Earl Warren: 10 Original, State of California -- or State of Arizona versus the State of California.
Northcutt Ely: May it please the Court. I am accompanied, Your Honor, by Attorney General Brown of California, who has kindly yielded his time so that our time may not be divided. This is a suit which was brought by the State of Arizona against the State of California and seven public agencies of our State to a quiet title to specific quantities of water from the Colorado River System for declaratory relief and for an injunction. We are here upon exceptions to a report of a special master upon California’s motion to join the remaining four States of the Colorado River Basin, Wyoming, Colorado, New Mexico and Utah, Nevada and the United States having intervened in this case. There are two groups of issues in the case, one relating to the claims of the States, the other relating to the claims of the United States. I may say that this is the fourth suit brought in this Court by Arizona relating to the waters of the Colorado River.It is the first in which he has not joined all of the other six States. The first action in 1931 was to set aside or declare void the Colorado River Compact and to declare invalid the Boulder Canyon Project Act. A second suit in 1934 was to perpetuate testimony of the negotiators of the Compact to prove certain contentions of Arizona as to interpretation. And the third suit in 1935 was to ignore the Compact and for equitable apportionment. This is not an equitable apportionment suit in which a State asked the Court to determine for it the quantity of water of an interstate stream theretofore undetermined as was the case in Wyoming versus Colorado, or Kansas versus Colorado, or Nebraska versus Wyoming, or even in the last Colorado River suit. Here, Arizona asked a Court to quiet title in perpetuity to quantities of water which she says have already been fixed and determined by the Colorado River Compact and the Boulder Canyon Project Act, which she already owns, that these quantities were fixed for the three States of Arizona, California and Nevada by the Colorado River Compact and that her share was carved out by the Boulder Canyon Project Act and contracts made thereunder. Now, I may say at the beginning that we think that Arizona overstates the collective rights of Arizona, California and Nevada against the upper States of Colorado, New Mexico, Utah and Wyoming under the Colorado River Compact to the extent of about a million and half acre-feet per year. And if that is true, a decree based upon such an assumption would be futile, an advisory opinion and based upon a fallacy at that, unless the four upper States whose obligation is involved here and who must furnish 80% of the water or thereabouts involved in this suit are joined and bound by the adjudication. Now, second, as to the claims of the United States, when the Government intervened here, it claimed a total of approximately 12 million acre-feet of water for various purposes which is about half again as large as the combined claims of Arizona, California and Nevada. These are for federal purposes. And in addition thereto, claimed an unspecified quantities, the right for the complete control of the river, the utilization of a full capacity of all of its reservoirs, aggregating some 28 million acre-feet for flood control navigation, treaty requirements and other federal purposes. We say that on the phase of the Government’s petition, these federal claims are claims against the waters of the entire system and not claims against Arizona, California and Nevada, and that they may not be adjudicated in the absence of all seven States. We accordingly move to join the four upper States. That motion was referred to a special master. He filed a report, recommending adversely that our motion be denied except with respect to the States of New Mexico and Utah in their limited capacity with respect to the waters of the Lower Basin which I’ll explain in a moment. He found that the Colorado River Compact, which I’ll shortly describe, so insulated the interest of the four upper States from the interest of the three lower States that these controversy, now before the Court, with respect to Arizona, California, Nevada and United States, although justiciable as to the present parties is not justiciable as to the absent parties in consequence of this insulation established by the Compact. We maintained to the contrary that in the classic language from Shields versus Barrow, which has been the laws since 1855, that the absent states, not only have an interest in the controversy, but an interest of such a nature that a final decree with respect to the parties now before the Court cannot be made without either affecting that interest, or leaving a controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience in the language of the Court and that they should be joined as necessary parties. I will deal with a question of justiciability as I describe the elements of the controversy now before the Court. First, with the respect to the issues arising from the Colorado River Compact, next, with respect to those arising from the Boulder Canyon Project Act as the effect of claims of the States, and finally, the independent claims of the United States as they affect all seven States in our view.
Felix Frankfurter: United States isn't before us formally in this case?
Northcutt Ely: Yes, sir. It has intervened.
Felix Frankfurter: Yes, intervened. But I mean, is not a party to this argument?
Northcutt Ely: It has not asked for time at this argument. We are arguing in the dark to some degree as to the effect to the Government’s claim. We take one view of the phase of the petition and what it means. We ask before the Master that the United States be called upon then and there to state whether his claims are against the waters of the entire system as we think they clearly must be for reasons I'll explain. The Special Master declined the call upon the United States for clarification. He said he was going to obtain it but in a formal way later. Judge Hayden died as you know. So far as I know without obtaining from the Department of Justice such a clarification and we do not have here any formal statement from the Department of Justice except -- except a motion filed in this Court for a determination by the Court of what they call certain legal issues arising from the Master's report and which the Court overruled at the time that it granted oral -- the present oral hearing. This is essentially a suit on contract. As I said, it is not like the equitable apportionment cases with which you're familiar heretofore. There's a contract here between essentially the four upper States and the three lower States. It's a suit on the contract, another contract which is evidence by the Boulder Canyon Project Act and a Limitation Act which the Project Act required the legislature of California to enact if the Project Act should become effective in 1929 without the ratification by Arizona of the Colorado River Compact. Now, let me explain. The Compact was signed in 1922 by the representatives of the seven States. It was ratified promptly in January or shortly thereafter in 1923 by six legislatures. Arizona's legislature rejected it, in both Houses. In 1925, the legislature of Colorado proposed reciprocal --
William O. Douglas: They voted it down or in a legal act.
Northcutt Ely: They acted upon it and voted it down in both House as the journal of the legislatures bears on -- will show for 1923. In so doing, the reservations were offered, voted upon which would have the effect of excluding the Gila River from the Compact, I'll come to that point in a moment. But even with those reservations, the Compact was voted down in both Houses. The State of -- the legislature of Colorado in 1925, to overcome this stalemate proposed reciprocal legislation, which would make the Compact effective as six-State document waiving ratification by the seventh. And such legislation was enacted by the six States in the period 1925 to 1929. When the Boulder Canyon Project Act came before Congress for the fourth time to suing Johnsonville, in 1928, to authorize the construction of what is now known as Hoover Dam and the all-American canal. The Senators of the Upper Basin States insisted that there be incorporated in it, a provision that if six States only should ratify, then in that event, the State of California should enact this Limitation Act, limiting her right in the Colorado River, so that, as they put it, if Arizona stayed out, and California took all of the water apportioned to the Lower Basin by the Compact, Arizona in that event might appropriate free of the Compact in the Upper Basin with all the water twice. Limitation Act was imposed upon us or the protection of the upper States. That Act was enacted by California. The Project Act provided that at the end of six months, the president of the United States should proclaim either one alternative or the other to have been accomplished either seven-State ratification or six-State ratification plus the Limitation Act. And in that event and that event only, should the Project Act go into effect. Now, we say that the Limitation Act limiting our rights which came into existence as a compliment of a six State Compact and in consequence of Arizona's rejection of the Colorado River Compact. And the seven-States Compact are mutually exclusive covenants. The Limitation Act was required of us if there were six-State Compact, it was not required if there was seven-State Compact. Arizona here sues upon both. She says that she ratified the Colorado River Compact in 1944, 15 years after the expiration of the six months period to which I referred but that -- she not only as a party to the seven-State Compact but that she may hold California to the limitations upon us imposed by the Limitation Act. Now the Limitation Act provides in terms as to the Project Act that this agreement between California and the United States was for the expressed benefit of Arizona, Colorado, Nevada, New Mexico, Utah and Wyoming. And consequently, we say that we are liable upon one or the other of these agreements, not both but that the four States of the upper division are necessary parties here to the determination of which shall control. They are the expressed joint beneficiaries of the Limitation Act if Arizona sues upon it, they must be joined. They are the parties to the seven-State Colorado River Compact which if it exists at all, replace the Limitation Act. Now, the reason why the Colorado River --
Speaker: What is --
Northcutt Ely: Pardon, sir?
Speaker: -- what is your position to be on the seven -- seven-state Compact, it's whether it is or not?
Northcutt Ely: We question -- we -- we say at our pleadings that Arizona did not effectively ratify it. We say that for several reasons, first, to the exploration of the 15-year period. Second, the fact that there has never been a presidential proclamation of a seven-State Compact. There was a proclamation in 29 that seven States had failed to ratify, six States had, and for other reasons but the primary one is it by the time Arizona ratified or purported to in 1944 should already brought to this Court three times. The Colorado River Compact in one form or another had laid before the Court interpretations of it which in the first case, in 1931, happened to coincide almost precisely with our own and said for that reason she wanted no part of it and rejected it. And that consequently, the California projects, which I'll mention in a moment, had gone ahead with expenditures of hundreds of millions of dollars, literally. In the development of their works based upon water rights as set forth in the Compact, as everyone understood it, when -- when Arizona ratified if she did it all in 1944, she did so with announced interpretations that they are the diametric reverse of that and which she attempts to establish in his suit. But we say that if the Compact did become a seven-State Compact in 1944, then as to Arizona. Our obligations upon the Limitation Act are ended but she is one of six joint beneficiaries and we cannot, we think, proceed safely without the presence of the four upper States as other joint beneficiaries to be bound by that decree. Now, the Compact itself, which I'll -- these terms I'll come shortly, was -- came into existence in this way in 1922. The Colorado River arises in the -- the Colorado, extends for some 1700 miles through the straits of Colorado, Utah, Arizona, the Long Arizona, Nevada border, the Arizona-California border, and finally, into the Gulf of California. In its lower regions and in the -- just before leaving the United States, it travels along the realm of the Imperial Valley, an area of the center is below sea level, 270 feet. This valley was an imminent and continually endanger of destruction by floods. The river broke in 1905 and was shutoff with great difficulty in 1907. There was urgent and growing need for a flood control dam upon the lower river. That was objected to by the upper States because of their fear that the doctrine of priority of appropriation, irrespective of Stateline which was proclaimed by this Court in Wyoming versus Colorado while the Compact was being negotiated. We had it make it possible for the lower States to appropriate all of the stored flood waters as they have therefore -- theretofore appropriated all of the natural flow and expand their uses to such a degree that the junior appropriations in the Upper Basin might never expand. They wanted a reservation, a protection against the law priority of appropriation before this dam should be authorized, and that was obtained in the Colorado River Compact. Now, the Compact, as signed in 1922 provides this. It divides the -- defines first the Colorado River System as being a Colorado River and its tributaries within the United States. And the most significant tributary with respect to this lawsuit is the Gila, which arises in New Mexico, traverses Arizona and empties into the mainstream near Yuma. The -- it divides the Basin geographically into an Upper Basin and a Lower Basin with a division line passing through Lee Ferry, a point in Northwestern Arizona. And it divides the States into two groups, an upper division and a lower division. The upper division comprising the four States we seek to join here. And as in that shows the basins and the divisions do not coincide. There's a reason for that which I'll explain in a moment. The Compact does not purport to impose obligations upon or give rights to any individual State. What it does do, in Article III (a), is to apportioned in perpetuity to the Upper Basin and to the Lower Basin respectively. The beneficial consumptive use of seven and a half million acre-feet per year in perpetuity, which it declare shall include all water necessary to supply any rights which may now exist. It is an apportionment of the waters of the Colorado River System. Article III (b) gives the Lower Basin the right to increase its use by one million acre-feet per year. Now, those two articles together dispose of the consumptive use of 16 million acres-feet per year. But the Compact recognizes that this is not all the water. At the time of its negotiation, it was thought that there was perhaps four of five million acre-feet more. We know from later water records that the quantity and excess of the 16 million is less than that. Article III (c) directs that if the United States shall make a treaty with Mexico, the Mexican water shall be supplied if possible out of this surplus above the 16 million acre-feet fixed by Article III (a) and III (b). If that surplus is deficient, the two basins will each yield half the deficiency. In Articles III (f) and III (g) provide for conferences after 40 years, that is after October 1, 1963, to apportion this surplus above the requirements of III (a), III (b) and III (c). Now, those provisions all deal with the consumptive use of water. There is an addition, a provision, Article III (d) that provides that the four States of the upper division, Colorado, New Mexico, Utah and Wyoming, will not deplete the flow of the river at Lee Ferry below an aggregate of 75 million acre-feet in each period of 10 consecutive years. And Article III (c), to which I referred, adds that the upper division will increase that delivery if necessary to supply one-half of the deficiency of Mexico. Now, that provision deals with a corpus. It is a block, an aggregate of wet water to be placed in the river or allowed to flow at Lee Ferry. It is not an apportionment of consumptive use, 75 million acre-feet delivered at Lee Ferry and used along the stream will not support consumptive uses of 75 million acre-feet in 10 years because upon any theory, the return flow, which goes into Mexico, is not a part of the consumptive use in the Lower Basin. And I emphasize because I'll return to it with a distinction between consumptive use, which is what is apportioned by the Compact and corpus, the guarantee of wet water at Lee Ferry. There are two -- there a number of questions in -- of Compact interpretation, which are at issue, here in the brief but I shall select two of them because they're controlling in my view. The first is, what is beneficial consumptive use and second, whether the seven and a half million which is apportioned to the Lower Basin per annum is the water, simply, of the mainstream, or whether it includes the waters of the tributaries, particularly the Gila. Now, the first question as to what is beneficial consumptive use arises in this way, Arizona asked a declaration from the Court that this expression, which appears only in Articles III (a) and III (b), fixing the rights between basins shall be defined. And the definition she wants is that this means the man-made depletion of the virgin flow of the mainstream, everyone agrees that consumptive use doesn't mean the amount diverted, it's less than that. California says that the term has the same meaning in the Colorado River Compact as it is defined in the Boulder Canyon Project Act and in the Mexican Water Treaty and as this Court defined it in Nebraska versus Wyoming. It's defined in the Boulder Canyon Project Act as diversions less returns to the river. Now, the difference between the two methods of -- the two definitions are simply this, on Arizona's definition, there would be no accounting, no liability no charge for the use of so-called salvaged water. That is water which went to the sea in the state of nature or was burned up by evaporation losses or seeped into the sands but which has been salvaged by the activities of man in reclamation projects and dams and put to use. And if that water may be used by the Lower Basin in addition to the seven and a half million apportion of Article III (a) and in addition to the million acre-feet of additional use permitted by Article III (b). There is about a million and a half-acre feet of uses of waters of that category, so-called salvaged water. Arizona alleges that the difference between the two methods, the two definitions on the Gila alone amounts to about 1 million acre-feet and there is about a half a million additional upon the mainstream. Now, the question therefore is whether the Lower Basin may use all together eight and a half million acre-feet including salvaged water or eight and a half, plus one and half or 10 million acre-feet. Now, the question affects the Upper Basin in this way. If the Lower Basin is entitled to use the so-called salvaged water, the million and a half acre-feet, without any accounting for it under Articles III (a) and III (b), it, of course, diminishes to that extent the surplus above the 16 million covered by those two articles, it is an invasion, a use of the surplus. A surplus is an undivided common fund in which all seven States have undivided interests. It is a buffer or cushion which protects the Lower Basin and the Upper Basin from the obligation to Mexico. The Mexican water shall come out of it first. And it protects the upper division from their obligation under Article III (c) to increase their deliveries above 75 million acre-feet in 10 years. To the extent, the surplus is diminished, all seven States are affected. And at page 119 of our brief on exceptions, which is filed on October 20th, appears a table which shows the results.
Hugo L. Black: What page is that?
Northcutt Ely: Page 119. Of the application of these two theories to the water supply which was available during the critical quarter century of 1931 -- 1930 to 1954, inclusive. In the -- these figures are taken from a plate which was included in a report of the Secretary of the Interior upon a proposed Arizona project and which incorporates the Secretary says, the Arizona theories. Tape -- column one, is that furnished by Arizona, which assumes the availability at Lee Ferry of an average of 16,270,000 acre-feet.Columns two and three, revised that by reducing the quantity of Lee Ferry to that shown -- for the critical quarter century of 1930 to 1954 which is 13,650,000 acre-feet. Now, if Arizona's theories apply so that there is no charge for the use of salvaged water, the end result, as shown in the last line on that table, is that there is a deficit in meeting the requirements of the Colorado River Compact plus the treaty with Mexico. And that burden must fall either upon a reduction in the use in the Upper Basin of the seven million and half acre-feet apportioned to them if they make good upon their 75 million acre-feet guarantee or if they don't make good on that guarantee, then upon, we reflected in a diminution of uses in the Lower Basin. The Upper Basin is consequently affected by the definition of the term beneficial of consumptive use, not only as applied in the Upper Basin to measure their rights but as applied in the Lower Basin to measure our rights. And as we say, the Arizona complaint is framed upon the theory that there is available to the Lower Basin under the Compact an aggregate of some million and half acre-feet more. Then we think is there under the meaning of beneficial consumptive use which was the one contemporarily accepted and reported by the Compact negotiators and was submitted by Arizona to this Court in 1931. The --
William O. Douglas: Where -- where is this water basin to Lee Ferry, is that the dividing line between the north --
Northcutt Ely: Yes, sir. Lee Ferry is the dividing line between the two basins fixed by the Compact.
William O. Douglas: Is that -- does the Compact show whether (Inaudible)
Northcutt Ely: Pardon me sir?
William O. Douglas: If the Compact showed that if -- that the water is (Inaudible)
Northcutt Ely: The obligation under Article III (d) is to be measured at Lee Ferry and meters are installed there for that purpose.
William O. Douglas: Can you tell the difference between the thousands of water and --
Northcutt Ely: No. That is the -- the great -- the gap in this case. There is no way to interpolate or translate the one method into the other. It rises there in this way to take the Gila River as an example, some 2,400,000 acre-feet flow in measured streams in the Gila area. That water is converted, burned up, used in Arizona to grow crops and support cities. In the state of nature of that same flow, reaching the mainstream would have been diminished by the long sandy stretches of the Gila Arizona says by at least one million acre-feet. That is the matter of conjecture. Nobody was there to measure it before the White man came. But assuming that that is the case, then the difference between the two theories is this, shall the uses upon the Gila be measured only in the amount they diminished the flow at the mainstream or shall they be measure in the quantities of water actually consumed. We are required in California by the expressed terms of the Boulder Canyon Project Act to measure our uses as diversions less returns to the river. It makes no difference what in the state of nature might have reach the Mexican border. We are charged with diversions less returns to the river, the more rigorous of these two methods. The Mexican Water Treaty provides for a reduction in the deliveries of a million and half acre-feet guarantee to Mexico in the proportion that the consumptive uses in the United States are diminished. And the Treaty defines consumptive use just as we defined it and as the Court did in Nebraska versus Wyoming. The substitution of the depletion theory for the actual consumptive use measurement, what as I say, result in a difference of a million and half acre-feet. Now, the second question here is whether the Compact apportions to the Lower Basin seven and a half million acre-feet from the mainstream or apportions that quantity from the Colorado River System including the tributaries. That was the specific issue upon which Arizona's legislature rejected the Compact in 1923, and upon which Arizona brought suit in this Court in 1931 to set the Compact aside. Article II (a) defines the Colorado River System as including the tributaries as well as the mainstream and Article III (a) apportions the waters of the system, and it directs that there shall be included in this apportionment all rights then existing. Now, the rights on the Gila are the oldest that Arizona has. They've been in -- in existence since 1870 with their bounds. Now, if the uses on the Gila are two million acre-feet, as we say they are, and if the Lower Basin has apportions of seven and half million acre-feet of consumptive use, then we have left, out at the mainstream in the Lower Basin, for division in this decree, approximately five and a half million acre-feet under Article III (a). If Arizona's method of measuring consumptive use were sustained and the uses on the Gila were valued at only about one million acre-feet, then they may be divided by the decree in this case on the mainstream under Article III (a), apportioned in perpetuity, only six and half million acre-feet. But Arizona here seeks to quiet title in the Lower Basin to seven and a half million acre-feet of water from the mainstream and she must do that in order to sustain the figure that she wishes quieted in herself. Let me explain. She claims from the mainstream the specific figure of 2,800,000 acre-feet under Article III (a), apportioned in perpetuity. The Compact doesn't make that apportionment to her. It makes no apportionment to any State individually. But she says that the rights of California were fixed by the Limitation Act in -- in III (a) water at 4,400,000 acre-feet per annum, which they were. And the 300,000 acre-feet is a fair allocation to Nevada and what is left after deducting 4,400,000 for California and 300,000 for Nevada from seven and a half million in the mainstream is 2,800,000 acre-feet for herself of waters apportioned by Article III (a). And she says she holds a contract with the Secretary of Interior made in 1944 which she does, which authorizes the delivery in Arizona from the mainstream of 2,800,000 acre-feet. Now, that contract, which she pleads, is the next as one of her exhibits, recites on its face that it does not declare what part of the 2,800,000 acre feet covered by that agreement is apportion of Article III (a), how much is covered of Article III (b) nor how much the surplus. But Arizona says that her right to the waters apportioned and perpetuity from the mainstream of Article III (a) is 2,800,000 acre-feet. And she arrives with that only upon the assumption that the Lower Basin may claim from the mainstream, seven and half million acre-feet, without deduction for any uses upon the tributaries. Now, she gets rid the Gila River by identifying it with Article III (b), which says that the Lower Basin may increase its uses by one million acre-feet per year. And not withstanding the fact that the uses on the Gila are the oldest she has, she identifies him with his increment of additional new uses permitted by Article III (b). And the reason she says is that the negotiators of the seven States of Sta. Fe, in 1922 agreed that Arizona should have that million acre-feet and that it should be identified with the Gila River. Now, that is a testimony which she wanted to perpetuate in their suit here in 1934, the testimony of the negotiators, and the Court rejected it, telling it would never become admissible, that it was in flat contradiction of the terms of the Compact among other reasons. Nevertheless, she annexes to her pleadings here, the ex parte statements of one of her negotiators and of others to -- to identify, make that same identification of the Gila with Article III (b). Now, what this all comes to is this, Arizona says that the seven and half million apportion of Article III (a) is identical with the 75 million acre-feet guaranteed by the States of the upper division at Lee Ferry each decade, that one is simply 10 times the other. Now, there are many reason why that cannot be so, either physically or legally, and they were spelled out for the Court clearly by Mr. Dean Acheson, then counsel for Arizona in the 1931 case in which he showed, I think, to the satisfaction of all of the States, that the 75 million acre-feet guaranteed at Lee Ferry includes two components, the water required to sustain the uses on the mainstream in the United States below Lee Ferry and water from Mexico. Whereas the seven and half million apportioned by Article III (a) in perpetuity of consumptive use includes two components, but not the same two, uses on the mainstream plus the uses on the Gila and the tributaries. In other words, the 75 million acre-feet includes some water from Mexico. Now, heretofore, so far as I know, the States of the upper division have not yielded from their position that if they deliver 75 million acre-feet in every decade at Lee Ferry, they're entitled to credit for some deliveries to Mexico. The effect of Arizona's contention, if the decree were issued as she wishes it, would be the quiet title in perpetuity to -- in favor of the Lower Basin to all of that 75 million acre-feet guaranteed by III (d) as though apportioned to the Lower Basin and containing no water available for delivery to Mexico. Now, consequently the four Upper States are surely affected by the issue of whether they must deliver at Lee Ferry every decade, 75 million acre-feet, including the water from Mexico, or 75 million plus water from Mexico. The claim of Arizona that all are 2,800,000 acre-feet can be taken from the mainstream as absolutely central to her case. She says she must quiet title to that quantity under Article III (a) in perpetuity to finance the projects that she wants to build.She can't do it unless she first establishes to your satisfaction that the three States of Arizona, California and Nevada have a right to the 75 million acre feet at Lee Ferry as apportioned to the Lower Basin. That is the submerged foundation of Arizona suit, the right to the 75 million acre-feet, the right to seven and half million acre-feet, all from the mainstream. And we say that that -- a decree based upon that assumption would be based upon an allusion directly contrary to the terms of the Compact and that a decree so based would leave this controversy in the language of Shields versus Barrow in such conditions as to be wholly inconsistent with equity and good conscience. We would be confronted by a decree, quiet in title in Arizona to 2,800,000 acre-feet upon the assumption that the three States of Arizona, California and Nevada owned seven and half million acre-feet in the mainstream under Article III (a), whereas the four absent States are free at a later time to say “that is not so”, that the three lower States had available for division only five and half million or six and half million. And this is a suit to quiet title in perpetuity to the rights derived from this inter basin Compact. Now, I desire to refer briefly to the question I mentioned earlier as to whether Arizona has effectively ratified the Compact, and if so, whether California is released from the -- her obligation under the Limitation Act. That comes to this. It is a grossly equitable position for Arizona --
William O. Douglas: Is that (Inaudible)
Northcutt Ely: Yes, sir, for the reasons I will state. We say it is a grossly inequitable position for Arizona to hold California in 1944 or 1955 to a result that she could not have obtained by timely ratification of the Compact in 1929, namely, to our Limitation Act, enacted only on condition that seven States did not ratify and then by delay having the advantage of that plus whatever rights she claims here under the Compact. If this were a -- involved only Arizona and California, if this -- if this covenant run only to -- to Arizona, we might safely ask the Court to rule that if Arizona ratified in 1944, we're -- we are released from that covenant, the Limitation Act. It is a covenant which runs jointly, the six States. Arizona is one of them, one of the six joint obligees. Consequently, we think it essential. It is axiomatic that if one of several joint obligees or joint beneficiaries sues upon an agreement, he must join -- join the obligees for the very reason involved here, to protect the obligor against later harassment by suits by others. Now, the Special Master, upon that, held that the upper States weren't affected one way or the other. That they couldn't sue on this California Limitation Act, I don't know why. And that they were not interested in whether Arizona was or was not a party to the Compact. Now, Arizona alleges a breach of the Limitation Act by California. We deny it. But if there is a breach, the breach alleged is that we claim more water than we're entitled to. If there is a breach, it runs against all of the joint obligees.
Felix Frankfurter: May I trouble you (Inaudible)
Northcutt Ely: Yes sir.
Felix Frankfurter: Tell us why the Master held that this covenant -- this was not a covenant by means of the upper states.
Northcutt Ely: He held that it dealt solely with the waters of the Lower Basin, that the upper States had no interest in those waters and that consequently, they're unaffected by-- whether California had broken the Limitation Act or whether Arizona could sue on it but they could not because it dealt only with Lower Basin waters.
Felix Frankfurter: (Inaudible) is that it?
Northcutt Ely: I am unable to say how he reached that conclusion. He just states it as a flat conclusion that the Limitation Act deals only with the Lower Basin waters, therefore, the upper States are not concerned with it. Now, what he says is directly contrary for legislative history of the document. It was imposed upon us by the Upper Basin States for their protection of Arizona State out of the Compact. And if she is out, as this Court held in -- in the first of these cases in 1931, she is free to appropriate water without regard to the apportionments made by the Compact. And in such event, the upper States would be very much interested in holding California down to the limitation they imposed upon us.
Felix Frankfurter: I noticed that in the Limitation Act, they designed what annual consumptive use is.
Northcutt Ely: That is correct, sir. And we say that that applies to any rights claimed by Arizona, under the Limitation Act.
Stanley Reed: Is there a difference between the Limitation Act and the Adjustment Act?
Northcutt Ely: Yes, sir. The Adjustment Act was passed in 1940 to redefine the -- the power rates to Hoover Dam. It -- it contains nothing directly relevant to our present problems. The Limitation Act is an Act of the California legislature passed in 1929 in response to the demand of Section 4 (a) of the Boulder Canyon Project Act.
Stanley Reed: Now, what this Hoover Dam legislation had led us (Inaudible)
Northcutt Ely: Yes, sir. The requirement of the Limitation Act appears in the Boulder Canyon Project Act itself. It is in Section 4 (a). Section 4 (a) provides that the Boulder Canyon Project Act shall not take effect unless either, one, the seven States ratify the Compact and the present so proclaims or after six months failing seven-State ratification, if six States ratify and California enacts the Limitation Act which I referred. Now, when I refer to the 4,400,000 acre-feet, let me say that the Limitation Act and the Project Act both provide that California may have an addition of that 4,400,00 acre-feet, one-half of the excess or surplus waters unapportioned by the Compact. That Limitation was a very severe restriction. California pleads that we have present perfected rights in 1929, that this projects built using water which had rights to the extent of 4,950,000 acre-feet and that we have valid appropriations of six million acre-feet. Now, I should like to come to the claims of the United States. So far, I have dealt with those of the States and I've tried to demonstrate that Arizona's quiet title action could not be sustained here except upon interpretation of the Compact which assume obligations in the four upper States much greater than they have ever heretofore admitted, greater than we believe exist and that a decree based upon those assumption would be advisory and an allusion, unless they are bound by it. The claims of the United States are in a -- quiet a different category. The 12 million acre-feet, United States claims here, falls into four groupings. And the question is whether these are claims against the waters of the entire system and against all seven States, or whether as the Special Master found their claims against only the waters of the Lower Basin. Of the principal -- the four principal categories are as follows, first, the Government claims water to serve its treaty with Mexico in amount of 1,500,000 acre-feet measured up to boundary. Article 10 of the treaty expressly guarantees this delivery and I quote “from any and all sources.” It is a systemwide obligation. Now, recall that Article III (c) of the Compact provides that the -- this water from Mexico shall come out of the surplus. And if this surplus is deficient, the Upper Basin States must supply half of the deficiency. Certainly, it would be impossible for this Court to find that Arizona, California and Nevada must yield the water to supply the Mexican Water Treaty and it would be impossible for the Court without these four Upper States present to decide what proportion of it they must yield. Because the quantity that each of the two basins must yield from its own consumptive uses is fixed by the quantity of the surplus which is to first bear of the Mexican burden and the quantity of the surplus in turn depends upon whether Arizona and the Lower Basin States can or cannot use the million and a half acre-feet of it without any accounting as salvaged water. The second category that the Government claims for is for Indians in Arizona and California, a million and three quarters acre-feet of diversion rights. It alleges that the rights of the Indians to the use of water are in no way subject to or affected by the Colorado River Compact. And it specifically denies that the Indian uses are to be charged to the basin and to the State in which they're located. The Government's Indian claims are therefore claims against the waters of the entire system. They existed before the Compact did. The Compact relates that these Indian claims are unaffected by it and the Government we know intends to assert that these Indian claims are therefore waters which are claims against the entire system independent of, ahead of the Colorado River Compact. We will resist that claim with a proper time, but the United States and its motion here for a determination of certain legal issues including that one, I told you on October 20th that if the Indian claims are held to be against the river, as distinguished from the Lower Basin, as defined by the Colorado River Compact, that conclusion would have far reaching effect upon the interest of all the States to the Colorado stream system and it would. Now, the issue where the water for the Indians is to come from is in the case, its here now, this is not an additional issue.And that issue must be decided, it requires a joinder of the absent States to whom we share that burden. Now, the third category puts United States claims water as to serve the contracts that -- that it has made under the Boulder Canyon Project Act. These aggregate about eight and a half million acre-feet, they are to be supplied from storage at Hoover Dam. This quantity, the Government -- the Government alleges that all of these contracts were valid and binding obligations. All three of these States now here rely upon such contracts, Arizona, California and Nevada. Now, the eight and a half million acre-feet covered by these contracts manifestly must include some surplus because Arizona conceives that she uses on the Gila River one million acre-feet, we says it's two million, so that in any event, the water contracts, Lake Mead, include from one to two million acre-feet of surplus beyond the aggregate of the quantity specified by Articles III (a) and III (b). And the question here, which is one of the gravest in the whole case, is whether the United States by the construction of Hoover Dam and the impounding of the waters there has appropriated the unappropriated surplus waters of the Colorado River System, and may dispose of them by contract. That is different from the problem that confronted the Court in Nebraska versus Wyoming, or Kansas versus Colorado, or the other cases in which United States asserted the ownership of unappropriated waters flowing in the stream. Here, the problem is whether, by the construction of works, an aid of navigation, the impounding of the water behind the dam, the United States has acquired title if it did not have it before to the waters that salvaged and stored there and may dispose of them by its own contract. And that is one of the grave issues of the case, did or did not the United States appropriate the unappropriated waters of the Colorado River System, the surplus waters and may disposed of them by contract. Now, the Special -- pardon, sir?
William O. Douglas: (Inaudible)
Northcutt Ely: The disposed of the claims of the United States, Mr. Justice Douglas, in two places, in a total of page and half and he brushed them aside on the grounds that the United States had asked to have its title quieted against the parties to this cause and claim that its rights for adverse to the parties of this cause. It had not named the upper States therefore these claims do not run against them. Well, if that were the true rule, it would dispense that all they rule as a joinder that if the United States is an intervener here, did not name the upper States as defendants, they didn't have to be joined even though its claims could not be adjudicated in their absence. Now, we just --
William O. Douglas: That's -- that's on page (Inaudible) is that right?
Northcutt Ely: He says that that's true. We think that they -- no, we disagree with him. We think the United States, by the assertion of claims of 12 million acre-feet, 50% more than the -- is awarded to the Lower Basin by Article III (a) and III (b) combined, necessarily in larger scope of the -- of the action. And that is quite an addition, I might say, to the unspecified claims for flood control and navigation, that to which I come next. The 12 million acre-feet, to be precise, 11,785,000 that the Government claims for specified rights here, is an addition to the claim it makes for the right to utilize the full capacity of the diversion, the carriage and storage structures describe in its petition for flood control navigation and other federal purposes. Now, what that mean is this, that the Government claims the right to discharge water from Hoover Dam to make room for an expected flood. To waste that water to the sea, and of course, it has that right, under the terms of the Project Act which directs that the reservoir shall be used first for navigation and flood control, second, for river regulation and third, for the satisfaction of present perfected rights. Now, when the United States claims the right to discharge precipitably millions of acre-feet from Hoover Dam to the Gulf of California destroy any opportunity for its consumptive use. How can it be said that the interest of the United States in this proceeding is confined to the rights relating to waters of the Lower Basin. Those rights fixed by the Compact are rights to beneficial consumptive use. This is a right asserted by the United States to destroy water in needs of flood control and deprive anybody with right to its consumptive use. Now, these are asserted as paramount rights. The Government doesn't use that word, but that's what they are. And in this action, the United States and these States don't appear here as equals. If these are paramount rights of the United States to release the water for flood control that we had anticipated a right to use for consumptive use in these States, it's a right superior to any of ours. And they -- this Court held in the first of these cases, in 1931, that the United States may exercise its constitutional functions without regard to the police regulations of any State, Arizona in that case. And if that's true, then no consort of States and an interstate Compact may acquire for themselves in any insulation against those Government powers. Now, that again is one of the gravest questions in the case -- what?
Felix Frankfurter: Is that --
Northcutt Ely: Pardon me?
Felix Frankfurter: -- event of the United States to these Compacts wouldn't qualify your statement.
Northcutt Ely: No, I think not sir. I don't think it would change the constitutional situation at all. The Compact exist only in consequence of the consent of Congress to it but that does not mean if the States have acquired powers overwriting the Constitution with ones of the Federal Government.
Felix Frankfurter: No. Another way of putting it, isn't that United States (Inaudible) Didn't you say that -- there's no (Inaudible)
Northcutt Ely: That's correct, sir. And also, there is -- I should make this clear, that the Colorado River Compact negotiators in Article IV optimistically wrote in their provision that the Colorado River had seized to be navigable. But that if the Congress should find otherwise, the Compact should still be regarded as binding. Congress did find it otherwise in Sections 1 of the Project Act that directed that the Dam be built in aid of navigation. And in Section 6, directed that the waters be used for navigation and flood control and in the first of these cases, in 1931, the constitutionality of that Act and the validity of the construction of Hoover Dam were sustained upon the navigation power. Now, these are not, as I say claims against Arizona, California and Nevada, these are claims for federal purposes with respect to which all seven States were on an equal footing. The United States asked an adjudication of its rights, and the fact that it didn't name these four upper States, as a matter of fact, it didn't name Nevada either. Nevada hadn't yet intervened when the Government file is petitioned here. Surely, it does not -- by that fact restrict the burden of these federal obligations to Arizona and California or Arizona, California and Nevada. Now, the Special Master has found that Utah and New Mexico are necessary parties here. Now, their interest in the Colorado River System relates only to the tributary. Neither -- none of them touch the mainstream. Utah's interest -- Utah's interest is in the waters of the Virgin River, primarily, with respect to the Lower Basin, and New Mexico with respect to the Gila, very important from the viewpoint of those States, but no one has asserted any wrongdoing against Utah or New Mexico which is one of the Special Master's considerations here that we haven't alleged that the four upper States aren't doing anything wrong. We've made no attempt to state a cause of action against them and they should not be joined unless they are. And yet he found New Mexico and Utah are necessary parties here, nobody alleges any wrongdoing by them, but they share in a common fund of water available to the Lower -- to the five Lower Basin States.
William O. Douglas: But I gather these concepts in these litigations, which certainly is more basic just like in the --
Northcutt Ely: That is -- that is correct with the point that I am making --
William O. Douglas: (Inaudible)
Northcutt Ely: That is correct. The point I'm now making Mr. Justice Douglas is that with respect to the waters of the Lower Basin. Nobody alleges any wrongdoing as to then. They're necessary parties only because of their interest in the common fund available to the five States in the Lower Basin. Just as we say the seven States are -- have an interest in the common fund represented by the un-apportioned surplus. Now, the Special Master's concept of the requirements of joinder and of justiciability, I'll never to appeal with here and then close -- reserve the balance of my time for rebuttal. This is a first time in 33 years that there's been an opportunity for a determination of this Colorado River controversy.United States, an indispensable party, is in court for the first time. Its claims like those of the States relate to all seven of them, for the reasons I've said. They affect all seven. The presence of all seven States is as necessary here to a full settlement by a judicial decree as it was to the settlement by an interstate Compact, the other method provided by the Federal Constitution. There can be no doubt at all that if this were a suit among none sovereign parties, presenting the same issues that are before the Court, the joinder of the absent parties would have to be ordered for the reasons I stated at the beginning. But the Special Master asserts, without being explicit why, that joinder rules are different as to sovereigns. We think that a reading of the interstate cases will show that the significant difference in the handling of sovereigns and original actions here and the handling of private litigants is this, that the Court has shown significant concern for the protection of sovereigns as defenders. It has required a plaintiff that they prove an original action to their cases by a stricter burden of proof than if private defendants were involved. The Court has been reluctant to grant relief against a sovereign defendant except if were required to do so. California, as a sovereign defendant, is entitled to benefits of that principle. When this case comes to trial in the merits, we shall assert that as the principle as against Arizona suit against us. But the rules of joinder do not conflict with that principle in any way. The rules of joinder are designed to protect defendants through litigation that will either be futile or grossly unfair because other parties whose rights and obligations are involved are not present. And as a defendant, both against the claims of Arizona and as against the claims of the United States, California, certainly no less than a non-sovereign party is entitled to invoke these rules. The great practical question which are a joinder motion raises can be simply stated, can this Court decide both effectively and fairly as to the present parties, how their rights to the use of waters of the Colorado River System should be divided without deciding how large those rights are in the aggregate as against the parties whom we seek to join. Arizona answered this question in her complaint when she expressly asked for interpretations of the Compact, the inter-basin agreement. Her claims, like those of the United States, we say involved the absent States and her claims against them. In fairness to the State of California, no less sovereign than the four States we seek to join here requires that these be join and forbids attempting to decide, whether Arizona or the United States are entitle to additional water from the mainstream while leaving open and undecided where that waters to come from. And if joinder is not ordered here, it will be the first time which I am aware, that this Court has applied to a sovereign defendants, such as California, a rule of law more harsh than would have been applied to a defendant who has a private status.
Felix Frankfurter: Perhaps the Government has (Inaudible) does he make -- does he make a detention explicitly to which you just made (Inaudible) -- that we say that the cause of (Inaudible)
Northcutt Ely: That is --
Felix Frankfurter: (Inaudible)
Northcutt Ely: Yes, I'll -- I'll try to --
William O. Douglas: On page 40 of this report, we discussed that the denial of the motion that would be complete in Colorado, in Nebraska and Wyoming.
Northcutt Ely: Yes, sir. And at the bottom of page 25 in answer to Mr. Justice Frankfurter's statement, we had involved through all 19 of the Rules of Civil Procedure. And he starts the joinder rule; he says it is not made applicable by Rule 92 of this Court if it conflicts with the principles governing controversies between States to which reference is made above. Also, we comment that, as pointed out later in this report, the States of the upper division in respect to the Upper Basin have no joint interest with the present parties and so forth.
Felix Frankfurter: In that case, it should be on the merits as with the --
Northcutt Ely: We would -- we would --
Felix Frankfurter: It's your argument about a few minutes, it is that different criteria, different considerations come into operation in a litigation asking these states from those who should be operating (Inaudible) that was your argument.
Northcutt Ely: We -- we concede that. We rely upon it, yes, sir. The Master applies that as the test on jurisdiction. We apply it as a test on the merits. Now, there are --
Felix Frankfurter: (Inaudible)
Northcutt Ely: Yes, in the case of Alabama versus Arizona, you took up on the -- the question of jurisdiction on motion there to leave the file and denied it because the (Voice Overlap)
William O. Douglas: (Voice Overlap)
Northcutt Ely: Pardon me?
William O. Douglas: (Inaudible)
Northcutt Ely: That is correct. If the complaint upon examination shows that it would not in effect state a cause of action or -- or be multifarious, then you deny to leave the file.
Felix Frankfurter: That's a very different proposition (Inaudible)
Northcutt Ely: (Voice Overlap) and quite so.
Felix Frankfurter: Is all the difference in the world between not letting a process of this Court issue against a state and not (Inaudible)
Northcutt Ely: Right, sir.
Felix Frankfurter: What this problem raises is what should be the governing consideration when there isn't a case?
Northcutt Ely: That is correct, sir. There is litigation before the Court or the absent States necessary to enable you to make an effective decree. The case now in here is justiciable. The -- there -- it's been almost a routine in these water cases for the jurisdiction to be challenged, the point to be made that there is not justiciable controversy or some other challenge to the jurisdiction and under the Missouri versus Illinois, Connecticut versus Massachusetts, Wyoming versus Colorado, Kansas versus Colorado one after another, it has been almost a routine as I say for the Court to take jurisdiction and then upon the final hearing after the merits deny the relief sought, two entirely separate questions. In our view, the Special Master blurs them together. Now, there are cases, of course, where upon the face of the complaint, the release sought could never be granted. That was the holding in the second Arizona case here, 292 U.S., where the Court said, if we perpetuated this testimony where it never become admissible and we will not entertain the suit.
William O. Douglas: What do you say to that denial upon relevant intervention of asking (Inaudible)
Northcutt Ely: There were two orders as you recall, the -- in the first instance --
William O. Douglas: Just to the vested rights of Colorado to (Inaudible) based by Colorado of the -- of the downstream rights?
Northcutt Ely: The -- the adverse interest asserted there was that Colorado had projects planned for the indefinite future which if consummated would impair their rights. In other words, if the claims, the aggregate of the claims exceeded the safe supply but --
William O. Douglas: That this -- it was brought it, but up to that -- at the time of that amendment of that claim, the place wasn't there.
Northcutt Ely: That's correct. Now, we say, with respect to that that upon the face of Arizona's complaint on the United States petition, that is precisely of the case here because the apportionment made to the Upper Basin had the effect if the compact is operative as intended of an appropriation immediately made, presently put to use in perpetuity that the seven and a half million acre-feet apportion to the Upper Basin is as though that water were now used. It makes no difference contrary to the Special Master's feeling here that the Upper Basin was not yet using all their water. And that consequently, if you add up the apportionment of the Upper Basin, seven and a half million, the claims of the United States, 12 million to reach nearly 19 million acre-feet, there's only 15 million at most available at Lee Ferry. If you add up the claims of the Upper Basin States apportion of water, seven and half, the claims of the Lower Basin on the mainstream, you again find that the claims exceed the supply by more than two million acre-feet. And then consequently, we have here --
William O. Douglas: He says -- he says that the claimant of the United States is only -- it asserted here as only to the Lower Basin water?
Northcutt Ely: Well, as we try to indicate, these were federal claims and are not so limited. They are not limited on the face of the complaint. We think they could not be so limited for treaty, for the Indians, and addition to the claims to satisfy its water contracts. They amount to 12 million acre-feet -- excuse me.
Hugo L. Black: Does your argument about -- the effect of your argument has challenged that they litigate the Compact on the ground that is a count to apportion more water than they limit.
Northcutt Ely: No. Not necessarily, so we do not question the validity of the Compact.
Hugo L. Black: But what would be the result if they have attempted it during your argument to apportion more water (Inaudible)
Northcutt Ely: Well --
Hugo L. Black: And it turned out that in that way and there has to be a strict apportionment, is it your idea that you couldn't do that now?
Northcutt Ely: We have not suggested that. We have suggested that the Court is faced with the problem of decision as to where the shortage falls. If they -- if they -- if there is not enough water to enable the performance of the guarantee of 75 million acre-feet every 10 years, and at the same time, to enable the Upper Basin to use seven and half million acre-feet per year, then how can the Lower Basin, how can Arizona quiet title and perpetuity for us to that 75 million as apportioned to us. So, at some time, that issue of shortage will arise. We say simply that no title and perpetuity can be quieted on the assumption that there is excess warrant.
Hugo L. Black: May -- maybe I don't -- maybe I completely understood, it wouldn't deprived from the evidence. As I gather it, you have a Compact which it says, seven and half upper, seven and a half lower, the -- with some unknown excess.
Northcutt Ely: Right.
Hugo L. Black: As I gather it, because I thought that you're arguing that in reality there are so many claims by the Government that it's impossible to (Inaudible)
Northcutt Ely: That there is one result of the Government's claims.
Hugo L. Black: If that's being true, if that were true, would that be a challenge to the validity of the Compact or do you think its supposed to be right about it?
Northcutt Ely: Well, something will have to give --
Hugo L. Black: Something would have to give --
Northcutt Ely: Something would have to give and the --
Hugo L. Black: That the Compact itself or -- or else the Court will have to undertake the chance of revising the Compact --
Northcutt Ely: Not revising it but finding where the burden of the shortage rested.
Hugo L. Black: And invoke it. In the plain language that would mean deciding how much each of the States should have rather or -- or division, instead of having decided by the Compact.
Northcutt Ely: We would have to decide if for example the Indian claims are outside the Compact from ahead of it, if the other federal claims are not encompassed within the apportionment to become ahead of it. And if there isn't water enough left to satisfy the 16 million acre-feet that the Compact framers thought, then where does the burden imposed by these federal claims rest? We say it can't rest just on the Lower Basin.
Hugo L. Black: Right. But what I -- what I --
Northcutt Ely: It might --
Hugo L. Black: What you are saying is as I see it (Inaudible) You're to make these states a party because the Compact won't work as it is, they can't divide it according to its terms.
Northcutt Ely: It won't work if the Federal Government -- pardon me?
Hugo L. Black: Therefore, the Compact is invalid, therefore, the whole thing is challenged and therefore, all of the States have to be a party.
Northcutt Ely: No, sir. That is not my chain of argument. What I say is that if the Government has valid claims to 12 million acre-feet, there isn't water enough to make the Compact operate in full.
Hugo L. Black: Won't work, the Compact is no good.
Northcutt Ely: The shortage must fall somewhere. Where? Shall it fall entirely on the Lower Basin or by some decree of this Court divided between the Upper Basin and the Lower? We do not ask that the Colorado River Compact be set aside if that's your question.
Hugo L. Black: You are saying that whether it's to be set aside or not, if it's not set aside, the issues that are raised that it must be rewritten for the reapportionment of the water, so as to use in your term, to see whether it's burden of the lost flow, meaning the burden of the loss being, which one gets left in it provided in the Compact?
Northcutt Ely: Wouldn't necessarily rewrite the Compact, but it would as in the case of the Mexican burden, have to be spelled out who's to bear that burden, the Compact does as to the Mexican burden. It says that if the surplus is not enough, on Article III (c), then the two basins shall share the -- the shortage equally. Now, here comes United States with far greater federal claims in the Compact alone. There is nothing in the Compact that says how that excess burden shall be shared. There'd be nothing in the Compact, we say that the -- to make an effective decree, the Court must have the upper States here to in some way arrive at a fair sharing of that burden.
Hugo L. Black: Well, that's totally fine, unless some -- that idea I have is regrettable. I do not require you make them -- the claim to make them necessary a party to the idea (Inaudible) based on what you said (Inaudible) it's a strong argument (Inaudible) for this -- for this reason. It seems to me that you are saying that on the circumstances repeatedly is bound to develop that you've got to provide a different allotment of the water, the seven and a half million to the upper and seven and half million to the lower.
Northcutt Ely: Well, only if the United States claims are sustained to the degree they have pleaded.
Felix Frankfurter: You might.
Northcutt Ely: We might, might or might not, yes, but the --
Felix Frankfurter: (Voice Overlap)
Hugo L. Black: And if -- and if the salvaged water would be treated differently, you'd have several different (Inaudible)
Northcutt Ely: That -- that -- that's right. That's right.
Hugo L. Black: But they all get down to the argument that since there -- I accept this as it might, since the issues raised may require a change in the allotment or apportionment of water in the Compact, maybe, you must have all the parties in.
Northcutt Ely: That is -- that is quite correct. If or upon the trial it should develop that those party should be here and we've gone through the trial without them, we have wasted a great deal of time.
Felix Frankfurter: A cataclysm of nature might bring about the failures of it.
Northcutt Ely: That's right. Or take this very question of whether the United States anticipating a great flood, partially if it's Hoover Dam, and the flood doesn't come. That's happened with the last few years, millions of acre-feet had been wasted to the gulf in anticipation of snow packs that didn't materialize in the Rockies, human forecast cannot be perfect.
Hugo L. Black: We can't do that even by the laws --
Northcutt Ely: No, sir. We can however arrive at some conclusion in where the burdens of those disasters should fall. We say they shouldn't fall upon the lower basin (Voice Overlap) --
Speaker: (Inaudible)
Northcutt Ely: No. We say that if United States discharges five million acre-feet, let's say from Hoover Dam in anticipation of a flood and thereby deprives the Lower Basin of the right to use that five million acre-feet that it is not necessarily to be treated as though we had in fact used it and was our apportion of water, that that might very properly be held to be a burden, a federal burden upon the waters of the entire system to which equitably, the Upper Basin should contribute. Thank you, Your Honor.
W. T. Mathews: If it please the Court. I'm the representative of State of Nevada, represent Mr. William Kane, Special Assistant Attorney General. I reappear here in behalf of the intervening State of Nevada. Much has been said by Brother Ely, representing the State of California, covering grounds which was not necessary for us to again cover. This is one of the most important cases, I believe, dealing with water. Water administered under the western water law of appropriation. It is the first time, I believe, that a case of this magnitude has reached this Court. It covers sufficient ground of warrant the court in saying that there is not a single solitary question pertaining to western water law which is not present in this case. It seems to me that this Court has well stated the problem with respect to an interstate creed. In the case of State of New Jersey versus the State of New York as reported in 283 U.S.336. This Court had this to say at that time, a river is more than an amenity. It is a treasure. It offers a necessity of life that must be raised among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly, the exercise of such a power toward the destruction of interest of lower States should not be tolerated. And on the other hand, equally literal put New Jersey to be permitted to require New York to give this power all together in order the river might come down to be it undiminished. Both States have real and substantial interest in the river and must be reconciled best (Inaudible). The different traditions and practices in different parts of the country may lead to varying result, but the effort always is to securing a natural enforcement without quibbling over formulas. There is a formula in this case, if this Court please, it is the Colorado River Compact of 1922. I make that statement for this purpose that there is no need of seeking another formula or else just a necessity of this Court drafting a formula, it has already been adapted by seven sovereign States of the union. It is true, one of those states withheld some 15 years its right to ratification, but today, it is before this Court.


Earl Warren: Number 250, Lloyd Eldon Miller Jr. versus Frank J. Pate, Warden. Mr. Lassers.
Willard J. Lassers: Mr. Chief Justice, this is a capital case that comes to this Court on habeas corpus. Relief was granted by the District Court of the Northern District of Illinois, Judge Perry, the state took an appeal and the Seventh Circuit reversed and this Court granted certiorari. There are four principal errors that we contend occurred in this trial and I'm going to try cover the four. The case is unique, Your Honors, and that the covenants on exonerating this petitioner of the crime was discovered even before the petitioner himself was arrested. The -- the petitioner was convicted of murder and on Saturday afternoon, November 26th, 1955 in Canton, Illinois at 4:00 in the afternoon and a little eight year old girl was found under a mining car severely injured but still living. She was rushed to a hospital where she dies at 5:47 P.M. that afternoon. At 6:20, while the body was still on the operating table, the coroner arrived and he performed an examination. Now, the coroner himself was a physician. In the course of that examination, he took a vaginal smear and there had been a sex attack on this child and he took the smear and the vaginal smear was sealed in a vial with a surgical tape and this smear together with a mass of other evidence was immediately taken to Springfield which was few miles away and it was taken to the state crime laboratory there. When it arrived there, the man in-charge, a man by the name of Forest literally, had found the vial and it was still sealed and it had on it Janice May, the name of the victim and the date of the crime November 26th, 1955 and the initials of the coroner. He opened the vial and inside was a tissue which he examined. And when he made a close examination, he found that there was a single strand of hair that was adhering to the tissue. The petitioner Lloyd Eldon Miller was arrested the following day on November the 29th, at about six o'clock -- no about eight o'clock in the evening, on a Monday. The crime took place on Saturday and he was arrested on Monday. He was immediately taken to Springfield which was the same place for the state crime laboratory was located and he -- they took him up to the crime laboratory and they took blood sample and this and that and other things and among -- there are other examinations, they took a sample of his pubic hairs. And immediately after that, on the night of the November the 29th, they had an extensive period of interrogation which lasted I believe until one in the morning. He was taken back to his cell on the following night, the night of the 30th, there was another extensive period of examination and he signed a confession shortly after midnight on Wednesday evening which was the second night of the examination. Now, he was tried in Carthage Illinois, in September of 1956 and which was about eight months -- ten months afterwards. And in May, which was several months before the -- before the trial, the -- his then defense attorneys, we were not representing him at the time, filed a motion on the trial court asking, I believe, to make a physical examination of the evidence. And the state came in and they resisted that, and the trial court denied the motion, and they preserved the error in the record and the Supreme Court of Illinois affirmed the denial of the right to make a physical examination of the evidence and the -- they affirmed the conviction.
William J. Brennan, Jr.: Specifically what evidence? What -- what evidence did he want physically to examine?
Willard J. Lassers: Well, there was --
William J. Brennan, Jr.: The vial?
Willard J. Lassers: The -- there was a physical evidence that was later introduced to the trial. I don't think that they knew themselves exactly what physical evidence there was. But there were various -- there was a -- that there was a pair of shorts which we can talk about later on.
William J. Brennan, Jr.: Yes, I just wondered whether the motion referred to anything specific or just generally asked permission to examine all physical evidence.
Willard J. Lassers: I believe that is correct. I assume that's right.
Speaker: Did the hair a part of evidence in the trial?
Willard J. Lassers: It was not Your Honor, no. Now, the record -- what?
Speaker: Offered?
Willard J. Lassers: It was not offered, no, no. Now, the petitioner --
Byron R. White: Could I ask -- could I ask you another question?
Willard J. Lassers: Yes.
Byron R. White: Was there any proof that he were at any stage in supplementary proceeding, or otherwise, that the pubic hair was actually found in the vagina?
Willard J. Lassers: The -- the record shows that the -- that the physician came and that we thought the vial was there and it have the initials of the coroner, it was still sealed, with the name of the child and the date of the crime, and that this was then sent to the crime laboratory, and that is the extent of the record.
William J. Brennan, Jr.: In other words, the hair was in the vial?
Willard J. Lassers: The hair was on -- was adhering to a tissue in the vial --
William J. Brennan, Jr.: In the vial?
Byron R. White: But the person who actually took the smear never testified that he found a hair in the vagina?
Willard J. Lassers: No, he did not. He have --
Byron R. White: And that's only an inference from the fact that the hair was in the vial? That -- that you think it came from the vagina at the time.
Willard J. Lassers: Mr. Justice White, we think that the inference on that is just overwhelming.
Byron R. White: Yes, but wholly aside of how you characterized it, that's what it rest on.
Willard J. Lassers: That is correct. Now, the -- it is also a fact that this coroner did testify. He was called as a witness by the prosecution and he did testify and he said that when he arrived there, the girl was dead and I believe he said that she was still on the operating table. Now, the -- the counsel for the defendant at the time was permitted to physically to view the physical evidence on one occasion and he subsequently testified in subsequent proceedings.
William J. Brennan, Jr.: Well, what does that mean? Allowed physically to view -- what's that?
Willard J. Lassers: Well, he -- he went into the room and the evidence was put on a table before him and he with his co-counsel and they -- they looked. I don't know whether they were allowed to touch or not.
William J. Brennan, Jr.: Well, how does that different from what they sought on --
Willard J. Lassers: What they sought was permission to have a scientific examination made which would involve bringing in specialists in various kinds --
William J. Brennan, Jr.: Now, did they see this after the motion was denied but before trial?
Willard J. Lassers: I believe that's correct, Your Honor. Now, after they --
Earl Warren: Did they see what before -- before trial but after -- after their --
Willard J. Lassers: They saw a pair of short, a jacket, and a rock, and --
William J. Brennan, Jr.: The vial?
Willard J. Lassers: I think they saw the vial, yes. Now, it --
Earl Warren: Was the hair observable?
Willard J. Lassers: I don't know -- I don't know whether the record shows whether it was or it was not. It may have been. Now --
Earl Warren: Was it called to their attention that there was such a thing --
Willard J. Lassers: The record --
Earl Warren: -- in the vial?
Willard J. Lassers: The record does not show that it was ever called to their attention. However, the petitioner testified that he was showing a hair and I will come --
Earl Warren: He was shown what?
Willard J. Lassers: -- to that in just a moment.
Earl Warren: He was shown what?
Willard J. Lassers: That he was shown a hair. During the course of his interrogation and this was on the second night and it was shortly before he signed a confession, he testified that he was shown a hair, that he was taken into a microscope room which is what he called it, and that he was told that one of his hairs matched the hair from the little -- that was found in the little girl and he said that that -- they told him that he could look at the microscope through himself and then he said that he informed the people present them hairs don't match.
Earl Warren: That -- that what?
Willard J. Lassers: Them hairs don't match.
Earl Warren: That -- the petitioner's said that?
Willard J. Lassers: That is correct, Your Honor and he -- he so testified at the -- at the hearing on the motion to admit the confession.
William J. Brennan, Jr.: Well now, what did the -- the police concede that they had shown him a hair during the period that that is --
Willard J. Lassers: There was no denial of this.
William J. Brennan, Jr.: No denial?
Willard J. Lassers: The record on the prosecution side assigned on that issue.
William J. Brennan, Jr.: But there's no concession that it was shown?
Willard J. Lassers: It's silent. And I -- I think it's a fair to say that they have conceded, that they showed him the hair and that they told him that the hairs matched.
William J. Brennan, Jr.: Now, when was it -- how long after this was -- that was determined that in fact this was not a hair from his body?
Willard J. Lassers: Eight years, Your Honor.
William J. Brennan, Jr.: Eight years from --
Willard J. Lassers: Eight years, yes sir. It was -- then, what happened was after the affirmance --
William J. Brennan, Jr.: Well, when did the police first know that it was not a hair from his body?
Willard J. Lassers: At the very latest, on December the 7th of 1955 --
William J. Brennan, Jr.: That?
Willard J. Lassers: -- which was -- and we think it's a fair inference from the record that they knew it the very afternoon that the hair was delivered to the crime laboratory which was a day or two after the crime.
William J. Brennan, Jr.: Well, in any event, at the time he was shown the hair and told that it was from his body, the police knew that in fact it was not from his body.
Willard J. Lassers: Well, the -- the -- we think that that is the inescapable inference from the record.
William J. Brennan, Jr.: Well, what I'm trying to get to is, how do we know that police knew that it was not from his body at the time they told him it was? What in the record shows that?
Willard J. Lassers: Only -- it's only the inference and based on this fact that the hair was already in the crime laboratory for over 24 hours at the time they made the false statement to him.
William J. Brennan, Jr.: It was there but I'm still uncertain how it is they knew it was not his. When was it determined and by whom was it determined that it was not a hair --
Willard J. Lassers: It was --
William J. Brennan, Jr.: -- from his body?
Willard J. Lassers: It was determined by his fellow literally in -- and he wrote up an official report --
William J. Brennan, Jr.: Is he in the crime laboratory?
Willard J. Lassers: He is in the crime laboratory --
William J. Brennan, Jr.: Right.
Willard J. Lassers: And he wrote an official report, one copy of which went to the prosecuting attorney --
William J. Brennan, Jr.: In which he stated that it was not a hair from his body?
Willard J. Lassers: That is correct.
William J. Brennan, Jr.: Now, when was that report prepared?
Willard J. Lassers: It is dated December the 7th, 1955.
William J. Brennan, Jr.: And how long -- on what dates was the interrogation?
Willard J. Lassers: On November the 29th and November the 30th. And the hair --
William J. Brennan, Jr.: And prior to the date of that report in any event?
Willard J. Lassers: Correct, Your Honor and it was -- the hair was delivered to the crime laboratory on the 28th.
William J. Brennan, Jr.: Well, then how do you jump to the conclusion that between the 28th and 30th that it had been discovered it was not a hair from his body and the interrogating officers knew it? How do you --
Willard J. Lassers: All we can say on that, Your Honor, is that either they knew it or that they made a statement to the petitioner with this regard whether it was true or false. Now, we say it doesn't make any difference whether they knew it or whether they -- they told it to him without making the determination.
Abe Fortas: Well, on this branch of your case, are you making two points -- one that the police used the hair to get the confession and that that was error?
Willard J. Lassers: Yes, Mr. Justice Fortas.
Abe Fortas: And two that there was error before the prosecution to fail to advice the counsel?
Willard J. Lassers: Yes sir.
Abe Fortas: -- or the petitioner that their expert had reported that the hairs were the same?
Willard J. Lassers: That is correct.
Abe Fortas: -- or not the same?
Willard J. Lassers: Correct.
Abe Fortas: So you have those two points?
Willard J. Lassers: Correct.
Earl Warren: What did counsel do about this when -- on it, wherein from the petitioner that he had told the interrogators it wasn't his hair?
Willard J. Lassers: The record is silent on that. Now, of course they --
Earl Warren: Does that mean they did nothing?
Willard J. Lassers: The record doesn't show that they did anything. But of course they were in a terrible position because what could they do is see that the state never introduced the hair at the trial.
Earl Warren: Well, this -- it would seem to me that if it was a valuable evidence for -- for the defendant now, in this proceeding, it's certainly would have been valuable evidence to him then and if counsel was taking cognizance of what would help him, he would think they would make some kind of an effort to have it determined. There's a fact --
Willard J. Lassers: And if --
Earl Warren: -- whether it was his or not?
Willard J. Lassers: Mr. Chief Justice, all they had was what this uneducated cab driver with a two-year high school education at the most told them, he told the investigating authority --
Earl Warren: Well, that's why they have lawyers with more two years education and to take care of his rights in the courtroom that would think.
Willard J. Lassers: That is correct, and that -- that is the reason that they made the -- the request, to have -- to be permitted to make a scientific examination of the evidence and that was denied.
Earl Warren: Did they -- did they state why they wanted to do that?
Willard J. Lassers: No.
Earl Warren: Did they say it to him it was because the defendant said that was not his hair and that they wanted to examine that particular item of evidence?
Willard J. Lassers: No, the motion does not state that. It does not, no. Now --
Speaker: Does it refer that the hair, the vial was distinguished in other physical -- No, it does not.
Willard J. Lassers: It does not, Mr. Justice Harlan. Now --
William J. Brennan, Jr.: Just one last on that question. Did these lawyers testify at the least the post-conviction or other proceedings?
Willard J. Lassers: Yes, they did.
William J. Brennan, Jr.: Did they -- did they testify that the motion itself didn't say anything about it? What it was -- they had in mind when they made the motion?
Willard J. Lassers: I don't believe they did and I -- I'm not certain about that but I don't think they did.
William J. Brennan, Jr.: Well, in any event, they certainly didn't say they had in mind they wanted an examination of the hair, did they?
Willard J. Lassers: I don't believe they did. I am not certain of what of state of the record is on that point. Now, the -- then the -- then the next step was there was a habeas corpus proceeding in the Northern District of Illinois, relief was denied and that was affirmed by the Supreme -- by the Court of Appeals for the Seventh Circuit and that was held up by the other counsel. Then, we came to August of 1963 when a petition for commutation was filed and the -- there was a hearing before the Illinois Pardon and Parole Board and in the course of that hearing there was certain evidence introduced by the prosecution and by the defendants which -- which for the first time cast substantial real doubt on the man's guilt and the -- we were then about two days before the execution, the execution was set for one minute after midnight on August the 23rd and the commutation was denied on August the 20th. So we proceeded in two channels. One was, the date for death that have been sent by the Supreme Court of Illinois which was not been in session --
William J. Brennan, Jr.: When -- when does he have counsel for the first time?
Willard J. Lassers: His parents obtained counsel for him even while he was still being interrogated.
William J. Brennan, Jr.: Well, before he signed the confession?
Willard J. Lassers: Yes, that's true. The counsel never saw him until after the confession was signed.
William J. Brennan, Jr.: Why -- why not?
Willard J. Lassers: They -- he was held incommunicado. He asked to see --
William J. Brennan, Jr.: In other words, (Voice Overlap) refused to let him see him?
Willard J. Lassers: That is correct and --
William J. Brennan, Jr.: But the lawyer tried to see him?
Willard J. Lassers: I believe the record shows that his lawyer inquiries to get to see him and I believe that the -- the first time that his lawyers saw him was on December the 1st which was the morning following the night when he signed the confession.
Earl Warren: Did I ask you before we adjourned if the doctor who made this -- this test of the material in the -- in the vial testified --
Willard J. Lassers: He did --
Earl Warren: -- in the case?
Willard J. Lassers: He did testify, Mr. Chief Justice.
Earl Warren: Did -- did he say anything about the hair being attached to --
Willard J. Lassers: No, he did not.
Earl Warren: Was he asked by counsel from cross-examination whether there was any such thing in the vial?
Willard J. Lassers: He -- there was nothing.
Earl Warren: No mention of it by --
Willard J. Lassers: No mentioned --
Earl Warren: -- by either side?
Willard J. Lassers: By either side, that is correct. Yes, I believe he testified that the injury were something about the character. So that was the -- we made an application to a justice of the Supreme Court of Illinois in vacation, for a stay, that was denied. We filed a second application for habeas corpus which was the time when the present group of attorneys accepted the case and that was granted by Judge Decker and then the matter was sat down for a full hearing before Judge Perry. And --
Earl Warren: We'll recess -- we'll recess now Mister.