U.S. V. DISTRICT COURT FOR WATER DI v. NO. 5

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Argument of Kiechel

Chief Justice Warren E. Burger: We'll now hear arguments in 812, United States against the District Court of Eagle County of Water Division No. 5.

Mr. Kiechel, you may proceed whenever you’re ready.

Mr. Kiechel: Mr. Chief Justice and may it please the Court.

Under the Colorado Water Rights Determination and Administration Act of 1969, the 70 water districts were replaced with 7 water divisions.

Water Division 5 includes the area drained by the Colorado River and its tributaries, excluding the Gunnison River and this includes the former Water District 37 and Eagle River Watershed.

In February of last year, the Attorney General received by mail a paper signed by the water clerk of the Water Division 5, directed that all persons interested in water applications in said division, supplying a list of water right applications filed in that office.

The paper concluded with the statement that the recipient had until the last day of March, 1970, that was the month thereafter that preceded the notice, to file with the water clerk a verified statement of opposition to any such application.

Similar notices had been received by the Attorney General listing water rights applications filed during each month thereafter in Water Division 5 and in Water Division 4 and 6 as well.

The response to the 1969 -- December 1969 notice, the United States filed a motion to quash, this was denied.

The writ was applied for the Colorado Supreme Court which was denied.

As in the Eagle County case affected by the proceedings in Water Division 5 or Federal Water Rights of two types, property rights acquired in the state law and reserved another rights based on federal law.

Because of its size, Water Division 5 contains a multitude of federal rights to determine, demonstrate their magnitude in nature.

We’ve prepared a map on which has been delineated the boundaries of Water Division 5 and shows the various federal reserve areas within that Division 5 before national forest or parts thereof in Green, the Naval oil shale reserve, black, National Park or part of the Rocky Mount National Park on that side of the divided in Red --

Unknown Speaker: Do you mind waiting when we get in that?

Mr. Kiechel: Oh, I’m sorry sir.

Chief Justice Warren E. Burger: While we’re waiting, will you give some thought to and then perhaps suggest any reason why the Colorado courts will not follow federal law if that’s part of the predicate of your position?

Mr. Kiechel: Yes Your Honor.

We are concerned about the opinion of the Colorado Supreme Court to that extent -- in that respect to the extent that the Colorado Supreme Court discussed the question.

They said that the decisions of this Court reviewing Winters v. United States in 1908 which announced the reserved right doctrine, Federal Power of Commission v. Oregon 349, and Arizona v. California in 1963 in 373, were not determinative of the question.

The --

Unknown Speaker: Now, that determination of the Colorado Supreme Court is reviewable here in the instance of the United States?

Mr. Kiechel: Yes Your Honor, I believe it is.

Unknown Speaker: So, you do get a review in the Federal Court of Appeals?

Mr. Kiechel: Yes.

Our position is that this is -- it is reviewable and the Supreme Court has held that the decision -- in affect the Supreme Court of Colorado said that when this matter was presented to them, and they were decided on the basis of Colorado law.

And they referred to the Stockman versus Leddy Case which Mr. Justice White referred to in their opinion and said they would have to overrule that decision if they found that there were reserved rights in -- of the United States in the State of Colorado.

Justice Byron R. White: Well, do you think Leddy purported to say what federal law is?

Mr. Kiechel: Well, Leddy --

Justice Byron R. White: Or just for that under Colorado law --

Mr. Kiechel: Leddy relies upon the Enabling Act of Congress, and it -- the --

Justice Byron R. White: The United States didn’t reserve the --

Mr. Kiechel: They said that by admitting Colorado into the union with a constitutional provision -- state constitutional provision that said that all rights of the water of the State of Colorado were property of the people and subject to appropriation under state law that the United States is precluded from asserting a claim of reserve rights within Colorado.

Our response to that, if Your Honor please is that the enabling statute required in Section 4 that the people of the territory of Colorado recognize and disclaim any right to the public lands within that territory and recognize that that was a matter for the sole and exclusive disposition of the United States.

This was a specific provision of the Enabling Act and that Act was -- and that provision was referred to once again, when the President proclaimed in his Presidential Proclamation after the Colorado constitution was adopted that the Colorado was a state.

So that we say by the provision of the Enabling Act, Congress reserved to itself for the right disposed of public lands, except for the school land which were granted to the territory and certain other lands and specified amount for public buildings.

And we say there in furtherance of that, that thereafter when the United States reserved from the public domain for a specified purpose lands, it reserved as well the appurtenant water rights to fulfill the purposes of that reservation.

And that carries with it the priority of the date of the creation of the reservations subject and I wish to point out, subject to rights vested at the time of its creation.

The matter of the legislative history, I would discuss Mr. Justice Harlan asked if there were some specific episode which triggered off the enactment of that statute, and I think that Mr. Balcomb has referred to the specific episode which did.

It was a proceeding in the home state of Senator McCarran, the sponsor of the Act in Nevada on the Quinn River, and it involved a suit for administration of water rights already having been adjudicated under a state court.

And there, the United States had purchased, had acquired by purchase, certain water rights on the Quinn River and this is the primary concern of Senator McCarran.

This is demonstrated by his statements on the floor of the Senate, the fact that the -- he says it’s -- to allow the United States in its own right whereas a trustee, those were acquired for Indian purposes, to have a better right than the former owner is not fair and just as to the other water users on the stream.

And of course, the terms of the statute as been pointed out refers to appropriation under state law, and in an appropriative right states such as Nevada or Colorado, the state here involved.

The only way a private citizen can acquire a water right is by application of the water to a beneficial use.

That water right becomes fixed in amount in quality by that act.

Another characteristic of an appropriative right is that it is subject to loss through abandonment or non use.

Now, concerning the legal characteristics of an appropriative right, the second sentence of the McCarran Act which I would refer the Court’s attention to is consistent with the first, only if the consent to sue was restricted to rights acquired under state law.

And second sentence of the McCarran Amendment says, the United States, when a party to any such suit, one shall be deemed to a waive any right to plead state laws are inapplicable, or that the United States is not amenable, there too by reason of its sovereignty and too shall be subject to the judgments, orders and decrees of the court having jurisdiction, and may obtain review thereof in the same manner into the same extent as a private individual under like circumstances.

Justice John M. Harlan: There is no provision in the statute obviously that relates to reserve rights or makes an exceptions or use a different phrase to appropriative rights extend to federal laws, there’s nothing in the statute in that?

Mr. Kiechel: That is correct Your Honor.

Justice John M. Harlan: Was there any effort made to put in such language?

Mr. Kiechel: There was not.

The express terms the statute referred as rights acquire under state law, for appropriation under state law.

Justice John M. Harlan: So it has a catch all phrase or otherwise?

Mr. Kiechel: That’s correct Your Honor.

But what I am saying is that these terms of the statute by appropriation under state law, by purchase, exchange or otherwise is the means by which a private individual can acquire a water right.

And it was that type of right which the United States had acquired in this Quinn River situation that Senator McCarran was concerned about being subject to adjudication or in that case, administration by the state court of Nevada.

Justice Potter Stewart: Of course, this was suggested earlier in argument at that time of the enactment of the McCarran Amendment, the concept of reserve rights hadn’t matured or become quite so clarified as it is now.

Perhaps, there’d been the one case involving an Indian reservation, but the passage of that legislation long antedated the decision of this Court in Arizona against California, did it not?

Mr. Kiechel: That is correct Your Honor.

Justice Potter Stewart: It’s primarily in that case?

Mr. Kiechel: Must it.

The Winters v. United States was a landmark decision of this Court --

Justice Potter Stewart: Having to do with Indian reservation?

Mr. Kiechel: Yes indeed, and it was until Arizona v. California that it was extended to other federal reservations, but the concept of a right other than an appropriative right, a right rising by creation of a federal reservation was well known in the water law of the west at the time of the enactment of the McCarran amendment.

Now, with keeping in mind the intent of the sponsor that is Senator McCarran to said be equally that federal government and private citizens to adjudication of water rights acquired under the state law, and the express terms of the statute designed to carry out that intent in sharp distinction and contrast are reserve rights.

The reserve rights as I’ve said arise by creation of the reservation automatically.

They don’t require the application of water to use, priority states from the date that they withdraw and applies to future as well as existing use.

And the -- in summary with respect to the legislative intent, I’d say that there being no expressed provision in the terms of the statute, including reserve rights, nor any specific intent by the sponsor of the amendment, it follows that it was not within the contemplation of Congress that they be included in this state court adjudication.

Justice Byron R. White: Excuse me.

The section distinguishes between adjudication of rights and the administration of rights, isn’t it?

Mr. Kiechel: Yes.

Justice Byron R. White: Well now --

Mr. Kiechel: Yes, Your Honor.

Justice Byron R. White: On its face it does?

Mr. Kiechel: They provide for the joinder of the United States in either or both of those.

Justice Byron R. White: Yes, but distinguishes between the two?

Mr. Kiechel: Yes, Your Honor.

Justice Byron R. White: And if -- on the adjudication part it says “For the adjudication that United States maybe joined in any suit that adjudication of rights is for use of water or river system or the source.”

Now, would you think that that would be consent for someone to sue the United States in the Federal District Court for a declaratory judgment as to whether or not the United States has any reserved rights in the Colorado River system?

Mr. Kiechel: No, Your Honor.

If it’s a two-party suit which does --

Justice Byron R. White: Well, let’s assume he satisfied the -- he brought in everybody in the State of Colorado into the lawsuit?

Mr. Kiechel: I’m not suggesting that that’s necessary, Your Honor, but --

Justice Byron R. White: No, I know.

But let’s assume you insisted and he complied?

Mr. Kiechel: Your question is whether if in a federal court --

Justice Byron R. White: Or any other court, a declaratory judgment --

Mr. Kiechel: I like the hypothetical you mention because it does permit me to say that the Federal District Court would of course apply the reserved right as a matter of federal law.

Justice Byron R. White: I know, but how about consent to sue, does the United States consent to that suit?

Mr. Kiechel: With respect to a single plaintiff, single person asking that the rights of the United States be declared --

Justice Byron R. White: He serves his defendant anybody that you think ought to be served, including the United States.

Now, my question is, does this statute give consent for such a suit?

Mr. Kiechel: Well --

Justice Byron R. White: It seems like it would right in the paragraph one here.

Mr. Kiechel: If it’s a general adjudication, if it does have the geographic and other characteristics of a general adjudication --

Justice Byron R. White: So, you don’t say that this -- at least, in terms the adjudication of rights are part of this, you wouldn’t say that the United States has not given consent to adjudicating reserved rights?

Mr. Kiechel: Oh yes, I do.

I think the language of appropriation under state law applies to both the administration and the adjudication parts of the statute.

Justice Byron R. White: So, you don’t think that then that there would be jurisdiction in the federal court in this case that I pose to you?

Mr. Kiechel: I believe that the reserved rights were withheld by Congress, yes Your Honor.

Justice Byron R. White: Let me, if I get that correct.

Then you take the language where it appears in United States is the owner of process of the water rights by appropriation and the state law as modifying both the adjudication of rights and to the administration, is that it?

Mr. Kiechel: Yes Your Honor.

Justice Byron R. White: And you say what would be -- the legislative history supports that?

Mr. Kiechel: Yes Your Honor.

Justice Byron R. White: Well, that’s a crude way to instruct the statute, isn’t it?

Mr. Kiechel: No.

Justice Byron R. White: But it’s talking about in paragraph two.

It says for the administration of rights where it appears the United States is the owner of or is in the process of acquiring rights by appropriation?

Now, add that on the paragraph one, for the adjudication of rights to the use of water of the river system where it appears the United States is the owner of or is in the process of acquiring water way.

It doesn’t make a great deal of sense, doesn’t it?

Well --

Mr. Kiechel: Yes.

Justice Byron R. White: -- I don’t want to take your time.

Mr. Kiechel: I think it does make sense.

Adjudication of rights acquire under the state law or in the process of being acquired.

My difficulty is with your earlier question Mr. Justice White is that you characterized as a declaratory judgment and I think that would not be a general adjudication because it would not permit the assertion and contesting of the water rights.

The --

Justice Hugo L. Black: At least my point is the Government does not want the state court to excise jurisdiction, basically?

Mr. Kiechel: I beg your pardon?

Justice Hugo L. Black: Basically, why does the Government really object to the state court excising jurisdiction under this Act?

Mr. Kiechel: Well, the procedure involved is not such that we think it permits a general adjudication.

It just isn’t -- it just is within the terms of the type or proceeding to which Congress consented, and we’re also are concerned about the Supreme Court of Colorado in its opinion with respect to the existence of reserved rights which as I’ve point to on the map or a matter of great magnitude in both of these cases, In the Water Division 5, it certainly includes a great part of the area of that area of Colorado.

Justice Hugo L. Black: But if didn’t recognize the United States rights, the United States could bring you case up here, couldn’t it, to us?

Mr. Kiechel: Yes, Your Honor.

Justice Hugo L. Black: But what would be the position in that?

Mr. Kiechel: This is easier said than done, if I might suggest.

I personally have been working with this statute since a lot of time its enactment and this is the first time in which it has been able to bring it before this Court.

The Green River decision Mr. Balcomb refers to was a remand decision under the federal statute, remand by Federal District Court for state court is not reviewable by appeal or otherwise, so that the answer to your question is yes, it can be. Dugan v. Rank is probably the classic example of how long it takes.

That case was started on the San Joaquin River in 1947.

Lengthy proceedings were had.

The United States was joined as a party.

It went to the Court of Appeals and finally gets to this Court in 1963, and the Court held that it was all for naught, there not having been jurisdiction over the United States.

Justice William O. Douglas: Couldn’t the United States had brought one of those Oakenagen cases in the State of Washington in here, where it lost?

Mr. Kiechel: The United States may bring a suit and has -- does bring suits for quieting its right -- its -- under water rights as a plaintiff.

Justice William O. Douglas: Under the Washington State procedure, it was a suit or at least in part of the state as I remember it.

Mr. Kiechel: Yes, United States could initiate a suit as party plaintiff.

Justice William O. Douglas: So, they were a party and they lost in the state case.

They could’ve appealed to the Washington Supreme Court then on here by certiorari, couldn’t they?

Mr. Kiechel: Yes, Your Honor if -- as to that case, in that case, there was -- that is correct, I agree with you.

My – yes sir.

The procedure in Colorado under the water division system now is quite different.

It has a monthly determination.

Monthly, these lists are rendered to the various interested persons, person under the Colorado statute being defined to include the United States.

Although, the continued inability of a Colorado law to consider in a court rightful priorities is perhaps it’s most basic deficiency, it’s by no means the only one on the matter of adjudicating federal water right is considered.

These deficiencies and the burdensome nature of the procedure can best be demonstrated by a consideration of the steps which I would like to run over very quickly.

First, the water clerk not later than fifth of each month sends out this list of -- this resume and then, he publishes it by the tenth of that month, and anyone who wishes to oppose a particular application within the resume must file with the water clerk a verified statement of opposition, setting forth facts why it should not be granted or should be granted only conditionally.

But the last day of the second month following the month in which the application was filed and the water referee of Water Division 5 or the water division, then without conducting a formal hearing investigates the truth of the application and the opposition and within the month, following the month in which the oppositions are filed, rules on the application.

This is mailed by the water clerk to all persons who file either a statement or an opposition and it becomes affective upon entry subject only to judicial review.

So that the statute notices only those parties who are interested in the applications filed in a particular month.

The only water rights before the water referee are those who which an application is been filed.

The only parties are those who’ve taken affirmative action to be heard and so that, even though the referee’s procedures are extremely limited and involve only a part of the water rights and the parties in the water division, the burden on the United States I submit is tremendous.

Justice Byron R. White: Is there any difference, any difference if anybody else such has water rights?

Mr. Kiechel: Except this figure.

Within the two-month period allowed by the statute, the United States must investigate all of these water rights within Water Division 5 and evaluate the impact of these applications in that monthly resume upon those water rights and that is a rather considerable task.

Justice Byron R. White: Yes.

Mr. Kiechel: And I submit that perhaps the United States, because of its authority to tie may resort to protect the opposition for lack of knowledge or time and certainly, this would not contribute to the ordinary procedure, so that the new statute does provide certain complications.

Chief Justice Warren E. Burger: Very well.

You will have seven minutes after lunch Mr. Kiechel?

Mr. Kiechel: Thank you sir.

Chief Justice Warren E. Burger: Mr. Kiechel, you may --

Mr. Kiechel: I will reserve the rest -- remainder of my time if you please sir.

Chief Justice Warren E. Burger: Very well.

Mr. Balcomb?

Argument of Kenneth Balcomb

Mr. Kenneth Balcomb: Mr. Chief Justice and may it please the Court.

I think one of the most interesting and novel thing about the second case is the -- now, we say that they are identical.

I think I can establish that the procedures involved in adjudication under the old and the new law are identical is that the presence or absence of a judgment below that is in opinion that can be interpreted.

I don’t believe that it’s Judge Darrel’s opinion to which I will refer later on, the trial judge that is here.

I just believe it is Mr. Justice Grows’ opinion in 87 that is probably the subject matter of the discussion here likewise.

It’s interesting to note that under the old statute, the primary objection to the Government to being bound by the proceedings for at least, there stay adjudicated -- adjudicatory rights related to the size of the stream system or source of the water.

And this oddly enough is a situation which is never bothered them when they wanted to be plaintiff, but now only bothers them when they do not wish to articulate and do not wish to quantify their rights.

There are several circumstances that I know of where the United States is come in, I can point to the ones, two in Nevada, one of which was before this Court on the separate point that we could go yesterday to the extent that certiorari was denied, that was the Carson River case in Nevada.

Justice William J. Brennan: Have they ever brought one in Colorado?

Mr. Kenneth Balcomb: In Colorado, yes sir.

They, about the time that United States decided that did not want to subject themselves to state adjudicating procedures, there was pending in the District Court for Summit County, located at Breckenridge, two parallel adjudication procedures.

One, to adjudicate rights for irrigation and another one to adjudicate rights other than the irrigation, under the statute which preceded the 1943 Act which brought those two times the things all into one action.

And though the Colorado Supreme Court ultimately held that the Government had made a voluntary appearance in those proceedings and could thereby be bound, the United States selected to bring an action which for this lack of anything better to call it in the nature of the quiet title action.

In other words, a suit in equity to determine the Government’s rights to a reclamation project, the Colorado Big Thompson Project which had not by them, then completely submitted to the court of Breckenridge.

Now, the Blue River is a little bit larger than the Eagle River, but it’s the same kind of a system and it ends up by running into the Colorado River.

That would not have been even under their definition, a general adjudication because they were very choosy about who they joined, joining the conservancy district, the involve Northern Colorado, City and County of Denver, Colorado Springs and everyone else who got into that action.

Justice William J. Brennan: How long though was this Mr. Balcomb?

Mr. Kenneth Balcomb: The suit was initiated about 1952, I believe and then went to the decree by the stipulation in 1955 and it’s been amended a couple of times since then.

Oddly enough the way it became a general proceeding was that the United States removed the then pending adjudication procedures from the Breckenridge courts, District Court and Summit County and thereby brought in our view everybody on the Colorado River, even though it was said to be supplemental then.

It was a supplemental general adjudication pending in Summit County, they brought in the federal court and they thereby joined the users of the entire river and I’m satisfied they consider that they have decrees for the Green Mountain Reservoir, the Colorado Big Thompson collection systems and the right to transport this water through the mountains.

Justice Byron R. White: Was that -- that was tantamount to a -- an assertion by them that the Colorado court had jurisdiction?

Mr. Kenneth Balcomb: Yes, I believe so.

They have --

Justice Byron R. White: They have --

Mr. Kenneth Balcomb: Recognize --

Justice Byron R. White: They removed it?

Mr. Kenneth Balcomb: -- by removal.

And nobody in Colorado really seems to know the answer.

They appear at least in part still to be removed and has created a little bit of confusion and --

Justice William J. Brennan: You said a decree by a stipulation.

Is this to say that was settled, is that case settled?

Mr. Kenneth Balcomb: Yes sir and the United States was given the right and claim the initiation of construction in 1935.

Justice Byron R. White: Mr. Balcomb, may I ask before I learn too much about, I like to pursue it just one question further.

In connection with reserved rights which you seem to say your mind isn’t closed against anyway.

Would the regular rules of appropriation apply to those reserved rights in terms of what kind of conduct it takes to amount to an appropriation to a an appropriation for beneficial use?

Mr. Kenneth Balcomb: You mean something open note notorious or something to that nature Your Honor?

I judge not.

I didn’t -- I don’t wish to quarrel with Your Honor about not liking the word “reserve.”

I just say that it’s another was of saying the initiation of a water right and in this case, if I’m interpreting it correctly, the Congress initiates the reserve rights for a union reservation or forest reservation, the Wildlife refuge by making the withdrawal of the land and the water.

Justice Byron R. White: Yes, but they aren’t using the water for anything at the moment?

Mr. Kenneth Balcomb: So, neither is the city and county of Denver Your Honor and they claim water rights that they don not expect to put into operation until year the 2010.

Justice Byron R. White: I’ve never heard of the -- that took some doing, didn’t it?

Mr. Kenneth Balcomb: They got --

Justice Byron R. White: As far as the western slopers were concerned?

Mr. Kenneth Balcomb: Well, yes in some respect.

Justice Byron R. White: Yes.

Mr. Kenneth Balcomb: There’s nothing -- nothing in the law prohibits the acquisition of a right currently for use so far -- in the far distant future if you can show the need, the eventual need.

As the Colorado Supreme Court held, the court could not question Denver’s projections about population, nor do I think that the trial court really questioned the allegations and proof by the United States of eventual need for water on their reservations.

Justice Byron R. White: But that would just be a matter I suppose to the probably governed by federal law?

Mr. Kenneth Balcomb: Yes sir.

And in reality, I think they have little problem with most of them because on almost every circumstance, the water and the water right involved are totally within the federal reservation.

You would have to have their permission to do anything anybody else to interfere with it and they have complete control of it.

As I say, the objection in 87 related to the size of the water course, and yet in every situation for practical purposes except the Arizona versus California, where United States is been involved, that is been almost a comparable water course involved and created no real problem to them there.

In the instant case, it seems to relate to how much trouble they would be put to read monthly resumes and to appear once every 60 days if indeed, they have to.

That is kind of an administrative rather than judicial proceeding and not within the contemplation of the amendment.

I would observe with --

Justice Byron R. White: Mr. Balcomb, can I ask you another question please.

If the United States wanted to reserve -- wanted to remove, let’s assume that you’re right about jurisdiction?

Mr. Kenneth Balcomb: Alright sir.

Justice Byron R. White: And the United States then wanted to remove the case to the federal court?

Mr. Kenneth Balcomb: There are several decisions in which in some cases, they held the right of removal that was not present, in some they said, the right to removal was exercise is prematurely exercise, but it might come back after a clear federal question arises in the state court.

Justice Byron R. White: Yes, but what if it’s a reserved right that you’re arguing about?

United States asked to have remove the adjudication of its federal right to water?

Mr. Kenneth Balcomb: Oh!

I think it was in some of these cases.

The – In Re Green River case in Utah went back on remand by Judge Christiansen because he felt I think more under the theory of comity than anything else the court -- state court had the procedures, adjudicate it there.

If that with United States found could not get fairness with regard to some of its rights, then it might remove it for the fact.

Justice Byron R. White: But on the face -- on the face of the statute, it is a removable issue, isn’t it?

Mr. Kenneth Balcomb: On the face of the statute, it is.

Justice Byron R. White: Yes.

Mr. Kenneth Balcomb: So if you study the legislative history, you might draw an opposite conclusion, but on the face of the statute is not forbidden, I’ll say that.

Justice Potter Stewart: There was removal provision in the Bill at one stage as I read the briefs and that was deleted by Congress?

Mr. Kenneth Balcomb: Yes sir and I think in that connection, the Special Assistant Attorney General testifying about it pointed out the difficulties involved for people over far western slope to have to come clear to Denver Colorado.

Justice Potter Stewart: Yes.

Mr. Kenneth Balcomb: They thought -- then justice thought the removal provision was bad.

Justice Potter Stewart: That's what I thought.

Justice William J. Brennan: Mr. Balcomb, what’s your absolutely Government’s submission that the both the adjudication and the administration clauses are qualified by the provision as to appropriative rights?

Mr. Kenneth Balcomb: It’s speaks of the United States in two categories I believe.

One is the owner of the water right and the second category is in the acquisition of these other methods of acquiring ownership of water rights, and where the United States is owner, why they can be joined?

Justice William J. Brennan: What I have reference to though is that -- as I understand the argument, reserved rights are not embraced by the consent statute.

And because I thought, your colleague argued that both clause one, the adjudication of rights, in clause two, the administration of such rights are qualified by the provision where it appears that the United States is the owner over in the process of acquiring rights by appropriation under the state law?

Mr. Kenneth Balcomb: Because this does have a possible --

Justice William J. Brennan: Well do you agree with that?

Mr. Kenneth Balcomb: Do I agree with the Government’s position?

Justice William J. Brennan: Yes.

Mr. Kenneth Balcomb: I think that it covers everything is my position Your Honor.

Justice William J. Brennan: That it covers reserve rights too?

Mr. Kenneth Balcomb: That’s correct or by whatever name you might call it.

Justice William J. Brennan: And you say it covers everything?

You mean both clauses one and two cover everything or only clause one covers everything?

Mr. Kenneth Balcomb: Both of them.

Justice Byron R. White: You mean the consent statute covers both of them?

Mr. Kenneth Balcomb: Yes.

Justice William J. Brennan: That’s what I was talking --

Mr. Kenneth Balcomb: Yes sir.

It would do little good to require the United States to come in and adjudicate a reserved right if they then try to take out a priority which is the administration system and not be able to reach in the second time.

Justice William J. Brennan: Yes, but I thought -- I thought the Government’s argument was that the adjudication of rights does not include the adjudication of reserved rights?

Mr. Kenneth Balcomb: I know --

Justice William J. Brennan: That is because the clause dealing with the administration of rights, the Government argues is limited to water rights by appropriation under state law?

Mr. Kenneth Balcomb: Well then, the first one is meaningless.

I think I read two circumstances, either the United States is the owner and there’s adjudication in progress or the United States is the owner and like in the Quinn River situation, there’s an administrative process.

Justice William J. Brennan: Of whatever the right is, is that it?

Mr. Kenneth Balcomb: Whatever the right might be irrespective --

Justice William J. Brennan: Who braces appropriative over anything else?

Justice Byron R. White: What does administration mean in the -- what’s the difference between adjudication and administration of rights?

Mr. Kenneth Balcomb: Adjudication as we understand it in the western states is the legal court process through which you go to establish your position on the ladder of rights, your priority --

Justice Byron R. White: To assert your right?

Mr. Kenneth Balcomb: Yes.

Administration is the physical act by the division engineer, the state engineer or one of his employees of opening and closing head gates saying you can take your water now, you reservoir is full, the various items involved in the distribution of the water.

Justice Byron R. White: Now This proceeding we have going here is to establish a right, isn’t it?

Mr. Kenneth Balcomb: That’s the rights now, yes Your Honor.

Justice Byron R. White: Whether there’s a right exist or not?

Mr. Kenneth Balcomb: That’s correct.

Justice Byron R. White: That’s adjudicating?

Mr. Kenneth Balcomb: That’s right.

It determines all that you may turn so much water at a certain time into your head gate, if we reduce that something to the irrigation thing.

And I might further say that if Congress had really thought “Well, we should not adjudicate Indian rights or we should not have not – not adjudicate Foreign Service rights,” it was too simple to say so because it was called to their attention over the three-year period this was involved again and again and again by the Government witnesses, by letters to the committee and each time, concerned about the breadth of the waiver, they wanted it limited every time.

And Congress ignored all these and left it wide because I think Congress recognized that it was just as important to the citizens of those states that they have certainty in water rights and they could not have that certainty if the Government is not there.

And likewise, it was of most importance to the United States to have certainty as its water rights, and I think one of the examples of this that I’d like to call the Court’s attention to is a case which isn't mentioned too much by anyone and it’s also captioned In Re Green River adjudication versus the United States and it’s in the Supreme Court of Utah in 1965 and answers in part this problem to the state court award you reserve rights and what did you about if they didn’t?

This case is the successor to the federal court case decided by Judge Christiansen when he directed remand of the adjudication proceedings in Daggett County, Utah.

This is a relatively small area also.

In this proceeding after the United States got back in the state court, it had no reluctance to present for adjudication by the state court some 715 water rights.

Oddly enough, they were apparently the type of thing that is spring for stock watering matters of this nature which if we understand, what they did in Eagle County in 87 are the subject of the reservation, but they were there adjudicated as though they were state rights.

At the very tail end of the proceedings, they asked the trial judge to put some language into the decree indicating that all of the rights which were awarded by virtue of this decree would be subject to the general unspecified reservation of the United States for the Ashley National Forrest and the trial judge declined to do so.

They took the matter to the Supreme Court of Utah and the Supreme Court of Utah likewise declined to do so, pointing out that United States had volunteered into the -- into the suit in effect by consenting to be sued.

They have proved up on 715 rights and they were not going to allow them to have an articulated, unspecified, unquantified right that sat on top the whole adjudication and made everybody else’s rights uncertain.

That is clearly what this case does hold.

United States did not elect to bring that to this Court had they wished to change that result.

Justice William J. Brennan: Mr. Balcomb?

Was the consent statute passed as it was introduced or did it go through some modifications?

Mr. Kenneth Balcomb: Some modification.

There is the provision added to it that it does not consent to the joinder of the United States in suits between states like so often happens in this Court.

Justice William J. Brennan: Yes.

But ever made it --

Mr. Kenneth Balcomb: There was first put in it a tabulation of which the Government now talks about, and then that was eliminated.

Justice William J. Brennan: How about the first sentence?

Was that changed or was that passed and was introduced?

That’s the one with the consent given to join one for adjudication and two for administration?

Mr. Kenneth Balcomb: Punctuation only was added I believe and that was the subject of the reports, the second report from the Senate committee.

Now, the United States is said and had brought with it a map.

Now, this is a tremendously big job that if you say we got to go and adjudicate that we got to do and as I said in my discussion, it was brought out at least in connection with questions in my discussion, this matter of costing money and being a big job was thoroughly discussed with the committee and this was overlooked.

I submit though however that irrespective of the size of the job, it’s the obligation of the federal Government in a situation of this nature for the benefit of all of its citizens to articulate because the citizens need to know.

They can’t develop the state without knowing what these vast claims United States may have now to the water which arises in the states.

And irrespective its size, they owe the obligation to the citizen to come in tell him within his framework exactly what it is they claim and when they expect to claim it.

Justice Byron R. White: Do you have in the Colorado any priorities other than time of appropriation, if you have any priorities with respect to the type of use?

Mr. Kenneth Balcomb: Well, they’re all adjudicated for a purpose as well as time and quantity.

Justice Byron R. White: But assume, there’s a conflict between people for industrial use as against irrigation or as against municipal use?

Mr. Kenneth Balcomb: The highest and best use by the Constitution is domestic, the second is agriculture, the third of course is manufacturing industrial.

It doesn’t mean that a domestic user can go just take the water, he’s got to condemn and pay for it.

Justice Byron R. White: Right.

Mr. Kenneth Balcomb: And the --

Justice Byron R. White: Once it’s adjudicated, they own it till somebody condemns it?

Mr. Kenneth Balcomb: That’s right.

I don’t think United States Your Honor, those in quite that position is due to indicate.

They condemn -- in theory, they condemn at least domestic rights for agriculture purposes on the basis that federal law was paramount.

Justice Byron R. White: Right.

Mr. Kenneth Balcomb: With which I would concur, they can do it.

I would like to conclude if the Court please with the a comparison so to speak of the new statute which I view to be identical for practical purposes of the 1943 Act and the 1943 Act is characterized in Mr. Clark’s work on water rights is being the same Colorado system that’s been in existence since 1879 when it first started.

In this fashion, the Court will remember Pacific Livestock, in discussing what a statute to this nature does said that that statute provided for notice, that is the Oregon statute.

Our statute provides for notice.

It is as the proceeding ahead of it was and in rem proceeding, dealing with -- still dealing with the stream, still putting on the ladder of appropriations in order of priority everybody’s rights.

A Sworn statement in the Oregon case was made and that statement was open to the public and opposition could be made as to that statement, that’s the identical procedures we now have in our code.

The statement is filed with the water clerk and it’s referred to the referee.

You may protest it.

You may have hearings.

You may do all those things.

The board in Oregon made findings and referred the matter back to the court and under Oregon statute, the referee does this.

In other words, referee has taken the owner’s -- pardon?

Justice William J. Brennan: What is the administrative proceeding?

What is the referee, is he judicial officer or --

Mr. Kenneth Balcomb: Yes sir.

He is supported by the --

Justice William J. Brennan: What is it, like master is he?

Mr. Kenneth Balcomb: I would say yes sir, special proceeding, but it’s nonetheless --

Justice William J. Brennan: Who makes the final adjudication, the judge is that it?

Mr. Kenneth Balcomb: The judge does.

Justice William J. Brennan: I see.

Mr. Kenneth Balcomb: He enters a -- there is a little bit of difference about this in Colorado, but primarily, he is supposed to enter semi-annually a master decree covering all the matters with --

Justice William J. Brennan: Well, how’s the whole proceeding initiated, by something that’s filed in the court?

Mr. Kenneth Balcomb: Someone goes in and files a claim for lack of better word.

They asked for the determination of the water right.

Justice William J. Brennan: Where does he file it?

Mr. Kenneth Balcomb: With the water clerk who is the clerk of the court, and then the court governs the whole division.

Justice William J. Brennan: Oh, he is the clerk?

Mr. Kenneth Balcomb: Of the court.

Justice William J. Brennan: I see.

So, it’s actually a proceeding and initiated and progresses through the court?

Mr. Kenneth Balcomb: Yes sir.

If there’s a big fight below in the referee’s hands, he refers it back to the court for determination.

Whatever the court does is to be done is to be done under our rules of civil procedure.

Justice William J. Brennan: When is it subject to removal of the federal court?

From the time of the initial claim is filed with the water clerk?

Mr. Kenneth Balcomb: I think as soon as United States could show that its rights were being interfered with, and that the state court certainly, if it goes into the position to handle them, might grab go ahead and handle it.

They make the point you understand Your Honor that the statute allows for protest but not for application.

That is the United States has no chance to urge its rights, and this is strictly not true.

The United States anytime it wants to one of these proceeding files its rights and sue --

Justice William J. Brennan: In that proceeding?

Mr. Kenneth Balcomb: In that year with the same clerk and goes before the same referee and gets the same judge and a decree.

And he would then insert or direct the insertion to the state engineer of their rights, plug them into the ladder of priority.

And they have the right of appeal and everyone does to the State Supreme Court.

In other words, we have a judicial system and as I say, we’ve taken this onerous burden of digging up the evidence off the court and given it to the referee to save the court time and courts are all too busy to spend days and months on adjudication procedures.

I would like to say in final conclusion unless there are other statements that in as true sense of the word as use in Pacific Livestock as use the word general adjudication is used in Dugan and Miller versus Jennings and the like, there never really has been a true adjudication of water rights in Colorado or any of the other western states when the United States is not a party.

And they have picked the word general out of the opinions of this Court and opinions of other courts and said they don’t have a general proceeding there because they do not have everyone before them.

And the reason, if it please the Court, that everyone is not before them is because United States will not join.

There the one party, these adjudication procedures in Colorado and the other states that keeps it from being a general adjudication, and that keeps the certainty of water rights out of the law entirely because as they indicate, we have these large areas as shown on the map that we're entitled to use water in certain ways, but we want to keep it a secret until such time as we decide to put it to work and in the meantime, no one else can do anything with the water at all with any certainty.

Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Balcomb.

Mr. Kiechel, you have seven minutes left.

Rebuttal of Kiechel

Mr. Kiechel: Thank you Mr. Chief Justice.

Justice William J. Brennan: What about this removal?

Do you agree that might be removed as quickly as Mr. Balcomb suggests?

Mr. Kiechel: I wish I could be as confident in saying that it is removable.

Justice William J. Brennan: Have you ever tried it?

Mr. Kiechel: Yes, we have Your Honor.

It was tried in the In Re Great Green River case and there, in a lengthy opinion, Judge Christiansen in that court held it not to be removal -- removable.

There was in the legislative history as been pointed out a specific right of removal which was stricken.

Justice William J. Brennan: Incidentally what were the rights claim by the United States in that litigation, reserved or appropriate?

Mr. Kiechel: Those were rights including reserved rights --

Justice William J. Brennan: Including reserve.

Mr. Kiechel: -- on federal forest, national forest.

And there has been -- I can’t -- there have been certain case is removed brought under this statute, but most to those had been where the Government officers have been joined.

And of course under the federal removal statute, there’s a clear right to remove one in which the Government officer is a party defendant.

With respect to the procedure in Colorado, the monthly procedure under the 1969 Act, Mr. Balcomb makes the point that it is subject to judicial review, and I would point out however that this requirement which is continued or this prohibition which is continued in Colorado law whereby the no right prior right can be awarded in a supplemental on going adjudication applies to the judge as well as it does to the referee.

And it’s not just the burdensome nature of that monthly procedure that it’s of concern with respect to the legislative intent on 666 and is relevant to it, but it is the fact that it is more administrating than judicial.

And I think it’s quite clear that Congress in enacting the statute consenting that the United States could be joined had in line a judicial proceeding.

And so, I would say with respect to the -- what question about the conduct of the United States as plaintiff that was the United States does as plaintiff is not dispositive of the issue before the Court, that is what kind of proceeding Congress consented to the joinder of the United States as party defendant.

I will say however in addition to that that the United States found out the hard way about a general adjudication that it did in the Fallbrook litigation I referred to earlier on Santa Margarita River undertake to bring the kind of an action.

Mr. Justice White invited a question earlier that is an action against only the principle user, and it was there to determine.

This is not a 666 case, this was a case brought by the United States as a plaintiff, but the Court of Appeals for the Ninth Circuit told us very loudly and clearly that the way in which adjudication could be done was to join all water users on that river system and have a contest in the determination among all users.

Justice William J. Brennan: Are you suggesting that we have to decide in this case whether this Colorado procedure is a judicial or a administrative proceeding?

Mr. Kiechel: I’m saying --

Justice William J. Brennan: In order to decide the --

Mr. Kiechel: I’m sorry.

Justice William J. Brennan: -- just wanted the consent statute?

Mr. Kiechel: I’m saying Mr. Justice Brennan that Congress intended to consent to the joinder of the United States only in judicial proceeding.

Justice William J. Brennan: Well, now accepting that premise, now you’re suggesting that we have to decide whether this Colorado procedure in this case was or was not a judicial proceeding?

Mr. Kiechel: Yes and I think that you should -- you can decide by reference to the Colorado Act is an administrative procedure.

Justice William J. Brennan: But you’re suggesting we have to decide whether is or isn’t a judicial proceeding?

Mr. Kiechel: Yes in --

Justice William J. Brennan: If we accept your premise that Congress meant the consent statute to apply only if judicial procedure.

Mr. Kiechel: Yes Your Honor.

Justice John M. Harlan: That means that you think you might prevail on one case and not on the other?

You might prevail on the case you’re now arguing and loss the other one?

Mr. Kiechel: No, I think there good and sufficient reasons -- different reasons for prevailing in both if Your Honor please.

The first case as was discussed involves a matter of the river system; that is not involved in the second case.

Justice John M. Harlan: For as far as the administrative proceeding, your argument is concerned, with regard to this case is different from the other case?

Mr. Kiechel: Well, I think that the common denominator with respect to Colorado law, that is that the Colorado Water Court where there it be Water Division 5 or water district number 37 cannot accord the United States its true priority, it’s rightful priority for its water rights.

It is a good and sufficient basis for concluding that Congress could not have intended to subject the United States to either such procedure.

Justice Potter Stewart: So in other words, putting my Brother Harlan’s question a little different way. If you prevail in the first case on your basic arguments, then we -- then you also prevail in the second case and we need not reach any question about whether it’s judicial or administrative in the second case, is that right?

Mr. Kiechel: Yes Your Honor.

Justice Hugo L. Black: May I ask you a -- state exactly what the Government has at stake if it loses this case?

Mr. Kiechel: If the Government loses --

Justice Hugo L. Black: If the Government loses this case or the other case, what does it lose?

Mr. Kiechel: It loses the under our view of the Colorado Supreme Court opinion, possibly it’s right to present, submit and prove up on reserved rights of the United States.

Justice Hugo L. Black: You mean they could cut off your rights?

Mr. Kiechel: That’s quite strongly suggested by the Colorado Supreme Court.

Justice John M. Harlan: Depends what we wrote in the opinion?

Mr. Kiechel: Yes Your Honor.

Chief Justice Warren E. Burger: Mr. Balcomb didn’t seem to -- I think you would lose that right.

Mr. Kiechel: Well --

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Chief Justice Warren E. Burger: He and you do not quite agree on the reading of the Colorado Supreme Court opinion about that?

Mr. Kiechel: I’m quite concerned of -- please Mr. Chief Justice that the Supreme Court of Colorado has referred to the reserved rights of the United States as mysterious and causing chaos and in other words which indicates a certainly a hostility toward those rights.

Justice Byron R. White: Well, they are rather mysterious?

Mr. Kiechel: No Your Honor, they’re not.

Justice Byron R. White: Well, they were until you sat down and quantified them?

Mr. Kiechel: Well, they were quantified in Arizona v. California and --

Justice Byron R. White: Well, I know but did you find that in the least time, I just wanted to case that you’re rights what you say you reserve rights are on equal river system?

Mr. Kiechel: Well sir, the oil shale reserve is an example.

Until there is a determination or science permits a determination of how oil shale can be recovered or how oil can be recovered from shale in commercial quantities. It’s not known how much water will be required for that reserve.

Justice Byron R. White: Maybe mysterious isn’t the word, but --

Mr. Kiechel: Undetermined --

Justice Byron R. White: Very good example, where there is very -- an unknown.

Mr. Kiechel: Undetermined in certain instances.

Justice Byron R. White: That’s right.

Chief Justice Warren E. Burger: If they have used terms like uncertain, undetermined in court, you wouldn’t be quite as disturbed as by the invidious implications that you get out of mysterious, would you?

Mr. Kiechel: I agree.

Chief Justice Warren E. Burger: Very well.

Thank you Mr. Kiechel.

Thank you Mr. Balcomb.

The case is submitted.