the limitation from the Compact, not ours.

He said if these were a patent case, I would claim novelty upon this invention.

Great projects are not to be destroyed by a patentable novelty.

We are here defending a rule of property.

The contracts made for permanent service, projects built in reliance upon them, upon the understanding of the law of the river, promulgated by the present and simultaneously in three enactments on June 25, 1929, brought back to this Court four times, back to Congress six times and never until the Special Master's Report came out in May of 1960, had anyone suggested that when we agreed to limit our rights in terms of the Colorado River Compact, this was “shorthand”.

That simply is not basis of -- of confidence of reliance between the United States and the State in making this -- planning the project of this magnitude.

We are not writing on a clean slate in 1929, not writing the lower view article how to interpret the Coloro -- the Colorado River Compact or the Boulder Canyon Project Act, we are here 30 years after the event.

And here, Your Honors, we rest our case into confidence that we will have the protection of the application here of the law of this Court has applied in every other interstate water case that a law of equitable apportionment.

Thank you, sir.

Unknown Speaker: Admirably done -- admirably done.

Print this transcript Transcript:

Argument of Northcutt Ely

Mr. Northcutt Ely: May it please the Court.

First, with the respect to some of the points made by Mr. Wilmer.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: So I'm informed.

Mr. Wilmer has submitted to the Court a set of tables indicating the quantity of water he believes California could survive on.

This problem is litigated for several weeks.

Arizona decided to submit no findings or conclusions upon it.

We did, the Arizona decision apparently was made after Mr. Ryder, the Chief Planning Program Engineer of the Bureau of Reclamation may have gave the testimony which has been reproduced and submitted to you in which he classified the Imperial Irrigation District's efficiency as being near the top of those of all of the reclamation projects.

We will cheerfully accept any probation under the decree that enforces conservation of water on both sides of the river and by the same standard where you think it as an appropriate provision of a decree.

If it were so enforced, Arizona would have to cut back drastically upon the quantity she diverts per acre irrigated in Arizona because by the same testimony, her efficiency is far less than ours.

Mr. Wilmer also said that it was a pigment of imagination to assume that any diversions were contemplated above Lake Mead and to the Central Arizona area.

At page 125 of our opening brief, we have reproduced a quotation from the 13th Annual Report of the Arizona Interstate Stream Commission dated 1960, which says at page 31 of that report, “The circulation of the Special Master's draft report on Arizona versus California et al. has given new impetus to plans for utilizing Colorado River water in Arizona.

An integral part of Colorado River water utilization plants for Central Arizona is a route for diversion.

The Stream Commission and the United States Geological Survey have undertaken a cooperative program to map the unsurveyed area which would be traversed by a proposed diversion route from Marble Canyon which on the map as you will see is above Lake Mead, where the mapping program nearing completion, detailed cost estimates can be made which will facilitate consideration of the relative desirability of this diversion route to Central Arizona.”

This is not a pigment of imagination.

How the choice of routes will ultimately be resolved, I do not know.

Mr. Legott also indicated that -- oh pardon me -- Mr. Wilmer also indicated that Central Arizona was in arduous rates through the dropping of its water tables and indicated that we were pleading to this Court on a poor mouth basis as he called it and he would do likewise.

That is not the case.

We do not ask here for sympathy or mercy for any of the States.

We do ask that the Project Act be interpreted as we think it was designed to be interpreted and shall not be rewritten in the light of an administrative contract made in 1944, our contract, our bargain was made in 1929.

But as long as this subject is raised, I should like to refer to the fact that their draft report or the report of the Special Master contains tables prepared by an expert Arizona witness and Mr. Legott of the Valley National Bank, designed to show the explosive growth in that State.

Mr. Legott is the author of an article in the Arizona Highways in February - March 1962, an official publication of the State of Arizona in which this rather candid witness in this case, more recently, has expressed himself as follows.

“The important Arizona's location in one of the most arid section of the United States often goes rise to questions as to whether its water supply is sufficient to permit a substantial population growth.

The question can be answered quite specifically and simply, and the answer is definitely, yes.

The important point to bear in mind is the distinction between water for agricultural purposes and water for domestic purposes.

In the latter of the respect, there is no water problem in the lowland areas of Arizona.

Arizona's water resources are ample to support at least 10 to 15 times the present population, i.e. a population even larger than that of California.

In the process, this would probably mean that Phoenix larger than Los Angeles varies the thought” says, Mr. Legott, “and the Tucson larger than San Francisco.

In all seriousness, Arizona's water supply for normal, domestic and industrial usage is one of the best in the country, although…” -- and he goes on with the quantities required.

Thus, Arizona's present population of approximately 1,400,000 consumes approximately 175,000 acre-feet of water per annum, which is about the same amount as waters would normally be utilized on 60,000 acres of irrigated cropland.

Stated in other way, the present domestic consumption of water in Arizona is less than 5% of the amount used for agricultural purposes and much of it actually finds its way back into the underground of reservoirs for reuse.

And he goes on to say at the conclusion of this paragraph, whenever a cow pasture or citrus grove is converted into a residential subdivision, there's both the saving in water and a tremendous property increase.

So we're confronted here with a -- whether the economy of Central Arizona based largely upon cotton shall continue by -- or whether it shall be gradually converted as we have had to do in Southern California by pulling up our beautiful orange groves and converting them to the support of the exploding population there.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: I hope not, Your Honor.

Too many of them have disappeared already.

But both states are faced with an exploding population, we realize that that is not the necessary basis of decision here.

Now, as to the limitation issue upon which both Mr. Wilmer and Mr. Cox said well, the words in the Section 4 (a), the first paragraph, a proposal to California are clear.

A reference is to 4,400,000 acre-feet of the waters apportioned to the Lower Basin States by paragraph of (a) of Article III of the compact.

We say that the Project Act intended by that to incorporate the compact whatever it might mean.

The Congress knew that tributaries were included in the compact.

Sections 13, 13 (b), 13 (c), 13 (d) specifically provide that the United States and all those claiming under the United States shall conform to the compact and that this compact shall be impressed upon the main river and its tributaries.

The compact included the tributaries, Congress knew that, the Master so recognizes.

And it's important perhaps that in 1941 when Congress enacted the Boulder Canyon Project Adjustment Act, it specified that Section 18 of which you've heard here and these same Sections 13 (b), 13 (c) and 13 (d) should be reenacted.

The Master has made one of his -- the Master has made one of his few factual errors in his report in which he states that there is nothing to show that at the time of the Project Act or indeed since 1928, the Imperial Irrigation District had used the waters of the Gila River.

Elsewhere in his report, he states the facts correctly that from 1901 to 1941 appeared 40 years, the diversion point for the Imperial Canal was below the Gila River and the Gila was used by the Imperial.

But this fact was brought home to Congress in the testimony of Mr. Delph Carpenter, the principal author of the Colorado River Compact, and if you'll bear with me, I will quote a couple of paragraphs from his testimony on this specific subject as to why the Upper Basin as well California wherein it rested in the inclusion of the Gila in the county.

Mr. Carpenter told a committee of Congress in 1926, the Gila River is not exclusively -- exclusively an Arizona stream even in the matter of origin.

Secondly, the Gila and every other River, mentioned, contributes if uninterrupted, its water supply to the main river above the largest diversion canal in America, the Imperial Valley Canal heading now below Yuma.

Gila water is of importance to the Imperial Valley Canal.

The Canal naturally looks to the more stable flow from the main river but I'm informed that Gila water is frequently diverted and it has been my privilege to see water coming from the Gila River and flowing into the Colorado and down into the Imperial Valley Canal.

That water is just as wet and just as serviceable as the water from the Green River in Utah.

The waters of the Gila River are waters of the Colorado River just as much as the waters of the Green River.

So that when you look at these facts squarely, you were brought to the proposition that there is not a single tributary of the entire Colorado River that does not enter the River above Yuma and the greatest diverter from this river or from any river in America or the world as the Canal of Imperial Valley located below Yuma.

Then it goes on to say that they thought this advance that the Imperial District will move its point of diversion above Yuma and therefore with Gila no longer be of interest to it.

But he says a canal for the irrigation of lands in Mexico would head below the mouth of the Gila.The whole theory of the Laguna Dam connection is founded upon an all-American Canal.

Then he concludes by saying, “I'm going into this matter because there seems to be an idea or a dream that the Gila is not a tributary.

An idea that because the All-American Canal will ultimately hook up with the Laguna Dam that therefore the Gila is a river unto itself.

Senator Phipps of Colorado having heard the debate in which Senator Pittman and Senator Hayden participated and reported to the Senate, the Upper Basin Governors' recommendations obviously were concerned about the confusion that the Master has pointed out in his report.

Now, we come to the Phipps Amendment in just a moment.

But at page 189 and page 190, the Master points out that Senator Pittman in reporting to the Senate, the recommendation of the Governors in their 1927 Conference was confused.

The Governors were recommending a division of the water let down at Lee Ferry that is flow not consumptive use.

Flow of the stream not consumptive use as the Master would allocate.

This -- says the Master, this report by Senator Pittman did not adopt or perhaps failed to grasp that portion of the Governors' resolution which expressly found the source of the allocated waters in the Article III (d) obligation of the upper division.

Instead, Senator Pittman related the limitation to Article 3 (a) not 3 (d) as appears from the very next sentence of his statement which reads as follows and he quotes it.

On page 190, the Master continues, “Thus Senator Pittman use Article III (a) to define the area against which the limitation was to operate.

He did this in apparent misunderstanding of the Governor's recommendation.

All subsequent discussion in the Senate flowed in the same channel.”

Now, shall we be held to the bargain which the California legislature enacted in response to plain language of an act of Congress or shall be held of the confusion entertained by one senator, and so described by the Master.

Senator Phipps of Colorado was the Chairman of the reporting committee.

He was the author of the limitation and he was obviously concerned by this growing confusion because Senator Phipps offered a perfecting amendment to his own limitation which at the time read 4,600,000 acre-feet.

The circumstances are cited in our opening brief at page 118.

Senator Phipps said, “Referring to the amendment which is now before the Senate that was the committee amendment which imposed the limitation of 4,600,000 acre-feet.”

Referring to the amendment which is now before -- and pardon me, 4,400,000 -- it had already been voted upon 4,600,000 versus 4,200,000 had been settled upon as 4,400,000.

Referring to the amendment which is now before the Senate, in order to remove any possible misunderstanding regarding the 4,400,000 acre-feet of water, I desire to perfect the amendment by inserting on page 3, line 4 after the word “by”, the words paragraph (a) of Article III of, so that it will show that that allocation of water refers directly to the seven and one half million acre-feet of water that are mentioned in paragraph 3.

Senator Phipps' perfecting amendment was accepted without objection and thereafter, the Phipps Amendment, the 4,400,000 acre-feet in it, instead 4,600,000 was adapted by the Senate.

There cannot be a more explicit clarification.

This did not come early in the debate as the Solicitor General is mistaken in believing.

This was virtually the last utterance before the Limitation Amendment was adopted.

It was approved by the Senate upon that understanding which identified the 7,500,000 million acre-feet with III (a) which includes the tributaries and cleared up the misunderstanding, the confusion, as the Master calls it, Senator Pittman and Senator Hayden that the limitation related to the flow of the stream at Lee Ferry, the III (d) obligation.

Now, it is clear, however, that Senator Hayden was not demanding from the Senate, 2,800,000 acre-feet of consumptive use, diversions, less returns to the stream at all.

Senator Hayden was consistent in relating the divisional water that he proposed to the flow of the stream, the III (d) delivery of Lee Ferry.

Senator Hayden, three times, told the Senate that if Arizona were permitted to divert 2,800,000 acre-feet for the proposed Parker-Gila project, some 944,000 acre-feet of that when returned to the stream be capable of use only by Mexico and that Arizona claim no credit for that return flow.

Here is his specific language.

He is referring to the second paragraph of Section 4 (a).

He has first described that the 2,800,000 -- 2,844,000 be diverted for this specific project, the Parker-Gila Project that the experts have testified the 948,000 acre-feet of the return flow and he nails it down with this statement: “I have specified in the amendment which I have offered that the State of Arizona lays no claim to that return flow.

We do not ask to have any credit for it after it arises in the mainstream of the Colorado River.

It will be surplus and unappropriated waters which Arizona cannot use and that water and that alone will be sufficient to supply any demand for water to meet the existing uses in Mexico.”

The Master in other words awards to Arizona by definition of the 2,800,000 acre-feet as diversions less returns consumptive use.

Some 948,000 acre-feet more than Senator Hayden explained to the Senate, he expected to get.Senator Hayden was consistent in his confusion.

He identified at all times the allocation, the division he thought would be accomplished by Section 4 (a) to the flow of the river, the flow at Lee Ferry and not the consumptive use diversions less returns.

Only by this explanation of Senator Hayden, can you possibly reconcile the arithmetic of Section 4 (a) with the arithmetic of the Colorado River Compact.

Senator Pittman obviously was not content to leave this kind of confusion in the record, the man responsible for the act, he straightened it out with his perfecting amendment in California accepted the limitation in the light of the Phipps perfecting amendment.

Nowhere did anybody propose a vote upon an amendment which would substitute for 4,600,000 or 4,200,000 or 4,400,000, an authorization of the Secretary of the Interior to reduce that figure to 44 seventy-fifths of X what the Secretary might elect to release.

To the contrary, Senator Johnson was explicit in stating to the Senate that the -- that we were dealing with an irreducible minimum in California.

At 70 Congressional Record 385, Senator Johnson said this, “I say to the gentleman of Arizona, you say the California shall have a 4,200,000 acre-feet, we say in the testimony of Mr. Francis Wilson is the best upon that subject” -- pardon me, “that the irreducible minimum of the State of California is 4,600,00 acre-feet.

You say there was.

You must bind your people for all time in the future and never to go beyond it by this amendment.

The amendment does not divide the water between Arizona and California.

It fixes a maximum amount of beyond reach California cannot go.”

Now, with respect to the priority issue, Section 14 is explicit in incorporating in the Boulder Canyon Project Act the terms of the reclamation law.Section 8 of the reclamation law has been fully debated here.

It provides that the -- that the beneficial use should be the basis of measure in the limit of the right.

Section 5 is subject to Section 14.

The United States in its brief does not characterize the Arizona project as a Section 5 water delivery contract.

To the contrary, the United States says in its answering brief at page 47, “It is our understanding that this contract with Arizona does not by itself authorize the actual delivery of water in compliance with Section 5 of the Project Act, since that Section requires that the contracts be entered into with the actual users of the water, rather, this contract is in the nature of a commitment by the Secretary to enter into the contracts with users in Arizona up to the limit of 2,800,000 acre-feet.

In this sense, it is an allocation by the Secretary of that amount of water for a future contractual use.”

We say that neither Section 5 nor any other section authorizes the Secretary of Interior to make any such interstate apportionment, any such allocation for future use.

And indeed Arizona, in her brief, opposing the theory of the United States that the Secretary or the creation of an Indian reservation, somehow reserves water, it calls the attention to Section 8.

And Arizona's opening brief at page 144 says this, “Section 8 of the Reclamation Act also proscribes that beneficial use shall be the basis, the measure and the limit of the right.”

“This requirement,” says Arizona “cannot be reconciled with the concept that a water right maybe acquired by a reservation without any physical application of water to have beneficial use.”

If that is true with respect to the Federal Indian Law, it is surely true with respect to the Federal Reclamation Law in which Section 8 appears and which is incorporated in the Boulder Canyon Project Act.

Unknown Speaker: Mr. Ely, does it follow that (Inaudible) prohibition in the Government's theory would account only to those waters that can necessarily be achieved, (Inaudible)

Mr. Northcutt Ely: There are two prongs to the equitable apportionment rule: one, priority of appropriation, the other protection of existing uses.

In California, we believe we're protected by both of those shields, they converged.

Unknown Speaker: (Inaudible)

Mr. Northcutt Ely: Well, to the damage to Arizona by allowing her water in excess of the total requirements over the existing projects is nil.

We would grant her that.

We recognize the priorities of those projects.

The damage to California by reducing existing projects by more than a million acre-feet is catastrophic.

It is a result not required by the principle of apportionment.

Unknown Speaker: Does it require a (Inaudible)

Mr. Northcutt Ely: No, that is -- with all due respect, that is not our argument.

Our point --

Unknown Speaker: (Inaudible)

Mr. Northcutt Ely: No, I do not so read it.

I read it as an intention to protect an existing economy even though built upon a junior appropriation.

Our existing economy is built upon senior appropriations.

Now, one word with respect to the legislative history, if the Solicitor General and Mr. Wilmer are correct, then the enactment of the Boulder Canyon Project Act was a tremendous victory for Arizona.

The Gila was excluded.

The California priorities were suppressed 2,800,000 acre-feet can be reserved for use in Arizona in the indefinite future.

What more could she want?

Why then that the Arizona Senators and Congressman vote against this windfall or vote against the bill?

Why did Arizona bring suit in this Court to stop the construction of the dam?

And why did Senator Hayden opposed the appropriation money to construct the dam?

Senator Hayden is perfectly clear on it.

He told the Senate in 1930, when the first appropriation bill was up, this: “Why they should not appropriate money to build Hoover Dam?”

What will happen is that the waters of the Colorado River will be impounded in a Boulder Canyon reservoir and made available for use.

Large quantities of water will be taken out of the Colorado River into the great All-American Canal.

Over 1,000,000 acre-feet will be further taken out of the river by a pumping plant and taken over into the coastal plain of California in the vicinity of Los Angeles.

They will be put to beneficial use.

And once having acquired a prior right to its use, no other state can obtain the use of those waters.

That was Senator Hayden's contemporary appraisal of the legislative history, what the Senate had done.

That is not consistent with a curtailment of California's rights to present perfected rights.

Section 6 of this Act in directing the Secretary to conform, the Article VIII of the compact is referring to an inter-basin, an inter-basin agreement.

Article VIII has no intra-basin effect.

The Master says that the compact is irrelevant intra-basin.

Section 6 rises no higher than it source, Article VIII.

It directs the Secretary to use this dam to satisfy present perfected rights instead of postponing that lien to the Glen Canyon Dam which might come at some future time.

Now, a word or two in conclusion, we say there is nothing in the Boulder Canyon Project Act that deprives this Court of its function, its jurisdiction of making an equitable apportionment to decide the burden of shortages, whether that burden arises in a contest between the contractors or appropriators.

Nothing in the Boulder Canyon Project Act requires the destruction of the -- of the Metropolitan Water District Act without everything in this Court's doctrine of equitable apportionment forbids that result.

Thank you.

Yes sir?

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: Well, the contracts of California are long since made.

We aren't seeking any new ones.

The contracts in Arizona only have been made to the extent of 1,100,000 acre-feet.

There's a 1,700,000 within the total of this contract to the State that no user has undertaken a contract for.

And I would regard it not a part of California's problem as to the standard to control the Secretary in making contracts with individual users in Arizona, except that consistently with Section 5 and Section 8 of the Reclamation Law, he must make contracts with individual users qualified under the Reclamation Law.

And I would say that if a user, as appropriated under the laws of Arizona, waters to be released in Lake Mead and submits that application to the Secretary that he -- the user cannot proceed to take the water without conforming both to the contract and to the state appropriation.

That's what we've done in California.

Well perhaps, I didn't understand it sir.

I'll try.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: I don't understand (Inaudible) --

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: I do understand from your question, sir?

You're speaking now to the allocation of the quantities if that's approved, is there remain a problem?

Yes, priorities in the event of shortage.

Justice Hugo L. Black: What?

Mr. Northcutt Ely: Priorities in the event of shortage remains.

If you sustain the Master upon his allocation and quantities to the States, you nevertheless are faced what to do in the event of shortage for the water supply meet those quantities.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: I know of no pending controversy on that issue, perhaps there is in Arizona or Nevada.

There is none in California.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: Well, apparent cross purposes here in some way that I don't grasp the implication of this question.

What I say is that in the event of -- first of all, there is no -- there is no present shortage in meeting either the appropriations or the contract obligations of the Secretary with actual users.

There is no quarrel with any existing user in Arizona.

If hereafter individual contracts are made within individual users in Arizona and if those add up to a quantity that cannot be served together with our contracts, then the question of shortage does arise but you don't reach a question of shortage now unless you attribute to the Arizona contract the equality that we say Section 8 forbids.

That is some kind of reservation and apportionment to Arizona in respect of abuse.

And I can't tell you what the individual contracts would be in Arizona to add up and by -- with whom we ultimately be in conflict.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Northcutt Ely: Approximately 5,000,000 acre-feet.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Northcutt Ely: That is correct, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Northcutt Ely: No, that is fixed in our contracts with the Secretary.

The Secretary adopted the state law schedule of appropriations as to dates of priority and quantities.

I should make this clear that the problem of shortage, I answered your question, yes, because I am assuming in the light of the earlier questions that you are attributing to the Arizona water contract that character of a present right and that water is put to use under it because this decree would be taken back as an advisory opinion to Congress under which the Central Arizona project be built.

Now, if that project isn't built then no shortage, no problem.

Justice Byron R. White: Mr. Ely.

Mr. Northcutt Ely: Excuse me, sir.

Justice Byron R. White: Put it to you this way.

I gather that you and the other States and the Solicitor General felt that there was a present controversy and dispute that should be decided as to whether or not the Master was correct in determining that in the event of the shortage, there would be proration rather than an allocation by equitable apportionment.

Mr. Northcutt Ely: That is right.

Justice Byron R. White: And you think that is a very live controversy?

Mr. Northcutt Ely: I do Your Honor.

Let me say that the case has originally pleaded and tried.

It was on the assumption that the Colorado River Compact was relevant.

It did constrict our water supply as so constricted, that supply would not meet the claims against it.

As the Master has brought the report to you, the compact is irrelevant, he says, and we consequently are dealing with X.

We are not told what the Secretary released but we do say that we are entitled to the protection of the Court's equitable apportionment doctrine where our contract --

Justice Byron R. White: Assuming you lose in the limitation issue and that Arizona does have the water which the Master says Arizona is entitled to.

But then you think the likelihood of a shortage is enough or it's imminent enough that there is live controversy on how that shortage should be apportioned among the States, if there is one.

Mr. Northcutt Ely: There is, Your Honor, if you give to the Arizona contract, a status of the reservation the Master has given.

If you treat the Arizona contract as we do, as being ultra vires if it purports to make an interstate apportionment, as simply a letter of intent and announcement of the Secretary as to how far Gila go like our limitation act says in making individual contracts, then you don't know whether there is a question of priorities to deal with until you see the statute that authorizes the new project that creates the shortage.

If that new project is authorized by a statute that respects the priorities of existing projects, it's conceivable and if you'll take the risk of going ahead, it might do so.

Justice Byron R. White: That is what the Master decided.

Mr. Northcutt Ely: You're correct.

The Master treats the Arizona contract as a present reservation and apportionment, a good in perpetuity, if that effect is given to it, of course there is a shortage on us now because that whole quantity is withdrawn from any stability of our use.

He gives curiously enough the effect to the Arizona contract of a reservation perpetuity that he denies to paragraph (a) of Article III with respect to the Upper Basin.

That is not a reservation of perpetuity, the apportionment in perpetuity says it is.

The Arizona contract is although it says it's not.

Justice Byron R. White: Well, I think that the Secretary in the event there is a shortage, if there's only going to be 6 million feet of -- reliably available, the Secretary is going to have to determine somehow which contracts he's going to honor and which ones he's not going to honor.

Mr. Northcutt Ely: I think what the Secretary should do and would do unless directed otherwise by your decree is to tell the contract holders there's a shortage, get this matter determined by a court of competent jurisdiction.

Justice Byron R. White: And you would say that the rule -- that either he should follow or that the Court could follow is that of equitable apportionment as between the States.

Mr. Northcutt Ely: Exactly so.

Justice Byron R. White: That made your component of which is the priority doctrine.

Mr. Northcutt Ely: Exactly so, Your Honor.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: I hope not.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: Your Honor, I didn't say that.

In the first place, we don't think the Act did make any division.

We --

Justice Byron R. White: (Inaudible)

Mr. Northcutt Ely: But Your Honor --

Justice Byron R. White: (Inaudible)

Mr. Northcutt Ely: No, Your Honor.

First of all, the Master, with reference, did not say that the Act could make a division of the water.

He denied that twice.

Arizona contends that the Master rejects that argument.

He says that the Act delegated to the Secretary the power to make the apportionment.

He did in 1994.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: Yes.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: Yes.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: Well, You Honor, again, it isn't the question whether contracts governed by state law.

It's a question of what law shall govern the federal contracts that the Secretary may make today, tomorrow, next year with users in Arizona in the event of shortage.

We say that the law that shall determine is the law of equitable apportionment of Section 8.

Justice Hugo L. Black: (Inaudible)

Mr. Northcutt Ely: Yes, and we say that he's been in error in that.

Justice Hugo L. Black: Certainly -- are we certain as to his rights -- what is left to determine with reference to the governments -- rather state law or federal law governed?

Justice William O. Douglas: And I suppose we've decided the question if we decide it's right.

Mr. Northcutt Ely: Well, I would suppose so if you'll decide all that, in that way the premises (Voice Overlap) report.

Justice Hugo L. Black: That's what I was at.

That's what I was at.

Mr. Northcutt Ely: I'm sorry if I failed to comprehend your question, Your Honor.

Thank you.

Print this transcript Transcript:

Argument of Mark Wilmer

Chief Justice Earl Warren: State of Arizona, Complainant, versus California et al.

Mr. Mark Wilmer: May it please the Court.

Well, we have been handed by counsel for California a portion of the transcript which is headed uncontradicted testimony of JR Ryder which relates to project deficiencies.

We are not here to attempt to comb the record nor are we here to make findings which the Master refused to make.

We simply say so that it will not be assumed that because we have not contested the statement that we ascend to it.

We simply say that we do not agree.

We simply say that a proper investigation of the testimonial offered would indicate quite to the contrary but I don't think this Court is the place that we should attempt to resolve questions of fact.

I'd like to briefly, if might, turn to Section 8 (b) again because the reading of that demonstrates to us at least two things.

I'm not going to read it because it is long but its in substance and briefly provided that the United States, in constructing, managing, and operating the dam reservoir canals and other works, including the appropriation, delivery and use of water for generation of power, irrigation, and other uses shall be subject to and shall conform to the terms of a compact if any between the States of Arizona, California, and Nevada or any two thereof.

Now, that is most unusual language in directing that the Secretary shall conform to a compact made by two of the three states and we think that it requires some searching to find out why that is.

It then provides, of course, that if the compact is made and approved by the Congress prior to January 1, 1929, that shall govern the Secretary's contracts and that if made subsequent thereto the Secretary's contract shall govern.

I would say in passing that originally, the period allowed for compact was a year, but apparently in the haste of the closing of this Congress or the holiday season and all, they didn't extend the period because the Act was approved on December 21st and it was, of course, seven or eight days before the period expire.

What I'm leading to is this.

The debates in Congress emphasized and made clear one thing, a contest between States' rights and the power of the federal judiciary, the power in the Federal Congress.

All through these debates, the question was not, “Has Congress by this legislation, allocated the water?”

The question was, “Can Congress constitutionally do so?”

And as you have heard before, Senator King at one point said, “I, in effect challenge the right of the federal government to put his mighty hands down upon this river.”

And the other point said, “The States' rights are being destroyed.”

Now, nothing is said in this authorization, this suggestion of a compact which was to govern the Secretary about appropriative rights.

How do you square the notion, appropriate -- appropriative rights, rights of prior appropriation should survive the compact or should survive the Project Act when nothing is said in here with respect to preserving those rights?

This is a Carte Blanche authorization to the States to enter into a compact and there's nothing whatever with respect to recognizing appropriative rights.

Justice John M. Harlan: It is also true, however, that the Congress did not undertake itself to make an allocation of water.

Mr. Mark Wilmer: We think it did, Your Honor.

We think it did and let me -- let me just pursue that on a moment if I may.

How, if it please the Court, unless Congress had divided the water, could do if the States make a compact?

In other words, unless the Congress felt that it set apart to each of these States their aliquot part of the water could have authorized two of them to compact.

Certainly, it wouldn't be said, if it please the Court, that Arizona and Nevada could compact and cut California out.

You can't make a division of something unless you own it, unless it's confined to your jurisdiction, and it's within your custody.

We say, if it please the Court, that this is another indication that Congress did say they have made an allocation.

We say that Congress must have thought.

They made an allocation as otherwise they couldn't have authorized two of the States to make a compact since in so doing, they had no right to decide how much they have.

Now, I expressed that awkwardly, Mr. Justice Harlan but --

Justice John M. Harlan: I understand.

Mr. Mark Wilmer: -- in substance, the Congress had to think that they have divided the water because otherwise it would have been completely irresponsible on the part of Congress to say the two of them, “You can divide between yourself this water as you like.”

Now, let me pursue that just a little further.

Justice Arthur J. Goldberg: Well, what you're saying is --

Mr. Mark Wilmer: Yes.

Justice Arthur J. Goldberg: -- is obvious that where it could rather depend on Arizona and Nevada (Inaudible) California --

Mr. Mark Wilmer: Yes, Your Honor.

Justice Arthur J. Goldberg: (Inaudible) -- what you say?

Mr. Mark Wilmer: Yes, yes.

I --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Mark Wilmer: Or obviously, it wasn't intended that California and Nevada should get together and cut out Arizona.

So, the Congress must have thought that we have set apart to each one of these three states their proportionate share of the water.

And they said in the substance, if Arizona and Nevada want to get together and raise the ceiling a little bit, fine, between themselves.

If Arizona wants to give Nevada 100,000 acres feet, fine!

If Nevada wants to give Arizona 100,000 acre-feet of the 300, they said that they don't need, fine!

Or if Arizona, Nevada, and California altogether and get together and in the interest of peace, settle these questions, fine!

Now let me make one further suggestion, the other reasonable interpretation is, that since Congress have said California may not go beyond 4.4 million that Nevada and Arizona were thereby given the authority from Congress to divide between themselves, the balance of the water which would be the 3 million acre-feet water.

We say, if it please the Court, that it is impossible to believe that the Congress, no one gets great treasure of water, this thing that has been fought over and, fought over, and fought over for years that this Congress intended to walk away and leave that to the sole discretion of the courts or the interstate compact.

Now, if I may just turn briefly to Section 5 (b).

If the Court may kindly examine Section 5 after the provision with respect to water contracts, you will find what?

You will find that the Secretary was given detailed directions as to how he should handle power.

He was told that in the event there was conflicting applications, he should have a hearing and he was told what policy he was to apply in that hearing.

He was to apply the policy of Federal Power Act.

Now, can we believe for one minute that the Congress intended to store up this great body of water, this great treasure in the west which is practically, as it has been said an amenity and not a treasure?

Can we believe for one minute that they intended to store that water in a great reservoir and then do what?

What was the Secretary to do, unless he was given a direction to conform to 4 (a)?

What was he to do?

Was he to wait for the courts to adjudicate it by a lawsuit?

Was he to hold a hearing with respect to the rights of prior appropriators?

How was he to do that because Congress gave him no authority to hold a hearing with respect to water rights?

They did give him the authority told hold a hearing with respect to power applications.

So what is he to do?

Wait another 10-year, Wyoming versus Colorado, litigation period?

How was he to determine where the waters to go unless 4 (a) told him.

And we think that the administrative construction which the Secretary of the Interior followed by allocating first off in Arizona 2.8 million.

Next allocating to California the 4.4 million in the first priorities and then allocating to Nevada 300,000, implemented and carried out the directions the Congress gave.

Now, I would say that again in closing, to me, it is inconceivable that with a treasure far greater than power, far greater than power, that Congress would have advocated its responsibilities.

That Congress would have shown this great treasure up for grabs.

The Congress would have said despite the fact that this great treasure is needed and required, we're going to store it until what?

Until the rights of prior appropriators are determined and how are you going to determine those?

Either by compact which had failed, and failed, and failed or by litigation.

And as Mr. Taylor said in response to a discussion by Mr. Carter that I read you yesterday, we have in the Upper Basin litigated for 25 years and with very poor results.

I've always thought that a statute should be given a reasonable interpretation and in the public interest and I therefore say, if it please the Court, in our judgment at least, you cannot reconcile the notion of Congress with detailed precision, spelling out how the power was to go.

With detailed precision, saying what the Secretary should do if there was a conflict, and then walking away from 32 million stored acres of water -- acre-feet of water, that to me is inconceivable.

Justice Hugo L. Black: Mr. Solicitor General.

Argument of Cox

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

I would like first to say a word about question of justiciability that occupied a considerable part of the Court's time yesterday.

First, the -- it is clear that there is enough water in the river to satisfy the presently existing uses.

But it is also claimed that there is not enough water in the mainstream of the Colorado River to satisfy the fully matured claims based upon past events.

The exact amount which will be available below Lee Ferry is of course unknown and as the Master found unknowable with any exactitude in the future, so that one is dealing here with something of indefinite and perhaps shifting size.

But there are certainly no estimates that put the exact amount available after evaporation and channel losses and after satisfying the Mexican treaty in excess of 8 million acre-feet.

Now, take the matured claims that already exist or at least are alleged to exist.

California claims that she is entitled to 5,378,000 acre-feet based upon what she says are existing appropriative rights.

Arizona claims based on a contract with the Secretary of Interior, 2.8 million, and Nevada claims 300,000.

Adding the total of those claims, one gets just under 8,500,000 acre-feet which is in excess of what anyone would say was a reliable amount downstream in the future.

There's another way of indicating the extent of the clash.

I made myself a little table which shows how the conflicting theories of the Master in California would work out at two estimates of the available flow.

If you take the -- if the available flow is 5,850,000 as suggested by -- as suggested by the California witnesses, I have had these copy then if it would help the Court why the clerk contest if you wouldn't have write it down.

I think it's accurate.

It certainly gives the main outlines of maybe some differences about the details.

If the available flow is 5,850,000 then under the California proposal, California would get 4.6 million, Nevada would get 125,500 and Arizona would get 1,129,500.

Under the Master's Report California would get only 3.4 million against the 4.6 million, Arizona would get 234,000 and Arizona would get something over 2 million so there is a very significant difference there.

Justice Byron R. White: Is it available (Inaudible)

Mr. Cox: This is available after deducting the Mexican treaty in channel losses and so forth.

Justice Byron R. White: (Inaudible)

Mr. Cox: It does not include the Gila River.

I'm talking about the mainstream, yes.

Now, if you assumed that the available --

Justice Potter Stewart: So the California proposal is a little inaccurate.

This California proposal double barreled.

Mr. Cox: This -- this is what California would propose to decree out of the mainstream.

Justice Potter Stewart: Out of the mainstream --

Mr. Cox: Yes.

Justice Potter Stewart: California, of course, says that we have to consider all tributaries too.

Mr. Cox: That's right.

Well, this was in -- since the fight is over the mainstream and the question of justiciability relates to claims on the mainstream, this seemed to me to show the conflict between the claims that exist today.

Justice William O. Douglas: If there's no conflict, there were distributaries?

Mr. Cox: There's no doubt but that -- whatever is in the Gila will go to Arizona.

There's a question as to how the Gila should be -- there's a question as to what is the surplus over the 4.4 million, and what the 4.4 million should be taken out of it.

But I don't think that California wants to use any Gila River water.

Justice William O. Douglas: Except in the computation.

Mr. Cox: Oh yes, in the computation.

But even since the Gila, the claims would still be -- have the same conflict as I suggest here, because these are only clients to the mainstream if I were to base this table on all the water in the basin then I would have had to put in more claims to the Gila than there are Gila River water.

And so again, we would have the clear conflict between claims based on events that have already occurred.

Now, on the other table, I will show you the difference in the allocation of the mainstream under the Master's Report and California's proposal.

And there again, there is an obvious conflict between the rights that California says she has today based on past events and the rights which Arizona and Nevada say they have today, based on past contracts with the Secretary.

Justice Arthur J. Goldberg: General, Justice Stewart appears to mean if you have the history of problems, when you have California (Inaudible)

Mr. Cox: Yes, yes.

It is based on -- this is an allocation of the mainstream but the computation is based on a universe that would include the Gila.

Now, coming to the law, this court in Nebraska against Wyoming said, referring to its early --

Justice Potter Stewart: Just before you proceed, you're basing your position that this is a justiciable controversy before us, exclusively upon these facts that there is not enough water to go around.

I take it that you concede that if there's not enough water to go around, we will not have a justiciable controversy.

Mr. Cox: Well, I did not mean to concede it.

I thought there was not enough water to go around.

And I am basing my argument presently on that point.

Justice Potter Stewart: Because what I understood the Arizona position was that there was enough water to go around.

Mr. Cox: Well, I think that people to some extent are trying to carry water on both shoulders.

I think that the problem there is this, that there may be not enough water for purposes of having a justiciable controversy and there still maybe enough prospects of future water so that we do not have to think of all the Southern Californians as saying their farmland shrivel up or the people of the metropolitan district goes thirsty, because there are in the future various contingencies that may fall in.

Including as Arizona says the possibility is unsafe.

But I think there is an in between point where there is a disaster for Southern California and yet there is a real conflict as to the existing claims.

And that's the position which we would think was an accurate description.

In the Nebraska against Wyoming case, this Court said, “Wyoming against Colorado indicates that where the claims to the water the river exceed the supply, a controversy exists appropriate for judicial determination.

And then referring in another passage to that earlier case, there -- there the only showing of injury or threat of injury was the inadequacy of the supply of water to meet all appropriative rights.

But now here, they aren't all based on appropriative rights, Arizona is based on the contract.

But it seems to me the same principle applies that the claims based on past amendment exceed the supply.

It is important to bear in mind two other things.

In the first place, a suit to quiet title will of course lie in the case of water rights as well as in the case of other real estate and this may be thought of as having some of the aspects of a suit to quiet title.

The -- if the Court's concerned with that, I can give two references one is to Kinney on his book on water, second edition, Section 1535; the other is to Wylie, the third edition, Section 654 and an illustration which I think is clear occurred to me.

Suppose one had real estate to which there were mortgages with the same amounts as this water.

And you were trying to borrow some money, claiming that the amounts of the alleged liens weren't as large as the claimant say they are.

As I understand it, under those circumstances, he could maintain a bill to quiet his title.

Finally, I would remind the court of its decision in Illinois against Wisconsin, when the two little Illinois towns filed an application for -- to determine their right to withdraw water from Lake Michigan, saying that the lake estates denied that right.

The bill alleged that the towns couldn't borrow the money to build the plants to draw the water until these claims were adjudicated.

The point was argued in full and while the Court wrote no opinion and I suppose it's not definitely decided, nevertheless did grant permission to file the bill between the States so that again points in this same direction.

I would emphasize, finally the importance of the clarification here, in two respects: First, this controversy clouds the title and blocks the development of the river; second, from the standpoint of Arizona and who would agree from our standpoint with respect to the Indian reservation, California keeps changing the situation all the time.

They keep taking more water and then they come in and say, “See, we are entitled to this because we have been using it”.

And this in itself seems to me a changing in the situation and affecting of the Arizona and Indian rights, which makes the case sharply justiciable.

Now, on the merits from the standpoint of the United States, this case has two main parts, the apportionment of the mainstream water between Arizona, California and Nevada, and the second, the claims of the United States to water in behalf of the Indian reservations the National Forest Park and the Wildlife Refuge.

The mainstream controversy which I will discuss first itself has two principal divisions: First, the so-called limitation issue; and second, the so-called priority or ratability issue.

The former question, I think might better be stated a little more broadly by saying that it raises the issue, what's the subject matter to be divided?

What is the supply of water with which the Project Act is primarily concerned?

Is it all the water in the Lower Basin as California contends?

Or is it -- does the Project Act deal primarily within Section 4 (a) only with the mainstream water controlled by the Hoover Dam and related works.

Once that question has been answered then one can go on to the priority or ratability issue.

Now, the controversy -- limitation controversy focuses of course on Section 4 (a) of the Project Act and on the first paragraph of Section 4 (a).

If the Court wish to refer to it, it appears on page 382 of the Master's Report, which provides that California must accept a limitation that all the water she takes shall not exceed 4.4 million acre-feet of waters, apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact plus not more than one-half of any excess or surplus waters unapportioned by said compact.

The dispute is over the composition of the universe that Section 4 (a) divides at least, divides in the sense that it says California can have only so much.

California says that she is entitled to remember the 4.4 million out of the 7.5 million acre-feet of all the water in the entire Lower Basin plus the Gila.

Thus, she is willing to read the compact literally.

Because the compact on page 373, rather clearly apportions all the water in the basin but she is unwilling to read literally the words plus not more than one half of any excess or surplus waters unapportioned by said compact.

Because the compact says that the waters not apportioned by Article III (a) and (b) shall be held for future apportionment.

And California has to give the words not apportioned here a different meaning than the words unapportioned have in the latter part of the compact itself.

The Master agrees as indeed as everyone that these words 4.4 million acre-feet of water is apportioned to Lower Basin States by paragraph 4 (a) of Article III of the Colorado Rivers compact are to be read as referring to the compact.

There is no doubt about that but he said that the draftsman of the Project Act, acted on the supposition that Article III (a) of the compact, apportioned to the Lower Basin, 7.5 million acre-feet of mainstream water.

The Congress was wrong, the Master said, in that supposition that the compact apportion is to 7.5 million acre-feet out of all the water in the basin.

But it's perfectly clear, right or wrong that Congress made that supposition.

And then he said the question is -- shall my or the Court's interpretation of the Project Act be governed by the true meaning of the compact or shall it be governed by what Congress clearly suppose was the meaning of the compact and he concluded that the latter meaning of the Project Act was the one that should be followed in order to give effect to the intent of Congress.

We differed from the Master only in one minor respect.

It seems to us that it is unnecessary and indeed inappropriate to construe the compact at all.

The Upper Basin States are here, Arizona would put a different meaning on the compact than the Master did.

It seems to us that that question doesn't need to be decided because we think that the proper way to interpret Section 4 (a) is to give Article III (a) of the compact, the meaning that Congress suppose it have and that that controls in the interpretation of the Project Act.

There are three principal grounds for this conclusion.

One is that Congress was dealing what it enacted to Project Act primarily with mainstream waters and one would naturally suppose also not inevitably that the limitations would be written in terms of the mainstream waters with which the project was dealing.

Second, we find in the second paragraph of Section 4 (a) in support for the Master's reading and our reading that Congress intended to apportion 7.5 million acre-feet of mainstream water.

There are several provisions in the second paragraph, 382 and over on 383 that seem to indicate this to us.

The Master mentioned most of them.

In the first place, item one, authorizes an agreement which would apportion to Nevada 300,000 acre-feet and to Arizona, 2.8 million acre-feet of the 7.5 million acre-feet annually apportioned to the Lower Basin by paragraph (a) of Article III of the Colorado River Compact.

Now that, if you couple those references of two million eight point three million with the 4.4 million given to California, you would get the whole 7.5 million acre-feet.

If that is the whole 7.5 million acre-feet apportioned into the Lower Basin, then one cuts out two Lower Basin States in the -- supposes the Congress wasn't concerned with them at all.

Again, item two, provides that Arizona may annually use half the surplus of excess and half of the excess or surplus waters unapportioned by the Colorado River Compact.

The compact itself, reserves the surplus over the 7.5 million feet of basin water, for future apportionment and Congress can hardly be suppose to have said, “Well, Arizona can have half of that.”

Especially when they said in the first paragraph of Section 4 (a), California can have half of it too because they would have been taking the whole surplus.

Justice Potter Stewart: What?

Aren't you talking about the first million of the surplus?

Mr. Cox: I think -- I think not.

It speaks of the surplus unapportioned.

California says, that means the first million of which was allocated to the Lower Basin, but the only time the contract speak -- the compact speaks of waters unapportioned is in page 374 in item 3F.

The word speaks of the beneficial equita -- further equitable apportionment of the beneficial use of the waters of the Colorado system unapportioned by paragraphs (a), (b) and (c).

So there, it speaks as if (a), (b) and perhaps (c) had made some kind of an apportionment.

Finally, Mr. Justice Stewart, and I think most persuasive of all, the second paragraph of Section 4 (a) in item three says and, and this is certainly an additive and, and that the State of Arizona shall have the exclusive beneficial conceptive use of the Gila River and it's territories within the boundaries of said State.

This is in addition to what have gone before or what have gone before then must have been an apportionment of the mainstream water.

It is suggested by California that that's an inappropriate reading that this really aren't conjunctive and that all, that there were some duplication in this that what it said here that Arizona made by this compact get 2.8 million acre-feet out of the Lower Basin's share and then it went on and said that Arizona can have all the Gila as identifying where it's coming from.

Well, that is possibly, grammatically except at the time everybody supposed that the Gila have three and a half million acre-feet in it.

And it would be rather silly to say that Arizona can have 2.8 million and she can have exclusively out of the Gila, when the Gila contained 3.5.

Justice Potter Stewart: Part of Gila was in New Mexico.

Mr. Cox: Yes, but I don't think such -- I'm not sure.

I don't think that the difference --

Justice Potter Stewart: But that would count.

Mr. Cox: I don't think so, but I want to emphasize, I'm not sure.

I don't want to mislead the Court.

One other point with respect to the second paragraph, if you put the first -- if you look at the first paragraph and the second paragraph of Section 4 (a), they fit together on our reading, very neatly as two halves of a whole.

It's like taking two pieces of paper which looked detached and you find it suddenly they fit together, the little hole which I've called it over corresponds to the dispute about the meaning of the word.

If you fold it out, in other words, if you read it our way, they match perfectly which seems to me not to be wholly chance as indeed the legislative history shows.

Justice John M. Harlan: What significance if any is the October of 1963 going?

Were they provided for further equitable --?

Mr. Cox: When it would -- as my expression showed, I don't know if there's any significance still, it is -- I've forgotten.

I don't know of any particular significance.

It would have come about 40 years, wouldn't it, after the meeting through whatever significance that may have.

The other point on which we rely for -- to sustain our reading of Section 4 (a), is the legislative history which I think if anyone reads it through, have hardly helped concluding that it demonstrates almost beyond the doubt of the correctness of the Master's reading with respect at least to what Congress intended.

And this is particularly true if you trace the events through from the initial proposals of California and Arizona when they were bargaining, to the Governor's Conference, to the proposals made in the Senate and then down through the sequence of the various amendments to the final vote.

I'm not going to ask the Court to go though that long process with me again as I did last time, but there are five points concerning the legislative history that I would simply like to emphasize so that if any of the justices would go through it again, you may bear them in mind, is the conclusions which we think should be particularly noted.

First, there was early and unanimous agreement that Arizona should have the waters of the Gila River in addition to her share of the mainstream.

You'll find this in all the proposals except to one side and there -- they go on and argue about the mainstream.

Justice William O. Douglas: But when you get to the legislation, you'll find that only on the contingency that a new price state compact is executed -- California is that true?

Mr. Cox: You'll find that to be true.

I think the explanation is --

Justice William O. Douglas: I suppose you can find on --

Mr. Cox: The reason you require the compact, I think, Justice Douglas, with respect to Gila was because it would deal not only with the apportionment portion of the United States share but with the burden of the Mexican treaty.

And Congress apparently was not undertaking to prescribe a solution with respect to the burden of the Mexican treaty.

As to that, they agreed that it should be contingent upon a compact between the states.

I think that's the reason.

But this was made contingent on the compact.

At least, it certainly is an adequate reason and it again fits in with the legislative history.

Justice William O. Douglas: But you don't find it -- there any -- have I missed any other thing in the laws themselves that touch specifically on the award of the waters of the Gila to Arizona?

Mr. Cox: No, I didn't observe anything else.

Second, as I said, the dispute focused upon the division of the mainstream.

And very quickly narrowed to the question whether giving Nevada full of 300,000 acre-feet, should the remaining 7.2 be divided 4.6 to California and 2.6 to Arizona.

Or should it go 4.2 to California and 3 million out of the mainstream to Arizona, and of course the final compromise split the difference.

Third, everyone who spoke assume that the universe to be divided was 7.5 million acre-feet in the mainstream of the Colorado River.

And fourth and this is particularly important, I think Justice Douglas, throughout the legislative history, the first and second paragraphs of Section 4 (a), were treated as -- as conjunctive, as fitting together.

Indeed through merely all the debate, they were put together and both were mandatory rather than contingent upon a compact.

They were two parts of a single arrangement and this gives significance to what I was saying earlier.

Finally, every senator who took a significant part in the discussion explicitly recognized that the division was being made of 7.5 million acre-feet of mainstream water plus an unascertained surplus in the mainstream.

You find, for example, after the amendment was passed on the first paragraph.

And while the second part was being the debated that Senator Hiram Johnson came into a colloquy with Senator Hayden of Arizona.

Senator Hayden said, “The senator fails to understand that there are two elements in this water controversy.”

One is how the seven and a half million acre-feet to be divided in the Lower Basin.

The Senate settled that by vote, California may have 4.4 million acre-feet of the water, it follows logically that if that demand is to be conceded as everybody agrees, the remainder is 2 million acre-feet for Arizona.

That settles there.

Mr. Johnson: “How much from the Gila?”

“Whatever is in it that is ours anyway.”

Johnson: “How much water does Arizona get from the Gila?”

And then Hayden said, “Well, let's take your figures.”

Senator Johnson, “My figures are at a minimum, three and a half million acre-feet.”

Mr. Hayden: “yes”.

Mr. Johnson: “Alright.

Now, in the division of water that the Senate saw fit to impose yesterday, Arizona had 2 million acre-feet and 3.5 million acre-feet from the Gila, did not?”

This is Senator Johnson of California, and Mr. Hayden said “Yes, correct, making 6,300,000 acre-feet.”

California was given with claims of protective right, 4.4 million.

Now, there you see that we're debating the set to what became the second paragraph of 4 (a) and we're debating it in terms of Mexican treaty wise, which I think confirms the explanation that I suggested, Justice Douglas.

Justice William O. Douglas: When you follow those things down, I suppose you can find almost anything in this legislative history.I'm so confused.

But when you follow this down to the Phipps' Amendment, you will find Phipps himself saying, as I recall, that those -- that 4.4 million acre-feet is out of system waters this is what he said.

Mr. Cox: The 4.4 million came, excuse me.

Senator Phipps' statements came long before this.

They came before the Senate did oppose its apportionment.

I wouldn't -- it's there.

Justice William O. Douglas: Yes.

Mr. Cox: In fact, I didn't think he said it came out of system water.

It seemed to me, he did call attention to the Gila.

I would think that the way he called attention to the Gila was much as Senator Johnson did on the colloquy that I just read.

He said, “Don't forget that Arizona also has the Gila”, but we don't have in front of it.

Now, I must come to a point very closely related to the limitation of that question, but one which is a little bit separate and that's the matter of the diversions from the mainstream above Lake Mead.

The Master, apparently suppose that his view of the Project Act, in Section 4 (a), compelled him to leave out of account, compel the Secretary to leave out of account, any diversions made from the mainstream above Lake Mead.

And as a result, he invalidated you will recall the provision in the contract between the Secretary and Arizona.

That if Arizona diverted any water upstream then what she got under the contract should be reduced.

It's seems to us that the Master was wrong on that point.

Before coming to the reasons, it might be worthwhile to illustrate very briefly the purpose and the effect of those clauses in the Arizona and Nevada contract.

And I will take the Arizona contract for an illustration.

Let's suppose being very optimistic, there were eight and a half million acre-feet available in the mainstream below Lee Lake -- below Lee Ferry and from Lake Mead.

Under the Project Act and the contracts, Nevada would get 300,000, California would get 4.4 million and -- plus one half of the surplus and Arizona would get 2.8 million plus it's half of the surplus giving California a total of 4,900,000 on my assumption, and Arizona 3,300,000.

Now, suppose that Arizona takes a million of the 8,500,000 out above Marble Canyon, now, there would be seven and a half million acre-feet available from Lake Mead.

Under the Master's view, the Secretary would give Nevada 300,000, California 4.4 million and Arizona 2.8 million.

Arizona would have stolen if I may put it that way a million feet upstream, so she would now be getting 3,800,000, instead of the 3,300,000 she would get if it all came from Lake Mead.

The effect, in other words, on my supposition as to figures would be that Arizona takes California's half of the surplus.

The disputed clause, if valid, of course prevents this, because the amount taken out above would be charged against what she was entitled to get from Lake Mead.

We submit that the clause in the contract is valid as an exercise of a power incidental to the Secretary's power to make contracts for the waters impounded behind Hoover Dam.

The predicate upon which the Project Act and the contracts both rest is that Lake Mead and Hoover Dam are to be the source for the division of the mainstream waters of the Colorado River.

What the disputed clause seeks to do is to preserve that fundamental condition in a sense or at least to treat things as if the fundamental condition were preserved, in the event that one party seeks to change it.

Justice Potter Stewart: Well, in order to really preserve that fundamental condition, wouldn't it, provisions has to be made in the contract involving withdrawal of water from -- by Nevada for example, Muddy River and Meadow Valley and by Arizona from the Little Colorado River and not --

Mr. Cox: No, because the Little Colorado River is not a part of the Lake Mead water.

Justice Potter Stewart: It's not.

Mr. Cox: Up to that part, I would agree with you.

Justice Potter Stewart: It's not huh?

Mr. Cox: No.

the Little Colorado comes in, does it not, below --

Justice Potter Stewart: Comes in to Lake Mead, I thought.

It comes in to Colorado which comes in to Lake Mead.

It may not -- maybe this river flows in the opposite direction.

Mr. Cox: Your Honor is quite right and what -- there would have to be -- to carry this out exactly, equal -- a similar provision with respect to the Little Colorado if it were enough worth worrying about.

Justice Potter Stewart: And Nevada, as I look at the map, can't get any --

Mr. Cox: Nevada -- Nevada again -- and it does apply to the upstream tributaries.

Justice Potter Stewart: Well, I can't get any water directly from the Colorado River without going to Arizona.

Mr. Cox: Any -- I would say this that that only should apply but as I remember it does apply to any water that flows in between Lee Ferry --

Justice Potter Stewart: In to Lake Mead.

Mr. Cox: In to Lake Mead.

And that principle, I accept, my geography --

Justice Potter Stewart: Well, I'm not sure.

Mr. Cox: -- was wrong.

Now, I suggested earlier that what the Secretary was doing was attempting to preserve for a -- as if it were preserved, a fundamental condition of the contract.

This is a rather familiar type of condition.

If, I promise for example to dig a 200 foot ditch for Mr. Ely at the rate of 25 feet a day, one of the implied conditions will be that he mustn't sleep out at night and fill in ten feet every night that I've dug that day.

Again, if I promise Mr. Wilmer to deliver him daily, 5000 weighed milk for my dairy, I'm excused from performing surely to the extent that Mr. Wilmer steals my milk for my cows.

The case here is in principle, I submit, just the same as the latter illustration.

Furthermore, it seems to me this is the kind of incidental power that an agent would be given in these circumstances even if it was not spelled out in so many words.

Let's suppose for example that I were authorized by a large dairy farm to contract for the delivery of its milk, surely also and only its milk so that I wouldn't be authorized to sell any cows but surely, I would be impliedly authorized to put in the contract a covenant that the obligation to make daily deliveries should be reduced by the extent to which the buyer killed the cows or slipped in and stole the milk first.

And that is all we say that the Secretary was doing here.

Now, the Master raised two objections.

He said that these clauses in the contract attempt to take away from Nevada and Arizona the right to determine priorities intrastate.

We deny that they have that right and I don't want to debate that point now.

But even if they have it as we have shown in our brief, this is not true, Arizona would be free to protect the downstream appropriator and not permit the diversions upstream under her law as it is today.

Or she chose to change her law, the Secretary's contract wouldn't stand in the way, it would simply determine what should be done on those -- under those circumstances.

Justice Potter Stewart: The contracts by the Secretary where the States of Arizona and Nevada and with various metropolitan and other --

Mr. Cox: Yes.

Justice Potter Stewart: -- districts in California and not with the State.

The Secretary's contracts with the State of Arizona --

Mr. Cox: It's with the State of Arizona.

Justice Potter Stewart: And with the State of Nevada.

Mr. Cox: State of Nevada.

Justice Potter Stewart: And not with the State of California.

Mr. Cox: Right.

The other objection that the Master raised is he said this would make the Secretary's contracts with users in Arizona less than contracts for permanent use.

I think the answer to that is that any contract for permanent use is certainly contingent under being water.

Water may not come down because it doesn't rain, but it may also come down because somebody -- not come down because somebody has lawfully diverted it upstream and surely permanent is subject to that qualification.

So we think that the contracts themselves are not only consistent but authorized under the Master's reading of Section 4 (a) and that they could perfectly well stand on that reading and indeed in a sense confirm it.

I now turn therefore to the other main issue with respect to the mainstream.

The matter of the priority issue as Mr. Ely has called it, the matter of ratable deduction as it might be called in times of shortage.

Of course, we've already very largely answered the question.

What is to be -- about priority or division if the mainstream is seven and a half million acre-feet then California gets 4.4 million, Arizona gets 2.8 million and Nevada gets the remaining?

If it's more than seven and a half million, they share equally or this is spelled out in the Act, in the contracts taken together.

The only uncertainty is what happens when less than seven and a half million acre-feet is available, and on this point, neither the Project Act nor the Secretary's contracts given explicit answer California's thesis reduced to its simplest terms is this, the central theme of western water law is that one who first takes the claim and begins construction is entitled to the water claim that the Boulder Canyon Project was put down in that legal context without affecting the law or rights on the river except for the California limitation, that California having got there first and stated out the claims, is entitled to have them satisfied regardless of the effect upon others subject again only to the limitation.

The opposing view which was espoused by the Master and Arizona and Nevada and the United States, centers about the proposition that the Project Act, taking a fresh start rejects the law of prior appropriation as unsuited to the development of the Colorado River Basin.

And under -- and especially under national auspices, and instead provides its own rules of apportionment to be filled in by the Secretary of the Interior.

And although there's no expressed provision in the Act or contracts for what will be done when there is a shortage that is less than seven and a half million acre-feet because it's perfectly clear that Congress assumed there wouldn't be any shortage.

Our view is that nevertheless the Project Act and the Secretary's contracts contemplate equality of rank or priority among the states in respect to the quantities of water allocated to each regardless of when their projects were undertaken.

Now, I propose to develop our reasons for thinking that that is the contemplation of the Project Act and the Secretary's contract.

Justice Potter Stewart: This is putting to one side the language about present perfected use.

Mr. Cox: No, I'm coming to that.

That's an important -- excuse me, I don't mean to be so informal but it's an important part of my argument.

I'm now going to take up the indications and the situation the Project Act and the Secretary's practice that seemed to us to indicate that a rule of ratability is much more consistent with the Act and the contract then resort to the law of prior appropriation.

First, in interpreting the Project Act, we submit, that the Court should keep consequently before it, two dominant facts.

One is that the chief obstacle to the development of the Colorado River Basin was the law of prior appropriation and its consequences.

The need was to assure the States' equality of access to a fair share of the water whether the State should be early or late in its development.

But the Upper Basin States were worried before the compact was signed, about the record growth of California and refused to support any Colorado River project within -- until the law of prior appropriation should be set aside at least as between the Upper and Lower Basin so that they would have equality of right when they needed the water.

That was done in the compact as between the Upper and Lower Basin.

Similarly, the next great obstacle to undertake into the project was the fear that California would expand its uses before Arizona.

So Arizona said, we can't ratify the compact until we're guarded against this consequence of the law of prior appropriation.

And one of the main purposes of the Project Act, we think, undeniably, was to get over this obstacle to beginning the project.

Now, the second dominating fact is that the project itself would show so far over overshadow any other development on the river as to make it appropriate to take a fresh start in the delivery -- in the division of the water provided that vested rights or are perfected rights, Mr. Justice Stewart, were protected.

It's the vast expenditures by the United States for the Hoover Dam and the related works that made the Colorado River available for beneficial use.

Before the project was undertaken, there were less than three and a half million acre-feet of uses downstream.

The necessary works were largely at the mercy of the river.

There was no All-American Canal to carry water to the Imperial and Coachella Valleys, twice the river it changed its course so that none of these people downstream would have any water.

California speaks of its claim the water for the Metropolitan Water District as a prior appropriated rate, but the truth is that in 1929, it was as I said that the last argument just to gleam in somebody's eye or at least some surveyor's maps.

And it's conceded that that Metropolitan Water District project never could have come into being if the United States had not dealt the Hoover Dam and started to plan for controlling the waters of the river.

Justice Hugo L. Black: Does the record show how much more water has been made available by the governmental construction for use of beneficial purposes that could be depended on before the construction took place?

Mr. Cox: That would be -- that would present the same difficulty in estimating that there is in knowing what the available supply is today.

If California is very low estimated of the available supply of 5.8 million, isn't it?

If we're correct, one could subtract the uses in 1929 of 3.1 million and it would find that it had not been quite doubled but it must -- you must remember that the uses before 1929 were uncertain.

There was this dam through Mexico in which there was some trouble with.

The river was -- kept changing its course at least on big floods, it changed its course.

Justice Hugo L. Black: Why put in the word dependable water supply for beneficial use?

Mr. Cox: I don't -- I don't know what one could have said in 1929 was the dependable supply.

Certainly, if they went into the South case, of course, again and started emptying into the salted sea, the dependent -- the Imperial Valley would have no dependable supply until somebody again diverted it.

I think that it certainly -- the river -- the project more than doubled the reliable uses with that.

Turning now to the Project Act, we find in it ample proofs that the Congress did take a fresh start based upon a statutory method of allocation.

Section 1 of the Project Act, you'll recall, on page 379, authorizes the Secretary to construct and operate the dam and incidental works in the mainstream for the delivery of the stored water thereof for the reclamation of public lands and other beneficial uses.

And Section 5 tells him, in part, how he is to do that.

The first sentence authorizes him under -- that's on page 384, authorizes him on under such general regulations as he may prescribe to contract for the storage of water in said reservoir and the delivery thereof.

And then the last sentence of Section 5 over at the top of 385, explicitly states, no person shall have or be entitled to have the use for any purpose of water stored as it foresaid, except by contract made as herein provided.

There couldn't be any clearer evidence of the intention to take a fresh start.

Rights to the use of water are to depend on contracts with the Secretary.

No person shall have any right to the use of the water unless he has a contract made under the statute.

Now, we think that Section 6, turning over to page 387, not only confirms our idea that Congress was taking a fresh start but that it also impliedly excludes any notion that the Act recognizes or requires the Secretary to recognize mere appropriative rights.

Section 6 provides the dam and reservoir provided for by Section 1 hereof shall be used first to river regulation and so forth; second, for irrigation and domestic uses and satisfaction of present perfected rights in pursuance of Article VII of the Colorado River Compact.

Article 8 of the Colorado River Compact provided present perfected rights to the beneficial use of the waters of the Colorado River System are unpaired -- unimpaired by this compact.

You see, they weren't concerned with the mere appropriative rights but present perfected rights.

Then it goes on to say that when the storage capacity of 5 million acre-feet shall have been provided on the mainstream, those perfected rights shall attach to the stored water instead of the original flow.

Justice Hugo L. Black: How are those protective -- those perfected rights could be determined?

Mr. Cox: But the meaning of -- I think this was to be determined of course first by the Secretary because he is instructed to use the water for this purpose.

In the case of dispute, I would suppose that an appropriate legal action could be brought than when it comes to what substantive rules would govern which is perhaps what Your Honor had in mind.

Let me say --

Justice Hugo L. Black: May I ask you -- perfected rights.

Mr. Cox: Yes.

Justice Hugo L. Black: You're talking about the future.

Mr. Cox: No.

The present perfected rights.

Justice Hugo L. Black: Present perfected rights based on assumptions and what has been done in the past.

Mr. Cox: Well, now, this requires saying the word about the nature of the water right.

A water right one begins to acquire by making a claim, and under some state laws, there is a procedure for making and filing a claim.

And then he begins to commence the construction of these dams and ditches and anything else that he needs to get the water and apply it to beneficial use.

When those two steps have been taken, the appropriator has an inchoate right, and when he perfects it, it will then date back to the time when he made the claim and began constructing the dams and ditches.

Suppose, for example, that he makes his claim and begins construction in 1925 and the he finishes the water and applies it for beneficial use in 1935.

When he does it under the law of prior appropriation, his right would date from 1925 and it would take precedence over a person who says began his project and finished it in 1930.

Justice Byron R. White: (Inaudible)

Mr. Cox: I think not at all.

Justice Byron R. White: (Inaudible)

Mr. Cox: Well, I simply meant mechanically, the Secretary would determine.

Justice Byron R. White: (Inaudible)

Mr. Cox: Whether it be state or federal substantive law.

So far as I know, that makes no causable difference in this context.

Justice Hugo L. Black: Why?

Mr. Cox: Because I don't think that there is any right which was --

Justice Hugo L. Black: Is there any dispute here?

Mr. Cox: I don't think so.

Justice Hugo L. Black: There's an accused dispute.

Mr. Cox: No.

There's no dispute about this.So far as I know -- so far as I know, there is no right to Justice Black which would be perfected under the law of one state in 1929, the effective date of the Act.

And which might not be a perfected right at that time if you took some federal distillation of water law and not the law of a particular state.

Justice William O. Douglas: Your federal distillation would be what a future Secretary or the present Secretary might decide upon.

How can you tell?

Mr. Cox: I think --

Justice William O. Douglas: There's no federal law of water in this field.

Mr. Cox: No, but I suppose that since these were well-known terms, present perfected right and in a minute, I'll get back to stating the complete definition of present perfected right but since these were well-known terms in the law of all these western states, just as one could get a distillation of the law of agency so one could get a distillation of a perfected right.

But our case doesn't at any sense depend on this.

It does as Mr. Justice Black suggests doesn't seem to me that it's before anybody now.

The Master seems to have supposed that what was a perfected right in 1929 would depend on the law of the state in which the man claims for water.

And where so far as the perfected right goes, entirely contend to have it determine according to that law except in the case of the Indian reservation.

Justice Byron R. White: What did the Master think that the applicable rules would be in making contracts inside a state with water uses?

How was he to determine, which users would get what water?

Mr. Cox: The Master thought that state law was to control.

We accepted to that and have argued in our brief that he was wrong or that in any event that point needs not to be decided here.

I don't think it really bears on the place that I'm now here to argue.

Justice Byron R. White: If you argue -- you argue in your brief that he was wrong?

Mr. Cox: Yes, yes.

Justice Byron R. White: And that there should be a federal rule of --

Mr. Cox: We simply argue that the Secretary has freedom to choose following the instructions in the statute, what lands will be reclaimed and who he will give contracts to.

Once he gives the contracts then they will -- then the water rights under Ickes and Fox might well become those of the attached part of the land.

Justice Byron R. White: Entirely aside from who may have originated some appropriative rights or be in the process of perfected --

Mr. Cox: Entirely aside from any rights except present perfected rights.

I think we ought to get back to what was meant by perfect --

Justice Potter Stewart: Well, those aren't in issue here, I understand.

Mr. Cox: The point that I want to make is that the instruction to respect present perfected rights is an implied repudiation of the notion that simply mere appropriative rights are to be recognized under this Act.

And --

Justice Hugo L. Black: You mean by appropriative right, it's been staked out --

Mr. Cox: Yes, let me -- let me, I was coming to that a few moments ago.

An appropriative right is one that can be used to cover one which has been staked out construction is going forward.

But no water has been put -- has been diverted and put to beneficial use.

To get a perfected right, under the law of all the western water states, one must do more.

He must divert the water for beneficial use and in most states, he must put it to beneficial use as well divert it and get it down to his field.

And it is only when he has put it to the use and it is only to the extent that he has put it to use that the right is perfected.

Justice William J. Brennan: And this is prior to 1929?

Mr. Cox: And then when the Congress spoke in 1929, a present perfected right, we think it meant those that were perfected by that time, in other words, for our purposes, rights perfected prior to 1929.

Now, I want to emphasize that this was a widespread -- universal, I think, I could say usage of the term perfected.

One finds in Kinney, one finds in the State of Washington statutes.

One finds it in a member of cases and that I think really there'd be no room for dispute as to what is necessary to perfect a right --

Justice William O. Douglas: I think that is quite right, Mr. Solicitor General in my State of Washington.

What you say is true but it is also true that once a right is perfected, the water right is marketable there and very often been sold and then applied to different land.

Mr. Cox: That may be true.

I suppose under the Reclamation Act, that may not be -- may not be possible because it must be pertinent to the land.

But otherwise -- but I don't think we're concerned with that here.

Justice William O. Douglas: It went so far as the -- well, we don't know.

If you were an engineer and you were going to design this new Arizona project, wouldn't you have to know something about where the water rights were?

Mr. Cox: You would have to know -- you would have to have two things.

You'd have to know what were the rights perfected as of 1929 and you'd have to know how much water Arizona could get through the Secretary.

And now, the Secretary told Arizona that how much Arizona users could get from the Secretary.

The Secretary told them that, the only question is whether his contract with Arizona is valid against California's claims.

Justice William O. Douglas: Or whether or not his decision is to how the water will be used in Arizona would be consistent with the claims of Arizona landowners.

Mr. Cox: Well, we haven't got to -- we are not to that point.

Justice William O. Douglas: But aren't you to that point?

Mustn't you got to that point before you setup your irrigation system?

How could you, as an engineer, design it unless you know what land was to be served?

Mr. Cox: Well I think that --

Justice William O. Douglas: You would know what --

Mr. Cox: -- I don't think anybody suggest that there are any substantial number of rights in Arizona other than the present perfected right and the claims of the Indian reservation that the Secretary would be bound to respect, so my first answer is I just don't think there are enough for them to worry about although the Arizona counsel can say better than I.

Second, we do argue, I hesitate to take time for it.

We do argue in a brief that it is up to the Secretary to decide with whom he will contract and that state law has nothing to do with it.

Justice William O. Douglas: Now let's assume it's the other answer.

If the Secretary can decide it --

Mr. Cox: Yes.

Justice William O. Douglas: -- then of course --

Mr. Cox: Well, we think that's consistent with the Act.

Justice William O. Douglas: But if state law governs then you have a quite different considerate problem.

Mr. Cox: I don't --

Justice Hugo L. Black: Mr. Solicitor General, may I say that my trouble with this argument from the beginning in the subject to what law that governs has been this.

If the Secretary -- if the man to his rights, in holding the allocation has been made then there are now no disputes between any persons claims under the state law, and the fact that the Secretary is hiding something and between him and the Secretary.

I do not see how that is into the case or why we should lock out into such an important piece of law in a matter of this compact until we have accurate controversy.

Now, after the government has built its dam, maybe, sometime there will be a dispute that those states still have the right to decide who will get it but I haven't seen it in this case.

Mr. Cox: Well, we agree with that completely, Mr. Justice Black.

We have so argued in that brief that there is no occasion for the Master to express himself upon it and that there is no occasion for us to discuss it now.

The real question is only down to the level of the allocation to the several states.

And what I was trying to suggest is the taking of our definition of present perfected right which I haven't heard seriously disputed the Master's definition.

Then the fact that the Congress said with respect to present perfected right is a strong indication that the Congress was not concerned with the law of prior appropriation that it was, as I say, taking a fresh start.

Now, that I think follows by way of interest with three reasons.

In the first place, having mentioned one that almost impliedly excludes the other; second, the -- if the Congress assumed that the law of prior appropriation was to be in effect, there was no reason to direct anybody to respect present perfected rights because the law of prior appropriation would cover those rights as well as the broader class of those that haven't been perfected; the third reason is, that the direction to respect present perfected right is inconsistent with recognizing the law of prior appropriations because one may get a perfected right before 1929, which under the statute would be senior and specifically senior to the unperfected claims of the California Metropolitan Water District and the excess claim, the increased use claim of the of the Imperial Valley which of course ancillary restraints the two claims as to which this is important.

Justice William O. Douglas: How do you explain the incorporation of the provisions of the reclamation law?

Mr. Cox: I think there is ample scope for the provisions of the reclamation law without their bearing on this.

I would answer the argument based upon as Section 18 or 14, whichever it is, that incorporates the reclamation law.

Justice William O. Douglas: I think both of them pair on it.

Mr. Cox: One does expressly and the other doesn't.

If the one that does expressly says, “Except as herein provided.”

On the first place, we say that it is otherwise herein provided.

Chief Justice Earl Warren: Section 14.

Mr. Cox: Section -- thank you sir.

Second, there is nothing in the reclamation law that deals with the claim -- the apportionment of water interstate.

Justice William O. Douglas: Oh, we rule quite contrary in the Nebraska and Wyoming.

Mr. Cox: As I understood that part of Nebraska and Wyoming, you said that under the reclamation law, the States, the United States was not entitled to a separate apportionment because the States were there to represent the beneficiaries of contracts with the Secretary.

But that wouldn't indicate that the reclamation law supplied a rule for dividing this water between --

Justice William O. Douglas: We applied it specifically to interstate priorities in that case.

We didn't say it -- we didn't say that it was an absolute rule but we say that absent to other consideration that was to govern.

Mr. Cox: Well, perhaps -- I simply have to submit my reading of the case, perhaps I've got that.

Justice William O. Douglas: You're one of the members of a long distinguished line of Solicitor Generals who has argued the same position over the years, trying to get the water rights in the hands of the federal agent rather than state law.

Mr. Cox: Mr. Justice Douglas, I really don't think that we're trying to argue that proposition today perhaps --

Justice William O. Douglas: I'm not saying --

Mr. Cox: -- with all my life to do it (Voice Overlap)

Justice William O. Douglas: I'm not saying we're --

Mr. Cox: -- I don't think it's involved here.

Justice William O. Douglas: I'm not saying that you're wrong and --

Mr. Cox: And the other point that I would like to submit by way of comment on the Reclamation Act is that as we understand the way this Court has construed the Reclamation Act in Section 8 of the Reclamation Act.

It has never held that the Reclamation Act requires the Secretary to observe state law in deciding what lands will be reclaimed and who will get the benefits of contracts with it.

Now, it had -- does tell him as was recognized in the Gerlach case that the Secretary in getting rights for reclamation project is to respect the laws of divested rights within the States.

And in Ickes and Fox, it was indicated that to some undefined extent, a state law might affect the rights of those who have contracts with the Secretary.

But in the Ivanhoe case, the Court said and I know no case contrary to it, that when it came to determining -- to running the project, to determining who would get the contract that the Reclamation Act did not bind the Secretary.

But I want -- I really think this is beside the main point here.

The point I'm seeking to emphasize is that they didn't take a fresh start and that the start that they took seem to repudiate the law of prior appropriation.

Now, I would like to --

Justice Potter Stewart: In a word -- in a word, your position is that all of these add up to giving the Secretary absolute and unfettered discretion as to whom he will make contracts with within the state limitations except for present perfected rights which he must respect, is that it?

Mr. Cox: Yes, but the point that I'm trying to --

Justice William O. Douglas: All democrats and all republicans doesn't include --

Mr. Cox: I presume that there are some --

Justice Hugo L. Black: In some division --

Mr. Cox: -- implied restrictions.

I was going to say and I think this answers your questions Justice Black.

Really, the point we're concerned with, I think Justice Douglas, is antecedent to that.

What we say is that the Secretary, being bound by the general guidance of the statute, has the authority to say that Nevada gets 300,000 acre-feet and Arizona gets 2.8 million, and they made contracts with the California users within her allocations.

Justice Byron R. White: But furthermore, you'd say --

Mr. Cox: Now --

Justice Byron R. White: Furthermore, you'd say that within the State, he has the same power.

Mr. Cox: But we don't think that question has to be --

Justice Byron R. White: Well, I don't.

But that's your position.

Mr. Cox: That's our -- that's our --

Justice Byron R. White: And --

Mr. Cox: But I would like to keep the two separate because I don't --

Justice Byron R. White: Yes but isn't there another -- you say not only that it's the Secretary who is to decide, but that the rules he follows are also his own.

And he needs not to have any reference to state law or any equities that people within the State may have under their law.

Mr. Cox: He must have reference to the statute.

Justice Byron R. White: That's all of it.

That's all --

Mr. Cox: The statute gives very considerable instruction.

For example, it gives instructions as the section has been mentioned before in the argument and I think not from the brief.

But you will note that there are instructions over in Section 9 about who shall have the first opportunity to get contracts with the Secretary on reclaimed lands of federal instruction.

Now, it seems to us that there are several indications which I would like to mention very briefly, both in the Project Act and in the compact that the right of the States which was pretty well marked out by Section 4 of the Project Act, the Secretary doesn't have any real discretion in that respect, are to be treated readily.

In the Project Act, in the compact, I should say, it seems to us that there are three that treat these sovereign bodies also this instance in terms of Upper Basin and the Lower Basin groups of State as equal.

The first place is the basic division.

And Article III (a) is made regardless of the volume of prior appropriations in either state.

Article III (c) provides that if the surplus over 15 million acre-feet in the river is not enough to satisfy the obligations of the Mexican treaty then the two basins are to share equally, rule of ratability.

Article III (f) which preserves the surplus against the claims of prior appropriation, again, seems to repudiate that as a rule.

Now, the Project Act, the limitation to 4.4 million acre-feet if you construe it as the Master did, clearly, didn't recognize all California's prior appropriated claims.

Arizona and California are treated equally and they share up and down ratably in any surplus over the seven and half million.

Section 4 (b), also dependent upon a compact, nevertheless seems to treat the States as of equal in rank, also not necessarily in the amounts of water.

And finally, in the debates in Congress, there was no -- no one ever suggested that the sovereign state should have anything but equality in the rank of their class.

Finally, I would point out that the Secretary of the Interior in times of shortage and reclamation project frequently makes a ratable distribution of the available water.

And that not infrequently is spelled out in contract so that this practice plus --

Justice Tom C. Clark: That doesn't bring -- was it being done way back in 1929.

Mr. Cox: I couldn't say.

I had the current practice in mind that some of them are earlier project.

I see that my time has expired.

Justice Hugo L. Black: Mr. Parry.

Argument of R. P. Parry

Mr. R. P. Parry: Mr. Justice Black and members of the Court.

I'm representing the State of Nevada.

We are here once more in our attempt to, shall I say, hang on to this viable block of water which will determine the element, development of the southern part of the State.

In the limited time that we have available, I would like to emphasize these points.

First, this contract between the State of Nevada and the Secretary of the Interior, for 300,000 acre-feet of Lake Mead storage, and I emphasize the word storage, is a valid and binding contract which should be upheld under whatever theory this case may be decided.

I think to that extent, Nevada is in a different position than some of the other parties to this case.

Second, we think that the Master was entirely correct in his analysis, resulting in his decision, that this figure of 300,000 acre-feet should not be diminished because of some prior existing diversions on some small tributaries which I will mention in detail later.

Next, that this contract with the State of Nevada is different from the contract with the State of Arizona is a specific whole contract in itself and does not require any implementation or addition of subsequent individual contracts with particular users.

We also emphasize the point that because in the case of Nevada, this additional stored water will be of necessity used for the assistance of human life that there is much reason to use judicial discretion in placing a floor under the amount to which it may be diminished in times of critical water shortage.

And then incidentally, we have urged in our briefs and were mentioned briefly, it has been our opinion over the long whole -- the operation of the river would be better if the Court retain jurisdiction, appointed a permanent commission with an advisory committee representing the various individual states who could make the rules and regulations, the annual allotments and so forth for this precious water.

To understand Nevada's position, it is necessary to look briefly at the physical situation which existed during the time that the Project Act was being considered.

The only water that was being diverted from the Colorado River system and as the State from the mainstream during all of the discussions, the Project Act was some water that was being diverted from the Virgin River and the Muddy River which are two small tributaries that's shown on the map behind me coming in to the upper end of the arm of the reservoir which runs north and south.

There had been early pioneer settlements in that area starting along in the 1970s.

Principally, people of the LDS faith would come down from Salt Lake City.

And prior to the time that the Project Act was being considered, they had diverted all of the available water on those streams onto the flat land surrounding them and had applied it to beneficial use and it is estimated that that total consumption there is a consumptive use in the order of 50,000 acre-feet.

That was not a part of the mainstream water supply at the time the Project Act was being considered.

It was a maximum development.

It cannot be increased in the future.

There is no more water there that applied in that way.

It is upon lands above the reservoir, so to that extent, this old rights in that corner of Nevada are different from the downstream rights in California and Arizona and that they cannot be supplied from storage.

They were supplied by tributary use prior to Project Act.

It will have to continue -- there is no possibility or event of an increase of use.

The other portion of Nevada --

Justice Potter Stewart: These were, would you say, present perfected rights within the meaning of the Project Act?

Mr. R. P. Parry: I think under any definition --

Justice Potter Stewart: Under any definition.

Mr. R. P. Parry: I don't think how ever much we quibble there could be any question as to those rights.

Justice Potter Stewart: The Muddy River and the Virgin River now flow into Lake Mead.

Did they use to converge and then the converged stream flow into the Colorado.

Mr. R. P. Parry: Yes, Muddy River flow into the Virgin, a few miles above its mountain, but now, the reservoir has backed up --

Justice Potter Stewart: Yes.

Mr. R. P. Parry: -- sufficiently far that has flooded the mouth of the river that flow in separately.

Justice Potter Stewart: But you say there is maximum appropriation so there was very little flow at all into the Colorado River.

Mr. R. P. Parry: And at the times of critical -- when water is needed or when the water is used, there is no water that flowed in.

There were people, very assiduously and carefully conserve every drop of water.

So, when I say it flowed in, I meant the stream bed in Virgin conditions.

But after the irrigation developed, there was no water went in, that was well-known at the time of the Project Act and was taken into consideration by every engineer I think who studied the project.

The other portion of Nevada which is now using and will in the future use, the mainstream Colorado River water out of Lake Mead storage is the area that we call generally the Las Vegas Valley that lies to the west of the dam and the reservoir.

These valleys are in a high plateau, and even to, with the dam there, it is necessary by pumps to lift the water in the order of 1200 feet in order to get it up where may be used.

At the time of the Project Act and perhaps six or seven thousand people in a dusty, slippy village of Las Vegas which was in existence because it was a railroad division point.

Today, that area is percentage-wise, the fastest growing locality in the United States.

And in lieu of those people, it is --

Justice William O. Douglas: Especially to water --

Mr. R. P. Parry: Pardon me?

Justice William O. Douglas: Do the water?

Mr. R. P. Parry: The water is at least one of the necessities, yes, Justice Douglas.

At the time of the Project Act, the only water that was being used there came from an underground supply, through wells, artesian and pumping.

For many years, more water was removed from that underground supply than was annually recharged so that it became necessary to bring in water from Lake Mead.

And today, the area has a population of approximately 170,000 people.

The number of school children has increased 50% even since the 1960 census.

The absolute control in point of the development of that area is the amount of water that Nevada will get out of Lake Mead storage.

Nevada is unique and that there isn't any other source of water available good or bad.

There is no brackage water that could be converted, there's no seawater that can be converted.

And the reason that Nevada has intervened in this case and is here today is because whatever decree may be entered is going to absolutely determine the size of the population that may live in that area.

Detailed studies were introduced in the evidence by the best experts that Nevada could obtain, and throughout those studies, the water was not considered as being available or used for irrigation of crops as we ordinarily know it because it is too valuable.

And all estimates of the requirements and the needs were based upon use for domestic purposes using that word in the broadest sense is also including industrial uses and of course the growth of shrubs and lawns and things of that sort around the homes.

Justice Byron R. White: Mr. Parry.

Mr. R. P. Parry: Yes sir.

Justice Byron R. White: (Inaudible)

Mr. R. P. Parry: Precisely.

We feel that unless we have a decree that sustains the validity of this contract for storage that the economic future is so unstable that it is difficult to plan.

Justice Byron R. White: (Inaudible)

Mr. R. P. Parry: Yes.

Justice Byron R. White: (Inaudible)

Mr. R. P. Parry: The way we put it is that if there was one thing that was fixed and determined throughout this lengthy, legislative history which has been referred to at length and briefs and at arguments and so forth was that Nevada was to have 300,000 acre-feet.

Justice Byron R. White: (Inaudible)

Mr. R. P. Parry: That is correct.

That that was irreducible minimum and no one ever seemed to quarrel about that --

Justice Byron R. White: (Inaudible)

Mr. R. P. Parry: California Mr. Justice Black.

Justice Hugo L. Black: (Inaudible)

Mr. R. P. Parry: That is correct and by applying their priority and limitation act and they say that Nevada should have a total of -- in the order of 120,000 acre-feet of water and no more.

Justice Potter Stewart: Well, Mr. Parry, you would agree that in case of shortage, Nevada's 300,000 would have to be reduced by what 370 feet of the shortage?

Mr. R. P. Parry: We have agreed at the pro rata reduction with one exception as I mentioned.

We believe that when you go into the field of applying this pro rata reduction then there is the use of judicial discretion and that there is much reason for putting a floor.

We've suggested somewhere around 200,000 acre-feet or something below which Nevada should not be reduced because our use is going to be to sustain human life.

Now, if you have an irrigation project and it's reduced, well you can reduce, cut down the crops --

Justice Potter Stewart: (Voice Overlap) That's more like it, yes.

Mr. R. P. Parry: But with us, it is a very real problem that time.

Now, the best experts --

Justice Potter Stewart: Let me ask --

Mr. R. P. Parry: Yes.

Justice Potter Stewart: -- one other question so I'm sure I understand you.

Your position is that you're entitled to 300,000 acre-feet subject to this possibility of reduction that we've just talked about out of Lake Mead plus some 50,000 acre-feet out of the tributaries.

Mr. R. P. Parry: Of all perfected uses --

Justice Potter Stewart: -- of all perfected right.

Mr. R. P. Parry: -- tributaries which where in existence long prior to --

Justice Potter Stewart: And do I understand that the Master deducted those from your 300,000, didn't he?

Mr. R. P. Parry: No, he did not.

Justice Potter Stewart: Did not.

Mr. R. P. Parry: I will come to that in a moment.

Justice Byron R. White: (Inaudible)

Mr. R. P. Parry: I didn't hear you.

Justice Byron R. White: The Solicitor General suggests that they should be developed.

Mr. R. P. Parry: Yes.

That is the controversy between Nevada and the Unites States --

Justice Byron R. White: But you haven't signed no contracts for that water of course.

Mr. R. P. Parry: We did sign contracts.

Justice Byron R. White: For the water out of the tributaries?

Mr. R. P. Parry: No.

Not on the tributaries.

No, there are no contracts covering the water out --

Justice Byron R. White: And you don't pay for water out of the tributaries.

Mr. R. P. Parry: That is correct.

Justice Byron R. White: But you do out of Lake Mead?

Mr. R. P. Parry: That is correct.

We have two -- I might clear that up.

We have two contracts for water out of Lake Mead.

There was a contract made in March of 1942 and this bears on another issue and I can cover them at the same time between the United States acting through the Secretary of the Interior and the State of Nevada, a body politic and corporate and its Colorado River Commission, said Commission acting in the name of the State by that principle in its own behalf as well as in behalf of the State.

And this term ‘state' as used in this contract being deemed to be both the State of Nevada and its Colorado River Commission, and that 1942 contract was for 100,000 acre-feet of water with no reference to any reduction.

In 1944, in January, a supplemental contract was entered into which changed only paragraph of the 1942 contract but it did provide that the Secretary should deliver to the State each year including all other waters diverted for use within the State of Nevada from the Colorado River system, the amount necessary to supply 300,000 acre-feet.

Now, that is the time and those were the words that were inserted in that contract which changed the 300,000 acre-feet that until that time, everyone and I'm sure the Congress of the United States and Senator Pittman who was a leading exponent of this project legislation and all, all of a sudden by the insertion of those three words -- are those words, the 300,000 was reduced to 250,000.

And that Nebraska or rather Nevada has contested throughout this hearing.

We urge that it was ultra vires, that it was on the part of the state officials and on the part of the Secretary and we of course concur in the Master's argument as to why I think, he thinks it's improper which I will not repeat at this time.

We have one other controversy with the United States which was not mentioned in this argument that was mentioned in the prior argument and in the briefs and that is as to whether there should be separate contracts in addition to the basic one with the State of Nevada was users of water.

And there, I think, the confusion arose because of the difference between the Nevada contract and the Arizona contract was not pointed out.

The Arizona Contract is as Mr. Ely said rather in agreement with the State of Arizona that they would in the future enter into other contracts with water users.

But distinctly different from that, the Nevada contract is a specific contract with the State of Nevada using the words that I read and throughout practically every paragraph of the contract if it is recited that the State will do this, the State will receive the water, the State will construct the means of diverting it, the State will pay for it, and the whole setup is a state action through this Colorado River Commission which was created by the statute, the State of Nevada is an appendix in our opening brief.

It has every power and authority that any irrigation district or anything else that could be created and as I've --

Justice Hugo L. Black: (Inaudible)

Mr. R. P. Parry: Pardon me?

Justice Hugo L. Black: -- the law.

Mr. R. P. Parry: Under the Nevada State law.

Justice Hugo L. Black: (Inaudible)

Mr. R. P. Parry: Yes.

And the purpose and the reason for creating the Colorado River Commission was to have an orderly disposition of the water so there wouldn't be a scramble for it and so we would get the optimum development of the area --

Justice Hugo L. Black: (Inaudible)

Mr. R. P. Parry: Not that I know of.

There has been the technical point raised that there should be this individual contracts.

We don't know what that means whether every man who has a tap and uses water has to have a contract for whom it is but this Commission is proceeding rapidly for planning the development of the area and the Congress of the United States has made arrangements to set over to the State of Nevada, a body of land in the adjoining El Dorado Valley which adjoins the Las Vegas Valley for development with this water through this state commission and has authorized studies by the Bureau of the Reclamation for the development of this area.

Justice Arthur J. Goldberg: Mr. Parry, how much of the water are you now actually using?

Mr. R. P. Parry: About 20,000 or 25,000 acre-feet of Lake Mead water at present time are being diverted in --

Justice Arthur J. Goldberg: And how is that distributed by your river commission.

Mr. R. P. Parry: It is distributed through a body known as the Las Vegas Water District which in a sense, it's mingled into the domestic water supply system of the area, a part of which comes from underground wells, apart from this, with -- and then there is one exception to that, the United States during the war built a tremendous installation called the Henderson Magnesium Plant which is now been turned over to private hands and is a great chemical complex cost in between $200 to $300 million and water goes direct to that complex.

The United States Government built the first pump and pipeline out of the reservoir.

That assists and purchased from the United States by this Commission and other lines installed.

And they are -- and plans are presently on their way for greatly expanding that use of water.

Justice Arthur J. Goldberg: What is your estimate to the period of time that'll be the lapse until you take advantage of the whole body of water that is available to you under the contract with the Secretary?

Mr. R. P. Parry: The evidence in the record showed that by the year 2000, we picked that up just as a test year, that we would need more than 500,000 acre-feet of water if the orderly development went on.

So our present estimate is that the 300,000 will be consumed in the next few decades and some of it additionally of what we can divert with our present facilities is going to be needed badly in the next few years.

And that is one reason that from perhaps narrow point of view of the State of Nevada that this -- we think this is a justiciable controversy is that we must know as a matter of practicality the extent of Nevada's contract for water.

Because just as in the evidence showed in the case of the Metropolitan Water District, the basic pumping clients, the basic tunnels and installations of that sort should be for economical reasons built to eventually supply the maximum amount at the time they are built.The individual pipelines may come in from time to time.

If California is correct and 180,000 acre-feet is to be taken away from us that is the water for about a half a million people under the best analysis an acre-foot of water will supply the annual consumption of about three people in that arid region.

And there is a precise and definite question there which it would seem to us that all responsible people should decide.

And I also concur, of course, in other broader argument, there is a justiciable controversy here as to the extent of this rapidly growing southwest region and all of which will in a sense be under a cloud of suspicion unless there is a determination of this water allocation.

The -- in the brief, it seems to us that this case might be simplified this way, the Secretary of the Interior under the Project Act, just for the moment ignoring all the language of it, under the long line decisions of this Court, starting with the Appalachian case and going down through the Twin City Power case.

Certainly, when he came in and took over the river which has been facetiously called the Red River which is an actual thing under the control of the United States, he took over all of the water rights regardless of what was there before.

And if it had not been for the exemption of the present perfected rights, controlled also by the California limitation, I do not believe any attorney could argue to this Court but that the Secretary of the Interior had all the water rights in the river.

Also, under the Ivanhoe case and other cases, having that control and having impeded the flow of the river, counted it in the reservoir, created it into storage then he had the right to dispose of that by contract.

And I believe that those broad principles will go a long way towards solving many of these rather specious points that have been argued at length in this tremendous record.

In the, in the long run, that's the question, what --

Justice Byron R. White: (Inaudible)

Mr. R. P. Parry: We think that under the overall setup in the Project Act that the Master was correct in determining that there was a statutory allocation to the States.

And that in the case of the State of Nevada, the State created a statutory body and is contracted for and is paying for that water, and subject only to the overall rule which I think pervades throughout the whole west that the water may not be wasted.

And that should be applied to a beneficial use then in our opinion, the State of Nevada has the right to make those decisions.

Justice William J. Brennan: Well, are you suggesting that the state could require the Secretary the contract with your State Commission?

Mr. R. P. Parry: Well, the con -- the Secretary did --

Justice William J. Brennan: I know he did.

Mr. R. P. Parry: So I think that's a moot question --

Justice William J. Brennan: I think what -- I think what has been accorded in --

Mr. R. P. Parry: And I'm not dodging the question.

I would say -- I would answer in affirmative, yes.

That in view of the whole legislative history and of the whole Act that the State was in the position and was willing to enter into a firm contract as it did.

Justice William J. Brennan: Would this apply also to California and Arizona?

Mr. R. P. Parry: Well, California had these present perfected rights in the name of various entities which exceeded their limitation.

So there was a different question presented there.

Justice William J. Brennan: How about Arizona?

Mr. R. P. Parry: As to Arizona, my answer would be in the affirmative.

And the --

Justice William J. Brennan: You spell this out of the history and --

Mr. R. P. Parry: I spell it out of two things.

I think that we must not ignore the basic rights of the United States when it comes in and takes physical control of a navigable stream.

It seems to me if there is anything established in the law of the land now and that -- and I say that regardless of what all the Senators said to the contrary when they are arguing about this Act.

What they said four years ago has but little resemblance to the law of that type of river as it has been announced by this Court since that time.

When we start from that premise then I believe that we have a sound foundation upon which we can find in the Project Act, allocation of the type that the Master found.

I believe that overall, he did an extraordinary job.

As I comment before, Nevada came in as an intervenor, so to speak, not wanting to be squeezed between the two giants.

But this water being so precious in our favor, we find ourselves now supporting the Master's decision most wholeheartedly.

Thank you.

Print this transcript Transcript:

Argument of Northcutt Ely

Mr. Northcutt Ely: May it please the Court.

I'm going to ask to -- pardon me, save the balance of my time for rebuttal except for two points.

One, in response to the questions from Mr. Justice White with respect to water supply in effect to the Compact, I should like very earnestly to ask your attention to our opening brief at page A39 to A62 which contains our motion to reopen the trial for the taking of evidence, Re: The depletion of the Colorado River at Lee Ferry by the Upper Basin and the statement in support of motion.

That gives the statistics.

The water supply calculations are in part five of that same brief, our opening brief which is dated May 22, 1961, commencing at page 232.

The argument on the limitation matter, that is the construction of Section 4 (a), I covered it at great length in January and it is summarized or stated with -- in our brief, our opening brief, the same one, at pages 69 to 137 and I shall simply identify that issue without arguing in the detail.

The issue is simply this.

Whether the reference to paragraph (a) of Article III of the Colorado River Compact in the Section 4 (a) which imposed the limitation which we accepted meant what it said, which means in substance that the 3,100,000 acre-feet and half of the excess from which California is excluded shall be supplied from the system or does it mean as the Master says that this reference was inappropriate and that the water from which we're excluded may all be claimed from Lake Mead.

That is covered in detail in this brief.

We say that when we ratified simultaneously, in effect two compacts; one, the Colorado River Compact and the other, the agreement with Congress, evidenced by the Limitation Act, both in -- which is in compact terms and indeed makes three cross references with the Compact, we cannot be assumed to have ratified on the -- simultaneously two agreements with such diametrically inconsistent meaning of the same terms.

And that both of them refer to the quantity of water available to the Lower Basin under the Colorado River Compact, Article III (a) and it was intended that California should have 4,400,000 acre-feet when the Lower Basin is using seven and a half million from the main river plus the tributaries.

It does not mean as the Master would have it mean that even if the Lower Basin is using its entire apportionment, seven and a half million plus indeed the million referred to in III (b) from the main river, from the tributaries, we can't have 4,400,000 acre-feet, we can have 3,800,000.

We say we relied upon that bargain.

They have carried it out.

The Master conceded in the oral argument in New York that the interpretation he now gives, that the reference to the Compact doesn't mean the Compact that the argument is not what the Colorado River Compact means but whether the reference is inappropriate.

He concedes that is an issue not litigated at all -- for the first time in his draft report and indeed was -- as we're candid just to say that if we were issuing patents upon it, he would have to claim novelty.

We say that the Metropolitan Water District, having built its great aqueduct in reliance upon a bargain between our state and Congress, evidenced by the Limitation Act is not to be destroyed by the discovery of a patentable novelty.

It's bad enough to encounter a proration formula devised by the Secretary three years after our projects were completed.

It set much worse to be destroyed by a patentable novelty discovered in 1960.

We say the limitation means what it says.

We have carried out our bargain.

We intended to be limited by it.

We ask the right to occupy it to defense, the limit established by the Limitation Act.

I should like, if I may, reserve the balance of my time.

Justice Byron R. White: There's really one more question though.

If there's -- if you think the best guess to determinant its supply available below Lee Ferry for consumptive use of 6 million, does that mean that in terms of the Project Act or of the Secretary's allocation that there's a shortage and that --

Mr. Northcutt Ely: Yes.

Justice Byron R. White: -- there would have to be pro -- then --

Mr. Northcutt Ely: Yes.

Justice Byron R. White: According to him the -- then that -- he would prorate that million and a half?

Mr. Northcutt Ely: We would -- if there's six million available, then there's a shortage of a million and a half.

We would bear 44 seventy-fifths of that shortage and we would have available a net of three and a half million according (Voice Overlap) --

Justice Byron R. White: And your -- your position is that Cali -- that California have got senior projects, they should have absorb under the million and a half?

Mr. Northcutt Ely: No, we should -- they'd be entitled to claim up to our 4,400,000.

Justice Byron R. White: Yes.

Mr. Northcutt Ely: If there, there were no shortage at all, if there were seven and a half million acre-feet, he would still give us only 4,400,000.

If we're --

Justice Byron R. White: Yes, and this argument -- and this would have -- that the question of priority or proration would come up, regardless of whose right on the limitations' issue?

Mr. Northcutt Ely: Well, let me put in this perspective; if you agree with us on the limitation issue that the fund of water to be divided includes the tributaries, then there is an -- probably no question of shortage, I say probably, because a 2 million acre-feet of consumptive use sustained by the tributaries, when added to the 6 million acre-feet of consumptive use of the main river will sustain, makes 8 million.

That is 500,000 in excess of the total III (a) apportionment to the Lower Basin and if we are correct, then you have a fund of water of 8 million to divide, not 6 million.

Justice Byron R. White: Yes.

Mr. Northcutt Ely: We would have 4,400,000 plus half of the excess above seven and a half million or the half of 500,000 or about 4,650,000.

Justice Byron R. White: But if -- if the Master is right on the -- on the limitation, then the 6 million does mean of a priority --

Mr. Northcutt Ely: That is correct.

If you disagree with us on the limitation issue in hold with him and hold that Arizona's -- Nevada's 3,100,000 from which we are excluded of III (a) water can all be claimed from the Red River, Lake Mead and below then there's an inevitable shortage.

And the total supplies of the order of six million to sustain this claim for not less that seven and a half.

Justice Byron R. White: Thank you.

Argument of R. P. Parry

Mr. R. P. Parry: May it please the Court.

There is one quite interesting aspect of the California argument and that is that when you add up the water supply available, you count in the tributaries.

But when you go to looking for existing projects, then the tributaries become step children in the not existing projects.

Matter of the fact is that the simple Arizona project as proposed is not a new project.

It is a project designed to save an existing project in the Lower Basin.

So that when California talks about existing projects, if she wants to include the tributaries, she should -- in like fashion of fairness include the existing projects on those tributaries.

We had not intended, if it please the Court, to dwell at length on the apparent question of shortage or water supply but in view of the fact that the matter has been discussed at some length by California, we have asked the clerk to pass around four little tables which we prepared, which we think pretty quickly and decisively explode this notion that there is potentially a great shortage in California.

The first of these and these are taken with one exception from California exhibits, shows the actual requirements of existing projects, accepting California's own figures as to what she can save in the way of water in the future.

We find that in the first column.

In her existing projects, she jumps her present uses from 67,900 to 100,500 acres or net jump of new acreage which she proposes to irrigate in which she said she needs water for and that that she classifies as an existing project.

We find that in the second column, the res -- of the reservation division, the Yuma project.

She jumps from 10,800 acre-feet, now in use, waters now being supplied to it, to 20,100 acre-feet.

And we find that in the Imperial Irrigation District, she jumps from 495,800 acres presently irrigated and this is the average, average acreage irrigated from her own exhibits, the last five years before the end of the trial -- of the last five years before 1955, a total of 165,200 acres.

She comes here solemnly and tells you that this water is for existing projects.

This water is not for existing projects.

This water is to expand projects far beyond the economic boundaries of which they justify with respect for instance to the all-American canal, the, the enlargement of the 165,000 acres.

The testimony of that was such that the Master said, you take a little water and add some sand to it in the stand point of being irrigable acreages.

So we say, if it please the Court, that when California tells you that she is here asking for water for existing projects, asking you to let the water table in Central Arizona continue to fall and fall and fall, and 50,000 acres of land, a lot of water each year, let us however put in an additional 211,600 acres much of which is very marginal land.

The last column, if it please the Court, is the -- the water requirements which California herself said she could get by with, applied to the existing acreages, applied to the lands now in cultivation and which she says she wants preserved, which shows that she can get by giving Metropolitan Water District a total of 584,000 acre-feet a year with 3,587,900 acre-feet.

Now, if it please the Court, the only purpose of this because we do not deem water supply relevant is because California has sought and have seen fit to come before this Court and apparently setup a great trial [Inaudible] with respect to shortage, which in fact does not exist if California will take care of the water she presently has.

Justice Arthur J. Goldberg: [Inaudible]

Mr. R. P. Parry: Yes, Your Honor?

Justice Arthur J. Goldberg: [Inaudible]

Mr. R. P. Parry: I will -- I will answer that directly.

The Master found if it please Mr. Justice Goldberg and members of the Court, after the argument in New York, when California advanced the same great horror of shortage, of eminent peril of all these things that are going to happen, of dire consequence to California, the Master rewrote his draft before it and he added a footnote at the -- one portion there which he said this, and I'm reading from page -- I believe it's 103, I'll get the reference for you in just a moment, “The supply of available water in the California River has in the past been substantially larger than the demand for it.”

In short, every project received all the water it requested.

In such circumstances, it's not surprising that a great deal of water has been wasted as is apparent for example from the very large unused runoff each year into the Salton Sea.

Undoubtedly, [Inaudible] becomes scarce in this area, it used to be regulated much more efficiently than at present.

It appears that such practices in landing canals, evaporating -- reducing over ordering of water, reusing runoff water, reducing evaporation, and improving channels can be instituted in the future and will effect a substantial reduction in the amount of water needed to supply existing California needs.

It is impossible to determine exactly how much more efficiently water will be used in the present -- at the present condition of abundance turned in water shortage.

But it is clear that savings will be such that California's existing uses to be satisfied by substantially less water than is presently diverted.

Mr. Justice Goldberg, at the conclusion of our argument last time, we showed to the Court pictures, colored pictures of two rivers, two rivers running out of the Imperial Irrigation District into Salton Sea, either of which are a larger than the influent of the Salt River Valley in our irrigation canals.

Mr. Ely tells you at the end of the rebuttal when it's no longer possible for us to reply that that was sewage.

Well, it isn't sewage, about 80% of it is good usable water and about 20% of it is drain water.

So we say and the Master found that California in the Imperial District is wasting, is wasting a very substantial amount of water, something over a million acre-feet a year into the Salton Sea.

So that when she comes here and cries shortage to you, she should advise you that that shortage is in large part to be caused by her own inattention to reasonable conservation practices.

Now, the next exhibit which is now the little form to which I handed you is not intended as other than a reconnaissance study, may I say.

You'll note the title of it indicated, California agricultural needs giving effect to reasonable conservation practices.

During the course of preparation for the trial, Arizona sampled the drains in the Imperial Irrigation District and sampled the runoff water over an extensive period of time.

And by chemical analysis demonstrated that about 20%-21% of that was actual drain water, the other was water run over the top of the fields and which went to waste in the Salton Sea.

One reason for it, California runs this water through the canals and generates electricity, and there's no reason why she shouldn't run that water, when it's ample, we have no complaint with that.

Arizona waste water too, we think in the Yuma area, we have no problem with that because there's lots of water now.

But what we do say is that California should not come here with a straight face then tell this Court that she needs that water when the Master has found she's wasting it.

Now the purpose of this next exhibit is simply to indicate and no more; Arizona conducted a series of studies with respect to lining the canals in the Imperial and Coachella works.

In other words, the amount of seepage, she recovers nothing from her ground water at all and what could be done in the way of lining these canals, what could be done with the way of recovery of ground water, what could be done with the way of -- in a way of usual, normal conservation practices when water is scarce.

And we came up with the determination and we assert it is a conservative determination that our total -- total agricultural needs could be satisfied with 2,437,700 acre-feet that is by saving water that is now being wasted.

They tell me the Salton Sea has turned into a wonderful, wonderful resort but we're just a little reluctant to have our waters used for the purpose of fishing in California or people going swimming and sail boating.

We think we can put it to better use in Arizona where it belongs.

We agree, if it please the Court, that up to this point, the issue of other sources to California was probably not relevant.

The Master so held.

However, California has seem to tell -- seem fit to tell this Court that Metropolitan is going to go thirsty, they're going to run out of water there if something isn't done by this Court to preserve their great -- State of California.

Well now, let's just look at the facts.

From her own testimony, from her own witness, it developed that Metropolitan had a population of 7,329,012 people that includes San Diego and the whole area.

Her present sources of supply, 1,220,000 acre-feet which by her own testimony is to how much she needed per person would be adequate for a population of seven million, 6,700,000.

That's wholly a part from any water from the Colorado River.

There also was filed with our opening brief a certified copy of the contract between the Metropolitan Water District and the State of California for federal river water which provides that by 1970, they will be delivered 110,000 acre-feet for the Metropolitan Water District, and by 1990, there will be a 1,500,000 acre-feet available or a total of 2,720,000 acre-feet, forgetting about the Colorado River, 2,720,000 acre-feet which is adequate for a population of over 17 million.

And if you give to them the five hundred and some thousand acre-feet, we suggest that over yonder they have a -- a total supply by 1990 of 3,304,000 acre-feet which is adequate for a population of 18 million, 18 million souls on her own basis of what it takes to supply a person with water.

Now, when she comes here and tells you and would have you believe that people in California are going to go without water, she simply is wanting to play the game both ways.

One point is wholly irrelevant whether it comes to appealing to the sympathy of this Court that then becomes a very material fact.

That is a reason for these exhibits.

That is the only reason for them.

The final one is the Arizona picture, the Arizona picture.

It involves the major agricultural and residential areas in Central Arizona.

From 1940 to 1956, the ground water fell in the Salt River Valley area 74 and three-tenths feet.

In the Grassy Grant Fort area 70 feet, in the [Inaudible] Steinfield area 95 and five-tenths feet and in the Illinois area 104,000 -- 104 acre-feet for a total average of -- as the chart shows, 80 feet.

Now --

Justice Potter Stewart: Is it the -- is this the area of what, north of Phoenix?

Mr. R. P. Parry: This is what would be termed, Mr. Justice Stewart, the major Central Arizona area.

It involves all the major agricultural area in Central Arizona which is largely the major agricultural area.

It involves the major cities of Central Arizona, the only large city would be Tucson which is not included.

Justice Arthur J. Goldberg: [Inaudible]

Mr. R. P. Parry: No, no, Your Honor, of course not.

I'm simply saying that if someone can come in here and cry a poor mouth, we'll cry a poor mouth with him in a lot -- a lot louder voice too.

Because we really do have something that is hurting whereas the shortage they talk about in California is something far, so far on the distance, that a man with an ordinary telescope couldn't see it.

That's what the Master found.

In the hearings that authorized the Upper Basin Colorado River project, these projects that Mr. Ely is now talking about were also part of the testimony before those hearings.

And the total ultimate diversion contemplated by all of those projects was 400 -- 4,880,400 -- 40 -- four million and eight hundred and some thousand acre-feet.

In other words, under the testimony of the Bureau of Reclamation itself, 75 to a hundred years from now is going to be required to deplete the Upper Basin water supply down to 4,800,000.

So that as the Master said for the foreseeable future, it's impossible to conceive -- conceive there's going to be any shortage.

In that respect, he noted the fact that every hydrologist assumed the depletion in the Upper Basin of 6,500,000 to 6,800,000.

In other words, on top of these fancy figures that California has given you, there's another million and a half for the next 75 to 100 years and probably beyond that.

Now --

Justice John M. Harlan: Is your argument now being directed to the nonjusticiability of this whole controversy?

Mr. R. P. Parry: No, Your Honor.

I suppose I should say as Mr. Justice Black indicated that making the jury argument in that we have understood from California's publicity and from their statements here that for some reason they're in terrible peril.

I don't -- I am not digressing that to that -- the point at this moment.

Justice John M. Harlan: But what -- let me ask you the direct question.

Do you --

Mr. R. P. Parry: Yes, sir.

Justice John M. Harlan: Are -- is there any disagreement between California and yourselves that is, regards your particular branch of the case, both issues are properly justiciable and should be -- should be decided?

Mr. R. P. Parry: We do not think the water supply is -- is involved Your Honor.

We agree with the Master that this is a case where Congress has put its powerful hands down upon the river in the exercise of the --

Justice John M. Harlan: Oh, I don't -- I'm not talking about the -- I'm not talking about the decision that you think ought to be reached but do you think both questions should be decided --

Mr. R. P. Parry: Water supply?

Justice John M. Harlan: -- one way or the other?

Mr. R. P. Parry: Water supply?

Justice John M. Harlan: Limitation and -- no, limitation and the question of whether there is a federal allocation of the water supply as against apportionment and --

Mr. R. P. Parry: We are satisfied, Your Honor that the question of whether or not there's been a federal apportionment must be decided.

Justice John M. Harlan: Yes.

What about --

Mr. R. P. Parry: And --

Justice John M. Harlan: -- the second question?

Mr. R. P. Parry: If that -- that depends with -- if it please the Court, upon how you interpret the Project Act.

As we read the Project Act, California says it preserved priority and principles of priority and so on.

We say it does not.

So, I suppose inherent in my saying that you must determine the question of federal allocation, you must also then determine whether or not in that allocation respect has been maintained for priority, rights of -- appropriate and so on.

But we -- we are firmly convinced that the Master is right.

Justice John M. Harlan: Oh, I understand your position --

Mr. R. P. Parry: And -- and feel that we can demonstrate that, if it please the Court.

I want to bring one other attention to the -- as Your Honors and then I'm going to leave this subject which I never should have opened in the first place.

With dramatic -- with dramatic impact in this last session of Congress, witnesses from the Bureau of Reclamation appeared before the Senate and the House Appropriations Committee.

One of them was Floyd Domini, the Commissioner of Reclamation; the other was First Assistant, William Plumber.

Plumber testified with respect to the question of -- of what can be done in the way of saving water as follows.

Well, Mr. Palmrick -- Mr. Plumber testified in response to question by Chairman Hayden, with respect to one dredging in the Colorado River below Parker to with respect to off-river basin regulation, above the Mexican border.

There had been testimony in the California's -- California has the right upon the fact there must be a great waste in the river.

This is what Mr. Plumber said, the Assistant Commission of Reclamation, “We believe that the water salvage operations in the river are among the highest priority operations of any -- of the programs in that area.”

The Commissioner had mentioned earlier the possibility of saving considerable water by the construction of the off-channel work there.

That would be -- we'd say we think is much as 200,000 acre-feet of water per year, 200,000 acre-feet of water per year.

We believe that dredging and proper utilization of water in the river might save as much as a half a million acre-feet per year.

For the downstream users the dredging has to be an integral part of the total picture.

Now, the Master said and that is why we feel some resentment at the planned assumption by California that she makes her own findings in this case with respect to water supply, a reading from 103 in his report, “The evidence in this case simply does not permit a prediction of future Lower Basin supply without refined degree of accuracy necessary to show whether existing California users can be satisfied from the percentage of future supply apportioned in California.”

On the contrary, the massive evidence which had been presented shows only that the science of hydrology is not capable of sustaining a prediction accurate enough to shed light on the question.

The Master recognized the just this thing I've been talking advances in the science of water management.

The management evaporation with monomolecular film controls evaporation and many other practices that can be put into effect when water gets short render wholly in apposite in -- inappropriate.

The notion of today predicting what this arrived, an unforeseeable stream will do.

We agree, if it please the Court, with the Master that the claims of Arizona, California and Nevada to water from Lake Mead and from the main stream of the Colorado River below Hoover Dam are governed by the Boulder Canyon Project Act, the California Limitation Act, and the several water delivery contracts.

The Colorado River Compact, the doctrine of equitable apportionment, and the law of appropriation are all irrelevant at the allocation of such water among the states.

I suspect if the Master had been here and heard that Mr. Ely's explanation of what he had held, he would have been quite surprised, would've been quite surprised.

Now I know, if it please the Court, that it is inappropriate probably to interpret for the painter, a portrait he has painted but if I might because careful and long continued reading of the decisions of this Court with respect to navigable water and the rights therein have led us to the conclusions we have reached largely agreed to by the Master.

I would like if I might briefly and quickly as an -- as an approach, as an introduction to what we have to say to just a few, to a couple of the cases this Court has decided, two of them I want to have reference to a later portion of the argument with respect to the Upper Basin's position in this matter, but they had a very -- also upon the law of this Court has declared.

The case of United States versus Rio Grande Dam and Irrigation Company in 174 United States probably cited as much as any case which has ever been before this Court involving water law.

That was a case in which the Rio Grande Dam and Irrigation Company sought to dam the Rio Grande River what is now Elephant Butte Dam.

That is above the navigable portion of Rio Grande.

In that case, the United States brought suit in the territorial court of New Mexico to enjoin that.

Territorial court threw them out.

Territorial Supreme Court threw them out.

Justice Brewer, in an outstanding opinion analyzed the Rivers and Harbors Act of 1890.

And I want to take the time to just read a little bit from he said, because I think it is highly appropriate, the Court said, he first considered if I may say the 1866 Act which permitted permissibly the use of water on lands in the west.

He then referred to the Desert Land Act of 1877 which if Your Honors will recall related only to non-navigable water.

And I call Your Honors' attention to the fact that until this -- the phrase “non-navigable” was inserted in that statute, Congress refused to pass it.

In other words, it was a compromise, it was a matter which was ready for decision, ready for enactment but it couldn't get through until the phrase “non-navigable” was added to that order.

The court has obviously by this Acts, and that's the 1866 -- the 1877 Act, Congress recognized in the Senate to the appropriation of water in contravention of the common law of rule as to permit continuous flow to infer there from that Congress intended to release its control over navigable streams of the country and to grant an aid of mining industries and the reclamation of arid lands, the right to appropriate the waters of the sources on navigable streams to such an extent as to destroy the navigability is to carry these statutes beyond what their fair import permits.

To hold that Congress by these Acts meant to confer upon any state, the right to appropriate all the waters of the tributary streams which unite into a navigable water course and so destroy the navigability of that water course, in derogation of the interest of all the people of the United States is a construction which cannot be tolerated.

The Court then referring to the statute, 1897, the language is general and must be given full scope.

It is not a prohibition of any instruction to the navigation, but any obstruction to the navigable capacity and anything, whatever done or however done within the limits of the jurisdiction of the United States which tends to destroy the navigable capacity of one of the navigable waters of United States is within the terms of the prohibition.

Now mind you that was the Rivers and Harbors Act of 1890 and while this case was under submission, Congress enacted the Rivers and Harbors Act of 1899 which made it a criminal offense to impair the navigable capacity of the stream.

And immediately subsequent to that, if it please the Court, the predecessor interest of Imperial Irrigation District went to the Congress and sought to secure the admission of Congress to continue their diversions from the river -- from ri -- from the Colorado River and it was denied.

U.S. versus Chandler-Dunbar Water Company is of course another landmark case decided in 1913 in which this Court said, “So unfair that this control of Congress over navigable streams of the country then judgment.”

Now this is Congress' judgment is conclusive.

Such judgment and determination is the exercise of legislative power in respect to the subject wholly within its control.

The question to be drawn is the question of whether the whole flow of the streams should conserved for the use and safety of navigation are questioned legislative in character.

And when Congress determined as it did by the Act of March 3, 18 -- 1909, that the whole river between the American bank and the international line as well as all the up and -- North of the present ship canal throughout its entire length was necessary for the purposes of navigation of said waters and the matters connected therewith.

That determination was conclusive.

One other, United States --

Justice Hugo L. Black: Is there any difference between you and your adversaries on that point?

Mr. R. P. Parry: I certainly think so, Your Honor, yes.

I certainly think so.

I certainly do not believe that California would concede for one minute but that she had a perfect right to win appropriate that stream as if it were non-navigable.

That is a whole basis of -- of their position.

They had fixed firm rights in a navigable stream so great but on occasionally exhausted the entire flow of the stream despite the refusal of Congress to give him that permission.

But the point I'm trying to point up, if it please Your Honor, is the great, the all persuasive, the all -- the complete domination which the Congress of United States has in a navigable stream if it ceased to act and I propose to one then and show how in fact Congress did act and how in fact Congress did set aside this entire stream and how it did in the exercise of this dominant servitude.

Yes sir.

Justice John M. Harlan: And California does not argue does it that Congress doesn't have constitutional power to allocate this water -- I mean, [Inaudible] wishes to -- the issue is whether it did so by the Project Act?

Mr. R. P. Parry: I would say that, Your Honor --

Justice John M. Harlan: Am I wrong about that?

I don't --

Mr. R. P. Parry: No, I --

Justice John M. Harlan: -- understand there's any constitutional issue in this case.

Mr. R. P. Parry: I must say that -- that despite the fact that the Master relied very heavily on the Chandler-Dunbar and the Appellation case and the others, I find no mention of them in any California brief.

I find no attempt to discuss this question in any California brief.

Justice John M. Harlan: I didn't think so.

Mr. R. P. Parry: There is none.

So that if we can proceed on the assumption that everyone is in agreement on that, why -- I'm sure this Court is but I -- simply because these considerations – these cases led us into the conclusion we did reach is the reason I'm using as a backdrop for this -- my argument here.

Justice Tom C. Clark: I may say that I have not understood they raised the res judicata question.

Mr. R. P. Parry: I would say Judge the --

Justice Tom C. Clark: (Voice Overlap) -- why you did not do what you said [Inaudible]

Mr. R. P. Parry: I think they have carefully avoided considering it.

The other point that this Court has made is that in addition to navigation control, that flood protection, water shed development, recovery of the cost of improvements to utilization of power are likewise parts of Commerce control.

In other words, not only does the part of commerce extend to the matter of simply governing water for use in commerce but all the peripheral things that go with respect to those projects are likewise within the Commerce Clause.

The -- if the Court please, the Learned Judge Hand, Justice or Judge Learned Hand, whom I'm sure we all respect once made the observation that words are like semblance which reflect the color of their environment.

And I think to get a -- an understanding of the Project Act, we have to get a feeling of the conditions preceding the enactment of the Project Act and an understanding of the forces that were in play that brought the Project Act into existence because to sit here and attempt to analyze the statute wholly apart from the conflicting forces that were in play at the time it was enacted would be attempting to understand a language without having a full understanding of the meaning of some of the words.

Foreign forces quite familiar with the geography of the area, I shall only say briefly that the Colorado River as the Master found is a stream of continental proportions.

It extends some 1,300 miles generally north from south, it has a basin 300 feet generally east and west, in the north, 500 feet in the south.

But significantly may it please the Court is the great variation between the two basins.

The Upper Basin is one of very high elevation, it produces practically all the water.

It has a very short growing season and at the time that this project was in process of being enacted, of being worked out, it was practically isolated from the Lower Basin.

There was no interrelationship of commerce.

There was no interplay of exchange of information other than in the securness and difficult manner.

The two basins are select -- are divided by a cabin practically impassable, prior to the advent of the airplane.

The Colorado River itself, if it please the Court, has always been prior to the enactment of the Project Act, a very troublesome stream.

Its main stream is fed from the higher waters of Wyoming and Colorado.

And of course in the Spring when those water and those snows melt, the water gush down in torrents and then came the summer time and from an erratic, unruly, vicious thing, the stream turned into a parsimonious creature yielding little water to those below.

In 1905, it broke through its banks and practically -- and unaided the Imperial Valley.

It carried a huge load of silt, all of which caused in the lower valley a deep desire to see that stream controlled.

And like token, by virtue of the holding in the Rio Grande case and by the holding in the Dunbar case, there was great concern in the Upper Basin with respect to whether the water which they produced to be conserved for their benefit and use.

Result of that was that prior to 1922, the Congress of the United States authorized the seven basin states to enter in a compact and the set of a compact was result of that negotiated between three people represented the Lower Basin, four representing the Upper Basin.

Subsequent to the enactment of the -- of the -- of the signing of the Compact at Santa Fe, there was a period of great confusion and stress.

Most of the States ratified, Utah withdrew her ratification, Arizona refused to ratify and there was a great struggle and stress in the basin to try and work out this problem.

The result of that was that in 1927, there was held a Governor's Conference at Denver, Colorado in which the four Governors of the Upper Basin States sat as a board of arbitration, as it were, and heard the claims of the Lower Basin and attempted to work them out.

That was -- or just a matter I suggest why this was so essential to the Upper Basin.

This Court immediately prior to the signing of the Santa Fe Compact had decided Wyoming versus Colorado in which the law of prior appropriation was given rather effective weight in an interstate apportionment.

And of course the Upper Basin state was tremendously concerned.

But with its short growing

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