BONELLI CATTLE CO. v. ARIZONA

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Argument of Elmer C. Coker

Chief Justice Warren E. Burger: We’ll hear arguments first this morning in number 72-397 of Bonelli Cattle Company against Arizona and others.

Mr. Coker you may proceed whenever you’re ready.

Mr. Elmer C. Coker: Chief Justice and may it please the Court.

Mr. Shumway and I are both deeply grateful to this Court for providing us the opportunity of arguing this matter, which is of most importance not only to the State of Arizona but its citizens.

I would like to briefly point out on the map, which is the most recent official map published by the Bureau of Land Management.

The area along Colorado River, the area we are talking about if I may, is in here.

Now, the other day I received--

Chief Justice Warren E. Burger: Is that map reproduced anywhere in the record?

Mr. Elmer C. Coker: Yes sir.

Chief Justice Warren E. Burger: And in precisely that form?

Mr. Elmer C. Coker: Almost identical but on a smaller scale, sir.

Chief Justice Warren E. Burger: Smaller scale.

Mr. Elmer C. Coker: I would like to leave this in, if it is --

Chief Justice Warren E. Burger: I wonder if that was the same map, but very well.

Mr. Elmer C. Coker: For our practical purposes, yes sir.

From the Arizona planning -- planning commission map is to take off from this as well as maybe the as on highway department map.

Now on Thursday, I received on the mail an amicus brief by the Cocopah Indians.

Unfortunately, I could not spot that until I, through the good eyes of the United States attorney, I obtained some solicited opinion as the location of that Cocopah reservation in this area here.

Now, Exhibit K, to go get started with the facts is a topographical map made in 1902 and 1903.

It shows the Bonelli land in red and the river, Colorado River at that time.

I know it’s hard to see from there but--

Unknown Speaker: Do you have a copy of that?

Mr. Elmer C. Coker: Yes sir, this are all in our brief, sir.

Unknown Speaker: No, I mean did you have that with submitted papers and the facts have reached us this morning?

Mr. Elmer C. Coker: Yes sir, I have sent exhibit K.

Exhibit K.

There are only -- the only two exhibits here that the Court did not have and that’s the big map and put it on in aerial photo.

Unknown Speaker: Excuse me, what comes to print out on exhibit K.

Mr. Elmer C. Coker: The Bonelli land which we are concerned with here.

Unknown Speaker: That’s right over here.

Was it 1902?

Mr. Elmer C. Coker: 1902, 1903 sir.

Unknown Speaker: And where is the river?

Mr. Elmer C. Coker: The River is zoned about a mile to the west.

Unknown Speaker: So, you think it’s perfectly clear and accepted in this case that the land in dispute was not riparian land in 1902?

Mr. Elmer C. Coker: 1903.

Unknown Speaker: And when was the patent done?

Mr. Elmer C. Coker: 1910 sir.

As a result --

Unknown Speaker: Do you know where the land was in 1910?

Mr. Elmer C. Coker: The land was in the same place.

Unknown Speaker: Not as of 1910.

Unknown Speaker: With respect to the river?

Mr. Elmer C. Coker: We know as of 1906 on the plot of survey was filed which is an evidence, that the river was along in here.

Unknown Speaker: In when?3.

Mr. Elmer C. Coker: 1906.

Unknown Speaker: So, you think when the patent was issued the land was riparian land?

Mr. Elmer C. Coker: We have no way of knowing, Your Honor.

We’re trying to find out that is the reason we had to submit this all on documentary evidence --

Unknown Speaker: Would you think it is a vital question?

Mr. Elmer C. Coker: Yes I do think so.

I think at the time --

Unknown Speaker: Was there a finding on it below?

Mr. Elmer C. Coker: No sir.

Unknown Speaker: What do you take in position?

Mr. Elmer C. Coker: I take the position that -- we have to take the position that the title passed by virtue of the patent in 1910, based upon the 1906 official plot of survey, which shows that this was riparian to the river.

Unknown Speaker: So you -- but there was no finding on it?

Mr. Elmer C. Coker: No Sir.

Unknown Speaker: Does your opponent below ask that?

Mr. Elmer C. Coker: We do not know Sir.

Unknown Speaker: All right, thank you.

Mr. Elmer C. Coker: Now Mr. Shumway, at the time we -- at the time we prepared these exhibits, we are trying to get everything we could possibly find in the way of maps or documentary evidence that would show the location of the river.

Unknown Speaker: And what is that?

Mr. Elmer C. Coker: Now, this map here is Exhibit E1 and two. E2 is a letter from the regional director of the Bill of Reclamation; what’s in this map an outlining of Colorado River in the area that we are talking about, the Bonelli land.

After channelization and showing where the mark, the high water mark was, immediate prior to channelization.

It says that your convenience leads the bank of the Arctic Channel, part of the channelization has been indicated by a red pencil.

Now this is Exhibit D which is a 1960 mosaic, from Vegas Dam to an area of the south of the Bonelli land in which flows into the Fort Mohave Indian Reservation.

Now, Bullhead City at that time is shown here.

Unknown Speaker: Is that Exhibit B?

Mr. Elmer C. Coker: D Sir.

Unknown Speaker: C?

Mr. Elmer C. Coker: D, D.

Unknown Speaker: D?

Mr. Elmer C. Coker: Yes sir.

And that is in the agreed statement of facts, I do not think, Your Honor that we have extra copies but I am going to leave this with the Court.

This shows the Bonelli land and it also shows very clearly on this area where the Colorado River at one time flowed.

Back into here, some three miles east of the present channel, down in here, back over in here.

Over into section two and ten and any of the Indian reservation as I have mentioned in the brief, very clearly shows that I see as the high water mark as defined by our Supreme Court in the Bonelli decision.

This is an aerial photograph taken in January of 1972 by NASA at an altitude of 65,000 feet.

These photographs were prepared and furnished by the Arizona highway department from the film that they have of record.

Now, I might State that NASA did make flights of the complete course of the river.

Now, today we have the outline of the same, with high water mark or at one time we believe the Colorado River flowed under the Arizona decision but between 1960 and 1972, this area has been highly developed by subdivisions and it’s very plainly shown here also the increase in size of Bullhead City.

And it is my position and my interpretation, I believe Mr. Shumway substantially believes that under the Arizona decisions, this whole area now belongs to the State of Arizona whereas under the Claridge decision it will be a small area and here --

Unknown Speaker: Do you adhere that the United States engineers make the most recent improvement that channelize --

Mr. Elmer C. Coker: 1959 Sir, 1960, that’s when they channel this area in here.

Unknown Speaker: And there has been no flooding since then?

Mr. Elmer C. Coker: No Sir and that linked up to the point that I want to make.

This channel -- Pardon.

Unknown Speaker: I assume you’re going to tell us what the issue is in this case and what it is about.

Mr. Elmer C. Coker: I have only put this out tonight for the purpose of --

Unknown Speaker: For that preliminary information.

Mr. Elmer C. Coker: Preliminary.

The sole issue -- really the only issue that we are involved here is what is the line that the State is entitled to on a navigable stream and when the Federal Government comes in through either its core of engineers or Bureau of Reclamation.

Bureau of Reclamation in this part and channelize the river under the theory of navigation and also primarily in this case, to conserve water for irrigation below.

This channelization has just commenced and it is going to proceed in different areas.

My main concern is and I think it will affect all of us, is what is the extent -- what was the purpose of the grant given to the States by appellant later on confirmed as a swamp bed.

Does it extend from this present channel, and say clear over here some three miles distance where the river once flowed.

This river, I’ll point it out is a very -- was prior to the Hoover Dam, a very violent river.

Sometimes it will flow over here and sometimes it will flow over here according to the amount of sediments carried down and automatically would make one channel and move.

In this particular area, the movement has been steady from west to east.

One time maybe it did go back to the west.

I can't teach you that it was ever the intent to grant to the States under the part of decision in the swamp bed.

The means by which to acquire large areas of land, the only purpose be into that grant was to protect the public in access to the navigable stream and not to provide large areas such as this where the river once flowed and then become exposed.

We ask on the Court holds that the channelization actually caused an evulsive change and changed the -- and did not change the ownership of this land which was exposed by the channelization in the State.

Unknown Speaker: Is there any dispute between you and your friends on the other side as to whether or not this was an evulsive change, whether or not a man made sudden change as evulsive?

Mr. Elmer C. Coker: I think we have to agree to that, Your Honor.

Unknown Speaker: That’s what I understood from reading the briefs.

Mr. Elmer C. Coker: And that is what happened here, up in these areas -- some of these areas in here, there was no channelization because it was already chanellized.

Although at one time, evidence on the ground indicates the river was some distance to the east but filled up.

Unknown Speaker: Mr. Coker.

Mr. Elmer C. Coker: Yes Sir.

Unknown Speaker: In that connection, do you consider that the changes with respect to this property between 1906, 1938 and 1959 were accretive or evulsive?

This was after the Hoover Dam but before the dredging out of the channel.

Mr. Elmer C. Coker: Well of course under the Beaver case and under the Claridge case perhaps it could be considered as the construction of the Boulder Dam and the closing of the gates could be considered in some areas as an evulsive movement.

I don’t think we so treat it here.

We concede between the time the gates were closed in 1935 and the channelization left there were figures in this river still east of the Bonelli Land.

We have some aerials in the file and we should have bought some of the reproduced but they are with agreed to statement of facts.

Showing the flow of the river of that particular time, which are more recent.

Unknown Speaker: Which is your position for that year or term period from the date of the Hoover Dam until the dredging of the new channel?

Mr. Elmer C. Coker: As to whether there is accretion or -- I'm afraid I’d have to say accretion because it is slow and the reason it was slow is because there is so much silt deposit between the dam and these areas

Unknown Speaker: Right.

Mr. Elmer C. Coker: But the river would move, and would have -- there’s quite a few canyons up and above the dam and there is a large portion here for instance that in flood times it comes down and carries large amounts of silt.

It might push the river flow at the west side, but generally speaking the river move eastward because of your bluster in here.

And as it pile the silt up it would form a new channel or a series channels and so I would have to say that in my opinion it was not an evulsive movement and it wasn’t something that happened overnight.

Unknown Speaker: Accretive I think, you think that --

Mr. Elmer C. Coker: Accretive, I beg your pardon.

Unknown Speaker: Right.

Mr. Elmer C. Coker: Some places down in the Yuma area where the large floods have come, it was considered evulsive.

You would see the river at one point, one day in a pretty good size, the flood had come down and it had moved almost overnight.

I think we had a criminal case it involved that move in the Arizona Supreme Court.

The other point that I feel is of most important and I raised that in my reply brief, I raise it in the opening brief and the reply brief and that is under our peculiar circumstances an admission to the union.

We did not come in on an absolute equal footing as the rest of the States.

We have a very restrictive claim on that.

And as our -- trying to outline brief in my reply brief, We had awful, tough time to come into State, Congress wanted us to become -- join up with the New Mexico economic joint statehood.

So, the result of our people voting that down, that they did impose upon us, very tough restrictions.

It was due to the fact in reading the history behind it, some flood did occur in New Mexico during territorial days on grant lands.

My position is we don't have the benefit of the swamp bed.

Specifically, we were given grant and lose area there but we -- anything in the nature of public lands or grant lands, we hold in trust under very restrictive covenance.

We disclaim in our constitution all claim entitled to public lands and union lands.

Now the effect of this decision, I earnestly submit does affect Indian lands and particularly the Fort Mohave.

I mentioned in my opening brief that we could not find the particular withdrawals of the Fort Mohave.

It is only last week that I was able to get to the Library of Congress a copy of the two Arizona with all others in March 18, 1972 which created Camp Mohave and the other forts there.

Later in 1910 1911, President Taft added on after the forts have been conveyed to the union, Added on that no where in the Arizona withdrawn waters for military purposes or the Indian withdrawn waters if there any reservation made of the Colorado River.

And based upon Arizona Supreme Court decision in Morton which I have cited, without that limitation and without reserving the intent to reserve that river for the benefit of the Indians, then under our Arizona Supreme Court decisions, part of the Indian reservation has been taken by as a result of this decision.

Unknown Speaker: Mr. Coker, do you have any thoughts as to why the 1953 Act, the Submerged Lands Act was necessary?

Mr. Elmer C. Coker: Was it necessary, sir?

Unknown Speaker: Yes. So far as your claims are concerned.

Mr. Elmer C. Coker: Not as far as our claims are concerned.

Unknown Speaker: What is the practical result of the Arizona decision on Bonelli’s title? Did it completely destroy it?

Mr. Elmer C. Coker: Completely destroyed, this first decision said, well they have a small acreage in here, in the southeast corner but the second decision goes further and said part to the closing of the gates at Coolidge -- at Hoover dam and this was aligned at that point.

For example, down here we can see how far it had extended there.

Unknown Speaker: As I read the Solicitor General’s brief, he makes a plot statement that changes caused by channelization are evulsive in nature.

Mr. Elmer C. Coker: Yes sir.

Unknown Speaker: Do you agree with that?

Mr. Elmer C. Coker: Yes sir I have to.

Unknown Speaker: Do you have any authority for that statement?

Mr. Elmer C. Coker: Yes there is some authority Your Honor.

I'm sure the Beaver case, I believe by the Ninth Circuit and Claridge I’m sure mentioned that and the first time Supreme Court said it was an evulsive change and therefore the title -- the title did not change.

Unknown Speaker: And your way out of that is what -- I mean, if it were an evulsive and title did not change you would think the State still own the bed of the river.

Mr. Elmer C. Coker: That is what they claim, sir.

Unknown Speaker: And that is what the Court held?

Mr. Elmer C. Coker: That was what they said.

Unknown Speaker: And you say that this is not the kind of an evulsive change without a changed title?

Mr. Elmer C. Coker: No, sir.

I say that the purpose, Your Honor, of the grant to the States was to control an addable thread of that stream.

And as the stream was changed, as the stream moved, whether evulsive or by accretion or man-made that the title to that man-made channel for the purpose of which is of servitude, for the purpose of protecting the public’s right to access that navigable stream is what the intent was and not a means of acquiring the exposed land after the channel has been restored.

Unknown Speaker: So, you would say, you’d come into the same -- you would make the same argument if man had nothing to do with the change of this river?

Mr. Elmer C. Coker: Yes sir.

I would, sir.

Unknown Speaker: So, you would really overrule some of the substantial body of law, I suppose.

Mr. Elmer C. Coker: I don’t think so.

I do not think the Court has ever clearly --

Unknown Speaker: I see.

Mr. Elmer C. Coker: -- pointed out what the extent of this grant is, that’s my point, Your Honor.

Unknown Speaker: This is the grant at the final statement?

Mr. Elmer C. Coker: Yes sir.

Under the Pollard case, under the Pollard decision where to put them on an equal footing with the remainder of the States.

Unknown Speaker: Your basic claim against is, is or tell if I am wrong is that, what the State owns is the bed of the streams under the high water mark whereas the stream might be at any given time.

Mr. Elmer C. Coker: Yes sir.

Unknown Speaker: Period?

Mr. Elmer C. Coker: Period.

Unknown Speaker: And that by virtue is the grant?

Mr. Elmer C. Coker: By the power of the grant, yes sir.

Later confirmed by the swamp -- that Swamp Act didn’t give the same new rights.

Unknown Speaker: There’s no question that the State would own the land under the river wherever it is.

Mr. Elmer C. Coker: Yes sir.

Unknown Speaker: And the question is whether they’re doing something else.

Mr. Elmer C. Coker: That’s right sir.

Unknown Speaker: Actually in that period.

Mr. Elmer C. Coker: That’s exactly it and do they retain ownership when it is not necessary to exercise the power or the control of navigable streams for the benefit of the public so --

Unknown Speaker: So that you say that the case is about evulsions are really are only applicable between private parties rather than --

Mr. Elmer C. Coker: I think so.

Unknown Speaker: Rather than dealing.

Mr. Elmer C. Coker: Yes Sir, evulsion or accretion.

Unknown Speaker: Or applicable in determining the boundary between two States.

Mr. Elmer C. Coker: Yes sir as recorded --

Unknown Speaker: But not between the State and a private party in the circumstances of this case.

Mr. Elmer C. Coker: The case were again in view of peculiar nature and restrictive providence in our constitution, we have two different place in our constitution where if this land was State land.

The only manner in which they can lease it or sell it is in accordance with the land grants, so that is the reason I have said time and time again and Mr. Samuel did agree, our legislature feels that the part is to Act here, in time to protect this people.

Unknown Speaker: What relevance if any, do you think the case of Hughes against Washington has?

Mr. Elmer C. Coker: I think it has a lot of relevance.

Number one is definitely we have established the fact that Federal law governs here.

Unknown Speaker: And you agree that it does.

Mr. Elmer C. Coker: Yes sir.

Unknown Speaker: Do you think there’s any ground after the Hughes case to say that the State Law governs?

Mr. Elmer C. Coker: No sir.

Mr. Shumway may have a different view point but --

Unknown Speaker: You may remember I had a different view point in that case in concurring.

Mr. Elmer C. Coker: Yes Sir and also just compensation, you’re taking this land --

Unknown Speaker: Well that was--

Mr. Elmer C. Coker: --without paying for it.

Unknown Speaker: That is the view of the concurring opinion on the Hughes case.

Mr. Elmer C. Coker: Yes Sir, the apparent, no the Hughes case is identical here because all of this land came from the Federal Government.

Unknown Speaker: The relevance of the Hughes case depends on whether it was riparian at the time of the patent and you say it was --

Mr. Elmer C. Coker: Presumably it was Your Honor, and because we could not, we tried to find some intervening evidence between the 1906 plan upon which the Bonelli land was transferred conveyed by the Government of Santa Fe and the actual date of the patent.

Of course the law it is and I do not have it cited but this was under the Railroad Grant Act of I believe of 1865 and this Court has held that the grant relates back to that time that provided railroad complied with the law which they did.

Unknown Speaker: Can you just tell me on that map there -- describe or just outline the -- what was the limits of the Bonelli grant in terms of the sections and quarter sections.

Where did that lie on that map?

Mr. Elmer C. Coker: Can I have this several --

Unknown Speaker: Well this -- No, never mind then.

Mr. Elmer C. Coker: The Bonelli land at the time as I recall was almost a complete section.

The only reason it was not a full section was because there was a portion of it bounded by the river on the west at the time.

Unknown Speaker: If you just took the descriptions on the sections and the quarter sections just the way that patent was described and located it on the ground, would it cover all of the land that’s now in dispute or do you have --

Mr. Elmer C. Coker: There’s probably more land on the other side now.

Unknown Speaker: What?

Mr. Elmer C. Coker: It would cover the land in the south of Nevada.

Unknown Speaker: But would it cover all the land that is now in dispute?

Mr. Elmer C. Coker: Yes Sir.

Unknown Speaker: Okay.

Mr. Elmer C. Coker: The patent and part of it is in Nevada and there is an action pending up there by the Nevada people.

Another question which I think is quite serious and I believe it’s time to adopt in a particular case like this.

The doctrine of sovereign estoppel, as I have pointed out in my brief, our State had sat back over six years in statehood and some 40 years since the Colorado River, when the Colorado River is declared navigable over the objections of Arizona.

And then nothing, they have collected taxes.

They have as a matter of law they some will agree and approve subdivisions.

Several times in management before the legislature, they have not legislated.

I think my time is up.

Chief Justice Warren E. Burger: Very well.

Mr. Shumway.

Argument of Dale R. Shumway

Mr. Dale R. Shumway: Mr. Chief Justice, may it please the Court.

I would like to perhaps outline a little different view of some of these facts because I believe the facts are material to what we are talking about.

For the sake of clarity in the brief of respondents beginning at page five, we have inserted copies of the pertinent exhibits which we feel will give the Court an understanding of where this river was or it is today.

At page five is a copy of Exhibit K which was submitted to the Court at the trial level.

It’s the 1902 topographic map which has been prepared by the geological survey.

Unknown Speaker: That is page five of --

Mr. Dale R. Shumway: Page five of the respondent’s brief.

Unknown Speaker: Thank you.

Mr. Dale R. Shumway: This is the same map which was shown a moment ago by Mr. Coker.

It shows the subject land being in section three which is over a mile distance from the Colorado River as it was surveyed under this topographic map.

I would like to point out, in your looking at this, that the Colorado River in the stage that it was at the time of that survey was a low stage.

It wasn’t the river as it existed in an annual high flow stage.

For perhaps familiar already, the Colorado River is a river that traditionally before the days of Boulder dam drained the water shed of the Colorado and when it did, it ran in the late spring and the early summer months.

So the only period of time that that river really had a high flow stage was during that particular part of the year.

Any other time it was rather a docile river and sometimes had very low water in it and all of the surveys that I know anything about were done at the time the river was low.

And so you see on exhibit K that’s on page five of respondent’s brief, an approximate location of that low flow but you see also to the right of the subject land a 500-foot to 550-foot contour.

And for showing it on this big map, the 550-foot contour is clear off in this area.

The subject land is the red and it is way over here.

Unknown Speaker: That’s the dotted line?

Mr. Dale R. Shumway: That’s the dotted line.

The next exhibit that I inserted in the respondent’s brief is at page six.

This is a copy of the general land survey of 1906 which for all intensive purposes was the statehood survey for Arizona and at that time, the Colorado River had moved to a point where it had nearly gone into the southwest corner of the subject land.

Now, this was 1906 and in relation to Mr. Justice White’s argument about whether it was riparian or not, I would just say that this is the closest date we have to determine whether it was a riparian land.

Now the strict doctrine of riparianship says that land must be bordering a navigable stream.

Unknown Speaker: And this is not on the --

Mr. Dale R. Shumway: And this is not at the closest survey we had.

Unknown Speaker: But the closest point, how distant is it?

Mr. Dale R. Shumway: It’s about a quarter of a mile.

Unknown Speaker: A quarter of a mile.

Unknown Speaker: The other hand at the rate which -- at the rate that at which it was moving between 1902 and 1906, it would have been made the land riparian by 1910, wouldn’t it?

Mr. Dale R. Shumway: I would have to say I do not know and --

Unknown Speaker: If one assumes that steady rate of movement to the east.

Mr. Dale R. Shumway: In complete candid, I have to say we did everything possible to determine where this river was at a particular time.

Unknown Speaker: And what’s the year of statehood?

Mr. Dale R. Shumway: 1912.

Now there are two questions --

Unknown Speaker: Is it your claim that the river bottom -- that the river covered this land completely or that this land should be considered as part of the river bed in 1906 or 1910?

Mr. Dale R. Shumway: Perhaps this is a good time to make a statement of this particular problem.

I represented the State of Arizona in a case called Claridge versus the United States.

The Supreme Court denied certainly that a few years ago.

That case arose in the early Blithe, California and if you’re familiar with Blithe, the river in that area is -- the river valley is approximately 15 to 20 miles wide.

There is no doubt that that river has run over all of that area at some time.

Some time prehistoric, the river was completely across that valley just as it was across this complete area here.

In the Claridge decision, the State of Arizona took the position that the river bed that the State of Arizona took title to at statehood was that total area wherever the river completely took the land during that high flow stage.

Now the --

Unknown Speaker: At any time in history.

Was that your position?

Mr. Dale R. Shumway: Yes, at any time in history and particular at anytime subsequent to the United States being there.

Unknown Speaker: Well, what was your position?

Was that in history or pre history?

Our position in that case, we said this, it’s most difficult for us to go bluff to bluff because that encompasses thousands of acres of land which is already utilized by private owners.

But we said this is the section area of land that we ought to cover.

We ought to cover the area where the river had run in times that we could remember.

In particular of that case, in Blithe area, the Claridge decision, it was very clear and we proved it by witnesses that the river have been about two-and-a-half miles wide as late as 1913-14, even up in 1920.

Now after Boulder dam you see, this river has never been a natural river anymore.

It’s merely a conduit that conveys water from Boulder Dam down to the irrigation projects and to the Los Angeles area etcetera.

And so the river today is not a natural river and it hasn’t been for a long, long time.

Unknown Speaker: It’s just a big irrigation ditch.

Mr. Dale R. Shumway: It’s a big irrigation ditch and so our position was this in Claridge that we own a much larger area and that then begs the question of whether the United States could convey away pieces of land like this and thousands of other partials up and down the river.

Unknown Speaker: Before statehood.

Mr. Dale R. Shumway: Before Statehood.

Unknown Speaker: If you were right, they could not.

Mr. Dale R. Shumway: Well they could not because under the Pollard decision they would have reserved that land for the States to be created.

Unknown Speaker: And then what did the Claridge card hold?

Mr. Dale R. Shumway: The Claridge card held that no -- the river was not --

Unknown Speaker: That’s Court of Appeals on the Ninth Circuit, right?

Mr. Dale R. Shumway: Yes, they said that no, you do not go out that far to this if you place 550-foot contour on Exhibit K.

You go where the river is today, that is basically what Claridge held.

You go where it is today which will then reduce us to a narrow configuration and so even if we’re reduced to that configuration I think we question whether Bonelli was riparian.

There is no proof that he was.

Unknown Speaker: But if he was -- if he was then he’s right then this case under Claridge, is that right?

Mr. Dale R. Shumway: No.

Unknown Speaker: No.

Why not?

Mr. Dale R. Shumway: And I’ll tell you right now why.

I don’t think he’s right even then because the State of Arizona owns the bed of a navigable stream wherever it is.

And what we have in this case, is the river moving from its position in 1903 until 1906 when it was still apparently not on the land.

Then we have the next location and I put that at page nine on my brief, which is the 1960 revision of a topographic map filed by the Officer of River Control of the Bureau of Reclamation.

And at that time, as you can see from that exhibit, the river had inundated almost the entire track of land and that is the last natural, if we disregard Boulder Dam in its effect, this is the last natural as natural as that can be.

Now, I think we have to start from that particular point.

Justice William J. Brennan: And what was -- this was the revision of a map of what year?

Mr. Dale R. Shumway: It’s actually a 1950 seven-and-a-half minute quadrangle sheet published by the geologic survey.

Justice William J. Brennan: What I’m really trying to get at, when did that condition obtained?

Mr. Dale R. Shumway: Mr. Justice Brennan, it was this particular map that is Exhibit E1 and the letter that is attached to it in the agreed statement of facts says that it obtained in 1952.

Justice William J. Brennan: I am sorry, again?

Mr. Dale R. Shumway: ‘52

Justice William J. Brennan: Thank you.

Mr. Dale R. Shumway: And was updated for the sake of re-channelization to 1960.

Justice William J. Brennan: Yes.

Mr. Dale R. Shumway: And so immediately before the United States went in to re-channelize that, this is the configuration of the “natural river”.

Unknown Speaker: Your position is that since 1906 or whenever that last map was, that the river moved enough that the State of Arizona had picked up everything within this near underlines, these high water mark lines on Exhibit E1.

Mr. Dale R. Shumway: That is substantially correct.

I would call you attention to page 12 of the respondent’s brief which is actually a resurvey of the same thing.

Unknown Speaker: But then by the same token, Arizona had lost title to all of the other land that the river used to cover.

Mr. Dale R. Shumway: That’s correct, when the river have been over to the west, we have lost that, we have transferred ownership of the riverbed to the now existing stream and while I called your attention to page 12, that’s dependent resurvey by the Bureau of Land Management that is actually the survey agency and they locate the old left bank of the Colorado River before re-channelization.

Unknown Speaker: You said a dependent resurvey?

Mr. Dale R. Shumway: Yes, yes a dependent resurvey and they have located a little bit further --

Unknown Speaker: They prefer to pick up the old markers.

Mr. Dale R. Shumway: I do not believe it’s dependent.

I think it’s a resurvey.

If I am correct, I’ll --

Unknown Speaker: Well, if its then you have a real problem knowing where the land is on the ground anyway.

Mr. Dale R. Shumway: It’s a resurvey.

Unknown Speaker: When land is concerned.

Mr. Dale R. Shumway: It’s a resurvey.

Unknown Speaker: In 1962.

Mr. Dale R. Shumway: What it does is it reduces the amount of land that’s left outside the river slightly and so it’s our positions from those three or those particular exhibits that we’ve got nothing more than an accretive movement of the river and you secure that agreement from counsel for the petitioner that he agrees that there has been an accretion.

That accretion moved the bed of the river over until it completely, except for the 60 acres in the southwest or the southeast corner, inundated the subject land and at that particular moment, the State of Arizona and Nevada owned the bed of the Colorado River even though it was on his land and there had been no taking by anyone except the actions of the river.

The land was at the mercy of the river.

Sometimes I don’t think the doctrine of accretion is as sound as it ought to be but it is the doctrine that is pretty well substantiated by all law in this country.

And that doctrine of accretion includes not only the affect upon private lands as one of the justices asked but it also carries with it the ownership of the bed of the stream.

Its effect is upon the riparian land, its effect is likewise upon the bed of the stream which is owned by the States.

Unknown Speaker: But then you -- that includes reliction, I guess.

Mr. Dale R. Shumway: Reliction, of course reliction is the withdrawal of water and I would have to say reliction is a doctrine which is similar to accretion and the law is the same in that sort --

Unknown Speaker: So that if after Exhibit E1 was prepared, deliver itself that propel that channel.

If nature did that, you would agree that Bonelli be covered title to this land?

Mr. Dale R. Shumway: Well, definitely Mr. Justice, I would agree so.

Unknown Speaker: If that has been a natural relictive movement.

Mr. Dale R. Shumway: Very correct.

Unknown Speaker: Or a man-made relictive movement?

Mr. Dale R. Shumway: Well not so, I do not believe well and then we get into the question of the man-made effect.

There’s a bunch of cases in the body of law which says if accretion or reliction was caused by some upstream effect and it was not designed for this particular purpose then it is not the same or it is the same, excuse me.

Unknown Speaker: It is the same.

Mr. Dale R. Shumway: In this particular case we’re not talking about that, we’re talking about a specific act which came in to reduce the flow, to constrict the river.

That was the purpose of re-channelization.

Unknown Speaker: Right and it is agreed that while man-made was evulsion, correct?

Mr. Dale R. Shumway: That is for all the law that I can find on it that it tantamount to an evulsion.

Unknown Speaker: I think your brother conceded that.

Mr. Dale R. Shumway: Yes sir.

Unknown Speaker: And your claim therefore basically is that the accretive movement to the east and southeast under accepted principles of law in this area gave title to the State to that part of that land that was under the high water mark of the river when it was over there in the southeast and that title remained in the State after the evulsive movement to the west and northwest created by the channelization of the river.

Mr. Dale R. Shumway: This is substantially --

Unknown Speaker: That is your argument, isn’t it?

Mr. Dale R. Shumway: And the only thing that I think remains that I want to emphasize is this, I think there are two real questions in this.

And the first one involves the location of the ordinary high water mark with reference to Boulder Dam and its effect.

I’m deeply convinced that Boulder Dam took a great body of land out of the State’s ownership by reducing the stream bed.

And I urge that in the other Court and they did never get the chance to get to this Court whether I think it’s a matter that ought to be considered.

Justice Byron R. White: You would’ve treated that as not of an ordinary accretive withdrawal.

Mr. Dale R. Shumway: The reliction, an ordinary reliction, Mr. Justice White.

It would’ve been a reliction because they reduced the water and the only problem with that decision is that it would be very effective adversely economically on a tremendous quantity of land.

It would be a very harsh thing and I think the law supports it but I have a hard time following it all the way in today’s modern times in 40 years since Boulder Dam.

The other thing that I think this decision needs is a real determination as to the effect of that question is.

Unknown Speaker: What question here?

Mr. Dale R. Shumway: That question -- yes it is, Mr. Justice Brennan.

It came into the case through Justice Struckmeyer there on the Supreme Court.

We didn’t assert it because we felt Claridge had pretty well decided the issue and when this Court denied we did not assert that.

But Mr. Justice Struckmeyer brought it back in, said that is the law and the boundary up to be somewhere out here.

Unknown Speaker: But in which event what?

Mr. Dale R. Shumway: Well in that event the State of Arizona and the States of California respectively Nevada could own an awful lot more of land that’s along the boarder of this stream.

Now --

Justice Potter Stewart: Which over many years a lot of private people thought they owned and have developed and had under cultivation.

Mr. Dale R. Shumway: That’s very much correct.

Justice Byron R. White: Has the, is the river here on Exhibit E1 at that point, is it a boundary line between two States?

Mr. Dale R. Shumway: It’s a boundary now, Mr. Justice White that has been established in the center of the re-channelization.

Justice Byron R. White: By agreement between the States?

Mr. Dale R. Shumway: Yes, by compact between the States that has been approved by Congress.

That’s shown clearly at page 12.

Justice Byron R. White: I know where that is.

Mr. Dale R. Shumway: And that is the boundary now between the States.

Justice Byron R. White: So, the States have -- the States by compact have treated the Hoover Dam, the result of the Hoover Dam as moving the boundaries of the State.

Mr. Dale R. Shumway: Very definitely and I do not dispute that.

Justice Byron R. White: Yes.

So, the real issue that is it of still significance?

Mr. Dale R. Shumway: Well, it is in the fact that there are large bodies of land that are still litigated between the United States.

That is what Claridge was and there’s substantially other records like it.

There’s also an important point before my time runs out, I ought to mention this.

In the re-channelization process of the Colorado River in many places, the river has been moved subsequent to the determination of statehood boundary and for example I might say that we’ve taken this river and physically moved it over here and re-channelized it and there remains a bed that was abandoned.

And I think there are 13 such instances from this point down to Yuma.

Arizona and California have wondered for a long time what to do about this.

In other words there is land in Arizona that belongs to California and land in California that belongs to Arizona which is prior beds of the river and we are there now in the process of trying to get together and perhaps workout some trades which are specifically allowed under the boundary compact.

Unknown Speaker: Well, that does not affect the boundaries.

Mr. Dale R. Shumway: That does not affect the boundaries.

Unknown Speaker: It is just the ownership of land.

Mr. Dale R. Shumway: No.

Unknown Speaker: Is that it?

Mr. Dale R. Shumway: That is correct and the boundary compacts specifically says it does not affect title to land.

Unknown Speaker: If there had not been a compact, the boundary would not have changed though.

Mr. Dale R. Shumway: The boundary would have continued to change, that was the real problem.

Unknown Speaker: Yes but not if you deliberately re-channelize the river somewhere.

Mr. Dale R. Shumway: That’s probably correct.

Unknown Speaker: Yes.

Mr. Dale R. Shumway: Mr. Coker referred to one case which the earliest case in Arizona that dealt with the accretion doctrine was the Jacobs case which is cited in all our briefs and it happened to be a rape case and the involvement where the accretion and evulsion doctrine had to do with boundary.

And that was the first time my Court ever spoke upon the doctrine of accretion evulsion.

Very strange form to get to that subject.

But since then they have had two or three other cases which have adopted the doctrine.

Justice Byron R. White: Is there a specific case showing that the usual consequences of evulsion operate in favor in the State and against the private citizen in circumstances like this?

Mr. Dale R. Shumway: There are no cases Mr. Justice White I know of.

Justice Byron R. White: I suppose you would be here if there was really a clearer case also.

Mr. Dale R. Shumway: I don’t believe there are any cases which say accretion and evulsion apply only to private people.

It applies to all those --

Unknown Speaker: Certainly, it applies between States and --

Mr. Dale R. Shumway: Yes, it applies in all essence of before you are dealing with a navigable stream.

But there’s no distinguishing.

Justice Potter Stewart: But I suppose, I guess my brother White’s question is are there any cases applying to those doctrines to controversies between a State and a private person?

Well I think I’ve got some.

I have to think a minute, they’re in the brief there --

Unknown Speaker: With respect to the bed of the stream and that’s its context.

Mr. Dale R. Shumway: Yes, I think the Oklahoma versus Texas case and --

Unknown Speaker: But why is it do you think we have to reach that question in this case, I gather this private land owners would not be affected by it and you suggest adversely very seriously.

There have not been parties to any proceedings that involve this plain State, are they in this case?

Mr. Dale R. Shumway: In which private parties?

Unknown Speaker: Well, I do not know, you said there was, earlier --

Mr. Dale R. Shumway: Well, I’m just saying that there are other lands up and down that river, I don’t say that there are parties to it.

Those are not here.

They’re not here, the only --

Unknown Speaker: The Bonelli Cattle Company is here and that’s a private land owner.

Mr. Dale R. Shumway: Bonelli CattleAnd this is what the case is about.

The only effect I see on it is that there are numerous other similar acres of land that are situated in the identical situation --

Unknown Speaker: If the State prevails here, that necessarily is going to have a bearing on these other lands.

Mr. Dale R. Shumway: Well, I would hope so.

We spent about 15 years in Arizona trying to make some law which would guide us in these areas and that’s why we are here.

Unknown Speaker: For years Arizona has acquired title to the riverbed by an accretive change in the location of the river and you acquired title to the major share of Bonelli’s land.

Mr. Dale R. Shumway: That is correct.

Unknown Speaker: And if the river had kept moving, in the same way then the Bonelli land relicted that would’ve acquired title to it, wouldn’t they?

Mr. Dale R. Shumway: That is correct.

Unknown Speaker: And here you say because the United States came in and uncovered Bonelli’s land by a channelization, the State nevertheless retains title.

Mr. Dale R. Shumway: They uncovered the State of Arizona’s land, Bonelli had resisted.

Unknown Speaker: Which it had acquired?

Which it had acquired from Bonelli.

Mr. Dale R. Shumway: The facts are that it had -- the river had acquired the land and that became the bed of the stream the State owned and at that moment Bonelli did not own it.

Unknown Speaker: Right.

Mr. Dale R. Shumway: He didn’t own anything and he did not get it back by the action of the United States, that is not submergence and reappearances has been suggested.

It’s not reliction; it’s merely an evulsion that speeded up the process of changing the channel of a river.

Unknown Speaker: Well, isn’t that the real issue in the case?

Mr. Dale R. Shumway: That is.

Unknown Speaker: Whether there is or not an evulsion.

Mr. Dale R. Shumway: No, because all the parties have agreed that it is an evulsion.

In fact, the brief of the petitioner specifically agrees to that.

Unknown Speaker: Well, if then the usual results follow from an evulsive change, your opponent is giving away this case by making that agreement.

Mr. Dale R. Shumway: I would agree that that is correct.

Unknown Speaker: Well, except you agreed that there are no cases applying the evulsion doctrine between the State and an individual in these circumstances.

Mr. Dale R. Shumway: All of the -- the only two I can think of is one that is called California case and it is cited in the brief, and I have to dig it out and a Marine Railway case which his the Patomic river case and it’s also cited both the United States in our --

Unknown Speaker: Does both of the cases involve the bed of the stream?

Mr. Dale R. Shumway: Well, this one is the Patomic and it was in the area of building out from the boundary of Maryland and it’s not specifically on bed stream.

Unknown Speaker: Not the doctrine, not the bed of the stream doctrine.

Unknown Speaker: Can I ask you one more question, why isn’t the -- I’m sure you would say it is but why isn’t the -- what’s the argument that the Arizona Supreme Court’s decision is not binding on us?

Because this is a wholly a matter of State law, what’s the argument that Federal law has anything to do with this?

Well I am not so sure it does, the only question that the -- the only reason that we joined is --

I don’t think you would argue that at the first, as a sectional question.

Mr. Dale R. Shumway: The reason we didn’t and you notice we joined in the petition for certiorari and the reason we joined in it and brought it up here to try to see if we can secure a stamp on this ordinary high water mark law is because we are concerned with where is it.

What are we to do in Arizona with relation to other lands, which maybe Federal is Claridge binding on us.

Justice Byron R. White: Yes but it seems to me, where does the Federal law get a hold on this sort of a situation. Arguably if the land was riparian at the time of the patent, maybe the Hughes case because it gives it some extra -- it gives the ownership of that land some benefits of whatever the Federal law is about accretion and reliction but if it wasn’t riparian.

Mr. Dale R. Shumway: If it was not riparian, Mr. Justice White, you’re probably correct and we shouldn’t even be here but we feel that there is enough doubt that it is and I would admit for the sake of getting the decision that it maybe is, was riparian in that particular time and it still does not make any difference because of the doctrine of riverbed ownership.

Justice Byron R. White: Well, then there would be a lot of other land then that was covered that this problem will arise, it would not have any connection with Federal law.

Mr. Dale R. Shumway: Exactly, very much.

Justice Byron R. White: And if the -- if both sides agreed that this land was not riparian at the time of the patent, wouldn’t the Arizona Supreme Court decision as to what State law was be determinative?

Mr. Dale R. Shumway: Completely.

Unknown Speaker: Federal law would be applicable only by reason of the Hughes decision holding that the by reason of a Federal patent, Federal law applied to riparian land but only to riparian land.

Mr. Dale R. Shumway: That’s correct.

Unknown Speaker: And the Court was not even unanimous about that.

Mr. Dale R. Shumway: And basically I think Hughes announced as a Federal law which is probably the same as the common law of Arizona and the case law under two or three decisions which have remotely considered the question.

Although there are some other questions that have been discussed basically the one on estoppel. I feel I should just mention it that I do not believe there’s much there that indicate that the State of Arizona has done anything which brings it within the requirement of an estoppel position.

I don’t believe we have any problems there and I’ve suggested so in the brief.

We believe that the decision of the Arizona Supreme Court, if we are considering the land was riparian and bringing the Federal question into bare should be affirmed and that the land should belong to the State of Arizona.

Thank you.

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

Mr. Coker you have a few minutes left.

Rebuttal of Elmer C. Coker

Mr. Elmer C. Coker: Thank you sir.

I just want to point out one thing and after the question of Justice White upon the all of the section three Sir at the time of patent was riparian.

If we look at the township plan which is an evidence and later on after Santa Fe conveyed out to different parties.

But the section three there was conveyed a patent to Santa Fe by the United States was riparian to the river at that channel.

Unknown Speaker: Patent --

Mr. Elmer C. Coker: Yes Sir.

Unknown Speaker: From the United States to Santa Fe?

Justice Byron R. White: How do you know that?

Because the patent says so?

Mr. Elmer C. Coker: Yes sir on this township plot, Mr. Justice White, I just outlined the Bonelli land but the whole section as described by lots was riparian, I mean was conveyed.

The whole section east to the Colorado River and boarding the Colorado River was conveyed.

Unknown Speaker: When was the township plot?

Mr. Elmer C. Coker: The township plot was surveyed in 1906.

Unknown Speaker: Oh, I know that is it but Bonelli section three --

Mr. Elmer C. Coker: All I do is describe the Bonelli land but my point was if this section three was --

Unknown Speaker: A part of section three was that Bonelli did not take all the section three.

Mr. Elmer C. Coker: That what I see.

Unknown Speaker: And so that the Bonelli land in 1906 by any map was not on the river?

Mr. Elmer C. Coker: No sir.

That’s correct, I was thinking about the parcel of section three at that point.

The rest of the patent survey in the record, I believe there are extra copies here, does show the old bank of the Colorado River in the left bank as it appeared to be at the time of the channelization.

That in affect, I believe Mr. Shumway and I agree, would show the extent of the Claridge decision and that is where we get in to where we think Federal law should apply rather than Supreme -- Arizona Supreme Court decision which according to the Arizona Supreme Court would go into Section Two which is public land over a mile to the west, east.

Unknown Speaker: Do you understand your Arizona Supreme Court who have been applying State law to the exclusion of Federal law?

Mr. Elmer C. Coker: Yes Sir.

They disregarded the Claridge case entirely because they said it had nothing to do with Arizona’s action as against to individuals and ignored it -- specifically ignored the clearage decision.

Although Mr. Shumway here who participated in the Claridge decision prior to urge on the Court that perhaps that’s the doctrine we should adopt.

They refused to adopt it.

And that is what, that is the reason I see

Unknown Speaker: -- What is this grant?

You see about the question about evulsion and accretion.

What is the grant?

What was the purpose of the grant?

when that purpose no longer remains, does the grant remain?

Mr. Elmer C. Coker: I think that’s one of the most important parts here, in other words it’s not a land grabbing or either a land grant or a land acquisition -- specific purpose to control access for the public to the bed of that river, streambed.

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

Thank you Mr. Shumway.

The case is submitted.