Transcript

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF COLORADO, Plaintiff v. STATE OF NEW MEXICO, ET AL.

No. 80 Orig.

January 9, 1984

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.

APPEARANCES:

RICHARD A, SIMMS, ESQ., Santa Fe, N. Mex.; on behalf of the Defendants.

ROBERT F. WELBORN, ESQ., Special Assistant Attorney General of Colorado, Denver, Colorado; on behalf of the Plaintiff.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments first this morning in State of Colorado against the State of New Mexico.

Mr. Simms, you may proceed whenever you are ready.

ORAL ARGUMENT OF RICHARD A. SIMMS, ESQ., ON BEHALF OF THE DEFENDANTS

MR. SIMMS: Mr. Chief Justice, and may it please the Court:

The question before the Court is whether Colorado has met the burden of establishing a basis in fact which would warrant an award of water for a future use in Colorado on a river that has been fully appropriated and used in New Mexico. The Master's Report before the Court simply adopts Colorado's case.

Colorado's case, however, does not begin to meet the standard of preponderance in ordinary civil actions much less the standard of clear and convincing evidence in original actions between states. The Haster has recommended an award of 4,000 acre-feet.

The bottom line of that recommendation is his conclusion that there would be no injury in New Mexico. That conclusion depends upon three interdependent factual predicates.

The first of those is that the acreage in New Mexico must be cut in half. That is, the acreage that New Mexico users are ready, willing and able to irrigate must be cut in half.

As part of that predicate the Canadian River users of Vermejo water must not even be considered by the Court. The reduced acreage on the main stem of the Vermejo in the 1970's must not have been caused by water shortage. The New Mexico water users must not have been diligent, and the Court will, therefore, protect only 5,300 acres in New Mexico instead of 9,100 acres.

Secondly, and additionally there must be in New Mexico reasonable conservation measures which would effectively manufacture or make available or augment the supply by 4,000 acre-feet at the diversion points in Colorado.

Thirdly, and again additionally the future use of the benefits that would derive therefrom must be reasonably certain and comparatively unquestionable. All three of these factual predicates are essential to the Master's Report.

If one of those predicates fails, Colorado's case fails and the Master's Report fails. We believe the case fails on all three predicates.

The bottom line I believe in this case generally is that there simply is not enough water in the Vermejo River to make it possible to make an award to Colorado for a future use. In the Court's first decision in this case the Court indicated two ways in which it might be possible to apportion water: first, augmentation of supply in two ways, either through water conservation or through the effective forfeiture of water rights not diligently exercised; secondly, the Court indicated that through a balancing of benefit to the future use in Colorado against detriment to the cessation of the existing uses in New Mexico an award might be made to Colorado.

QUESTION: Mr. Simms, on the first point and the way in which water can be augmented, how can New Mexico legitimately claim that nonuse over a thirty-year period never becomes in effect an abandonment of the use of a certain portion of the water? Is it your position that New Mexico can never by nonuse lose the right to use the water?

MR. SIMMS: Not at all, and I think the Court's first instruction to the Master in the first area of evidence taking suggests the answer to the question, Justice O'Connor. The Court said that to determine the existing uses you must look at present levels of use, and balance on the one hand shortage of water against the possible inference on the other hand of lack of diligence on the part of the water users.

We presented the evidence. Colorado did not present the evidence to do that. New Mexico did present the evidence to do it.

That evidence indicates that for the Vermejo Conservancy District as an example -- I presume that they are the users to whom you are referring. In there after the District was rehabilitated in 1955 there was a ten-year development period. That did not end until 1965.

In an ordinary reclamation project you would not expect the water users during that period to have developed their water rights. They are given that period of time within which to do it.

Right after that as the evidence shows the water supply dropped off substantially. The way in which you instructed the Master to provide the factual information to the Court is the same way a water right entitlement is adjudicated in most every western state.

They will look at historic use, an adjudication court will, and balance on the one hand times of shortage so that nonuse might be excused and on the other hand the possible lack of diligence. Here you can make no inference of lack of diligence out of the contractual development period.

Once that stopped, once that was over there is a drought on the river. Consequently, while the water users are still ready, willing and able to use the water supply, the water supply simply is not there.

QUESTION: Mr. Simms, let me interrupt if I may for a moment. The Master in dealing with the finding of drought says New Mexico claims that the nonuse on the part of the District is caused by the drought in the early seventies. However, the drought in the 1970's cannot be responsible for the nonuse which has existed in the District since its formation in the fifties, nonuse through a time period when all of the other users in evidence from flow tables found sufficient water available.

So he is finding for a substantial period before what you say was the drought.

MR. SIMMS: Early in the fifties. See, the Vermejo Conservancy District was rehabilitated. That was finished in 1955.

Prior to then there was a much larger irrigation project, nearly twice as many acres. It was all torn apart. The canals were rebuilt. Some reservoirs were taken out. New reservoirs were put in. New lands were leveled or were to be leveled. The whole place was rearranged.

So in 1955 there began a ten-year period within which to develop up to the potential of the District. Actually it was seven years. It was later amended and became ten.

At the end of that development period is when the drought years began. The problem with the Master's assessment -- The Master says he looks at the flow records or the flow charts.

What he does is look at Table 2 in his second report to you. We invite the Court to look at Table 2. Table .2 is the average discharge for every month of every year from 1916 until now.

The Master looks at that, but he does no do anything else. He does not compare those figures with anything.

That is the end of the Master's analysis. That is the beginning of New Mexico's analysis. What you have to do is take those figures and do a water accounting down the river below the Dawson gauge where he gets the figures.

You have to add accretions, subtract depletions and carry those figures, carry that water supply down to the farmer's land in order to find out how much water is available on the land. If, for example, you look at the year 1950 -- and the Master has told the Court he finds no time of material deficiency or intermittent supply by looking at those figures -- but look at 1950 in his chart.

If you add up the discharge for the year you will find the first figure in New Mexico's Exhibit F-29. That figure is 4,800 acre-feet. If you do a water budget and take that down the river to the land, you end up with 1,600 acre-feet.

The Master says that is sufficient. He is explaining to the Court that that is sufficient to irrigate 7,380 acres. We believe that is patently incorrect.

If you were to do it for the year 1951 you would end up with nothing on the farms. If you were to do it for 1956 you would end up with nothing on the farms.

Then there were some good years following 1955. The problem there, though, was the development of the District.

Once the District development period was over you get back into drought years, and if you follow through on Exhibit F-29 and do this water budget accounting, which Colorado never provided and the Master never did, you will find out that the river is very, very short in the seventies.

The evidence in that regard is overwhelming. It is the bulk of the evidence in the record. If you were to compare the monthly USGS flows to demand from 1916 to now, that supports New Mexico.

The Bureau of Reclamation testified in this case, including its regional director and its area engineer. Both are personally familiar with the operation of the Vermejo Conservancy District. They testified to the shortages.

Their testimony is unimpeached. Indeed, in this regard it was not even cross examined. The water users, all of them, testified to this shortage.

QUESTION: Mr. Simms, can I ask a question about one of the Master's findings. He refers to a man named Porter on page 7, who is an individual user, as I understand, downstream of the District. He got substantially all his water as I understand what the Master found and did not complain that the -- He got 85 percent I think. The difference he did not get was attributable to the shortage.

If he could get anything at all, does it not follow inexorably that the District itself must have gotten all it needed?

MR. SIMMS: No, it does not follow at all. Mr. Porter is one of a number of users, Justice Stevens, who uses -- He is not a member of the Vermejo Conservancy District --

QUESTION: No, he is downstream.

MR. SIMMS: -- but he utilizes --

QUESTION: He is junior to them, is he not? His rights are junior to theirs.

MR. SIMMS: That is correct. But he utilizes their works in order to take water. He takes his water out of their works.

A comparison of the same flow records at the Dawson gauge that I just mentioned in our Exhibit number F-29 will reveal the same thing with respect to Mr. Porter as it does to the Vermejo Conservancy District. There simply is a shortage that averages 6,600 acre-feet per year between 1955 and 1979.

That figure is corroborated by Colorado's own exhibits. Their exhibit numbers 37, 38, 43, 45 --

QUESTION: Let me cut through because I do not have the facts nearly as well in mind as you do. Is it correct that he got all the water he needed?

MR. SIMMS: He may have gotten all the water he needed during that period of time. That is correct.

QUESTION: Is it correct that his rights are junior to the District's rights?

MR. SIMMS: I think the question perhaps you are asking, Justice Stevens, is whether or not he should have called priority somehow. He was not in a position to call priority because --

QUESTION: If he got all the water he needed could someone who had senior rights to his have preempted his water?

MR. SIMMS: That is true.

QUESTION: Including the District could have done so.

MR. SIMMS: The District might have done so, but if the District were to call its priority and take the water rights of somebody junior to it, you end up with the same net shortage. You have to reduce the amount that would have gone to somebody else, and then that amount is given to the District.

In terms of the New Mexico users in general, the same figure, 6,600 acre-feet short, is still true. There is much more evidence in the record in this regard.

Three New Mexico engineers testified to the shortage. The Fish and Wild Life Service, the United States Fish and Wild Life Service, testified to the shortage.

QUESTION: Well, Mr. Simms, how valid are these points now? I can see arguing to the Master that this testimony supports such and such a finding, but the Master has rejected a lot of testimony by his findings. We do not review that de novo to decide. He is free to disbelieve any witness he wants to as I understand.

MR. SIMMS: I think he is free to disbelieve any witness he wants to, but it is awfully difficult for me to believe that there was any issue of credibility in this case. There was none. I think that issue is now trying to be injected in this case in order to pump up the weight that is to be given to the Master's Report, but I find it difficult to distrust the testimony of the Bureau of Reclamation.

I find it difficult to distrust the unimpeachable evidence of the USGS. I find it difficult to distrust the testimony of all of these people.

The reason the Master did what he did was because he never looked at demand. He simply stopped on the supply side.

He looked at that table and he just surmised, well, it seems to me there is enough water there for everybody. Had he compared that to the demand he could not have thought all of those people were not telling the truth to the Court.

Similarly when Congress passed legislation just a few years ago to relieve the repayment obligation of the Vermejo Conservancy District, that was done upon a congressional finding of the very water shortage that the Master says does not exist. We find it hard also to believe that Congress was duped.

The second area or second, way in which the Court can apportion water according to the Master in the first decision is through conservation, and the Court has indicated in its first decision that there also the burden has shifted to Colorado to prove by clear and convincing evidence that there are reasonable conservation measures available in New Mexico which would make 4,000 acre-feet at the diversion points in Colorado.

We submit there is not any evidence of any particular conservation measure in the record, nor is there any discussion nor any evidence put on by Colorado of the economic and physical feasibility of any given conservation measure. There is no discussion of how much water might be made at the diversion points in Colorado from any given conservation measure.

QUESTION: Going back to the supply side question again, Mr. Simms, for a minute, what did the Master do about the peak flows and the floods in his calculations of water availability in the Vermejo? How did he resolve that question?

MR. SIMMS: He bought Colorado's position that all basin discharge is available as a practical matter and divertable by the water users. That is half of his mistake.

The other half is he never bothered to compare that gross figure, which was already wrong methodologically, with the demand. So he is patently wrong in two ways.

QUESTION: Well, did his use of the average availability figures in effect get used twice, once in the supply figures and once in the excused nonuse calculations?

MR. SIMMS: Well, what he did to determine the demand on the river in effect was to equate the short supply -- that is what you see in his Table 2 -- with the acreage that was irrigated with that supply. Now that kind of logic or that kind of reasoning precludes a determination of water shortage.

To know water shortage you have to know the difference between the supply and the full demand. He refused to look at the full demand.

The reason he did that was because Colorado knew in the beginning that the only way they could even argue that there would be no injury to New Mexico in this case is to cut the water users in half to begin with and leave all of that injury behind. That is what the Special Master's Report recommends to this Court.

There is nearly 4,000 acres that is just pushed aside to begin with because the Master never bothered to look or compare supply and demand.

QUESTION: But the Master has found that New Mexico's administration of its water decrease was much looser than Colorado's. Certainly the intimation from those findings is that New Mexico could do a much better job of conserving and make better use of the water that it gets.

MR. SIMMS: That Master, Justice Rehnquist, did not point to one way in which administration would be able to save water in New Mexico, and I would suggest to you that that again was part of the design of Colorado's case and was necessitated by the fact that there are no reasonable conservation measures available.

QUESTION: But the fact that it is part of Colorado's case does not mean it is wrong. Everybody starts with a case they try to get the finder of fact to adopt, and he is going to go presumably for one or the other. So the fact that he has, as you say, bought some of your opponent's ideas does not make them wrong for that reason.

MR. SIMMS: But the Master is most definitely wrong because he has not been able to pinpoint how it would work. He has not told us how administration would work, nor is there any testimony point on by Colorado about how you can somehow administer this river and get more water.

What Colorado did was to put on the testimony of his state engineer and then elicit from our state engineer the fact that there is presently no water master on the Vermejo as a whole and then argumentatively in briefs Colorado tried to explain as they managed to persuade the Master that some kind of administration would make it possible to conserve water.

QUESTION: You say that since the Master's finding does not meaning anything he should not only find that the New Mexico decree is loosely administered but be able to point out how tighter administration would somehow save water.

MR. SIMMS: Most certainly. First of all, it is not loosely administered. If you were to compare along any one of the lines that Colorado has suggested, if you compare administration in the two states, New Mexico does not come out on the short end of the stick.

For instance, in the Vermejo Conservancy District there is a manager there. There are two ditch riders there. All of the uses and all of the releases are metered and measured.

When water is taken out of the reservoirs everybody knows how much water is taken out of the reservoir. That is all of the farms in the district. That is as much administration as you find anywhere in Colorado.

Colorado has tried to suggest that water could be made available if the state engineer came in and administered for forfeiture. Our point is Colorado put on no evidence, and the Master can point to none, indicating any land on the entire Canadian system that is conducive to forfeiture. There is none. There are no rights that are conducive to forfeiture.

Also, if you were to compare the two laws in that regard, Colorado urges that theirs is much superior, that there is a list of some 34 rights on the Purgatory that has been prepared to forfeit. Well, if you look and see what happened factually and historically that list has not even gone to adjudication.

In New Mexico nearly 8,000 acres of water right has been judicially forfeited on the Vermejo system. If you compare the reality of the two there is no discrepancy, then there is not this looseness in administration.

Mr. Chief Justice, I would like to retain the remainder of my time for rebuttal.

QUESTION: What do you suggest we do?

MR. SIMMS: Justice Marshall, I believe because, number one, the Master never compared supply and demand thus because his finding with respect to lack of diligence on the part of New Mexico users flies in the face of all of the testimony, because he is patently wrong it could be dismissed on that basis. It could be dismissed because Colorado did not meet its burden on putting on any evidence with respect to an economically and physically feasible conservation measure.

Both of those problems exist in the Master's Report. It could be dismissed for lack of having met the burden of proof on either of them.

CHIEF JUSTICE BURGER: Mr. Welborn.

ORAL ARGUMENT OF ROBERT F. WELBORN, ESQ., ON BEHALF OF THE PLAINTIFF

MR. WELBORN: Mr. Chief Justice, and may it please the Court:

This Court in its opinion in this case set forth two basic principles or considerations that apply particularly to this case: first, that reasonable conservation measures in one state may offset the effect of a diversion, a new diversion, in another state; secondly, that benefits in one state may outweigh harm in another state.

It is Colorado's position that the Special Master has found and that the evidence fully supports the conclusion that reasonable conservation measures in New Mexico in the Vermejo Conservancy District, for example, would and in fact already have offset the effect of a Colorado diversion and further that if there should be any residual harm to New Mexico, which Colorado does not believe there would be, that this harm would be outweighed by benefits to Colorado.

The conservation measure that has already been completed is one of the most blatant cases of waste that there could be. It results from the District stock water system procedure.

That procedure is fully described in our briefs, of course, and in New Mexico's own Exhibit E-3. The District released annually over 2,000 acre-feet of water from its reservoirs for the purpose of supplying water for livestock.

The livestock consumed about 35 acre-feet of water a year. So as you can see there was over a 98 percent loss of water.

This waste continued during the period that the District complained of a water shortage. It has now as of last year been eliminated by the installation of a closed stock water system -- I should say closed water system -- because the main thrust really of this new water system as explained in this New Mexico Exhibit E-3 is to supply domestic water. That was how it apparently got started, to supply water to 20 homes and then it expanded.

But this saving of 2,000 acre-feet of water at the reservoirs will completely offset the effect of the Colorado diversion of 4,000 acre-feet at the river. The reason for that is mathematically very simple. It's based on testimony of New Mexico officials, uncontested testimony, uncontested evidence, that the losses from the reservoirs to the farm headgates are approximately one-third. The losses from the river to the farm headgates due to the system going through the reservoirs, the canal system from the river to the reservoirs, the losses there are approximately two-thirds so that you can see 2,000 acre-feet with a one-third loss is equivalent to 4,000 acre-feet with a two-thirds loss.

This extreme waste of this water in this method of supplying water to livestock over the entire period of the District's existence until last year did not even constitute under law a beneficial use, an existing use which should be recognized. The Jicarilla case which we cite in our brief dealt with a 93 percent loss, an incredible loss of water at the Elephant Butte Reservoir below the city of Albuquerque.

The Tenth Circuit applied New Mexico law and found that that 93 percent loss did not constitute a beneficial use. This Court in this case Justice O'Connor has referred to the need for reasonable and beneficial use of a water right.

In Washington v. Oregon the Court said before they concluded that Oregon should have this water said, "We better look at this use and see if there is waste." They looked specifically. They used the words "beneficial use".

So here we have a conservation measure that is complete. The feasibility of it is proved. Now the Special Master was completely correct in placing emphasis on water administration.

Water administration is the key to water in the western states. It is the other half. A water right is one half, but it is not worth anything really if there is not water administration to back it up.

That is why the Special Master, an experienced judge, an experienced water attorney, really, who represented the State of Wyoming in Wyoming v. Colorado in one phase of that case, that is why he focused in all of these respects on this matter of administration.

QUESTION: Mr. Welborn, let's assume that the Master was justified in finding that Colorado was entitled to some allocation out of the Vermejo. Now as I understand the decree it basically gives Colorado 4,000 acre-feet.

MR. WELBORN: Yes, sir.

QUESTION: How is that going to work, say, if another year like 1974 comes along which Table 2 to the Master's Report shows that the annual flow at the Dawson checkpoint was 3,040?

MR. WELBORN: Well, the Colorado diversion -- There are two or three factors there, Justice Rehnquist. The Colorado diversion would take place at a point within the Colorado production which would mean that Colorado would take only approximately one half of its production so that it would be only take a half of the Colorado production and as the Special Master found only about a third or a fourth of the total Vermejo River production.

QUESTION: But isn't the Dawson checkpoint made up largely of water that you would call the Colorado production?

MR. WELBORN: Well, it is, yes, but it is made up also of water coming in below the border, and as I say Colorado contributes roughly half to the total figure. For example, the New Mexico witness, Mr. Moots, testified that the Colorado production was approximately 5,500 acre-feet a year on the average, and you relate that with the Dawson gauge with an average of some 11,000 acre-feet a year.

QUESTION: How about a year where the Dawson gauge says 3,040?

MR. WELBORN: In such a year from here on, Justice Rehnquist, the District will be completely protected for this reason, the stock water situation, which has now as a result of recent developments come to fruition, but the District gave first priority according to its own witness, Mr. Moots, in his testimony gave first priority to the stock water. They save water in their reservoirs. They release water from their reservoirs first for the stock water.

They held water in the reservoirs as against irrigation usage so that they would have enough for the stock water usage. So this conservation measure that has taken place would completely protect, as against the past situation, completely protect even in a low year.

QUESTION: Are you saying then that you think the records supports the finding that New Mexico's demand could be satisfied with 3,000 acre-feet?

MR. WELBORN: Well, I would suggest this, Justice Rehnquist. The District -- this gets to another point that has been made here -- deals entirely with reservoirs, and the District is entitled to take all of the water in the Vermejo River at its diversion point and indeed has taken most of the water in the river during the 30-year period.

So there have not been significant spills from 1950 to 1979. The reservoir system of the District as shown by New Mexico's own exhibits allows the carry over of water from one year to the next.

Now at the last hearing in this case Justice White asked if there were a five-year period of low water would that not be a problem. I suggest to you that, first, again I cannot emphasize strongly enough the conservation measures that have been now perfected by the District, but even if there were a period of over one year of low flow the District would not be suffering as compared with what it has in the past because it has now conserved this water.

Another element of conservation as far as the District is concerned is revealed in Exhibit 41, and the Special Master alludes to this, and that is the loss of water in its canals in its lateral system. Exhibit 41 is a Bureau of Reclamation report on a meeting between state and district officials, and they were discussing -- this was in the later part of the seventies -- they were discussing the possibility of administration on the Vermejo River and specifically in the Vermejo Conservancy District.

They did not go ahead with administration, but in that report it is said that if there were administration the District would have to be charged with waste as a result of the loss of water in its canals and laterals. The definite plan report put out by the Bureau before this thing got started showed -- Their estimate was a loss of 25 percent in the canals and laterals.

QUESTION: Is that because they are not lined with concrete or something?

MR. WELBORN: There is no particular testimony except that the silting in the canals and the debris that seems to collect in the canals. I do not think that there is any requirement that they be lined with concrete.

QUESTION: That might be quite uneconomical.

MR. WELBORN: No, there is no suggestion of that, and in this report it is simply the matter of cleaning up the canals.

But the District usage which has been referred to earlier and which the Special Master found was really basic -- it is basically its average usage -- is supported by the record. Mr. Simms suggests that the District was just getting going up to 1965, but as shown by New Mexico's own exhibit which is at page 12 of New Mexico's last brief the year of highest irrigation was prior to 1965.

Now New Mexico in its brief on remand represented to the Special Master -- this was after it was remanded to him for the additional findings -- represented to the Special Master that the period prior to the seventies was a period of stable supply for irrigation. Those are New Mexico's very words in its brief.

So the Special Master was eminently justified in noting in his additional findings that New Mexico contended that the period of the seventies was a drought period. He did not necessarily accept that, but he noted that even prior to that period the District did not irrigate substantially more water.

The average acreage irrigated for the total period of the District operation was 4,379. For the 1960's I think it was about 4,500, and for the 1950's it was about 4,400 so that you can see -

QUESTION: Mr. Welborn, what about Mr. Simms' point that their underutilization in the sixties or from '55 for ten years was excusable because it was a period of development?

MR. WELBORN: Well, I suggest, Justice White, that there was not -- According to this table, this New Mexico exhibit, there was not any underutilization then as compared with the later period based on the acreage irrigated. There is an exhibit, a Bureau of Reclamation exhibit --

QUESTION: Well, let's assume that there was a good deal more water available than was being used for the first ten years after the District was rejuvenated or whatever word is proper, would there have been an excuse for the District not using it because of the fact that it was just being developed? That is Mr. Simms' point as I understand.

MR. WELBORN: During all this period they were, as I say, giving preference to be sure they had at least 2,000 acre-feet to release --

QUESTION: I understand that. Assume that from '55 to '65 there was plenty of water to meet the District's supposed demand, but they did not use it. That is what you are saying is the case. Mr. Simms' response is, as I understand it, that the District was in a period of development so that is excusable. Is that his point do you think?

MR. WELBORN: I believe that is his point, but their own exhibit which is on page 12 of their brief shows they irrigated as much prior to '65 as they did after '65. The Dawson gauge figures -- The Dawson gauge it has been suggested is an average figure and so forth, but it gives monthly figures --

QUESTION: Say from the time this grace period ended up until the drought period they were not irrigating any more than they did before.

MR. WELBORN: No. No, they were not appreciably. The total average was 4,379. The average for the sixties was, I think, around 4,500, and for the fifties it was around 4,400. The Dawson gauge figures, which are a real guide mark as to the water available to the District because the District can take all the water below the Dawson gauge with the exception of the senior priorities of Phelps Dodge and those five people that take off the District canal -- The testimony is that those diverters all of whom are senior to the District with the one exception of Mr. Porter take about as much as the accretion from the Dawson, below the Dawson gauge to the District point of diversion.

Considering the fact that the District has these reservoirs, that there were no appreciable spills past the District head gauge in the thirty-year period from '50 to '79 except in two years, considering that, the Dawson gauge figure tells you what the District not only should have gotten but what the District did get. Now the Dawson gauge average for the fifties was something, 9,900 acre-feet a year. The average for the sixties was 11,000 acre-feet per year. The average for the seventies was 8,000 acre-feet per year.

So you can see there is not a great variation there.

QUESTION: Mr. Welborn, another point. Suppose that there is really a severe drought period, and I take it if Colorado wins this case if there are 4,000 acre-feet of water in the river in Colorado above -- at the point of your hoped-for diversion you would get that 4,000 feet no matter what the consequence was on lower river users. In short, you would never have to share the drought effect. Is that right?

MR. WELBORN: That is correct.

QUESTION: That is because there would be that much water for you to take.

MR. WELBORN: On the assumption that during the drought there would be 4,000 acre-feet at the diversion point, but if there were a drought there would not be 4,000 acre-feet, I suggest, at the Colorado diversion point because everyone would share in the lower figure as well as the higher figure.

QUESTION: I do not quite understand that. How much average water is in the Vermejo at your diversion point?

MR. WELBORN: At the diversion point the New Mexico testimony was that it is 3,360 acre-feet a year on the average. The Colorado testimony was that it was 4,700 acre-feet a year.

QUESTION: And you would want to take 4,000 acre-feet of that?

MR. WELBORN: At the diversion point.

QUESTION: Leaving on the average 700 acre-feet in the river?

MR. WELBORN: That is right. At the diversion point. Then there is an accumulation in Colorado below the diversion point.

QUESTION: I understand. In any event, as long as there is more than 4,000 -- Well, whatever water is in the Vermejo at your diversion point you can take 4,000 feet of it.

MR. WELBORN: That is correct.

QUESTION: You can take it all if there is only 3,000.

MR. WELBORN: That is correct. That is correct. We do not deny that. We simply point out that with these conservation measures and considering that Colorado would be taking only one-fourth of the flow in the Vermejo River, another factor as far as the District is concerned, there is no question but what these other diverters are going to get their water.

The monthly figures at the Dawson gauge show that. They are all senior to the District --

QUESTION: Mr. Welborn, you say you are only taking one-fourth of the flow in the Colorado River. That is fine -- in the Vermejo. That is fine in a year when they get 16,000. But '74 was a year when they did not even get 4,000.

MR. WELBORN: Well, I was going to get to the point, Justice Rehnquist, that the figures that the Special Master set forth in his report in his additional findings as to the amount of water coming to the District from other sources were about 45 percent. The District, in other words, gets about 35 percent of its water from the Chico Ricco and 10 percent from creeks which flow into the District's system.

So the water that the District gets from the Vermejo is only a little over half of its total supply. Those other sources, of course, would not be affected in any way by the Colorado diversion, but I wanted to suggest this again that the diverters on the Vermejo other than the District would not be affected even in a low flow year because all but one are irrigators and the monthly figures at the Dawson gauge even in the low flow years show that there is sufficient water for that purpose.

QUESTION: Mr. Welborn, why did the Master refuse to admit into evidence recent USGS stream flow measurements so that there could be a clearer picture of the available water?

MR. WELBORN: Well, I suggest that the Special Master very properly recognized that as being cumulative and cumulative in a way of minor significance. New Mexico's exhibit F-29 gave a thirty-year picture of the spills at the Vermejo Conservancy District headgate. It showed that in only two years in a thirty-year period were there significant spills.

Now, the new evidence that New Mexico proposed to the Special Master covered the years '81 and '82, and that evidence according to their offer of proof would have shown more than 4,000 acre-feet of water spilling past the District headgate in each of those years. That is particular significant because that is more than the Colorado entitlement.

They got the evidence in in effect because it is at page 50 of their brief, one of these charts. It shows that on only one day in 1981 did the spills exceed the capacity of the District canal, 600 cubic feet per second .

Now Mr. Moots has testified that the District will start to spill at 450 cubic feet per second, but this evidence showed that the spills exceeded -- the amount of water there exceeded 450 cubic feet per second on only one day. So this was water that the District was entitled to take and it could have taken presumably if its diversion system had been efficient according to its own testimony.

So I suggest that that is the basic reason that the Special Master did not take that, the basic reason being that it was simply cumulative. It was a two year period --

QUESTION: I take it that is the reason you objected to it, or did you object?

MR. WELBORN: We objected. We did not object vehemently. New Mexico said we screamed and hollered, but we did not. We objected. We asked leave to present additional testimony, but we had had 16 days of trial, many exhibits.

It was clearly cumulative. The other two areas that they wanted to go into, one of them was this closed stock water system, and they put that in their brief on remand to the Special Master.

There was just one factor there and that was that the closed stock water system -- really, domestic water system was completed. There was no denying that.

QUESTION: Mr. Welborn, what about Mr. Simms' argument that the Secial Master's analysis, he just looked at the supply side and really did not follow the water down the river to the District, did not deal with the demand?

MR. WELBORN: Well, the District demand I suggest is revealed particularly by the amount of acreage that the District irrigated as shown by their own exhibit, by the fact that they chose to continue with this wasting 2,000 acre-feet a year on this stock water business instead of using that for irrigation the District picture, I suggest, Justice White, is a relaxed one.

They chose -- As shown, as I mentioned, by Exhibit 41 after a conference when the state officials said they would have to be charged with waste if there was administration -- they chose apparently not to have administration. It was a relaxed situation. Much more than half of the people in the District -- The farms were part-time farmers, absentee owners.

This is discussed in detail in the Bureau documents, Exhibit 36, which the District witness testified was currently the situation. I think this is what the Special Master concluded. It was a relaxed situation.

QUESTION: You are not suggesting that New Mexico water laws require to disallow water rights to part-time farmers are you?

MR. WELBORN: No, I am suggesting that that was the picture. I am suggesting, though, that a New Mexico water law is interpreted by the Jicarilla case and another case that is cited in that require beneficial and reasonable use of water. The Special Master contrasted the New Mexico picture with the Colorado administration.

I suggest that this brings into play the Wyoming v. Colorado concept and the concept suggested in this case that wasteful uses will not be protected and that each state has a duty to preserve the common supply. Now in Colorado as testified to by its state engineer there is daily surveillance in the Arkansas River Division, Division II, where this falls, the Purgatory falls, of water diversions of the amount of acreage irrigated.

The Colorado statute specifically requires the state officials to shut down water if it is not being put to beneficial use, if it is being wasted. This was the picture that the Special Master had.

As said in, I believe, Wyoming v. Colorado or Nebraska v. Wyoming, it is not what a state should do for the other state, but --

QUESTION: Mr. Welborn, was that not all argued before when this case was here?

MR. WELBORN: I beg your pardon?

QUESTION: Was that not all argued before when the case was here?

MR. WELBORN: The question of duty and so forth, yes, Justice Marshall, was --

QUESTION: Was it not decided?

MR. WELBORN: Yes, it was.

QUESTION: Why are you presenting it now?

MR. WELBORN: I am relating it, Justice Marshall, to the question of conservation which I believe is up here. We felt that the pronouncements of this Court regarding protecting wasteful practices were particularly relevant to this question of conservation.

Now there is another area that administration would have protected and dealt with that would have been a benefit to the Vermejo Conservancy District, and that is the overuse of water by other diverters. There was no administration and no surveillance.

These other diverters were senior, had senior priorities, and there were not any records -- the Special Master noted that -- because of the absence of administration, but the interesting thing was that when one measurement was made as shown by a New Mexico exhibit, A-130, the seepage run on the Vermejo had shown the Phelps Dodge lessee irrigating after what New Mexico's own exhibit had said was the irrigation season, after September 15th, and using an amount of water, 300 acre-feet, which would have been equivalent to the total annual entitlement of that diverter.

So this is the sort of thing that could have been dealt with and would have been dealt with by proper administration certainly in Colorado. All of these factors, I suggest, are ones that the Special Master took into account.

He noted also, and I would like to emphasize this in closing, the great benefits to Colorado and the Purgatory, the fact that the City of Trinidad needed water -- the City of Trinidad put a moratorium on water taps -- the fact that there was 29,000 acres of land, irrigable land, in the Purgatory Valley, 19,000 in the District and 10,000 above the district that needed water. The water was needed for coal washing purposes, for industrial development.

He put that together with the picture of water administration. One of the questions this Court propounded was, would there be conservation in Colorado, and he concluded that there would be because of the Colorado picture on water administration.

So the benefits to Colorado, it is our position, of course, that with conservation measures dealing with the overuse, with the silting in the District canals and particularly this conservation measure that has been completed with the domestic water system which eliminates the 2,000 acre-foot waste, it is our contention that there will be no harm to New Mexico resulting from the Colorado diversion.

But if there should be, the Special Master eminently concluded that any such harm would be outweighed by these benefits to Colorado, and that, we feel, Justice Marshall, fits into both the concepts and, as I say, the principles that were announced in the last paragraph of the Court's decision.

Thank you very much.

QUESTION: Can I ask one question, Mr. Welborn? At the end of your brief you suggested maybe the decree should be rewritten in a couple of minor respects, or maybe they are not so minor. Did you take any exceptions to the Master's report yourself?

MR. WELBORN: No, we did not. We did not consider that to be an exception, Justice Stevens. We suggested -- We felt that the main thrust of the Special Master's original reports and his additional findings that Colorado should have 4,000 acre-feet of water a year, and his report did not specifically limit the Colorado points of diversion as being the points where this water should be taken out of above those points. So we suggested that there be that limitation that Colorado could not take anything below the points of diversion specified in the Colorado decree, and that along with that there be this ten-year running average which is used in Nebraska v. Wyoming, for example, and also used in the Colorado River compact.

QUESTION: Why won't that ten-year progressive average you suggest increase the divertable quantity to Colorado beyond the Master's recommendation? It looks to me like it would.

MR. WELBORN: Justice O'Connor, if Colorado was specifically limited to the points of diversion in the Colorado decree it could. You are absolutely right.

If, however, Colorado is free to take water any place in Colorado then it would be a corollary to the protection that would be given by limiting Colorado to these points of diversion.

CHIEF JUSTICE BURGER: Mr. Simms, do you have anything further?

ORAL ARGUMENT OF RICHARD A. SIMMS, ESQ., ON BEHALF OF THE DEFENDANTS -- REBUTTAL

MR. SIMMS: There is an extremely important point with regard to this 2,000 acre-feet that Colorado has talked about a great deal being conserved from the closed pipeline that was put in by New Mexico users, two very critical points. First of all, Colorado says that there is an Exhibit E-3. That exhibit has in it a figure of 2,000 acre-feet that could be saved if a closed stock water pipeline were put in.

If you translate that 2,000 acre-feet in the reservoirs of the Vermejo Conservancy District into 4,000 acre-feet through all of the efficiency coefficients in route to 4,000 acre-feet at the diversion points in Colorado. As a matter of fact, that 2,000 figure is 2,145.

It was estimated in that exhibit by taking the month of November, finding out how much water was released then after the irrigation season was over and when all of the canals were dry and multiplying it by nine. You get a very inflated figure designed to support this project.

The fact of the matter is and according to the unimpeached testimony of Colorado if you look at their Table 4 of their exhibit number 6 the average amount of water released during the period of the life of the District has been 790 acre-feet, not 2,000 acre-feet. That is Colorado's testimony. That is based on Colorado's discussion with the people that manage the Vermejo Conservancy District.

QUESTION: What did the Special Master find?

MR. SIMMS: The Special Master never looked at that exhibit.

QUESTION: Did he ever find how much had been diverted to the stock water system or how much might be saved by a closed system?

MR. SIMMS: He did not. He made no specific finding in that regard. Colorado is arguing that this one measure, and it is the only one they can point to, is going to offset the new diversion in Colorado.

To do that he has to be correct. Colorado has to be correct that it is going to make 4,000 acre-feet in Colorado. It will not. Seven hundred ninety acre-feet diversion on the average. Bear in mind this was because that is what the Bureau of Reclamation gave them to use.

QUESTION: How much water upstream would 790 --

MR. SIMMS: 1,500 acre-feet.

QUESTION: So you agree with his formula.

MR. SIMMS: We would we agree with -- No, we don't agree with that methodology, but utilizing Colorado's methodology in backing up the river you would have an offset only of 1,500 acre-feet. What that nets out to be is cutting into the New Mexico uses, not only the ones we already threw out, half of the entitlement. Now you cut into the ones that are left by an additional 2,500 acre-feet.

QUESTION: May I ask, you say that the 2,000 figure should really be 790.

MR. SIMMS: That is correct.

QUESTION: What is your view of the correct ratio if you do not accept their two-for-one figure?

MR. SIMMS: Justice Stevens, I do not think I can answer that without the help of an engineer. The reason is --

QUESTION: Is it somewhat larger than 790 though?

MR. SIMMS: No. The figure would be about the same. We agree with the 790 figure. The only difference is how you translate that 790 at the reservoir --

QUESTION: Do you take the position that 790 feet saved down in the reservoir is the equivalent of 790 feet diverted up in Colorado?

MR. SIMMS: No. It is the equivalent of somewhere in the neighborhood of 1,500 acre-feet.

QUESTION: So you do then agree with their two-for-one ratio if I understand. Maybe I misunderstand it.

MR. SIMMS: We do not exactly agree with it. There is no dispute over it insofar as this point is concerned.

QUESTION: Thank you.

MR. SIMMS: Secondly, the conservation measure that is being discussed was undertaken long before this litigation began. It was undertaken because the water users themselves recognized that what the Bureau of Reclamation gave them to work with was not very good, and they worked awfully hard to put together the money.

They went to every state and federal agency you can conceive of to get that money. They finally put the package together and built the system.

It seems to me that the question is not whether CF&I should vicariously be awarded the benefits of their labors, but rather whether this Court is going to protect the kind of conservation measure, ongoing conservation measure, that it has said the states on an interstate stream are obliged to do.

QUESTION: Well, you do not suggest, I am sure, that a conservation measure would increase your water allocation.

MR. SIMMS: No. What the evidence shows without contradiction, and it is the evidence of the Bureau of Reclamation. It is the evidence of the USGS. The evidence shows that there is no economically or physically feasible conservation measure, any further ones, available in New Mexico. We have the ultimate conservation measure down at the bottom of the Canadian system.

There are two major reservoirs down there that impound nearly 500,000 acre-feet of water. The Vermejo dumps into that. Colorado would have you believe that the river channel that runs from the point of diversion at the Vermejo Conservancy District down into Conscious Reservoir does not exist.

QUESTION: Is part of your argument that the uses of Vermejo water in the Canadian river should prevent an allocation to Colorado?

MR. SIMMS: Those uses have to be thrown out entirely in order to reach the conclusion of no injury.

QUESTION: Well, I understand that. That does not answer my question.

MR. SIMMS: Justice White, they along with the 4,000 acres that you would throw out along with the additional undercutting of New Mexico uses by 2,500 acre feet plus the 13 percent shortage of the Canadian river users and their historic reliance on the Vermejo, yes, they all add up.

QUESTION: They may have a historic reliance, but that is only because there is water running past the District. Yet the Vermejo is completely adjudicated.

MR. SIMMS: It is completely adjudicated, but there are spills and they get down there frequently as the USGS data show. If you look at the entire period of record and not the mean daily flows on the exhibit to which Mr. Welborn has referred you to, you will find an average flowing past that diversion point of 7,700 acre-feet over the long haul. That is a lot of water getting down to the Canadian river.

QUESTION: That includes the flood periods.

MR. SIMMS: Yes. That is essentially flood flow.

One final point, even if the Court were to buy everything that the Master did, which we believe is patently incorrect because he never compared demand to supply and because he never identified a conservation measure, he has not shown you one reason either in law or in equity why priority should be varied even if Colorado were to be awarded the water.

Thank you.

CHIEF JUSTICE BURGER: Thank you, gentlemen.

The case is submitted.

(Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.)