UNITED STATES v. NEW MEXICO
Argument of Moorman
Chief Justice Warren E. Burger: We will hear arguments next in United States against New Mexico.
Mr. Moorman, you may proceed whenever you are ready.
Mr. Moorman: Mr. Chief Justice and May it please the Court.
The Gila National Forest was created by a series of presidential proclamations issued between 1899 and 1910 which reserves certain public lands in New Mexico to entry.
The question in this case is whether under the Doctrine of Reserved Water Rights, those reservation proclamations also reserved waters of the real members for the needs of the Gila National Forest for “instream flow” for fish and wildlife, for stock watering and for recreation.
The case began before a Special Master appointed by the State District Court in New Mexico who concluded that the United States did indeed have such water rights for those purposes.
The State District Court disagreed with the Special Master upon objection the objection of the State of New Mexico and held, first, that the United States did not have a reserved water right for recreation purposes for use in the forest. Secondly, the State District Court held that the United States did not have reserved water rights for stock watering purposes within the national forest and thereby leaving grazing permitees to obtain whatever rights they could under state law.
Thirdly, the State District Court held that the United States could not have a reserved water right for an “instream flow” in real members for those or any other purposes and fourthly, the District Court without comment deleted from the Master’s proposed decree, a water right for wildlife.
Justice Byron R. White: What does the record show as to why the “instream flow” issue was even in the case?
Are there any upstream users to the forest?
Mr. Moorman: There are no upstream appropriators, Mr. Justice White.
Justice Byron R. White: Well, how would the issue as a practical matter ever arise?
In the sense that somebody might want to --
Mr. Moorman: There are some in holdings upstream which might at some point become a point --
Justice Byron R. White: Or somebody might want to develop water above the forest?
Mr. Moorman: The forest of course goes up to the crest.
Justice Byron R. White: Well, how can the “inflow” issue ever be as a practical matter in the case because if it does not rain or does not snow, there is no going to be much of a flow and if it does, there is?
What is (Voice Overlap) in this case?
Mr. Moorman: Well, we have wondered in this case why it was challenged by New Mexico, but we do believe that --
Justice Byron R. White: Challenged, the only reason they challenged is you claimed it?
Mr. Moorman: That is correct.
Justice Byron R. White: Well, why would you claim it this case?
Mr. Moorman: Because we are required we believe to claim all of the water rights which we claim for the national forest in this proceeding.
So if we do not claim the water right now, we would be forever foreclosed from claiming it later.
Justice Byron R. White: Well, that is kind of a tough question “instream,” why would it ever arise here, who could ever possibly interfere with your “instream flow?”
Mr. Moorman: A later appropriator upstream in an in holding.
Justice Byron R. White: That is what you are really worried about?
Mr. Moorman: Yes, Your Honor.
Justice Byron R. White: Except you go to the crest?
Mr. Moorman: Well, but of course we are interested in an “instream flow” below the crest.
There are in holdings in the forest above the points in the real members..
Justice Byron R. White: You mean fee title land?
Mr. Moorman: Yes, Your Honor.
Justice Byron R. White: Well, then I thought you said there were not any upstream users, they are not?
Mr. Moorman: They are not users, but there are private lands upstream which could be points of diversion.
In addition to that, someone--
Justice Byron R. White: Could transport the water elsewhere?
Mr. Moorman: That is correct.
Justice Byron R. White: Except you would never let them do it across your property, across the national forest, they would have to get you permission.
Mr. Moorman: Well, but of course if we did not have a water right, we would have not basis for denying them the right of it, Your Honor.
Unknown Speaker: Well your "instream" claim goes against downstream appropriators who are prior in time to the national forest proclamation?
Mr. Moorman: I believe that the "instream flow” Your Honor, would be a great benefit to all the downstream appropriators, junior or senior because it is a non-consumptive use of water.
Justice William H. Rehnquist: Well, but some of them probably do not think so?
Mr. Moorman: I doubt that Your Honor because I am sure they want "instream flows” to reach them.
Unknown Speaker: Well, this goes against upstreamers?
Mr. Moorman: The people who would complain about "instream flows” generally would be upstream junior appropriators.
Unknown Speaker: Straighten me out on my geography, does the members flow into the real ground?
Mr. Moorman: It does not.
It flows down into the desert and somewhere north of the Mexican border.
It is not really tributary to any other stream.
Unknown Speaker: But the Gila flows in the Colorado?
Mr. Moorman: The Gila does, yes Your Honor.
Unknown Speaker: That is from the other side of the divide there?
Mr. Moorman: So I understand.
The Supreme Court of New Mexico affirmed the District Court, holding specifically that the United States does not have any rights to maintain an "instream flow” in the real members and in addition specifying that the United States does not have reserve rights for the purpose of stock watering and recreation.
The New Mexico Supreme Court reached this holding because it concluded that the purposes for which the United States claimed reserved rights from the real members for the Gila National Forest were not within the purposes for which a forest could be established under the Organic Administration Act of 1897.
Under that Act in New Mexico’s Court’s view, a national forest can only be established for the two purposes of supplying timber or supplying water for downstream appropriators.
The New Mexico Court reasoned that the reservation of land for the Gila National Forest could not have reserved water rights for stock watering or recreation as those were not the purposes of the reservation.
The New Mexico Court also held that the United States could not reserve an "instream flow” for any purpose.
The specific present rights which the United States seeks in the members are set forth at pages 192 and 193 of the appendix.
There, as set forth, 91.18 acre fee of consumptive use, mostly for stock watering.
There are also listed a few rights there on page 192 and 193 for domestic recreation which is another word for campground.
There is one small right listed for tenth of an acre foot for wildlife.
In addition, there are some rights listed for matters not in contention here for stock watering and residential and that would be at the ranger’s home with the fire tower.
Also listed are the three non-consumptive inflow stream rights of 2 cubic feet per second each.
The Special Master’s report also provided that the United States could have a year to present additional claims for the future needs of the forest if the United States chose to do so because the District Court, however, ruled as a matter of law that the United States could not have most of the rights it sought here, and because the United States appealed that ruling, the time never arrived for the United States to submit any evidence of future needs.
However, if we prevail here today, Your Honors, we will submit evidence of some additional consumptive use, but no additional "instream flow” use.
Justice William H. Rehnquist: Your "instream flow” claim is bounded on the downward side of the river by the boundary of the national forest?
Mr. Moorman: Yes, Your Honor.
It would be measured at three locations.
Justice William H. Rehnquist: But would any of them be below the lower boundary of the national forest?
Mr. Moorman: No, Your Honor.
The governing law of this case, the Doctrine of Reserved Water Rights is not in dispute.
It rests on a long line of decisions of this Court.
Reserved water rights are often referred to as Winters Rights after the leading decision of this Court in 1908 in the United States vs. Winters which first fully enunciated the doctrine.
Unknown Speaker: Was it a long line of decisions?
Mr. Moorman: Well, I believe it depends I guess on what you think is long, but we have at least 80 years of decisions now and there are six or seven Supreme Court opinions on the subject.
Justice William H. Rehnquist: The subject water rights reserve by implication?
Mr. Moorman: Yes, Your Honor.
I think the doctrine was foreshadowed in the 1899 decision of United States vs. Rio Grande Dam and Irrigation Company which discussed a number of the authorities cited by New Mexico here.
In that case, the Court stated, with regard to the water rights of the United States, that in the absence of specific authority from Congress, a state cannot by its legislation destroy the right of the United States as the owner of lands bordering on a stream to the continued flow of its waters so far at least as may be necessary for the beneficial uses of government property and I am citing 174 US at 703.
Most recently, in 1976, this Court enunciated the doctrine in the case of Cappaert vs. the United States as follows.
When the federal government withdraws its land from the public domain and reserves it for a public purpose, the government by implication reserves a pertinent water then unappropriated to the extent needed to accomplish the purposes of the reservation.
Unknown Speaker: You are not equating the propagation in Cappaert with the Gila trial here, are you?
Mr. Moorman: I am sorry Your Honor, I did not understand the question.
Unknown Speaker: You are not equating the concern of pupfish in Cappaert with Gila trout here, are you?
Mr. Moorman: In that case, the United States reserved water for the purpose of preserving the pupfish for somewhat limited purpose.
Here, the question is what are the purposes of the Gila National Forest and whether the water rights which the United States claims falls within those purposes.
It is the position of the United States that the reserve water rights it seeks for wildlife, for stock grazing and for recreation and for "instream flows” for those and other purposes such as fire protection or to provide a continuous flow of water, do indeed fall within the purposes for which the Gila National Forest was reserved.
Since there have been some questions on it, I would like to take up first if I could the --
Justice Byron R. White: Of course, failing that, you can always resort to imminent domain, can you not?
Mr. Moorman: Only if Congress authorizes it and of course, we have no way of knowing what the ramifications of that would be, your Honor.
It would be hugely expensive at this late date.
Justice William H. Rehnquist: And very controversial, would it not?
There has always been controversy as to what would be done with western land reservations and the western state centers and representatives have always kept the heat on the Department of the Interior and other executive agencies to make sure that there was proper consideration for the interest of private proprietors on western land.
Mr. Moorman: I think Mr. Justice, you understand the politics very well.
Justice William H. Rehnquist: Is that totally diverse from the law?
Mr. Moorman: Well, I think Congress has never taken upon itself to give up the reserve water rights, so I think we must take the law as it stands in that way.
They have certainly been aware of them for many, many years.
Justice William H. Rehnquist: But there was also a considerable debate that is reflected in the briefs and opinions as to what the purpose of the national forest were going to be and how restricted or how wide open those purposes were going to be, was there not?
Mr. Moorman: That is correct Your Honor.
The New Mexico Courts held that the United States could not have an "instream flow” in the real members for any purpose whatsoever.
We consider this both an absurd and a harsh result because it means that junior appropriators could take all of the water from the streams and dewater the national forest so there would be no water available for any purpose, legitimate or not.
Now, as I read the brief of the State of New Mexico, they have conceded that this holding goes too far and that the United States can have an "instream flow” in the national forest for the appropriate purposes of the national forest.
I further read their brief to their position to be that they simply differ with us as to what are the appropriate purposes of the national forest.
They are taking a much narrower view than the United States does and we believe that this concession of the State of New Mexico alone requires reversal in this case and I refer the Court to footnotes 11 and 15 of the state’s brief.
The state’s concession is well grounded because it is clear that the cases have not distinguished between flow and diversion rights.
I have referred and quoted earlier the first case touching on the reserve rights doctrine, the 1899 decision in the Rio Grande Dam and Irrigation Company case where the water rights of the United States are referred to as the continued flow of its waters.
Special Master Rifkin in his opinion in Arizona vs. California stated that one of the purposes of the national forest was to maintain natural flows and the Organic Act itself states as the second purpose for which national forests may be established for the purpose of securing favorable conditions of water flows.
Chief Justice Warren E. Burger: What did this Court do with Judge Rifkin’s finding or recommendation?
I forgot how you described it.
Mr. Moorman: This Court issued a decree, Your Honor, in which it stated, decreed that the United States had the right to divert water from the Gila and San Francisco rivers in the Gila National Forest and I am quoting now from the decree, in quantities reasonably necessary to fulfill the purposes of the Gila National Forest with priority dates of the date of withdrawal for the forest purposes of each area of the forest within which the water is used and that is 376 US at 350.
Now, that tract almost exactly the language of the proposed decree of Special Master Rifkin which he attached to his report.
In his report, Judge Rifkin stated more specifically what the purposes of the forest were.
Justice William H. Rehnquist: And that was not adopted by this Court, was it?
In its decree, it was not incorporated?
Mr. Moorman: It was not incorporated, but it is our view that it had to be the predicate for the decree or the decree did not decree any rights.
It only then stated rule of law if that was not the predicate for the decree.
We have argued in our brief of course that that collaterally stops New Mexico which was a party to that case here.
With respect to all the water rights we claim, Your Honor, whether they are "instream flow” rights or consumptive rights, we argue that the United States is entitled to such rights as they are all within the purposes of a national forest under the Organic Act.
The Organic Act, Your Honor reads in relevant part as follows, if I may.
No public forest reservation shall be established except to improve and protect the forest within the reservation or for the purpose of securing favorable conditions of water flows and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States.”
In the following paragraph of the Organic Act in relevant part, the Act, the Congress instructed, the Secretary of the Interior shall make provisions for the protection against destruction by fire and deportations upon the public forest and forest reservations and a little bit further, he was instructed that to make such rules and regulations and establish such service as will ensure the objects of such reservations, namely to regulate their occupancy and use and to preserve the forest thereon from destruction.
Justice Byron R. White: Mr. Moorman, where did we get all these fancy names for the Acts like the Creative Act and the Organic Act and Multiple Use Sustained Yield Act?
Somebody down in the department is charged with the responsibility for figuring out fancy names?
Mr. Moorman: They are getting worse as I read them coming out of Congress, Your Honor.
Unknown Speaker: So you blame the lawmakers, do you?
Mr. Moorman: Well, I would not blame this Court for that.
Our first argument under the Organic Act, Your Honor is that those provisions of the Organic Act which call for the protection and preservation of the National Forest must by implication have reserved water for the National Forest.
First the Congress stated as its first reason for the establishment of National Forest that they would be improved and protected and secondly Your Honor, the Congress twice gave clear instructions to the Secretary that he should take actions to protect and preserve the forest at one point referring to preservation of the forest as one of the objects of the reservations.
Thus we argue Your Honor to the extent that the Secretary needs water so as to protect the forest it must be reserved or Congress’ plan would be thwarted.
For example, the development and placement of stock waterholes is often the only way or the best way to insure an even distribution of the stock over the forest.
A failure to achieve an even distribution of stock can quickly lead to overgrazing, growing land and erosion.
Thus when the forest ranger locates a water source for stock he is not thinking simply of providing water for use, but he is also thinking of protecting the very soil the forest from erosion.
Justice William H. Rehnquist: Was any of the land reserved in the Gila National Forest Reserve before the passage of the Organic Act?
Mr. Moorman: No, the first proclamation was on March 2, 1899, Mr. Justice Rehnquist.
Justice William H. Rehnquist: The Organic Act was what, 1897?
Mr. Moorman: June 6, 1897.
Now, this principle of preservation applies equally to something such as a Camp Ground although you might not think so at first.
When a ranger locates his camp ground with a water diversion he thinks not only of servicing campers, but he also thinks of minimizing the risk of fire from the careless camper.
By locating his diversion at a specific place, he not only attracts the camper to a safe location, he provides a source of water to put out the fire and clearly if protection of the forest and its resources requires an “instream flow” as opposed to a diversion there is nothing special about that.
Justice William H. Rehnquist: Are you justifying the water for campers under the terms of the Organic Act?
Mr. Moorman: Yes indeed, we believe that the forest are open for campers, that the use of water is one of the tools which the forest ranger must use to protect the forest from campers among other things.
He uses it as incentive to guide their camping in certain spots where it is safe from fire and as a resource to help put out campfires.
I should point out that the use of the forest by campers and other recreation is quite large.
In 1976 alone, there were 822 million recreation days of uses on the National Forest.
Justice William H. Rehnquist: What was it in 1897, the day Organic Act was enacted?
Mr. Moorman: I do not know what the figure was in 1897, but we do know that the area of the Gila National Forest, I cannot speak for the members, was visited, there was the Gila Hot Springs which was later taken out of the forest in May into --
Justice William H. Rehnquist: You think Congress really reserved the Gila National Forest as opposed to the various national parks for the purpose of use by campers?
Mr. Moorman: No doubt about it, but I would like to draw the distinction between the two.
Unknown Speaker: About what?
Mr. Moorman: The fact that I think that Congress reserves the National Forest for campers Your Honor?
Chief Justice Warren E. Burger: You are speaking now as of 1897?
Mr. Moorman: Yes, I am.
The Congress clearly did not wish the National Forest to be treated the way National Parks were, which is to say areas where the resources would not be used in an economic way such as cutting timber, range, or hunting of deer.
However, it is very clear it seems to us that Congress did intend for the forest to be used, there were a lot of references in the legislative history, to the effect that the forest would be places of use and not places of none use and camping by all sorts of people was something that was done quite regularly in those days, not only for the kind of camper we think of today, but campers in connection with grazing and other uses.
Recreation use of the forest was known at that time and furthermore I should say that the forest service assumed from the very beginning that this was one of the purposes of the National Forest and Congress in fact in 1899, two days before the first proclamation was issued for this forest, passed a law authorizing the Chief of the Forest Service to lease land in the National Forest adjacent to hot springs for the purposes of recreation.
I wish to make one other argument under the Organic Act and that concerns the provision of the Act which refers to occupancy and use.
The statute directs the Secretary to issue rules and regulations to regulate the occupancy in use of the forest and we would argue that to the extent that he needs water for that purpose, water is also reserved and it would work this way.
For example, a ranger would often times go out and examine the range and determine that it is under utilized.
Now, he may prevent over use by fencing, but often times the only way he can prevent under utilization of the range is by providing a water source.
In our view the extent to which the forest service needs water for use in occupancy to preserve and protect and to promote all of the uses which Congress contemplated, water is reserved under the Reserve Rights Doctrine.
Thank you, Your Honors.
Chief Justice Warren E. Burger: Mr. Simms.
Argument of Richard A. Simms
Mr. Richard A. Simms: Mr. Chief Justice and May it please the Court.
There are two fundamental mistakes in the United States' approach to the reservation of waters in National Forests.
The United States views its powers over western waters as the rule instead of the exception and the US either ignores or hides from the fact that Congress explicitly relinquished control of the flow and the use of the waters in our National Forests of respective states.
Compounding that fundamental, legal, and historical misapprehension of matter, the United States also ignores the fact that unlike any other Federal reservation of lands from the public demand, the National Forest were designed with respect to water to maximize water yield to appropriators under State Law.
I would like to make reference to your question Mr. Justice White about whether or not there were any private users up stream.
In the forest there are in the real members, drainage of the forest, there are 17,000 acres of patented free land.
There are a number of diversions on some of these lands.
Some of the diversions are being made by other parties to this adjudication against whom at this point in the litigation, the rights of the United States have not vested.
Justice Byron R. White: So the “instream flow” is really a live issue?
Mr. Richard A. Simms: It is a live issue.
Justice Byron R. White: In this case it is a practical matter?
Mr. Richard A. Simms: I believe it is and it is also live in the sense that if the Court were to recognize a minimum “instream flow,” we would effectively prevent the transfer of any water rights under State Law.
That is just as much a part of the property right under State Law as is the right to divert.
If we jump over to the Gila side in the same forest, you can see its effect on Phelps Dodge Corporation.
Phelps Dodge spent $125 million buying up water rights transferring them to a point above certain forest lands, in total spent about $425 million, creating a smelting plant and subsequent to all of that the United States by filing a paper in the Office of the State Engineer in New Mexico informs Phelps Dodge they would now like to claim a minimum “instream flow” below that point of diversion.
Justice Byron R. White: I have the feeling from your brief and some of the things that you have already said that in a way you challenge the whole theory of the reserve rights?
Mr. Richard A. Simms: No, we do not challenge the whole theory of reserved rights.
Justice Byron R. White: You are saying it is just the extent of it you are arguing about here?
Mr. Richard A. Simms: That is true and unlike the assertion of the United States that there is no difference between us, there is a difference.
There is a difference as to the way in which we apply the doctrine.
Chief Justice Warren E. Burger: You certainly take a position I think in your brief do you not, that since the Doctrine of Reserved Rights says it is exemption and it is contrary to the General Law that appropriation of water in the western States is governed by State Law, since it is an exception, the implied reservation should be minimally and narrowly understood?
Mr. Richard A. Simms: For that reason and other reasons Your Honor that we discuss in the brief.
Chief Justice Warren E. Burger: You do take that basic position?
Justice Byron R. White: Do you fit in the Reserve Rights Doctrine in the sense that when the United States is reserved up, as created in National Forest that this is sort of an appropriation of water for beneficial uses, is that the way it fits in or not?
Mr. Richard A. Simms: I do not know if I understand your question Mr. Justice White?
Justice Byron R. White: Well, I just want to know that the Reserve Rights Doctrine, does it fit in with what you feel as the way the United states wanted to handle this water or to dispose the water or is it just an exception to the general rule?
Mr. Richard A. Simms: No, we think it does fit in. We are not denying the existence of the Reservation Doctrine.
What we are asking the Court to do is precisely what it did in Cappaert, to look at the authorizing legislation under which lands might be withdrawn from the Public domain and then apply the principle of the reservation doctrine.
In this situation forests were created in large part to protect the watersheds in order to maximize water yield to appropriators under State Law.
The National Legislator, the Secretary of the Interior repeatedly in his rules and regulations right out the door, 26 days after the Act was passed, noted that control of the flow and use of water was left to the individual states.
By its assertion of claims to minimum “instream flows” it seems that the United States is going quite beyond what was intended before.
At the same time, the decision of the New Mexico Supreme Court does not preclude the assertion of a claim to minimum “instream flows” provided that claim comes within the ambit of the purposes of the Organic Administration Act.
No such evidence was put on in this case.
The only evidence that was put on in this case related to the protection of fish and we submit that it is patently clear that the legislation and its history do not permit a reading that would say that fish purposes were among the purposes for which the lands of the forest could have been withdrawn.
Your Honors, the United States' reply brief, while in my view says virtually nothing, I think it is probably the most telling brief in this case.
In response to the legislative history of the Creative Act of 1891, that piece of legislation that authorizes the President to withdraw lands for National Forests, in response to some 40 pages of history relating to the Organic Administration Act of 1897, the Act which limits the purposes for which lands could be withdrawn under the 1891 Act, in response to the legislative history of all of the applicable rights of statutes up on into this century, in response to the history of relating to the decisions of the Secretary of the Interior, in response to the decisions and opinions of the general land office and indeed the United States Attorney General in its replay brief, the United States offers no rebuttal, it offers no legal history, it offers no law.
Instead what the United States tries to do in our view is to muddy the waters, is to make it a little bit more difficult to see this case clearly.
The United States explains that we have somehow ameliorated the effect of the New Mexico Supreme Court’s decision in our brief that we have made a concession.
That is not true.
Indeed subsequent to the decision in the case, the United States went before one of our State District Courts and put on evidence in support of what it says we just now said they can do in our brief.
I do not think their understanding of the decision was any different than ours.
The decision was rendered the way it was because there was no evidence in the record for any of these other matters.
In the United States brief it also refers to a number of appropriation statutes.
This Court has never before held that reserved water rights arise out of appropriations of money, reserved water rights arise out of withdrawals of land from the Public domain.
The United States most importantly, also argues that the US never relinquished its rights, that somehow there is a broad power in the United States that makes these claims accessible now and because of that broad power, this Court should not strictly construe the statutes authorizing the withdrawal of land from the public domain.
I think their interpretation of the law is most definitely wrong.
They make reference to the Rio Grande Case.
Indeed though in the Rio Grande Case and subsequently in another case called Gutierrez v. Albuquerque Land and Irrigation Company, this Court said this.
Of course as held in the Rio Grande Case even a state as respect streams within its boarders in the absence of specific authority from Congress cannot by its legislation destroy the right of the United States as the owner of lands bordering on a stream to the continued flow of its waters, so far at least as maybe necessary for the beneficial uses of the government property.”
They seem to say that we really do not need the reservation doctrine.
That just by virtue dicta, the United States could by fiat and say, “We now want water in the west.
We are going to use water for this purpose, therefore, it is ours.”
That is not true.
The waters and the rest were severed.
Plenary control was relinquished to the States.
When Justice Sutherland used the adjective plenary, he used it advisedly.
It means complete.
When the waters were severed they were severed.
In the United States' view there is some illogical, incomplete severance.
There is no such thing in logic.
It is also clear from a reading of Rio Grande that, that case was a case that says the United States may protect its right to navigability.
That case got back to the Supreme Court three years later in 1903.
If the Court takes a look at that opinion, it is clear also that, that case related only to navigability and not to none navigable waters.
The important language with respect to none navigable waters is in Justice Sutherland’s opinion in 1935, in California Oregon Power Company v. Beaver Portland Cement.
He said, “In the absence of Federal Legislation the States would be powerless to affect the Riparian Rights of the United States, but the authority of Congress to vest such power in the States and that it has done so by the legislation to which we have referred, cannot be doubted.
There is no question that the severance of water affects the rights of the United States.”
No question whatsoever.
You cannot use Rio Grande as broad brush to somehow broaden the Reservation Doctrine.
It does not work.
Your Honor, I think what this case boils down to is an attempt by the United States to protect commendable environmental values through a scheme of legislation that was designed to do something else.
We have laid out the history of the applicable legislation.
If that history is understood, there is no way in my opinion that Your Honors could believe and reverse the decision of the New Mexico Supreme Court.
It is simply impossible.
If this case is decided on the basis of historical reality, instead of on the basis of the regrets of certain Justice Department Lawyers, now we are confident that the decision of the New Mexico Supreme Court will be upheld.
Argument of John Undem Carlson
Chief Justice Warren E. Burger: We will resume arguments in United States v. New Mexico.
Mr. John Undem Carlson: Mr. Chief Justice and may it please the Court.
My name is John Carlson of Denver, Colorado.
I am here on behalf of the Twin Lakes Reservoir and Canal Company, a Colorado mutual ditch company.
We are an amicus in this case and the State of New Mexico has graciously allowed us to argue, because we represent the classic beneficiary for whom the National Forest was created.
We have a large for Colorado, small for the National Forest perhaps, diversion project located on the very headwaters of the National Forest Rivers in Colorado.
It is on the headwaters of the Colorado River, the Roaring Fork to be particular, some 17 miles above Aspen, Colorado, a watering spot some of you may know.
That diversion project intersects and gathers water from scores of small streams.
We do not have anything like the Patomic River out there.
We have streams, some of them when they are in full state of flood, are much like suburban lawn sprinkler.
We intercept all of these as they go across our canal, and deliver the water into a tunnel that carries forest water from the Whiter River National Forest, over in to the Arkansas River Valley.
That system was constructed first in 1930, and it continuously has diverted water with the aid and encouragement of the forest service until very recent times.
We think we are a representative of the class for which the National Forest were created, because Congress said when they passed the Organic Act in 1897, that the purpose of the forest was to secure favorable conditions of flows.
Now, when they said favorable conditions of flows, they were not saying, “flows for flows sake,” they said “We want to provide water for the people of the district.
We want to cause there to be an availability of water, so that the people who are settling in the west, can construct a civilization, we have done so.
The forest service apparently does not like it today, but it exists and it is there, and we are trying to protect it.
The importance of this case cannot be underestimated, when you recognize that in the State of Colorado, 98% of the water that arises in the whole state and flows through the streams of that state, arise on the public lands.
Of that 98% of the water flowing on the public lands and through our streams, 95% of it comes from the National Forests, so there is not any water in Colorado, except what occurs on the National Forest.
That statistic is contained in a Congressional document called The Study and Development Management and Use of Water Resources on Public Lands.
It was prepared for the Public Land Law Review Commission.
It is contained in table 5 of the weekly report.
Justice William H. Rehnquist: I suppose that would probably be true of most of the other area of the states of the western to greater or lesser degrees since the forest themselves occur at the higher levels?
Mr. John Undem Carlson: That is absolutely right Your Honor.
New Mexico’s particular statistic is 62%, Arizona’s, Nevada’s, and Utah’s are up in the 90% as I recall, but that illustrates the importance of the case because we do not have any water in our streams except what originates out of these snow pack that falls in the high mountain country.
And when Congress passed this Act back in the 1890’s, they were not dummies.
They knew that the west depended on snow packs in the high mountain country.
If you retarded the rate of runoff in that high mountain country you would cause a greater sustained rate of delivery of the water.
Now, they thought that it was important to deliver water to people for economic utilization.
There is not one shred of evidence in the statute or in a legislative history or in 60 years of administrative construction that anyone thought that Organic Act of 1897 created a reserved water right for the purposes now claimed by the United States.
Justice Potter Stewart: How about any purpose?
Mr. John Undem Carlson: You mean what purpose?
Justice Potter Stewart: Your are going to get around, I suppose, to indicating whether there is any reserved right, and what you think the scope of it is?
Mr. John Undem Carlson: Your Honor, I will answer that question now if I may?
We think that to the extent, the forest administrators have a bona fide need for water for something that falls within the 2 fundamental overwhelming purposes.
They can have rights to divert water for those purposes.
Justice Potter Stewart: What are those?
Mr. John Undem Carlson: Well, when they…
Justice Potter Stewart: And how do you measure them?
Mr. John Undem Carlson: You measure them by what the quantification is to attain the purpose.
For example, if they locate a district headquarters, and employ 5000 people in it, in order to run and administer the forest, and they located it on forest land, we would concede and grant them a water right to do that.
That is their administrative need.
Justice Potter Stewart: Would you say that the United States would have a right to any minimum industry in flow in the National Forest?
Mr. John Undem Carlson: None under the act of 1897.
Justice Potter Stewart: So that your diversion project up above a forest could totally empty the stream in so far as water that was generated up above the forest in your view without infringing on the United States Reserved Water Right?
Mr. John Undem Carlson: That is true and the reason being that you must identify the purpose for which the forest was created.
It was not created for wild life maintenance.
It was not created for habitat ecosystem maintenance.
It was created to grow trees.
Now, in this
Justice Thurgood Marshall: (Voice Overlap) prove the trees.
Mr. John Undem Carlson: Absolutely.
If they could prove that they have a bona fide in need for water to protect from fire, they could get a right to divert water for that purpose.
Justice Thurgood Marshall: How do you prove that, that there were fires?
Mr. John Undem Carlson: I beg your pardon?
Justice Thurgood Marshall: How do you prove that, that there were fires?
Mr. John Undem Carlson: Your Honor, I think that is force marjorie too.
If there is a fire, people will take the water and put out the fire and no one in West has ever objected to that.
What they are claiming is a right to here now, and they did not offer any proof at the trial, but this is an afterthought by the United States on appeal, what they are seeking now is the right to maintain water in the streams in case there is a fire some day.
Well, if there is a fire, they will tell everyone, “we need water to come down,” but you know the curious thing and the amazing thing is, I do not know of a national forest fire in the country that has ever been fought with diversions out of babbling brooks as a high mountain country.
Up where our project is, for example, there are not even no trees to speak of, we are about 10,000 feet in altitude, but we would allow them an opportunity if they think that fire --
Justice Thurgood Marshall: I thought a minute ago, you had said you would grant and now you would allow the Federal Government to use its water.
I think it is very generous of you or am I wrong?
Mr. John Undem Carlson: I think you are wrong Your Honor.
The United States has the power to obtain water for any purpose it needs.
The question is, what did Congress intended to obtain in 1897.
Chief Justice Warren E. Burger: Mr. Carlson, you did not answer to my brother why a moments ago, you said, “You would restrict the doctrine of reserved rights for the National Forest to the two fundamental statutory purposes, and what are they, I did not get that?
Mr. John Undem Carlson: They are to grow trees, to furnish a continuous supply of timber.
Second, to secure favorable conditions of flows, because when they created the forest, they had in mind using that watershed to maximize delivery of water to the private appropriators of the West and the Congressional history states that time and time again.
They said, “You know, if we cut off the trees in the high mountain country, then the snows will melt sooner.
They will come in a flood.
The spring will run off and will come in as flood.
Chief Justice Warren E. Burger: So there is really no reserved rights for the benefit of the United States as proprietors, so to speak?
Mr. John Undem Carlson: No, that goes too far.
There are administrative needs.
If they could prove that erosion could be reduced by diversions of water, it could be reduced by forest (Voice Overlap)
Chief Justice Warren E. Burger: That goes to growing trees to preserving the vigor of the forest, right?
Mr. John Undem Carlson: Yes.
Although the United States has never --
Unknown Speaker: You do not really know many diversions in the history, that they ever divert water out of streams to water trees in the forest.
Mr. John Undem Carlson: Yes, I do Your Honor.
They have tree seedling farms throughout the National Forest and no one in Colorado has contested any of the diversions that they make for those purposes.
They plant these little seedlings on the --
Unknown Speaker: But the forest themselves rely on, the planted trees rely on the moisture that falls on them?
Mr. John Undem Carlson: Absolutely and you know, the most remarkable thing about that --
Unknown Speaker: So what you are really saying is that there is no really any water right out of the stream in a practical sense for the forest?
Mr. John Undem Carlson: Absolutely.
They are de minimis.
Justice William H. Rehnquist: Well, that is not through phreatophytes though?
Mr. John Undem Carlson: But in the West, we do not have, in this high mountain forest, we do not have a big phreatophyte population, what we have is Ponderosa Pines and those tress, I think even the Forest Service would obtain a very significant portion of their moisture from the air and that is well-known fact.
Justice William H. Rehnquist: With respect with to phreatophytes within a National Forest, would you concede the government reserve the right to the necessary underground flow for the maintenance of the phreatophytes?
Mr. John Undem Carlson: If that was to attain the end of furnishing a continuous supply of timber, yes, but I do not think that they can prove that and I would hasten to point out in this case, they offered no proof.
They had the burden of going forward.
They had the opportunity to come forward and state what their case was, and they never even thought they have a minimum stream flow right at that trial.
The only time they raised it is on appeal when they asked this Court to receive evidence and consider this matter on the basis of their arguments.
They had an opportunity to prove this.
We are talking about facts that were never offered or submitted to the trial of fact.
Unknown Speaker: What about this water that put out the campfires?
To dry up a stream running through the forest, there is just not any water around.
Mr. John Undem Carlson: Your Honor, who was camping there?
If it is a Forest Service…
Unknown Speaker: No, this is a public, but the reason why they campfires put out is to protect the forest?
Mr. John Undem Carlson: If the reason they want to put out the campfires is because they have allowed the public to come on for a recreational purpose and if they need a water right for that recreational use, they --
Unknown Speaker: I did not say that.
I did not say they want the water right to let them drink it or for recreational use, I just thought for defensive use.
If they want water to put out campfires, there has to be some water in the stream.
Mr. John Undem Carlson: Your Honors, if there is a water requirement to put out a fire, they will take it.
It is a de minimis use which everyone will recognize.
Unknown Speaker: (Voice Overlap) take it if it is not in the stream?
Mr. John Undem Carlson: You Honor, our streams in the West dry up by nature.
In Colorado for example, on the Roaring Fork system that we took, the Roaring Fork River was dry in whole reach last summer for three months.
Nature dries them up.
There is an incredible variation stream by stream.
What we are talking about there too, what you are suggesting is really a right to divert water.
They want a maintenance, and what you are saying is, maintain the flow of the stream so we can divert some water.
If they have a priority for that purpose, let them divert it.
Unknown Speaker: Well, you are suggesting that you could dry up the water running through the White River National Forest.
As far a reserved right is concerned, it would not be violated if you diverted all the water out of the streams running through the White River National Forest?
Mr. John Undem Carlson: I am asserting that and I submit to you, it is very much what Congress had in mind.
When Congress wanted to stop a stream from being dried up, it knew how to do it, it passed Wild and Scenic Legislation.
There is passed legislation to maintain stream flows.
There is a whole Congressional pattern of action that maintains streams in their natural state.
The most classic example I put to you is the national parks itself where they talked about maintaining this aesthetic sensibility.
What the Court I think must consider is that the forest was created for purposes of economic utilization.
Justice John Paul Stevens: Mr. Carlson, I am really am puzzled by your argument.
Perhaps it just reveals my lack of understanding in water law, but I thought you conceded that there was some kind of reserve right in the United States for the two basic purposes.
One, they maintain some kind of flow of the water, yet you also seem to say that not withstanding that reserved right, the State could authorize appropriation of 100% of the water upstream of the forest.
Are you saying that?
Mr. John Undem Carlson: No, I do not think so.
I am saying that whatever right the United States has by virtue of its reserved right, and that right must be quantified, then they can cause there to be remaining in the stream, that quantity of water so they can take it and use it and if that is an “inflow” right for some purpose, which they have not yet proved, that quantity will remain in the stream.
Justice John Paul Stevens: But is it only a quantity to be measured by what they want to divert from the stream or do they have any right at all to have water to continue to flow through the forest?
Mr. John Undem Carlson: Just in the abstract until the passage of the Multiple Use Act of 1960, we contend they had no right for the purposes of wildlife maintenance or simply (Voice Overlap)
Justice John Paul Stevens: I understand that, but for the basic purposes of maintaining water flow, one of your two basic purposes it seems to me assumed a need for a continuous flow of water down the river.
I just do not quite (Voice Overlap)
Mr. John Undem Carlson: You Honor, I do not think either of our two basic purposes assume the need for water in the river.
One, the purpose of sustaining forest --
Justice John Paul Stevens: Forget the trees, the other purpose?
Mr. John Undem Carlson: Okay, securing favorable conditions of flow.
I am not directly (Voice Overlap)
Justice John Paul Stevens: Is the favorable conditions of flow be no-flow at all?
Mr. John Undem Carlson: Because the flow is for the use of the people of the district.
There are, in Colorado some 4000 headgates located on the national forest.
It is an (Inaudible) of an arrogant desert climate that you take the water out of the stream and consume it.
The fact that it happens on the National Forest as opposed to one mile down from the national forest should not make not difference.
Our rivers typically dry up.
Justice John Paul Stevens: What right does the Federal Government get out of this purpose to preserve favorable conditions of flow?
Mr. John Undem Carlson: It was not designed to create a right in the Federal Government, it was a grant to the people of the West and the perfect confirmation of that, Your Honor, is the statute, the part of the Organic Act in which it says, “All waters,” not some waters, not 10% of the waters, not 90% of the waters, it says “all waters” arising on the national forest may be appropriated for domestic, milling, mining, and irrigation use.
Now, I guess where I am from, when they say all, they mean all and here what the United States says is --
Justice John Paul Stevens: Or where I am from, when they say they want to reserve something, they mean they want to reserve something too?
Mr. John Undem Carlson: That is right.
Justice John Paul Stevens: I do not understand.
Mr. John Undem Carlson: But Your Honor, nowhere in the Forest Act do they say they wanted to reserve anything.
What you have is an expressed grant before that --
Justice John Paul Stevens: Because I understood, the doctrine was an implied doctrine and you do not have to expressly reserve?
Mr. John Undem Carlson: That is right, but here, in the Forest Act, you have an expressed grant.
All waters arising on the National Forest may be appropriated whether under a national system or a state system.
We have never had a national system.
So, you have an expressed grant.
Later, you have the theory of the implied reservation and what the United States is asking you to do is to stand the Act on its head and say that all means some or none.
Now, let me address a point that I think really needs fundamental attention from this Court.
Unknown Speaker: What about the United States said, “Well, we open all these waters for appropriation, and now we are going to appropriate some of it?”
Mr. John Undem Carlson: Fine, let them.
In Colorado, they have (Voice Overlap)
Unknown Speaker: Well, that is fine.
Well, they did.
They created some national forest.
Mr. John Undem Carlson: That was not an act of appropriation.
Unknown Speaker: I know that is what you say, but the Court has interpreted that in effect as an appropriation?
Mr. John Undem Carlson: No, Your Honors.
Unknown Speaker: This Court has not interpreted the creation of a national forest as an act of appropriation.
Unknown Speaker: What did they say?
They said it is a reservation of a water right?
Mr. John Undem Carlson: Well, here they never addressed the question of how the forest and for what purposes they were created.
In Arizona v. California, the special master said, (Voice Overlap)
Unknown Speaker: You seem to concede there is a reservation for something?
Mr. John Undem Carlson: Sure.
Unknown Speaker: Well, how do you describe it?
Was it a reservation of a right or when you they created?
What happened when they created the forest?
Mr. John Undem Carlson: When they created the forest, they said, “we are creating the forest for these two purposes and if there are water needs peculiar to United States, inherent in those needs, then they can have the water.
Chief Justice Warren E. Burger: Yes, is that it, and so what call it, an appropriation, a reservation, or what?
Mr. John Undem Carlson: United States calls it a reservation.
Unknown Speaker: What do you call it?
Mr. John Undem Carlson: I call it reservation.
This Court has called it a reservation.
Unknown Speaker: So it is a water right?
Mr. John Undem Carlson: Yes, it is a water right.
Unknown Speaker: It is not inconsistent with the notion that the waters in the national forest are open to appropriation.
Mr. John Undem Carlson: It certainly is if they are claiming that they have (Voice Overlap)
Unknown Speaker: Why is it?
This is the United States just sharing in the water that is available?
Mr. John Undem Carlson: Well, let them come in and share at the date that they conceive the notion for these (Voice Overlap)
Unknown Speaker: Well, I know.
Let us just talk about that date for a minute.
Mr. John Undem Carlson: Yes.
Unknown Speaker: You said at the time the forest was created, there was a water right of some kind?
Mr. John Undem Carlson: It is small.
Unknown Speaker: All right.
As small as it is, it is not inconsistent, I suggest to you with the notion of a grant of these waters for appropriation purposes?
Mr. John Undem Carlson: I agree.
Unknown Speaker: Do you agree with that?
Mr. John Undem Carlson: I do agree.
Unknown Speaker: So the only argument with here is the scope (Inaudible)
Mr. John Undem Carlson: Yes.
Unknown Speaker: Alright, that is a big issue, I grant you, but let us not say that it is —
Mr. John Undem Carlson: Well, you do not understand what I am saying about the inconsistency and I think I have made my self unclear on that point.
What I have said and what we say and what New Mexico said was that Congress had the power to take all of the water it wanted as of that date that was inappropriate, it did not do so.
So the question that we are facing here is exactly what we faced in paper.
What quantity of water did Congress intend to keep to itself in 1897?
Justice William H. Rehnquist: Really, what you are arguing is that it was inappropriate of right that was reserved, not a riparian type of right?
Mr. John Undem Carlson: Well, I do not think it is riparian doctrine.
It is a strange and wonderful meld of many kinds of theories.
The Court consistently calls it a reserved right.
We prefer to think it of it an appropriation terms because that is the only system we have out there.
There are unique functions of appropriation.
I suppose if the United States says it is immune from requirements and that sort of thing, so they do not like the lingo.
But conceptually, the notion is, in 1897, they were saving something for themselves and we are trying to identify what it is that they say.
Chief Justice Warren E. Burger: Mr. Carlson, your time has expired now.
Mr. John Undem Carlson: Thank you.
Chief Justice Warren E. Burger: Mr. Moorman?
Argument of Moorman
Mr. Moorman: Mr. Chief Justice, may it please the Court.
Mr. Carlson started his argument by stating that the national forest supply, 95% of the water in his State, which I believe is true, but I want to point out to you that the Forest Service intends to use only one-half of 1% of that water from a consumptive use and I invite your attention to the appendix to our reply brief where there is a letter from Mr. McGuire.
So that virtually all of that water will be available and is available for the economic uses of the West.
Unknown Speaker: Yes, but I suppose you will agree that there is not enough water to go around and that it may well be that your water claims, if they are sustained will mean that there is less water available for water rights that have already been appropriated or that have been appropriated?
Mr. Moorman: Yes.
Unknown Speaker: I take it or otherwise, we would not have the amicus briefs from this gentleman’s clients or from others here that they think that their appropriated rights are going to be cut into?
Mr. Moorman: There are two problems, your Honor.
First of all, I think there is an inordinate fear.
Unknown Speaker: Well, first, is that not a fact?
Mr. Moorman: Yes, Your Honor, but there is an inordinate fear of the size of the future needs of the national forest, which I think are laid to rest by the letter from the Chief of the Forest Service, which we have attachéd to our brief.
The second thing is sort of an allocation thing.
Mr. Carlson’s client is trans base inverter, and therefore, he wants to take the water very high on the stream and out of the river basin itself into another basin, so it is sort of an allocation question with regard to him.
The water if it stays in the forest will be available for economic use.
It may not be simply be available to his client.
Unknown Speaker: (Voice Overlap) consumptive views point though it does not really answer that your “instream flow” matter because if you are entitled to maintain a minimum stream flow, that is a whole lot different matter than consumptive use.
Mr. Moorman: Yes, but if we maintain --
Unknown Speaker: And that certainly would prevent people from taking out too much water above the forest?
Mr. Moorman: Above the forest, that is correct.
But the water will be eventually available as it leaves the forest for economic use and development, and therefore, from the standpoint of the total amount of water available for the development of the West, the effect will be de minimis.
It will have an effect on where certain points of diversion can be and where it can be used, but that it seems to me is not a significant effect as the fact that the actual amount available will be virtually all the water from the national forest, all but half of 1%.
Unknown Speaker: I take it that there would not be any problem here if there was enough unappropriated water to satisfy your needs and satisfy other appropriated rights too?
Mr. Moorman: I think that is correct, but I do think that the effect of the forest service right on most appropriated use in the West is de minimis.
When you find unusual situations like the Twin Lakes people, if you want to take water across a divide, it can have a serious effect.
Unknown Speaker: I think that reasonable men and men of goodwill could differ with you, and they must be differing with you and have a different view if they are going to take the rather strong and earnest positions that they take in this case?
Mr. Moorman: That is quite possible that they do disagree with me.
I do not disagree with that, Your Honor.
I would like to make another point if I may in brief time, which is that New Mexico and the amicus have suggested that the sole reason of the State Courts denied rights to “instream flows” was because we failed to prove any need for those rights, and we believe this misreads the State rulings.
The State Courts did not deny the US minimum “instream flows” because of any failure of proof.
Quite to the contrary, they stated this flatly and unequivocally as could be done that we were not entitled to any minimum “instream flow” as a matter of law.
The state district court wrote that the United States does not have reserved rights to minimum “instream flows” based upon the purposes for which the Gila forest lands were or could have been withdrawn from the public domain and the Supreme Court affirms stating that “instream flows” were not contemplated by the Organic Act and I refer the Court to Appendix 231 and page 241 and as a last word, I will simply say that we requested permission to present additional evidence after the state objected to the in-stream after the evidence closed and we were denied that right.
Justice William H. Rehnquist: Mr. Moorman, does not any part of the objection to your position is kind of a springing use character of the claim that the government makes that it is 0.5% now, but under your theory, it could be 20% by 1990?
Mr. Moorman: I think that is the origin of the theory, Your Honor, that we have a right to future needs, but what is happening, I think we will lay that to rest because the Chief’s letter, which we attach encompasses the total present and foreseeable national forest water needs.
So the 0.5% includes all present and future needs and in water adjudications, we are quantifying not only our present, but our futures needs in cases like this.
So, the fact of the matter is, the 0.5% is the future needs of the forest as can be --
Justice William H. Rehnquist: Can chief this bind the future chief?
Mr. Moorman: No, but the Courts that adjudicate these rights and --
Unknown Speaker: Adjudication will (Inaudible)
Mr. Moorman: Adjudication will and we are going to present these rights for our future needs and in my opinion, in a decade, the adjudications will be over virtually in the West, in a decade-and-a-half, thank you.
Chief Justice Warren E. Burger: Thank you, gentlemen.
The case is submitted.