Warren E. Burger: This morning in number 59 original, the United States against the states of Nevada and California. Mr. Solicitor General, you may proceed whenever you are ready.
Griswold: May it please the Court. This case is here on a motion by the United States or leave to file an original complaints against the states of Nevada and California. United States appears primarily in a fiduciary capacity on behalf of the Pyramid Lake Indians of the Paiute Tribe. United States does allege the ownership of certain lands and water rights and its own right but it would not be here if that was its only claim. The basic claim relates to the Pyramid Lake Indian reservation in Nevada. The general location is indicated by the map which we have included in the pocket at the back of our complaint and brief and this is referred to in the complaint.
Warren E. Burger: Unfortunately, Mr. Solicitor General, in the shuffling of papers, my map got lost if you will have -- if you happen to have an extra one. (Inaudible) supplied another one now.
Griswold: The map will show that Pyramid Lake is in the upper center, it is fed by the Truckee River which rises in Lake Tahoe. Lake Tahoe is partly in California and partly in Nevada. The river runs for 20 miles in California where it obtains most of its water and then it flows for 65 miles in Nevada until it empties into Pyramid Lake.
Speaker: I am sorry, Mr. Solicitor, mine was missing too. Do you mind stating that again?
Griswold: Pyramid Lake is fed by the Truckee River which has its outlet -- which is the outlet of Lake Tahoe. Lake Tahoe is located partly in California and partly in Nevada. The river runs for 20 miles in California where it gets most of its water and then it flows for 65 miles in Nevada until it empties into Pyramid Lake. The Court will note on the map just above the center, the Derby diversion dam and then the Truckee Canal, which diverts a substantial part of the water of the Truckee River into the Carson River system and the Carson River system with the water from the Truckee River produces the Newlands Irrigation District which is the green area in the right part of the map. The way the map appears, one could get the impression that the Carson River is also an outlet of Lake Tahoe, but that is wrong; the Carson River rises in the mountains to the east of Lake Tahoe and the water from Lake Tahoe gets to the Newlands Irrigation District through the Truckee Canal from the Truckee River and thereby represents water which does not flow on to Pyramid Lake. Pyramid Lake is 30 miles north of Reno. It's a remarkable lake. Some say it's the finest desert lake in the country. The Pyramid Lake Indian Reservation originated on November 29, 1859 and was confirmed by President Grant by an executive order issued on March 23, 1874. The Pyramid Lake Indians had a culture which was based primarily on fish on which they lived, and which they used for bargain. And the lake provided a large and remarkable fishery and the purpose of including the lake in the reservation was to maintain the source of the Indians' livelihood.
Speaker: Two fishers mentioned somewhere in these papers, the variety of cutthroat trout and then another fish I have never heard of.
Griswold: Yes, Mr. Justice, that I heard of it in connection with this case, it's spelled cui-ui and is pronounced cui-ui.
Speaker: Can you say that again?
Griswold: Cui-ui and it's pronounced cui-ui.
Speaker: Now, is that a variety of trout?
Griswold: That is a fish which is peculiar to the Pyramid Lake, the Lahontan cutthroat trout was a very large and successful commercially and otherwise fish which was peculiar to Pyramid Lake. Pyramid Lake is the geological residue of an older lake called Lahontan and indeed the reservoir created in the Carson River is now called the Lahontan Lake. And the fish in Pyramid Lake and that's part of the complaint here, the cutthroat trout in Pyramid Lake have been unable to maintain themselves because with the fall and the level of the lake, the fish are unable to get up the Truckee River to spawn. Now the fish have been taken out and put into fish hatcheries and are now planted in Pyramid Lake and they are also found in some of the other lakes, but without the help of men, the Lahontan cutthroat trout would be extinct now. It is it and the cui-ui are both on the list of endangered species of the appropriate body of the government.
Speaker: Are cui-ui found anywhere else?
Griswold: As I understand it, not any place else, no place else. And as I say, it's been taken out for planning but --
Speaker: Is that a member of the trout family or is that something?
Griswold: I am not enough of biologist to say that, I believe so but I do not know except that I think that it has a -- I think it would go back to millions of years before you had planned a --
Speaker: Does a cui-ui have the bloodstream too?
Griswold: As I understand it, they do not. The cui-ui can apparently --
Speaker: Reproduce in the way--
Griswold: I am told that they are stringent family, the cui-ui is. In 1903, after the passage of the Reclamation Act in 1902, the Newlands Reclamation Project was established by the Secretary of the Interior named after a senator from Nevada. In 1905, the Derby Dam was completed with the consequent diversion of much of the water from the Truckee River to the Carson River system. As a result of this and other activities, the water flowing down the Truckee River to Pyramid Lake has been reduced to about 250,000 acre feet while 375,000 to 400,000 acre feet are required to replace evaporation losses and maintain the level of the lake. Because of this annual deficit of 125,000 to 150,000 acre feet, the level of the lake dropped more than 80 feet since 1906.
William H. Rehnquist: Mr. Solicitor General, does your complaint show what the annual flow in acre feet was before the Newlands diversion?
Griswold: I am not sure that the complaint does, a material referred to in the complaint, particularly the Pyramid Lake Task Force report of which copies have been distributed to the Court, give figures going back to the 1860s as to the flow into Pyramid Lake.
Speaker: Mr. Solicitor General, has the lowering of the level of the water in the lake resulted solely from the diversion to the other river?
Griswold: Yes, Mr. Justice. The level of the lake probably would have fluctuated because of variations in annual rainfall which the natural runoffs of the river varies apparently from 200,000 to a million, 100,000. It averages enough to maintain the level of the lake at the level where it was in 1860. Apparently, there has been a constant slight diminution in the lake, but this has become very marked since the diversion of the water by the Derby Dam and the Newlands --
Speaker: But I understand that Mr. Solicitor General that, that kind is now been arrested as it, hasn't it?
Warren E. Burger: Reversed.
Griswold: It has been arrested, but it has not been -- necessarily, we can't foresee the future that it would be stopped because of various actions which have occurred, part of which is a substantial rainfall in recent years but others a suit brought by the Indians if I may say so and their desperation in the United States District Court for the District of Columbia to compel a secretary to follow his own regulations and to avoid and prevent wastage of water. There has been a considerable entries in the amount of water and it is true that in the past six years, the level of the lake has risen by about ten feet so that the net fall of the lake at this point is about 70 feet. There is a picture of the Truckee River falling into the lake in the Task Forest report on Page 17 which has been distributed to the Court or at least made available to the Court in another copy.
Speaker: Well, I have seen these --
Griswold: Well, I am now told only one copy was filed with the clerk. I thought one had been made for each member of the Court. I would suggest you look at page 17, you will find a picture of the Truckee River entering in what amounts to a big delta into the lake, the drop was 70 feet makes it impossible for the fish to get up to the river and spawn. This has destroyed the fisheries, threatens extinction of the trout native to the lake. It increases the salinity of the land, causes land erosion and threatens continued existence of the lake as a useful body of water. On behalf of the Indians, through this suit, the United States contends that when the Pyramid Lake Reservation was established in 1859, the United States, by implication, reserve for the benefit of the Pyramid Lake Indians sufficient water from the Truckee River for maintenance and preservation of Pyramid Lake, and for the maintenance of the lower reaches of the Truckee River as a natural spawning ground for fish. United States claims these rights for the Pyramid Lake Indians with a priority date of November 29, 1859. Whether this claim is warranted, whether the Indians have these rights is the principle issue before the Court in this case. Now the Court also -- the complaint also contains reference to a suit which the United States brought in connection with the Newlands project.
Speaker: Mr. Solicitor General, that Newlands project is the one in the Carson River setup, isn't it? I don't see the name Newlands on here.
Griswold: Perhaps it is not, but that is what it is known by and it is so referred to in the complaint.
Speaker: I am just trying to identify it on the map here.
Griswold: That whole project, you have one with color?
Speaker: No, we don't.
Griswold: Well, I am sorry. That whole project in the right half, right third of the map is the Newlands project. It obtains water from the Carson River as to which there also is a suit in the Nevada Courts, one which over a period of 30-40 years operates on the basis of a temporary injunction. That's all that has ever been issued. The diversion of the water from the Truckee River to the Newlands project --
William H. Rehnquist: Could you hold up that map, Mr. Solicitor General, I think none of the four of us have the green one? Or is it upside down?
Speaker: It's upside down. How's that? Yes, yes. Does Newlands drain into the Colorado?
Griswold: Oh no, Mr. Justice, Newlands drains into what they call a sink out there and disappears. In fact, the sink has greatly augmented because of the undo diversion from the Truckee River. The runoff water from the Newlands project goes into the sink and that has made a new wild life refuge where there are ducks and where hunters go, we would say, using the Indians water for the purpose of erecting a new sporting and non-commercial activity.
Speaker: Was that on the still water point?
Griswold: That is on the map beyond still water point and finally, when it gets to still water wildlife management area in nearly upper right-hand corner and the swale which is at the right edge of the map. Now, there is quite a lot of water there. That water will presumably be cut down and allowed to go down the Truckee River as a result of the decision of the District Columbia Court in the case requiring the Secretary to conduct a more careful and efficient operation of the (Inaudible) river project.
Speaker: Is the water in the sump saline?
Griswold: The water?
Speaker: Is the water in the sump salt water or fresh water?
Griswold: In Pyramid Lake?
Speaker: You are talking about the still water.
Griswold: That is essentially fresh, Mr. Justice. I suppose that the water that goes into the wildlife refuge, is essentially fresh. I suppose that having percolated through the land, it has picked up some salts. But the water that goes down the Truckee River is particularly fresh, is remarkably fresh.
Speaker: I just want to know about the end product of the sump. Is that salt water?
Griswold: As I understand, it is essentially fresh water and it finally percolates into the ground and disappears. Pyramid Lake is more saline than freshwater lakes we are used to in this part of the country, but it is remarkably non-saline when it has an adequate water supply.
Speaker: Has the complaint or other materials before us indicate the extent of the fishing rights that the Indians are claiming? Is it just broadly to maintain the lake and the fish as they were when the reservation was created?
Griswold: Well, it isn't even quite that far, Mr. Justice. We don't ask for enough water to restore the level of the lake to what it was in 1859. The prayer of the complaint is on Page 14, prays that a decree to be entered declaring the rights of the United States for the benefit of the Pyramid Lake Paiute Tribe of Indians to the use of sufficient waters of the Truckee River to fulfill the purpose for which the Pyramid Lake Reservation was created including the maintenance and preservation of Pyramid Lake and the maintenance of the lower reaches of the Truckee River as a natural spawning ground for fish. Incidentally, I am told that --
Speaker: Well is the -- is the fishing right one for a sustenance or is it at commercial?
Griswold: For both, for both, Mr. Justice. That was the way they used it at the --
Speaker: What is the commercial end of it?
Griswold: The commercial end would be that the Indians would sell large quantities of a very remarkable fish for which they would get money, with which they would buy clothes and other kinds of food.
Speaker: Do they sell the fish here, do they sell the fish to other fish hatcheries or they sell it as food or what?
Griswold: They have historically, Mr. Justice. There have been substantial fishery establishments there including the canning of the fish. This is all greatly restricted. We are told that by council for the states that there are only 400 Indians who live their now, but there are 500 who don't live there and have an effect been driven away because the economic possibilities of maintaining themselves have gone with the disappearance of the fishery.
Speaker: There are no treaty fishing rights that are kind of planned here at all, and I understand that you are relying upon the implied reservation of water for the reservation alone.
Griswold: Yes, Mr. Justice, but the Indians own the lake, so that they would --
Speaker: (Inaudible) allow these cases where we --
Griswold: They would have their fishing rights if there were adequate fishes.
Speaker: Yeah, but they weren't given any fishing rights. This was a reservation originally in 1859 confirmed by President Grant in 1870s and you are relying on the Arizona Doctrine where they have implied reservation of water. Isn't it?
Griswold: Yes, yes, Mr. Justice.
Speaker: And tell us that historically, these people live by fishing. That was their economy but there is no fishing rights.
Griswold: That is exactly our position. I would suppose that the only question here apparently arises because of this Court's decision in Ohio against the Wyandotte Chemical Company and more recently, in Illinois against Milwaukee and it will be my purpose to try to show that the approach taken in those cases is not applicable here and thus, motion for leave to file the complaint should be granted. This case does not raise questions of state or local law as was the situation in Wyandotte. The questions here are federal questions of the sort which this Court has traditionally considered in original suit. The United States appears as a trustee for an Indian tribe, exercising one of its greatest responsibilities under the constitution. The questions involved are Federal questions, essentially the effect of the establishment of an Indian reservation by Federal authority and the application to that reservation of the rule of the case of Winters against the United States and the very closely comparable case of Arizona against California to which Mr. Justice Stewart referred where the United States intervened in an original suit on behalf of Indian tribes and this Court made essentially the same sort of adjudication that we are seeking here. The order in Arizona against California provides that a million in acre feet of water shall be made available to the Indians at the suit of the United States and there is also involved the effect if any, on the rights of the Indians from the establishment of the Newlands Irrigation Project under the Reclamation Act. A claim made by the --
Speaker: When did that establish, Mr. Solicitor General, when was the Newlands Project begun?
Griswold: Newlands Project was authorized in 1903, there was a suit called the Orr Water Ditch suit filed in 1913 in which a final decree was entered in 1944 and one of the questions in this case is what is the effect of that on the residence of the Indians. We contend that it does not bar the rights of the Indians but that's one of the issues which would be heard if they leave to file, the complaint was granted. The claim made by the United States relates to the waters of an interstate stream and thus, presents the kind of question appropriate for decision by this Court. And moreover and most important, this Court is the only tribunal which can make a definitive and final adjudication of the right claimed on behalf of the Indians and Nevada suggests in this brief that the suit could proceed in the District Court for Nevada, despite the fact that most of the water comes from California and an adjudication with respect to the rights of the Indians made by the Nevada Court would not be binding on California or on California citizens. Nevada says that the Nevada District Court could reach California and its citizens through some sort of a long-arm approach. Perhaps Congress could authorize this and for a period of four years, from 1922 to 1926, Congress did authorize amount to interstate suits in the District Courts with respect to water and other matters and some of the cases cited here began in that period, notably the Brooks case which was a contempt case for violating a decree which was involved Arizona and New Mexico in a suit brought during the period when the Arizona Court was given jurisdiction over parties in New Mexico. Congress could authorize it but it hasn't done so and I know of no basis for such jurisdiction in a case like this. Incidentally, in the careful and thoughtful brief filed on behalf of California here, there is no such suggestion; California does not come forward and say it wants to appear in Nevada District Court.
Speaker: Is there any possibility for parallel suits in Federal Courts in California and Nevada and then we having them shown into the multi-district panel.
Griswold: I know of no way the multi-district deals with cases where the Court has jurisdiction with respect to the issue. Here the Nevada Court would not have jurisdiction over the California water rights. The California Court would not have jurisdiction over the Nevada water rights and I know of no authority under the multi-district suit to require them to get together and to come to the same conclusion on the questions of fact or of law. This Court maybe concerned if it takes jurisdiction of the case that it will be involved in a multitude of factual determinations with respect to individual water rights. Perhaps there are thousands of persons both in Nevada and then California, I think that concern is unwanted. The basic question here is an important one and it may present some legal difficulties but the problem is one which the Court is well-equipped to resolve. The question raised here is whether the United States has any right on behalf of the Pyramid Lake Indians, and if so, what is the extent of that right. If it is established that the Pyramid Lake Indians are entitled to a definite amount of water with a fixed temporal priority then it will be known hot water remains for use in California and in Nevada. At that point, it may well be that the two states can agree on their relative portions of the remaining water as they have agreed in a compact which is pending before Congress but not approved by Congress but based on the assumption that the Indians have no rights. The compact does say that it doesn't deprive anybody of any rights but it doesn't recognize that there are any such right. The United States has no interest whatever in how the allocation to California and Nevada is divided among their individual water users and the District Court in Nevada can make the appropriate allocations among Nevada users if that question too is not settled by agreement. Now I have mentioned the compact and I don't have time to discuss it. It obviously is of no legal significance because it has not been approved by Congress. Incidentally, both senators from California have joined in a statement and I mention this because it indicates the unlikelihood that Congress is going to prove the contract if both senators from California oppose it. They have joined in a statement in which they conclude, we therefore support the efforts of the tribe and Federal government to obtain a judicial determination in the Supreme Court.
Speaker: (Inaudible).
Griswold: Eventually, it might but it seems to me that this basic question of whether the Indians have any right and if so to its extent, it would be helpful to have it heard before master but it would be a relatively simple matter before a master and not the question of allocating water rights among all the people in a great --
Speaker: More like with tidelands.
Griswold: It would be very much like the tidelands although perhaps somewhat simpler that that; not involving the massive historical considerations that were there.
William H. Rehnquist: Mr. Solicitor General, do I gather from your answer to Mr. Justice Douglas's question that the government doesn't really seriously press the idea that the case ought to be partially adjudicated here before it's referred to a master?
Griswold: I don't think it makes a great deal of difference. What we are -- I think what we are trying to say in that is that it ought to be adjudicated here on the basic issue, do the Indians have a right or not. Before there is any consideration given to the problem, how you allocate the remaining water. Now whether --
Speaker: Excuse me. What we have here is that this is an argument on motion for leave to file a bill of complaint as I understand it, and they haven't even been responsive --
Griswold: There haven't been answers and I should think that after the answers have been filed and we know what is denied and what needs to be proved, it would be possible at that point to it could well be that the answers will be filed in such form as to raise only a legal question at least at the threshold. And that threshold question, do the Indians have a right or don't they, can be presented as a purely legal question. It becomes a little more complicated when you say, yes they have a right but what is its extent. For example, the Indians do not claim that they are entitled 375,000 acre feet every year. Sometimes the water goes down, I think their position would be that they are entitled to an average of 375,000 acre feet over a period of, let's say, ten years. So that if it goes down one year, some water can be made available to the Newlands Project and it can be made up in subsequent years. It's undoubtedly true that there have been differences of opinion and conflicts of interest within the interior department about this claim of the Pyramid Lake Indians. The Bureau of Reclamation and the Bureau of Indian Affairs do not always see eye-to-eye. It's equally true that the Department of Justice has not advanced this claim in prior proceedings. The Indians should not be bound about that. There will be argument about res judicata and merger and bar and our position is that the Indian should not be bound to their great loss by reason of defaults which may have occurred on the part of officers of the United States in the past and I don't criticize them because they were reflecting a national attitude at that time. It was a great step when the Secretary of the Interior requested the department of justice to start this case in this Court. It would be something of a tragedy for the Indians if this Court should now refuse to consider the claim made on their behalf.
Warren E. Burger: Mr. Prettyman?
E. Barrett Prettyman, Jr.: Mr. Chief Justice may it please the Court. I am Barrett Prettyman and I represent the defendant State of Nevada in this original action. In the few minutes alloted to me I am not going to be able to discuss some of the purely legal questions in our briefs such as res judicata and collateral estoppel and even case or controversy against the state. I am going to have to rely on our brief for those points. Instead my argument here is going to be restricted to the reasons why this Court should not in its discretion assuming that it has jurisdiction, why it should not exercise that original jurisdiction in this case. In case after case, after case, this Court has emphasized, that state should work out problems relating to mutual boundaries or interstate stream themselves, if they can do it and in case after case it was only after such attempts that reconciliation between the states had failed that this Court had agreed to exercise its original jurisdiction. Now, here what do we have? We have the two states where the disputed water is located, agreeing after more than 15 years of negotiations on an equitable apportionment of the waters involved. We have a joint task force that the government participated in after long study finally agreeing on recommendations which as is already been noted, have already begun to increase the water procurement. As a matter of fact, the water level has risen some 11 and 12 feet in the last few years, ever since the interior department has begun concentrating on their operating criteria and putting them in one shape.
Warren E. Burger: How do the rights of the Indians Mr. Prettyman figure in this negotiation that you have just described?
E. Barrett Prettyman, Jr.: Well, in the first place, the Indians originally participated in the taskforce, withdrew, then submitted statements and witnesses in regard to the compact. They specifically made some objections to the compact as it was originally drafted and those objections were taken into consideration and this is quite important, let me give you two examples. Originally, the California was given an unlimited right to create extra -- to create extra flow, to create extra water after the original Tahoe Basin was taken care of. The Indians objected to that and a 10,000 acre foot limit was put on California's right. In another example the Indians were given a maximum right based on Orr Water Ditch plus municipal and other use which was actually being put to the beneficial use, they could not get anymore water after that. That was eliminated because of their objection. So that after their Orr Water Ditch commitment now and after California's share comes out, then the use goes back to Nevada again and the Indians have a full right to get the amount of money -- the amount of water that they can show that they need from that. These are two examples of objections which the Indians had at the compact and which were taken care of in the compact.
Potter Stewart: The constitution provides the interstate compacts, it doesn't provide to best of my knowledge between -- for compacts between the States and United States. I suppose your point is that Congress would not approve and it has to do under the constitution of an interstate compact if it wasn't satisfactory to United States but suppose the response to that would be well in this case, it is not the Congress that is the guardian of the Indian wards but it is the executive branch of the government that's the guardian and we can't leave this matter to the self interest, if you will, of states like California and Nevada, that are represented in the Congress by senators and representatives representing those states, but rather it's the executive branch and there is no room on account of constitution at least for a compact among states and the executive branch of the government?
E. Barrett Prettyman, Jr.: Well the compact will not become operative until Congress approves it and we think that in view of the fact that the federal government has been intimately involved in the development of the compact that the -- and in view of further of the fact that the State of Nevada is also concerned about the Indians rights and making sure that this level of the lake is at certain level. We think that they should be presenting their arguments to Congress rather than here in view of this long history of negotiations between the states where finally, unlike these other cases where you had where the states have been unable to come to agreement, we have been unable -- we have been able to come to an agreement and the agreement is such that the Indians could not possibly be damaged. The United States doesn't claim that they are going to be damaged by --
Thurgood Marshall: Do you any they agree with?
E. Barrett Prettyman, Jr.: Pardon me sir?
Thurgood Marshall: Do you have any evidence that Indians agree with this compact?
E. Barrett Prettyman, Jr.: Well, I think the Indians obviously would much prefer a declaration by this Court that they have a Winters right to x amount of the water. They undoubtedly would prefer that to the compact. On the other hand, our position is that if the compact is approved, California's share is so small, it's a maximum 45,000 acre feet. You have got 560 - 80,000 acre feet of water here involved that they could not possibly be harmed by California's share. You are going to have plenty of water coming into Nevada and if a problem arises later, then the Indians can sue at the appropriate time either they can sue in Nevada.
Thurgood Marshall: Sue against the compact?
E. Barrett Prettyman, Jr.: No, they would not be suing against the compact Mr. Justice Marshall because the compact would leave plenty of water in Nevada for their share. You understand that the Indians --
Thurgood Marshall: What I don't understand is that the fish has gone?
E. Barrett Prettyman, Jr.: Well sir, I beg a differ what if a fish, the United States has told the judge, it could sell or thrive it.
Thurgood Marshall: (Inaudible)
E. Barrett Prettyman, Jr.: Yes sir, the fish is thriving today because of great improvement in the level of Pyramid Lake and another things which are taking place there through the Secretary of Interior's operating criteria.
Thurgood Marshall: We know if we grant this motion we would have to give it to a master to find if fish is thriving, isn't it?
E. Barrett Prettyman, Jr.: You undoubtedly would have to appoint a master. If you accept this case, let me tell you what's going to happen. First of all, the compact is going to come to a halt. Congress obviously is not going to approve the compact while the issue is now pending --
Potter Stewart: Well, it's been there how many years Mr. Prettyman?
E. Barrett Prettyman, Jr.: Compacts has been almost 17 years.
Potter Stewart: That's what I thought, 17 years.
E. Barrett Prettyman, Jr.: Number two --
William H. Rehnquist: (Inaudible) approves the compact that's inconsistent with some Indian claim, I would take at the Congressional action would supersede whatever Indian claim might have existed, wouldn't it?
E. Barrett Prettyman, Jr.: If you were to take an extreme case where so much water was given to California that in effect obliterated the Indian's rights, I think that there would be authority to do that in the same way that you could takeaway a man's land through an international treaty with say Canada or Mexico. I think that it would supersede, but I want to emphasize again that there is no question about in this case because if you look at what the Indians are asking, when they say Winter's right, they are not talking about some esoteric theory where this Court says Winters right to put some stamp on. They are asking for enough water to maintain the Lake namely 385,000 acre feet.
Potter Stewart: Do you call it Winters right?
E. Barrett Prettyman, Jr.: Winters right, yes sir. That comes from the Winters case --
Potter Stewart: Oh!
E. Barrett Prettyman, Jr.: -- Mr. Justice, where you have first discussed the fact that there was an implied reservation of water along with an Indian reservation --
Potter Stewart: That's what you mean by Winters rights basically.
E. Barrett Prettyman, Jr.: Yes sir.
Warren E. Burger: Mr. Prettyman, going back to the vindication of the Indian's rights after an allocation is made of the greater proportion to the State of Nevada. Would you remind a little bit for me on how they vindicate that right, that a suit in the district court against the state of --
E. Barrett Prettyman, Jr.: Let me show you exactly how it would work. The compact is approved. At that point California takes out as I say at a maximum and this really is a maximum 45,000 acre feet. So you now have over 300,000 acre feet flowing into Nevada. If, thereafter, the Indians were not getting their sufficient share, in view of your ruling, that their share would be allocated to the state, they would then sue the State of Nevada and the Nevada Federal District Court to get their portion of the 300,000 that was a part of the State's use. In other words, they would sue Nevada because the only disagreement would be between the Indians on the one hand and the amount of water the Nevada has now collected on the other. There would be no conflict or controversies with California.
Byron R. White: But you do not suggest that there is any other court right now in which a suit could be filed and would settle this matter?
E. Barrett Prettyman, Jr.: We do, although I am not going to take the time to argue it here. We do claim that California could be brought into the state of Nevada. There is recent case by the California Supreme Court called Hall versus University of Nevada which we say supports that idea, but I do not have to take that position --
Byron R. White: You took a more persuasive one as away from the two wait on the compact and then sue?
E. Barrett Prettyman, Jr.: Well our point is this that if you allow Congress to act, now what has happened here. The compact has been placed in the Congress. Their appropriate committees have been asked for the comments of the United States--
William J. Brennan, Jr.: What has held it up for 17 years?
E. Barrett Prettyman, Jr.: Negotiation on what the shares were going to be.
Warren E. Burger: Well, it hasn't been before Congress all that time?
E. Barrett Prettyman, Jr.: No sir, no no no it is only been before Congress the last session and this session that is the only it has been before Congress, all of these some 15 years --
William J. Brennan, Jr.: What is that Solicitor General suggested that senators of California would prefer?
E. Barrett Prettyman, Jr.: Well there are two senators which have made statements on behalf of the Indians in California. I would prefer that Mr. Walston speaking for California address himself to that, but I do not think obviously that is going to control.
William J. Brennan, Jr.: Well I would suppose as a practical matter, if senators in one of be contracted states opposed there is no chance of Congress would approve it, is it?
E. Barrett Prettyman, Jr.: We would hope that they would see the light Mr. Justice and particularly after you do not allow the --
Byron R. White: Well Mr. Prettyman planning the case would necessarily keep parties to the case, including the United States from settling it, would it?
E. Barrett Prettyman, Jr.: Mr. Justice if you take this case I can assure you as a practical matter there are a number of things are going to happen. First of all Congress is going to stop dead in its tracks in trying to prove the contract. Secondly the various recommendations that have been made by the task force for proving the lake are going to stop because nobody is going to know how much water has to go to the Indians. The interior secretory is operating criteria which he is now under order to improve here and which he is going to produce still more water, if he has jurisdiction to do it for pyramid lake are going to come a complete hall again because nobody is going to know what we are talking about here in terms of these Winters rights. I emphasize to you that a Winters right is not some is not some definite specific figure. You have to go back and find out what the situation was in 1859 at the time the reservation was created, what the Indians were doing, we are not as all sure as the Solicitor General that they were engaged in all this much fisheries for example and we have to go through that entire business. Orr Water Ditch which is a case which adjudicated we say that very rights that are under consideration here took I think it was something like 20 years for them to come to any conclusion. Now Orr Water Ditch you understand already gives the Indians 30,000 acre fit a year, that is adjudicated. And we say that, that actually covers this case in is fully determinative, but even if it isn't, the fact of the matter is that what the Indians want they are either getting or about to get. They want 385,000 acre feet, that is what their brief says, that is what the United States said, because 385,000 acre feet is going to sustain that lake at its present level, that is what they want. Now when we turn to that what do we find? We find that there is been a tremendous amount of water increasing recently into Pyramid Lake because of the changes that I have talked about and we also have these specific recommendations of the task force, some of which you been carried out. Let me give you an example. One of the things the task forces recommended was a Cloud Seeding Project. Well that sounds a little far out, but in true we are now into the third year because of that recommendation of the Cloud Seeding Project and they found in the first two years that there was a 14% and a 10% increase in precipitation as a result of that. In hard cold fact, that 14% produces 140,000 acre fit of water, a 120,000 of which goes to Pyramid. This is one of the reason why Pyramid, we think is started back up again. There are other recommendations that the taskforce made. They said for example if you enforce your present decrees, if you will go into District court with the decrees that you have right now and enforce them that you will find, and they gave a specific figure of how much of that would produce, 9500 acre feet there. They talked about certain TCID improvements, the Truckee-Carson Irrigation District improvements which would produce another 85,000 and so we have these recommendations, part of which are being implemented right now and part of which we will be, if the court does not take things over, which we say is already beginning to sustain the lake and would certainly will sustain the lake if you do not take this case in which if everybody is allowed to proceed. For example if you do not take this case and I might say we think that United States is suing the wrong party, we think here they ought be suing themselves because judge Gesell took the position that the Secretary of the Interior was not properly carrying out his responsibility and his own operating criteria and we say that if you combine these various factors, if you combine the compact, if you combine the recommendations that have been made some of which you have already been carried out, if you add into that judge Gesell's order about improving his operating criteria, you are going to have more than enough water for Pyramid Lake. We hope, obviously I cannot guarantee that, but we say until these things have had an opportunity to show themselves, until we have had an opportunity and good faith to carry out what's going on here, why should we stop the whole thing right now after the 17 years, bring it all to a halt and suddenly have this Court appoint a special master and go back and begin determining for I do not know how many additional years what the Winters rights says. If there was a question about what they really wanted from these Winters rights, I would take a different position, but there is no question they want 385,000 acre feet.
Byron R. White: Has the filing of this motion for leave to file interrupted anything?
E. Barrett Prettyman, Jr.: Well, it's -- in the first place in United States is not responded to Congress' request for comments, I am sure because of this case and won't until there is some decision here, that is number one. Number two, there are projects which have been recommended by the taskforce which require money and obviously I do not think the state can be expected to commit any funds, if we are willing to, with not knowing what the Indians were eventually going to get and also I do not think there is any question, but that judge Gesell's order be ignored in affect in ignorance of this Court were to take Jurisdiction because obviously a ruling here would in affect override much of what he has done. So I think there is no question about what the practical affect would be.
Potter Stewart: The compact is in a judicatory committee, is it?
E. Barrett Prettyman, Jr.: Yes sir.
Potter Stewart: Does it go to the committee the -- the committees of both houses?
E. Barrett Prettyman, Jr.: Yes sir it is a S. 24 and H. R. 15 at the moment.
Warren E. Burger: Mr. Prettyman if the special master were appointed at the some stage, not necessarily right away, if it's really could grant it, would this necessarily means that the special master would have to retread all of this ground or could he not draw on what the taskforce and what the negotiations have flushed out in the way of evidence?
E. Barrett Prettyman, Jr.: Mr. Chief Justice in the United States District Court in Nevada there is a room full of records relating to Orr Water Ditch. Perfectly true he could go through them but it has got a long hard difficult task ahead of him and I do not want to mislead you for a moment that this is a question of sitting down and reading to a few papers and coming to a conclusion. Everybody who dealt with this problem has found it extraordinarily difficult, it has taken an awful long time. May I just end by quoting to you something that was said just last year by the National Water Commission that was appointed by the President. It said the future utilization of Indian rights on fully appropriated streams will divest prior uses initiated under State law and curiously enough often financed with Federal funds and will impose economic hardship amounting to disaster in some cases on users with large investments made over long period of time. That is the reason that the state of Nevada is concerned because obviously we have an interest in the Indians in preserving the some 400 Indians, but we are also terribly concerned about the water that goes in the Newlands and irrigates some 64,000 acres of land. We are concerned about the quarter of million people in the area who --
Thurgood Marshall: Are you talking about ducks?
E. Barrett Prettyman, Jr.: Pardon me sir.
Thurgood Marshall: Are you talking about the ducks, you concerned about the ducks in the wet lands?
E. Barrett Prettyman, Jr.: Well sir when you get the wildlife --
Thurgood Marshall: Mr. Solicitor General corrected by that then it is all that used for always but that --
E. Barrett Prettyman, Jr.: Oh no sir, you mean Newlands used ducks? No sir Newlands, the stow off from Newlands helps the still water a wildlife refuge, but you have got 64,000 acres of land out there under irrigation sir. You have got 5000 farmers you have a quarter of million people in the area who are depending upon the water from the Truckee. We are not talking about protecting ducks.
Thurgood Marshall: Approximately how much is the wet land, it is not, what percentage would it be?
E. Barrett Prettyman, Jr.: Well but it spill off sir its what left over --
Thurgood Marshall: Percentage.
E. Barrett Prettyman, Jr.: I am sorry I cannot give you the actual percentage but I tell you it is not the original use at all sir. The it's the runoff that goes down to still water, but we are not talking about --
William H. Rehnquist: That is typical with any irrigation, doesn't it, that you get a certain amount of run off?
E. Barrett Prettyman, Jr.: Yes sir, that's correct. That is the reason for our concern here that yes there are the Indians interest and obviously they have some rights. We're not trying to do away with those rights. We did in the compact as United States agreed, but there is also the interest of an awful lot of other people here that we want to make sure are also protected. We think we are in good faith after these negotiations. There is tremendous amount of it -- $1.50 million dollars spent on getting this compact. We think we are entitled now to proceed and if by any chance, it doesn't work, if the light goes down again, they can come back, light can come back very much.
Warren E. Burger: Mr. Walston?
Jr. Roderick Walston: Mr. Chief Justice may it please the Court. California basically agrees with the arguments which have been advanced by the state of Nevada and we feel that very basically the Pyramid Lake problem is presently being solved by many alternative methods at the legislative level, the judicial level, the administrative level and we want the Court to -- as far as California is concerned, the real basic question between the Federal Government and the State of California and Nevada is not really how whether we are going to solve the Pyramid Lake problem, but rather how we are going to proceed to solve it. Now the Federal Task Force has come in with a report about two years ago and said that, vast amounts of water were being wasted in the Truckee River basin by the Federal Government's own mismanagement of its own Reclamation project, the Newlands project, Task Force had made a number of recommendations provided the Federal Government could improve the facilities and improve the management of these systems and make additional water available for use in Pyramid Lake and if these recommendations are followed and are applied by the Federal Government, the problem of Pyramid Lake will be solved. Now the same approach was taken more recently in a lawsuit which or in a decision rendered in the Federal District Court in Washinton DC, judge Gesell presiding. This lawsuit was brought by the Indians against the Federal Government. The Indians claiming that the Federal Government was violating it's fiduciary obligation to the Indians by wasting all this water in the river and thus failing to maximize the flow of the Truckee River into Pyramid Lake and judge Gesell upheld the position of the Indians and he said that the vast amounts of water were in fact being wasted in the Truckee River by the mismanagement of the Newlands project. He then ordered the Federal Government to devise a regulation that will provide for salvage water which can go into Pyramid Lake and so if judge Gesell's decision is implemented by the Federal Government and is followed and the water thus required to be made available to Pyramid Lake actually made available again, Pyramid Lake would receive all the water that it needs and the problem would be solved. So there be no need for this Court or any other Court to really get involved with the question which is being posed by the Federal Government in this case. As matter of fact perhaps you will find, after judge Gesell's decision is applied and after the Task Force recommendation are followed that there is in fact, enough water in the Truckee River right now to satisfy all the demands which are being made upon it.
Byron R. White: Well this -- assuming that nothing that judge Gesell ordered would be interrupted by the filing of this lawsuit, the filing of the lawsuit might turn out to be an unnecessary act but it would not -- it would be very bothersome, would it?
Jr. Roderick Walston: I think it would be Justice White --
Byron R. White: Not in terms of whether the water would be available or not, if judge Gesell's orders were carried out as you say they could be?
Jr. Roderick Walston: If judge Gesell's decision was carried out then Pyramid Lake would probably receive on the average about 385000 acre feet of water per year and this is all the Federal Government is really asking for on the behalf of the Indians in this case but it's very interesting Justice White how judge Gesell has approached the problem and how the Task Force approached the problem, really differs from the approach taken by the Federal Government. The judge Gesell's approach and the Task Force approach is based on the assumption that we have to preserve existing water usage in the upstream area in the Truckee River basin and this is diametrically opposite from the approach being urged on this Court by the Federal Government. Suppose for instance, 385000 acre feet of water were flowing through the Truckee River in a very dry year, when less than a normal amount of rainfall occurs in the Sierras, the approach taken by the Federal Government would take the entire 385000 acre feet of water and put it solely for use in Pyramid Lake thus there would be no water left over for any upstream usage.
William H. Rehnquist: They were not permitted any diversions for the Newlands project?
Jr. Roderick Walston: Not according to the prayer and the government's complaint which I believe is found at page 14 and 15 of its complaint. They are asking for a set minimum yearly flow --
Byron R. White: I did not understand the Attorney Solicitor General to say that's what they were demanding?
Jr. Roderick Walston: Well the Solicitor General remarks, I think, very somewhat from his prayer. If you look at his prayer Justice White, on pages 14 and 15, you will find that they are asking for a minimum flow measured in terms of acre feet to the Pyramid Lake. And if there --
Byron R. White: Well, the solution of the problem is that so, and I would not say that they are simple but if you think judge Gesell has seized upon adequate solution, it should not be very difficult, it would not take if you are right, for even if this suit was filed, you mean even to arrive a similar result here or to dismiss it and leave it to judge Gesell's decree.
Jr. Roderick Walston: That is possibly true, Your Honor but I strongly suspect that if a Court takes the case, if this Court takes the case and proceeds the exercise its original jurisdiction in the matter, than the whole Task Force will come to a halt.
Byron R. White: Well, not if -- I suppose you have taken cases in which we specifically said that we did not intend to interrupt a lot of other things going under the court in the same case --
Jr. Roderick Walston: Well that is – well then you are -- you are really by taking the case merely duplicating, this is our whole point, you are really duplicating what judge Gesell has already found and you are duplicating what the Task Force has already recommended. If the problem is actually being it solved by administrative and other judicial means then I see no bases or justification for this court actually exercising it's discretion in the case.
William J. Brennan, Jr.: Is any judicial review being sought of judge Gesell's order?
Jr. Roderick Walston: No justice Brennan. I understand that the Federal Government is not going to take an appeal from judge Gesell's decision and that is presumably it should apply judge Gesell's decision and that is provide Pyramid Lake --
William J. Brennan, Jr.: Well your point is if we accept this case, that enforcement of judge Gesell's decree will stop, is that it?
Jr. Roderick Walston: I frankly do not know how the Solicitor General will respond to judge Gesell's decree if the Court takes the case, I --
Byron R. White: Well we are going to say the fellow who is under judge Gesell's order wants another solution --
Potter Stewart: Two different groups within the department of interior, we are talking about, aren't we?
Jr. Roderick Walston: Yes, Mr. Justice --
Potter Stewart: Conservation groups, we're talking about BIA?
Jr. Roderick Walston: Yes that's correct.
Byron R. White: (Inaudible)
Jr. Roderick Walston: Yes that is correct Justice White there is the --
Byron R. White: He is the one who is under order, judge Gesell's order?
Jr. Roderick Walston: Yes that's correct.
Byron R. White: And he is the one who recommended the filing this lawsuit, I understand.
Jr. Roderick Walston: The filing of the lawsuit we are talking now, yes that's correct. So in effect the Federal Government is coming before this Court and really asking for a solution of the problem that I think has already been found. If the court applies judge Gesell's decision, I think the problem should be solved.
William J. Brennan, Jr.: You do not mean if the court applies, you mean if it is applied and enforced by the Secretary?
Jr. Roderick Walston: Yes that is correct.
William J. Brennan, Jr.: And what you are suggesting as I understood you was that we take this case, the Secretary will not apply to force judge Gesell's order, but it will wait on the outcome of this case, is that right?
Jr. Roderick Walston: Well, I am not I see Justice Brennan, I am not sure what reaction the Solicitor General will take to judge Gesell's decision, if the Court takes the case. Certainly I don't think that they will follow through with the Task Force recommendations, as matter of fact, the Task Force made a number of recommendations and the Federal Government, I would assume would not comply with those recommendations, if the Court takes the cases. As a matter of fact, these recommendations have not been complied with so far, Federal Government is in effect, trying to implement it weather modifications scheme which the Task Force suggested but that's the only Task Force's suggestions that has been followed by the Federal Government in this case. The Task Force found a number of other things that Federal Government can do. The Federal Government has taken no action on those other recommendations and I would assume that the reason is that it prefers to seek a judicial solution in this Court in which the Winter's doctrine question is adjudicated. The underlying assumptions behind judge Gesell's approach to the problem and behind the Task Force approach is that the Federal Government itself really controls the lion's share of water flowing though the Truckee River.
William H. Rehnquist: Of course Judge Gesell was limited, wasn't he, in that he didn't have the water users before him so that that was really the only approach he could take?
Jr. Roderick Walston: That is the only approach he could take, that is right Justice Rehnquist but there is a sufficient solution to the problem, we believe whether it is justice or judge Gesell was in fact saying that there is vast amount of water which is being wasted in the Reclamation project, that the Federal Government has the power to control this waste, it has the power to eliminate the waste and if it follows these suggestions or the order of judge Gesell and the task forces, and makes the water available for use in Pyramid Lake then the whole problem is solved. I would remind the Court that all the parties who are receiving water now in the Newlands Reclamation project, and all the other parties who are receiving water in Nevada, and all the parties who are receiving water in California are not before this Court either.
William J. Brennan, Jr.: They were not before judge Gesell?
Jr. Roderick Walston: No, that's correct, Your Honor, judge Gesell just had the Federal Government before him and he ordered the Federal Government to adopt regulations which I think should solve the problem.
Byron R. White: Could they be brought in this suit?
Jr. Roderick Walston: They could be, I suppose that they could be. That raises a very interesting question. The Federal Government is in effect trying to have the water's right adjudicated on the behalf of the Indians and this is a water right which would be taken out at the share of water which is allocated to the state of Nevada. Well I don't see how this Court can adjudicate the right of one water user in the Truckee River.
Byron R. White: (Inaudible) didn't it?
Jr. Roderick Walston: Pardon me?
Byron R. White: (Inaudible) say that the admission of Montana did not supersede an implied reservation of water when the reservation was created just a year before?
Jr. Roderick Walston: That's correct. In that case Justice White all the – as my understanding of case is that all the competing water users were before the Court and there was -- the Indians were before the Court and all the other water users were before the Court. In this case, the Federal government is asserting a water claim on behalf of the Indians and seeking to have this Court adjudicate that water claim, even though there are many conflicting or supposedly conflicting water claims in Nevada which these are of some consideration also. I don't see how this Court can really adjudicate the water claim which is to asserted by one user in the Truckee basin without asserting the water claims adjudicated by all the Truckee River users. So we respectfully urge this Court to let the matter proceed and to let the decision of Judge Gesell be implemented and the recommendations of the Task Force be followed. We think that this provides a constructive solution to problem which will effectively preserve the rights and the uses of the upstream water users. The people out in the Rene area need water every year for drinking purposes. The farmers in the Newlands project need water for agriculture purposes and Judge Gesell I think has pointed to a constructive solution to the problem so has the task force if the right problem solved, so the matter I think is pre-maturely brought by the Federal Government at this time.
Warren E. Burger: Thank you Mr Walston. Mr. Solicitor General we have gone over a little bit and we have heard some estimates as to the impact of what might happen if the relief you seek is granted and perhaps you could spend about three minutes in enlightening us on your view of those estimates?
Griswold: Mr. Chief Justice the suit pending in the district of Columbia was a responsibility of the Solicitor General to decide whether an appeal should be taken and the decision has been made that no appeal will be taken. Nevertheless, that case involves only the left-over, only the run off, only the water which does not go to someone else by right. It leaves – it does undertake to maximize the left-over and it will help the Indians but it gives them no right. That water can be appropriated by somebody else, it remain surplus water in the river. It can be appropriated in California, it can be appropriated in Nevada. The only way that the Indians can be protected is by having an adjudication that they have a right under the Winters Doctrine as applied by this Court most recently in Arizona against California. I am also advised that the Office of Management and Budget has authorized the filing with Congress of a statement that the Federal government opposes the ratification of the compact until this question is resolved. I would point out too that in the compact itself, in Article 18 (c), it is provided that the compact does not deal with the rights of any parties which are not specified in the compact and that was intended to leave open the question of what would happen if there was an adjudication of the rights of the Indians.
Byron R. White: District Court – a Federal Court or even a state court would have jurisdiction over -- In a state water adjudication if United States was noticed as to what its claimed rights might have – might be, you would have to enter that to --
Griswold: Under the case in Colorado the --
Byron R. White: Yes.
Griswold: -- that would be true. That was an intrastate stream in that case. There is no way --
Byron R. White: Well, with respect to the competing claims of Newlands and Pyramid Lake, these are intrastate stream.
Griswold: With respect to the competing claims in Newlands these are intrastate claims but with respect to the claims in California and I would point out that they are substantial, we have filed a supplemental reply brief here which recounts the or sets out the text of an order of the State Water Rights Board in California which granted a substantial additional amount out of Lake Tahoe saying that in that decision the board assumed to be surplus and unappropriated. The water from lake Tahoe and the Truckee River flowing by Derby Dam which is not required to satisfy decreed downstream Indian rights and which wastes in the Pyramid lake. The only decreed rights the Indians have is 30,000 feet for irrigation. We are seeking hereto establish decreed rights in support, in favor of the Indians to maintain the level of Pyramid Lake.
William J. Brennan, Jr.: May I ask you Mr. Solicitor general, I thought you said, at least I did not that we would not have to get in or bring in these other claimants --
Griswold: I think that is entirely right Mr. Justice.
William J. Brennan, Jr.: What's your observation?
Griswold: All this Court needs to do here is to determine whether the Indians have a right with a priority --
William J. Brennan, Jr.: But that would not decide vis-a-vis the other claimants the --
Griswold: All this Court needs to do here Mr. Justice is to determine whether the Indians have a right with a certain priority.
William J. Brennan, Jr.: I know but if that priory has to do – mean that that other water users in the area get half the water they used to, you are foreclosing them. The question is --
Griswold: No Mr. Justice. All that they need to do is to determine whether the Indians have a right with a certain priority and to allocate the waters of the stream between California and Nevada who appear as parens patriae and who will represent the water users in those states just as they did in Arizona against California or exactly this was done --
William H. Rehnquist: But that was initiated by the states Mr. Solicitor General. Arizona and California asserted claims as parens patriae. Here you are insisting that they assert them even though they are defendant.
Griswold: The suit was instituted by the states but the intervention by the United States on behalf of the Indians was against this -- The suit was instituted by the States but the intervention by the United States on behalf of the Indians was by the United States and against the states and this Court adjudicated the rights and adjudicated that the Indians were entitled to a million acre feet in that case. If the Court here adjudicates that the Indians are entitled to a right with a certain priority and allocates that between the two states which is what it did in Arizona against California, then the question of allocating the water to the individual users which is allocated to Nevada in the one case can be handled in the Nevada Court and if allocation to California users can be handled in the California Court --
William H. Rehnquist: Then all these farmers would loose their rights as a result of that adjudication if it were favorable to the Indians without ever having had a day in this Court.
Griswold: They are represented by their respective states as has been the case in, I think I am safe to saying dozens of cases involving interstate water rights before this Court, where the States appears parens patriae.
Warren E. Burger: Thank you Mr. Solicitor General, thank you Mr. Prettyman, Mr. Walston. The case is submitted.