Speaker: H. P. Dugan et al., Petitioners versus Everett G. Rank. Number 51, Claude E. Rowe -- City of Fresno rather, Petitioner versus California et al. and Number 115, The Delano-Earlimart Irrigation District et al., Petitioners versus Everett G. Rank et al.
Archibald Cox: May it please the Court. This is one of three cases here on certiorari to the Court of Appeals for the Ninth Circuit, all growing out of a single action brought against the United States and officials of the Bureau of Reclamation. The central issue is whether the action in all its aspects is in reality, a suit against the United States barred by sovereign immunity. Our position is that it is such an action and is so barred and that the plaintiffs have a remedy for damages under the Tucker Act in a suit in the Court of Claims but they're not -- but they're not entitled to this action for a specific relief under the doctrine of the Larson case and Malone and Bowdoin. The justices, who were on the Court at the time of the Gerlach and Ivanhoe cases, will recall the complexity and grandeur of the Central Valley project. The north half of the Central Valley in California, the Sacramento Valley, has a surplus of water. The south half, the San Joaquin Valley, has a shortage of water. The purpose of the project, the essence was to improve the use of water in both halves of the valley, but also particularly to bring surplus down to the water hungry regions in the San Joaquin. For present purposes, there are only two units of the project that are important to us. Both were the key units in the sense. The San Joaquin River rises in the Sierras in the area just south of the Yosemite and then flows southwesterly and breaks through the mountains here at Friant. Then it continues on, flowing a little bit more to the west and then take a sharp bend up to the northwest and it -- in the delta area, it joins the Sacramento and the two flow out through the Golden Gate to the sea. The first unit that we're concerned with is the Friant Dam which was built right here where the river breaks through the mountains and behind which is Millerton Lake, a storage reservoir. Extending from that dam north is the Madera Canal and south the Friant-Kern Canal, which transports water to regions that otherwise, would be shortage areas. And they take, when the dam is close, all or virtually all the water of the San Joaquin. The Irrigation District which are the petitioners in the third case to be heard today are the districts that are furnished by these two canals, one runs about 50 miles and the other about 150. Now closing the Friant Dam and diverting the water via the canal would of course unless something else was done, cut off the irrigation water available to the lower San Joaquin Valley. To take care of that, we have the second significant unit in the project here, the Delta-Mendota Canal which runs from the Delta where it hooks on to the Sacramento River, comes to the pumping plant of Tracy and is then raised and closed by gravity down here to a place called Mendota Pool. There it is released and flows back up north again and water these lands, which previously received water of the San Joaquin River.
Speaker: [Inaudible]
Archibald Cox: No. There are maps in the briefs.
Speaker: [Inaudible]
Archibald Cox: I should think we could a quickly -- we've tried certainly as quickly as we can give, yes. And I think there's another that I'm sure I can obtain copies of that are somewhat easier than the brief. It was --
Speaker: [Inaudible]
Archibald Cox: It certainly will, yes, except for getting it reproduced if we have to. We left -- which way to do it. We will try to get it reproduced and then return this along with the reproduction. You will notice of course that since the Delta-Mendota Canal comes only to Mendota pool, this would mean that if Friant Dam were closed completely, this area on which I've marked with red running from Friant Dam down to Mendota Pool would be without water and that is the area that we're concerned with in this case. The diversion of the natural flow at the San Joaquin having made no provision from those lands in the red area, gave rise to a problem that the Reclamation Bureau and the United States of course have to face. Some of the water rights in that area, indeed, most of the water rights in that area were required under state law. We entered into contracts either buying the rights or contracts to supply them with water or agreed a partial arrangement to supply some water and to make some payment. A minority of the land owners and the United States were unable to grip -- to agree and this suit resulted. The water rights asserted by the plaintiffs were of three kinds, some of the plaintiffs whose land actually along the river claimed riparian rights which California still recognizes to a degree. The United States has always acknowledged some interference with those riparian rights. It claims to have taken them to the extent that there is interference and it denies the full amount of the interference that the plaintiffs claim. Some of the plaintiffs claim what are known as overlying rights to the underground waters which they claim were fed by the San Joaquin River. They were mostly in this area, south of the river, barely reaching to the City of Fresno. The United States, for the most part, denies that it has interfered with the overlying rights to the extent that they have been impaired, again, we claim to have taken it. Some of the plaintiffs -- I might -- I should say too that the City of Fresno has been spoken off for the most part as being in the category of the owner of overlying rights. Finally, some of the plaintiffs claim appropriative rights that is to say they are not neither overlying land owners nor riparian but they claim to have taken water and put it to beneficial use in time to have acquired rights under California water law. The action was brought by the plaintiffs against the --
Speaker: [Inaudible]
Archibald Cox: Oh yes, subject to only one -- subject to one possible qualification and I don't -- we don't have enough facts to say how much the qualification it is, but some of them may now be barred by the statute of limitation, although most of them have already brought their suits and were not barred by the statute, but I wouldn't want to say that there was nobody who might be barred by the statute. But we acknowledge to the extent we'd interfered that there clearly -- we were clearly bound to recognize the rights under state law to that extent, if we have to take them, we couldn't just wipe them out, and that that gave rise to an obligation to pay. So the real issue here isn't one of the obligation to pay, it's to whether they can tie up the project as a way of asserting their rights. The action was brought against officials of the Reclamation Bureau to seek what is called a physical solution of the plaintiff's originally riparian rights. Under California law, a riparian or overlying owner who can show that other people on the stream are interfering with the natural flow of the water, may obtain a decree restraining interference with the flow of the stream unless the junior appropriator at his own expense make some physical arrangements which will protect the superior right of the riparian owner to water to a reasonable extent. For example in the present case, which is as good as an example of a physical solution as any, the District Court enjoined the operation of Friant Dam. They said you can't use Friant Dam and required the Reclamation Bureau to release all the waters of the San Joaquin River unless the United States build a series of 10 more dams and operated them in the manner that the District Court required, describing the dams in great detail even down to gantry trains and the size of rails of the train should run on and so forth, and it provided that there should be a specified flow of water over the last dam. The individual defendants when the suit started, moved to dismiss upon various grounds, but especially on the ground that the action was in reality, one against the United States barred under the doctrine of the Larson case. When that motion was denied, the officials made a number of answers, including answers on the merits but they preserve the position which we insist upon here at all times that this was an unconsented to suit against the United States. The District Court found against the reclamation official, both on the question of jurisdiction and on the merits. It entered a decree which as I have said, enjoined the operation of Friant Dam, enjoined the transfer of water through the Madera and Friant-Kern Canals unless the United States which it recognized would have to go in, chose to build 10 additional dams on the strip of the river down the Gravelly Ford at an expense of somewhere around a million dollars. I must now I think for the purposes of clarification, turn to a second aspect of the case in the District Court. The City of Fresno was one of the plaintiffs in the original action seeking protection of what Fresno said were her overlying rights to the underground waters alleged by her but denied by us as coming from the San Joaquin. At this stage when Fresno came in, the United States was joined as a defendant or at least attempted to be joined because the United States never appeared. In addition, Fresno filed a separate complaint and intervention against both the Reclamation Bureau officials and the United States seeking a declaratory judgment that her right to take additional water from the San Joaquin River from the natural flow was superior to any rights of the United States to the waters of the San Joaquin because we had acquired assignments of rights to the waters of the San Joaquin from the State of California. Third, Fresno sought a declaratory judgment that the United States was obliged to furnish Fresno with water from Millerton Lake behind Friant Dam at the price of 350 an acre foot, although the price charged to all other municipalities for water under the Central Valley project is higher and ranges up but not above $10 of acre foot. The District Court gave judgment against the Untied States on both these claims for a declaratory judgment. The Court of Appeals reversed, as to the United States, holding that there was an unconsented suit against the United States and the City of Fresno by the petition in Number 51, the second case to be argued today, brought that ruling here. With respect to the original suit, the Court of Appeals affirmed the judgment in favor of the riparian overlying owners so far as the individual defendants were concerned. It held it was not an action -- really an action against the United States because it fell within the exception which permits its said suits against officers of the United States where they are acting outside of the scope of their authority and committing a tort against the plaintiffs.
Potter Stewart: Is Fresno a plaintiff in that suit?
Archibald Cox: Fresno is a plaintiff in that suit. So that Fresno really has three claims. It has -- it's in common with all the overlying owners and riparian owners. It has its claim that it's entitled to a declaration that it has a right to appropriate water out of the natural flow ahead of any rights of the United States.
Potter Stewart: And that's Number 51 here?
Archibald Cox: That's Number 51 here and it has a declaration which is also in Number 51 that it's entitled to water at 350 an acre foot.
Potter Stewart: Right.
Archibald Cox: The -- on the Reclamation Bureau's petition to which I'm going to address myself now, we submit that the courts below both erred in failing to dismiss the action as an unconsented to a suit against the United States. Certainly, it is such a suit in every substantial respect. The Bureau officials were sued only to control their action as officers of the United States. The complaint sought not damages, but an injunctive decree, granting specific relief. Under the decree, either Friant Dam must stand idle, the great works unused, no water flowing either north or south through the Madera Canal or the Friant-Kern Canal and no water supplied to the Irrigation District or else, under -- excuse me.
Speaker: [Inaudible]
Archibald Cox: If you agree with this in this position, there is nothing left to decide.
Speaker: [Inaudible]
Archibald Cox: Oh -- well, we would have a -- we would have essentially the same position but the reasoning is a little different. In 51, we claim, it's a suit against the United States and indeed we think it's obviously is and the question there is whether the only question so far as I can see is whether the United States has given its consent. There is an argument that the United States has consented to be sued and I suppose that if that argument is good, it really takes care of 31 too. So I guess that the Court has to decide a minimum of two points. One whether Larson and Malone and Bowdoin are decisive in that general principle, and second, whether Section 206 (a) of an Act of 1950 known as the McCarren Amendment, gives consent to suits against the United States. I was saying that the decree that this suit was in substance against the United States either it expends itself on these key units of the Central Valley project and prevents its operation or in the alternative, it compels the United States and this is submitted to build 10 more dams on the river which have not been approved by the Reclamation Bureau and which have not been authorize and for which no money has been appropriated by Congress.
Arthur J. Goldberg: [Inaudible]
Archibald Cox: The order -- in a suit against United States, there's no such case, no such case. As among private parties in California law there's present, but I know of no case anyone near this.
William O. Douglas: You mean to say that if the Government is putting up a dam that will flood my house that I'm without any remedy to stop me from doing it unless they condemn it?
Archibald Cox: I think that when they put up the dam and flood the house, they have condemned it.
William O. Douglas: That means, if -- if they take no measures to acquire the land within the project.
Archibald Cox: The very effect of putting up -- well, if the project is unauthorized, if the Reclamation Bureau --
William O. Douglas: No, it's authorized.
Archibald Cox: Well, if it's authorized then as in the Gerlach case --
William O. Douglas: I mean the government -- the government official never convey as trespasser.
Archibald Cox: Well, if he is authorized he can't be a trespasser, no. I think that --
William O. Douglas: So there's no such thing as a suit again -- against an official under the Government.
Archibald Cox: There's no such -- there's no permitted suit against an official of the Government acting within his authority. That seems to me to be the lesson --
William O. Douglas: Why isn't the Government can -- the Government has -- the Government is much more powerful than an individual that they can condemn, can't they? Why don't they condemn?
Archibald Cox: Well, the Government -- the Government when it builds the dam cuts off the rights does condemn as it did in Gerlach. That was the holding of the Court in Gerlach. Similarly in many flowing cases, the Government when it erects a dam or locks and it flows the land behind, that flowing constitutes a taking then and there and an action will lie for it.
William O. Douglas: Under the Tucker Act.
Archibald Cox: Under the Tucker Act, yes. This at far is a remedy, but at the same time, it permits --
William O. Douglas: If a person --
Archibald Cox: -- the Government to go forward with the work.
William O. Douglas: Yes. If a person is timely in his suit and so on.
Archibald Cox: Well the – true, but the Dickenson case I think indicates that there is no -- there is no barring of this cause of action if there is genuine uncertainty or lack of knowledge as to whether there really has been an occasion and it would seem to me that the same was true here.
William O. Douglas: If --
Archibald Cox: If a man could show that in the --
William O. Douglas: Do you think it is doubtful that there was a taking here?
Archibald Cox: Well, you see, the essence have -- I think there was clearly some taking and the -- and we -- there was no taking by judicial proceeding. It was the kind of taking that there was in the Gerlach case and there was clearly some taking. Now there is some dispute and has been from the beginning as to just how much of this underground water was affected by the closing of Friant Dam. We don't say there was a taking to the -- as to those parts which we claim were not affected. On the other hand, we say anything that was affected was clearly taken just as it was in the Gerlach case and that the issue as to where that line is cannot be tried out in a suit to interfere with the operation of the project because we think these officials clearly acted within their authority as between principle and aging when they constructed the dam.
Hugo L. Black: The trail court [Inaudible]
Archibald Cox: The trial court held that there was no taking.
Hugo L. Black: What about the Court of Appeals?
Archibald Cox: The Court of Appeals held we had authority to take but that there was no taking. The Court of Appeals said that there could be no taking unless one were more precise in telling the plaintiffs exactly what had been taken. Now we say as to that that it doesn't matter whether there was a taking or not. Well, we really say three things Mr. Justice Black. We say first that there was a taking and we think that if you look at the case in terms of could anyone in this area sue the United States for a taking under the Gerlach case the answer would unquestionably be yes, and that if there was a taking for that purpose, it was a taking for the purposes of our case. Second, we say that it doesn't matter whether there was a taking or not or exactly how much was taken at this day because of the doctrine of the Larson case and Malone and Bowdoin, because here certainly, these defendants were acting within the scope of their authority. They were -- I think the confusion arises from the term acting within the scope of their authority. It's possible for example to say that well, the officer in the forest service that no officer of the forest service is authorized to take somebody else's land and to oust them from possession and to claim under avoid these. If one has it as a known and indisputable truth that he is taking land that belongs to someone else and that he knows that and knows the deed to be void and then I suppose he is acting outside the scope of his authority.
William O. Douglas: But those cases --
Archibald Cox: But of course --
William O. Douglas: -- sudden rise.
Archibald Cox: That's right. I was simply using this for illustrative purpose, but he is authorized to determine what land he thinks belongs to the United States in his best judgment. That's what the United States sets him up to do, and when he makes that decision of whether he is right or wrong does not destroy his authority and that's the reason that the action for rejectment wouldn't lie in the -- in Malone and Bowdoin, similarly in the Larson case. I take it that everyone would agree that Larson, the war assets administrator wasn't authorized to sell called as A, and then knowing he'd sold it to A and the title had passed, he is obligated to make delivery to sell it to B, but on the other hand, he was authorized to superintend the administration of contracts and to interpret them and provided he acts in his good judgment and perhaps not capriciously, his decision is not placed outside his authority because --
William O. Douglas: I don't suppose the land cases were at a special place in this Court's decision in protection of the leac -- I brought for instance the --
Archibald Cox: Well, it would seem to me that --
William O. Douglas: Do you think that's vulnerable when --
Archibald Cox: I'm not -- I think it's very -- it's gone very largely in a case where an action rely under the Tucker Act and that Malone and Bowdoin shows there is no special protection for land cases and the Larson case that dealt with chattel. Now here, in this situation, the officers of the court below held, were authorized to take these any water rights necessary or to take any land necessary for this project. They were also certainly authorized to operate the dam and to interfere with the natural flow where it didn't interfere with anyone's rights. Those were judgments that they were empowered to make. Whether they made some mistake in them, may have resulted in their committing a tort but it did not deprive them of the authority to act. And really, the holding of the Court below and the plaintiff's argument it seems to me, comes down into a contention that this special category of cases still exists that an officer of the United States may be enjoined when he has been committing a common law tort.
John M. Harlan II: Mr. General what --
Archibald Cox: But that --
John M. Harlan II: Excuse me.
Archibald Cox: I was just going to say that that category of case was held nonexistent in Larson that that is not ground for suing an officer of the United States and that if there could be any doubt after Larson as apparently there was because the Fifth Circuit in the Bowdoin case and the Ninth Circuit in this case rendered inconsistent decision, they were set straight in Bowdoin so far as the Fifth Circuit is concerned. Frankly, I can't believe that the Ninth Circuit would have decided this case it did had Malone and Bowdoin been available to it at that time. Yes sir.
John M. Harlan II: My question is going to be what has happened in the physical construction of this project --
Archibald Cox: Well, it didn't --
John M. Harlan II: -- during the pendency of this suit.
Archibald Cox: The --
John M. Harlan II: Is it all been stopped?
Archibald Cox: No. There was a period when it was operated under consent decrees. The Friant Dam was built. The water districts are being served. In the point of fact, the Government's arrangement with some of the owners of between Friant Dam and Gravelly Ford, the area we're concerned, because we acquired all of these rights below -- below Gravelly Ford, the Government entered into an arrangement with a number of owners, saying that it would let them specified quantities of water up to 5-cubic feet a second regularly and it entered into arrangements with them to build channels, but encompass to make other things. So as a result of the settlement a cert -- with the people who aren't here, a certain amount of water has been going down. We think indeed that this is hardly disputed and the Court found against us, we think indeed that's enough to take care of all the riparian rights. The owners of overlying rights are still pumping water. The water table is going down in their view and in the District Court's view. This is a result of what we've done with Friant Dam. In our view, it isn't the result of that at all. Of course, we can't argue that issue here and I mentioned it only to find out what we're objecting to is trying that issue not in the Tucker Act suit where it belongs but in an action that plainly expends itself on the property and treasury of the United States. Now I would like to --
Hugo L. Black: (Voice Overlap) was included within the project is approved by the Congress wasn't it?
Archibald Cox: This is within the project disapproved by the Congress. This specific incidents, were described during the '50s, the exact reference is there in my brief.
Hugo L. Black: All that (Voice Overlap)
Archibald Cox: Two of the Congress and the Congress voted appropriation to make settlements with those fellows that we've settled with downstream. They know exactly what we were doing.
Hugo L. Black: As I remember it, it was in Ivanhoe, wasn't it? I don't know if that --
Archibald Cox: Yes sir.
Hugo L. Black: Didn't we discuss the Friant Dam and there's none in which (Voice Overlap)
Archibald Cox: You have to mention it both in Ivanhoe and particularly in Gerlach because you remember in Gerlach where it's right down here on San Joaquin.
Hugo L. Black: Mr. Jackson just where it could get.
Archibald Cox: In summary, because I'm afraid I jumped around a bit. Let me simply state the three objections to the decree of the narrative judgment of the Ninth Circuit that I've tried to refer to. First, we think there was a taking and that will prevent issue of being argued by the Irrigation District and it may be that in the Fresno case, I'll have some time to refer to it. Second, we say even if there wasn't to take, even if there's uncertainty as to what was taken and what was interfered with and what wasn't interfered with at all that the action is in Reality One against the United States because the gist of the claim is that this was a tort and we deny the tort, that's an issue that can't be tried out, we say, in this kind of action. And cert --
Potter Stewart: And if it wasn't -- if it was a tort, would the Court of Claims have jurisdiction?
Archibald Cox: Not if it was simply a tort.
Potter Stewart: Because it's not -- it's clearly not within the Federal Tort Claims Act.
Archibald Cox: Clearly not in the Federal Tort Claims Act.
Potter Stewart: And it's not within the Tucker Act, is it?
Archibald Cox: If it's so little of a tort is not to amount to a taking, yes. I --
Potter Stewart: So whether the --
Archibald Cox: -- find it very difficult if there was such a thing to tell you the truth, Mr. Justice Stewart. I think either we did one -- either we took or we didn't affect it at all, but I think in theory if there is a zone in between which the Government has never been very successful in Tucker Act cases in arguing that there was and I'm quite correct in my judgment, if there is a zone in between, there would be no remedy.
Potter Stewart: No remedy --
Archibald Cox: That would be the (Voice Overlap)
William J. Brennan, Jr.: Your position --
Archibald Cox: But we're not arguing that -- we're not arguing that Tucker Act should be so narrowly construed here. We're objecting to the specific relief. The third point if I might take the 30 seconds, the third point that we say is that both the majority and dissenting opinions in Larson, say that even where an officer has been acting outside its authority that if the decree would compel affirmative action by the United States or expend itself upon the property of the United States, then the action for the injunction will not lie and we think this case falls for reasons stated in our brief from that category.
William J. Brennan, Jr.: I understand Mr. Solicitor to say your position is there was a taking or there was no one --
Archibald Cox: Yes sir.
William J. Brennan, Jr.: -- I find it's difficult to find something short of a taking call it to Court or something else.
Archibald Cox: That's right.
Hugo L. Black: You took some water and then what?
Archibald Cox: We interfered with some flow of water or we didn't interfere with it, one or the other.
Byron R. White: And if there was no taking, there were no grounds for an injunction.
Archibald Cox: There was no ground for an injunction. Of course that took --
Byron R. White: -- and that ignition.
Archibald Cox: Right and that that's the proper place without interfering with the --
Potter Stewart: Not on these laws.
Archibald Cox: Right.
Claude L. Rowe: Yes Honorable Court. You have, I believe, presented to you a large green brief by the City of Fresno in which most of the acts of Congress, involving the Central Valley project are listed. At the start, I would like to make a correction and state that we do not agree with the map before this Court. This so-called river from that point down here does not exist and I --
Potter Stewart: I missed that. I'm sorry.
Claude L. Rowe: What did you say?
Potter Stewart: I missed what you just said, could you repeat it?
Claude L. Rowe: I said the San Joaquin River according to the -- well, what I just said that this river from there to here does not exist and that will come up in the State's argument at a setting position, the map is incorrect. Now, I know --
Tom C. Clark: Mr. Rowe, what do you mean it doesn't exist in this position?
Claude L. Rowe: Well, I will show you. There is no such stream from here to this square nor from the square to this other so-called lake and if it is not out of line to -- it just does not exist. It never existed as a natural channel. Now that is shown by Exhibit 6 opposite page 86 of the green brief, I don't know whether it's proper to mention the Chief Justice's name. His name appears on the cover of that bulletin that that map was printed on. So I think that's -- if it's proper to mention his name, I think that's pretty good evidence that the stream does not exist as a natural stream.
Hugo L. Black: What brief is that in?
Claude L. Rowe: That is in the green brief, the large green brief --
Hugo L. Black: What number of case -- which number of case?
Claude L. Rowe: 51.
Hugo L. Black: 51.
Claude L. Rowe: Yes.
William O. Douglas: I don't know what you mean as a natural stream?
Claude L. Rowe: Well --
William O. Douglas: Is there a bed of river there?
Claude L. Rowe: No. In other words, this was put in, I think, in an effort to avoid the [Inaudible]. It is our position -- this is the Kern River, the Kern River terminates in Buena Vista Lake. There's no natural water way from there to Larry Lake. There's an artificial waterway, but this indicates it's a natural stream and it therefore possibly the Kern River is in the watershed at the San Joaquin. They also attempted to connect that to the San Joaquin. I would like to point out a map as Exhibit 2, opposite page 16 of the green brief which was prepared for the District Court in the decision below and that map prepared by the United States Bureau of Reclamation does not show any stream from Buena Vista Lake to Larry Lake. Now, that will -- I think that point may become important later in the argument.
Hugo L. Black: Why? Can you tell us in words?
Claude L. Rowe: Yes. In California, according to the fundamental war, the county of origin and watersheds of origin are to receive all necessary water before any water is exported out of the watershed or the county of origin. Now Fresno lies in Fresno County which is bounded by the stream on the south and by the San Joaquin on the north. The act of Congress of October 14, 1949 specifically requires the Bureau of Reclamation and the Secretary of the Interior to recognize the county and watershed of origin acts in the operation of the Central Valley project. Part of the City of Fresno's complaint is based upon -- it is in the county of origin of the San Joaquin River and in the watershed of the San Joaquin River where this water originates so that under state law and under the Act of October 14, 1949, Fresno and these landowners and the watershed of the San Joaquin has specifically been given water to the extent of their needs before the Secretary can attempt to import that water out of the county and watershed of origin. Now the District Court found that the Larry County which lies down to Fresno County and Kern County down here was not in the watershed of the San Joaquin River. I do not believe that was stately appealed, it may have been. But the District Court so found that the Kings River here, they were at one time two inland seas, one here and one here that the Kern River drains into Buena Vista Lake and stops, that these other rivers into Larry and Kern County, drain into the Larry Lake. Due to levies of Buena Vista Lake and an artificial channel, waters had been forced to run into Larry Lake and by levies here have been forced maybe twice in one hundred years to run into the San Joaquin River.
Tom C. Clark: There's a bed there then.
Claude L. Rowe: What did you say?
Tom C. Clark: There's a riverbed there.
Claude L. Rowe: The riverbed -- there is no riverbed. There is an artificial channel. There are some slews and an artificial channel, but in determining a watershed, I believe under the law, a watershed is determined by natural channels that you cannot put yourself in the watershed by digging a ditch over into another watershed.
Tom C. Clark: It comes in below gravity pool isn't it?
Claude L. Rowe: What did you say?
Tom C. Clark: I'm not sure I can sit too well, thus the Kern River come into San Joaquin according to the map?
Claude L. Rowe: This is the Kern River, Your Honor.
Tom C. Clark: No. I know.
Claude L. Rowe: That is Buena Vista Lake.
Tom C. Clark: On up north there. Trace it on up north.
Claude L. Rowe: Well --
Tom C. Clark: Then it goes right on into San Joaquin below Gravelly Ford, doesn't it?
Claude L. Rowe: Yes.
Tom C. Clark: Gravelly Ford.
Claude L. Rowe: Yes. The law is also clear. I think that a watershed in this area is not, assuming that is true, a watershed down here is not in the watershed of the area above the junction.
Tom C. Clark: I don't understand about your claim now but perhaps I'm wrong.
Claude L. Rowe: Well, I don't know whether the Government does or not. I think the --
Tom C. Clark: I get your point though.
Claude L. Rowe: In other words --
Tom C. Clark: That is origin point.
Claude L. Rowe: I -- they first come out and said that they were powered to take the water from the City of Fresno and County of Fresno's watershed and even though they needed it and were entitled to it, both under state law and the acts of Congress, they should take it out here, I think they've abandoned that position, maybe not. They now, under the authorities, they're attempting to come in you might say the backdoor and claim they're in the watershed. They have relied on State Bulletin 29 which is one of the bases of the Central Valley projects when the State of California took it over. And that bulletin as quoted in my reply brief to the Government and to the districts that the districts agreed to that point. The Government didn't raise it in their brief, state that the Kern River watershed is into Larry and Kern County that the watershed of the San Joaquin is in Fresno County, but I point that out. Now the government did not raise that point.
Tom C. Clark: I had one question.
Claude L. Rowe: Yes.
Tom C. Clark: I was not clear in your brief. I didn't -- it's not clear to me on this point. You'd meant that the federal government can take this water from Fresno?
Claude L. Rowe: No.
Tom C. Clark: I didn't think you do.
Claude L. Rowe: My -- or our position is this. The State of California, by the decisions of the Supreme Court of the State of California and by two statutes, give protection to the county and watershed of origin that by the Reclamation Act of 1902, the Government must proceed in accord with state laws in their operation of the reclamation projects. But to clear that up beyond all doubt, Congress on October 14th, 1949, the Act is quoted in my brief, specifically enjoined the Secretary of the Interior to proceed and conform to all California County of Origin and Watershed Protective Act. So therefore, our position, they cannot take and under the Youngstown Sheet and Tube case if the Secretary is unauthorized, an illegal taking is not an act of the Government and there cannot be damages. There is no Tucker Act.
John M. Harlan II: This is statutory and not a constitutional argument?
Claude L. Rowe: That's a statutory argument. That is why I point those facts out.
Tom C. Clark: The Federal Act, is it your precedent to irrigation projects or to domestic projects?
Claude L. Rowe: That is another question. The Federal Act, the 1937 Act puts domestic use and irrigation use on an equal footing. The Act of 1939 contains a provision which I do not think is material in this case for the reason that as the California Water Rights Board found, the districts are getting so much water, they're about to become water logged. Now that was the decision of the California Water Rights Board which has never shown any particular friendship for Fresno, but that Act says, the 1939 Act says that the Secretary may not give water to a city if it would injure the irrigation features of the project. If the Act is involved the city's position is that that Act is unconstitutional that it was put through by the powerful [Inaudible] because as shown by Senate Document 113, referred to in the brief, the Central Valley project provides for dams on every river in the State of California. If there is a government dam now in Friant on to San Joaquin, there's a government dam on the Kings River. There's a government dam being constructed on the [Inaudible] Tule. There's already one on the Kern. Now, those are army projects, the last ones but they're all under the final plan of the Government and it's our position that in view of Secretary Freedman's statement that we now have 50 million acres, too much agricultural land in this country and that there will be 50 million acres of excess agricultural land as late as 1980 that a city should not be destroyed by an act of Congress that it would violate the Fifth Amendment to say that human beings shall be deprived of their sole source of supply in order to grow surplus crops for the Government which is the Government is paying some 5 million or billion dollars a year and even if there was not a surplus that one may -- matter came to growing crops or giving water to the citizens of California that Congress did not deprive the citizens of California of water. Now, we claim that if there is a shortage of water that -- that Section 9 (c) is unconstitutional, we ask this Court as they did in the reapportionment cases, the farmers controlled all the legislatures. Their lobbies were so powerful. They control the Congress. The cities had to come to this Court to get a fair deal and we ask this Court to give the City of Fresno and the other city of the nation a fair deal from that powerful lobby. Now --
John M. Harlan II: You think that reapportionment cases dealt with water rights?
Claude L. Rowe: No, we are different but I think it did deal with the power of the agricultural group as against the city but the political power and I'm not against a farmer if I have to be a farmer myself, but as well as I hope an attorney but I do think that this Court did justice in that case to something that it would have been impossible to get through Congress or the legislature. Now we're not such an orphan child as possibly counsel would have us believe or might have you believe. I don't think he said we were. There is a -- going back to this map, let's go for a minute, it might be well to point out the -- as opposing counsel did, the excess water in the Sacramento Valley, Sacramento River has a toll of 17,100,000 acre feet a year, the San Joaquin, 1,751,000 acre feet per year. There's another point that in the course of nature before Friant Dam in this area and the Court has so found and the Bureau of Reclamation has admitted 211,000 acre feet use to seep into this area in the course of nature the law -- before Friant Dam. Since the flow has been cut down, water levels have dropped as far as a 100-acre -- 100 feet in four years, the Court -- District Court so found. In the City of Fresno, they dropped over 35 feet.
John M. Harlan II: What do you say the Government's basic position that this is an unconsented suit Mr. Rowe?
Claude L. Rowe: I didn't understand, Your Honor.
John M. Harlan II: I say, what are you -- are you going to address yourself to the Government's basic argument?
Claude L. Rowe: Yes, yes.
John M. Harlan II: I'm just wondering what you're going to say.
Claude L. Rowe: Alright. Now as to the Government's argument, our position is not entirely unsustained by legal authority. This Court, in approving the Court of Claims in the Gerlach case, held that the Central Valley project was to give water to the six counties including Fresno. This Court has also approved or cited with approval the decision of the District Court, on this case on the motion to dismiss. That was done in United States versus Gerlach, 339 U.S. 725. In other words, the District Court in this case, their first decision has been cited with approval by this Court and going further into the Government's claim or position, the Court of Claims has ruled that the area from Friant Dam to Gravelly Ford Canal under the Central Valley project was to be served with water. If you will read the answers of the various defendants, practically all of them ask that the District Court make a physical solution. The State of California first asked that the District Court construct five check dams to make the water seep out. The Government admitted the possibility of four check dams. The plaintiffs asked 10 -- 14 check dams in order to bring the water to their pumps. The Court allowed 10. Now we're not going to argue with the Government on whether a physical solution is proper. The Government approved the principle or this Court has approved the principle of a physical solution when it affirmed the Court of Claims case in Gerlach Live Stock Company versus the United States. That case is cited in full in our brief and I don't know whether it's proper to read the statement, read a few statements as you go along to emphasize the point or not.
Hugo L. Black: Probably you might be just as well assumed if we might [Inaudible] with much interest.
Claude L. Rowe: Well, I know that you will read it and I -- after reading your calendar, I know that the time of this Court, I don't see how they get through their calendar.
Arthur J. Goldberg: Mr. Rowe, it's been pointed out in the appendix --
Claude L. Rowe: Yes.
Arthur J. Goldberg: -- presumably specific in relation with the 1949 Act you say --
Claude L. Rowe: Yes.
Arthur J. Goldberg: It's been compelled to that in the Government of United States.
Claude L. Rowe: Compelled the Government? Yes. In the appendix that page 16 --
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Well, it's two paragraphs. I attempted to quote the entire Act where they brought the -- they reauthorized the Central Valley projects to include the American River here. They make this statement --
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: It dates back to 1935, but as shown by United States, the Court of Claims case, there had been certain amendments to the project.
Arthur J. Goldberg: This is the section we're now referring to.
Claude L. Rowe: That is one section.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Yes.
Arthur J. Goldberg: Now would you point out there where it applies in the argument?
Claude L. Rowe: Alright. Nothing contained in this act shall be construed by implication or otherwise as an allocation to water in the studies for the purpose of developing plans for disposable water as herein authorized. The Secretary of the Interior shall make recommendations for the use of water in a court where state water laws, including but not limited to such laws giving priority to the counties and areas of origin for present and future needs. Now that same act reauthorizes in the first chapter, the Act of August 26, 1937 which puts domestic and irrigation upon the equal bar. We also rely upon the Act of June 17th, 1902, the Basic Reclamation Act which requires as I read the Act.
Tom C. Clark: Where is that one now?
Claude L. Rowe: The page you want?
Tom C. Clark: The last page or the last one you just said was --
Claude L. Rowe: The Act of August 26, 1937 appears at page 14 of the supplement. It uses the word second for irrigation and domestic uses in referring to the Central Valley project. It simply reauthorized that Act, but I am relying on a specific, as I interpret it, congressional mandate to the Secretary of the Interior in the Act of October 14th, 1949 to give priority to count -- to quote, “giving priority to the counties and origin -- of origin or present and future needs, also to the basic Reclamation Act of June 17th, 1902 which appears at page 6, the summary or appendix of the green brief in which -- that nothing in this Act shall be “nothing in this Act shall be construed as affected or intended to affect or to, in any way, interfere with the laws of any state or territory relating to the control, appropriation use or distribution of water and irrigation or any vested right acquired there under and the Secretary of the Interior in carrying out the provisions of this Act shall proceed in conformity with such laws. My view is that that would require irrespective of the Act of 1949, the Secretary to recognize California County and Watershed of Origin acts.
Byron R. White: How could he recognize to what you presented?
Claude L. Rowe: How should he? Well, he should recognize it by the opinion of the Court of Claims in this which was affirmed by this Court putting Fresno in the area to receive water under the Central Valley project.
Byron R. White: For -- at what price?
Claude L. Rowe: I will --
Byron R. White: Is that right or wrong?
Claude L. Rowe: At a price which is not unreasonable. I'm going to quote a decision of this Court --
Byron R. White: Do you -- you don't claim that the Act that you rely on either 1949 presents to the Secretary in charge in Central Valley water. He may presently come to the water.
Claude L. Rowe: Yes. Well, we take the position that under the county of origin, we're entitled to have a sufficient amount run down the river. However, we do not press that. We're willing to pay for the water out of the Central Valley project if we can get it.
Byron R. White: Your only argument with the Secretary [Inaudible]
Claude L. Rowe: No, it is not. I might state this at the City of Fresno, I was going to that, has -- pumps from the under ground. It has a capacity from the underground of 30,000 acre feet of the year -- a year. Right now, it is pumping over 60,000 acre feet. The Bureau of Reclamation officials, very honest engineers, admitted that the city should not pump more than 30,000 acre feet. Those same engineers said that that the city was -- should have 100,000 acre feet of supplemental water. Now all that we're asking in this case is that under the Act of 1949, our engineer said we needed more, but was ask as a minimum that the city and Fresno -- that the city get at least 100,000 acre feet out of the project before it's taken out of the county and watershed of origin and we will pay a price which is not unreasonable.
Byron R. White: But the -- and what did the Secretary say? What does the Government say?
Claude L. Rowe: Well --
Byron R. White: That if it would occur, it depends on it so we can do what [Inaudible] is that their charge?
Claude L. Rowe: Their charge and --
Byron R. White: [Inaudible]
Claude L. Rowe: No, they will not sell. They have given us --
Hugo L. Black: How much --
Claude L. Rowe: I might bring this out up until 1944, the City of Fresno was doing fine and we could have gotten water but there was a gentleman by the name of Mr. Bock who came in there and he decided that Fresno should get no water.
Potter Stewart: Is he the termite expert?
Claude L. Rowe: Yes, he is. I didn't mean to bring that out.
Potter Stewart: You did bring it out in your brief.
Hugo L. Black: You did.
Claude L. Rowe: Well, I didn't -- did I say a termite expert?
Hugo L. Black: You certainly did. You sure did.
Claude L. Rowe: I did? I apologize.
Potter Stewart: Somebody there in the brief.
Claude L. Rowe: I --
Hugo L. Black: You've said it under someone (Voice Overlap)
Claude L. Rowe: Well, he was not an engineer I might say.
Hugo L. Black: Does that follow because he's a termite expert, he wants to deny it?
Claude L. Rowe: Well, he was not an engineer. So the City of Fresno attempted to get Mr. Krug and Mr. Spraws and Mr. Bock. Mr. Bock was the ring leader, he ran California, to get them at least 100,000 acre feet of water. It got so bad finally that is pointed out in my brief. Congress took by saying that no man who was not an engineer could receive its salary, took them off a payroll. They finally were taken under the Bureau, the Secretary and the other two gentlemen in 1953 and I will say this to the credit of the Bureau, since then, they have come in and given us a contract for 60,000 acre feet of water at $10 and they were fair enough to do this. The engineers who built both their dams Grand Tule, they put in there that the price and other terms of that contract would be subject to final determination of this point. I think that's being pretty fair and that gets down to the question of the price of water and --
Byron R. White: How about the amount of water, is that all that you provide with them?
Claude L. Rowe: Well, all unless this Court orders them to give us as being in the --
Byron R. White: Well, if you ask them to serve you more than 60,000 at $10?
Claude L. Rowe: Yes, we have.
Byron R. White: Even at $10.
Claude L. Rowe: Even at $10 but we wanted a provision in there that the price could be finally ruled upon by this Court whether $10 was an unreasonable price or not and beyond the power of the Secretary.
Hugo L. Black: Mr. Rowe.
Claude L. Rowe: Yes.
Hugo L. Black: Your time is up on the other case.
Claude L. Rowe: Oh --
Hugo L. Black: I hope you're using your time now to your next case.
Claude L. Rowe: I will use the time on my next case. Pardon me. I didn't --
Hugo L. Black: I thought you're up on this.
Claude L. Rowe: I never --
Hugo L. Black: You can go ahead on your case.
Claude L. Rowe: Quite so many questions at one time. Now, I would like to just read you --
Arthur J. Goldberg: I would like to ask you whether --
Claude L. Rowe: Yes.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Yes.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Yes, that is in substance. There is one other feature. There are two other features. First, that the owners between Friant and Gravelly Ford received a sufficient water supply. Now -- then there is another party in this, the Tranquility Irrigation District which appears in this area in agreement. They're an old, old time irrigation district. They have received water from the San Joaquin River for it backs up in the Fresno slew and which the Supreme Court of California has held as a bay of the San Joaquin River. There is no dispute. The Bureau of Reclamation officials left it alone as they have in the past have given them water on a formula and the Court approved that formula. And the Ninth Circuit Court of Appeals, I do not think there is any dispute regarding tranquility. The Ninth Circuit Court of Appeals said there is no longer a dispute. It is not an issue in this appeal and therefore, we feel that tranquility is entitled to the water. They're getting it just like the great Bureau of Engineers had analyzed they should get the amount and they of course, get theirs free. Going back to the City of Fresno and its right to object or to ask for a reasonable rate, this Court has decided that question I believe in Swigart versus Baker, 229 U.S. 187. In Yuma Water Users Association versus Schlech, 262 U.S. 138 in which this Court ruled on the reasonableness and the legality of the rate for water and the Government was not a party to the action. The Secretary of the Interior was not a party. Now we feel that the opposing counsel had not been able to answer those two decisions of this Court. We take this position beyond that that the determination of whether a rate for water is reasonable or unreasonable like the determination of whether an electric power rate or railroad rate is reasonable or unreasonable, that is a matter for the courts. Within the bounds of reason, that is a -- in the -- a matter for the administrative agency. There is Smyth versus Ames, 169 U.S. also backs that up. The question -- one very good decision of this case, I think, is Hynes versus Grimes, 337 U.S. 86 in which the United States was not a party neither was the Secretary of the Interior, but one of the questions in that case was the Secretary of the Interior having power to license fishing in Alaska, could he charge an unreasonable rate and he had attempted to charge in that rate, money for the welfare projects of the Indians in the reservations. This Court held that that was beyond his authority. Here, the Secretary is attempting to charge a profit to the City of Fresno to be used to benefit the farmer. We think the cases are on all force that that is beyond his power. That's up to Congress. Congress and this Court have decided that the rate to be repaid to a Bureau of -- on a Bureau of Reclamation project should be the cost of the project plus cost of operation and maintenance. Now under the Act of 1939, Congress allowed the Secretary to add an interest charge of not to exceed three and a half percent. That interest charge, he fixed at two and a half percent. It is our position in accordance with the decision to this Court that if you put in an exception that limits his powers. He can't go beyond that. His powers were limited to repayment, a rate to the city, repayment of the cost to construction, cost of operation and maintenance plus some interest charge. There's nothing in the 1939 Act or in any Act that gives him the authority to go into the welfare business which is exclusively in the hands of Congress.
Hugo L. Black: Where does he get his authority to facilitate it at all?
Claude L. Rowe: He gets the --
Hugo L. Black: What Section of the Act?
Claude L. Rowe: To the cities?
Hugo L. Black: Yes.
Claude L. Rowe: He gets the authority to sell to the cities under the old Act of 1906. That's the first Act which allows him to sell two cities and they provided in there and not less than the farmers, not more but they're afraid the cities will get it for less. Under the Act of 1939 which is cited August 4th, 1939 cited at the index in 14 of our brief.
Hugo L. Black: Index to what, the appendix?
Claude L. Rowe: Index of the appendix. He is allowed to charge not to exceed three and half percent interest to the cities. Now, the irrigation districts admit that from their point of view that for $9000 of capital improvement, the cities are being required -- $9 million of capital improvement allocated to the municipal water part of the Central Valley project. The city there is being asked to repay $28 million. Now, at two and a half percent interest over 40 years that means the cost of the project would be increased 40%. So that under that formula and taking their figures, the city should not pay over some $12,600,000 and not for $28 million, and we go back to --
Hugo L. Black: Is this the only section in which you find the Secretary the power to fix the charge that he makes was limited. Is this your own interest?
Claude L. Rowe: Well, also, the decision of this Court in Gerlach, a cattle company case in which the broad statement is made by Mr. Justice Douglas in his opinion that the project shall be repaid over a 40-year period. There are other acts that require a reasonable and equitable allocation of the cost of the project, but I think the Act of 1939 is fundamental if you read it in accordance with the decision of this Court in the Gerlach case that --
Potter Stewart: In the Gerlach case --
Claude L. Rowe: Yes.
Potter Stewart: --where was the property of the plaintiff's located? Was it located along the same stretch between Friant Dam and Gravelly Ford?
Claude L. Rowe: Well, I really think that -- actually, maybe this green brief will show that. If you will look at Exhibit 2 of the green brief, the lands in the Gerlach case are --
Speaker: [Inaudible]
Claude L. Rowe: That is opposite page 16. The lands in the Gerlach case are marked very much downstream. See this area here near the mouth of the Merced River. Now there are 31 other cases for damages there. Those cases as you recall where -- for the right to have the water overflow the banks --
William J. Brennan, Jr.: In miles -- how many miles are they down the stream?
Speaker: [Inaudible]
Claude L. Rowe: Finally --
Potter Stewart: Where does that fit onto that map there roughly?
Claude L. Rowe: Well, that would set under that map -- I would say probably right in here.
Potter Stewart: In the San Joaquin as it goes northward.
Claude L. Rowe: The Merced River comes in here. Now right north of the San Joaquin is the Fresno River. Now the next one up is the Merced. The Gerlach lands lie just upstream from the junction of the Merced and the San Joaquin.
Potter Stewart: San Joaquin. Then any of it -- my basic question was that case didn't involve the portion --
Claude L. Rowe: No sir.
Potter Stewart: -- between Friant and Gravelly Ford.
Claude L. Rowe: It is not but you did approve the Court of Claims.
Potter Stewart: Yes.
Claude L. Rowe: And holding there could be a physical solution in holding that the Central Valley project was to furnish water to the six counties which would include Fresno and Mr. Bock attempted to eliminate entirely from the benefits of the Central Valley projects. And these lands in the Gerlach case were lands who were given damages merely due to an overflow, an uncontrolled overflow. They were not carried to ditches. They just deny water and they were wet and this Court ruled that they have never been that high water. Now in regard to the Gerlach case as I say, the plan, feasibility report of December 2nd, 1935 has been amended by raising the high defiant dam and providing for water. The owners between Friant Dam and Gravelly Ford which is just about in here, fairly close to Mendota -- oh well here's Gravelly Ford.
Arthur J. Goldberg: Mr. Rowe.
Claude L. Rowe: Yes.
Arthur J. Goldberg: Do you submit [Inaudible]
Claude L. Rowe: Yes.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Yes, yes.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: I say that he has that power unless they are -- unless his powers are limited by Congress. The Congress alone can give the right to condemn. If they have not done it, he has not any power to take by either eminent domain or condemnation.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: That grants a power. But I think it has to be read with the basic Reclamation Act of 1902 which was repassed in 1956.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Yes, perfect.
Arthur J. Goldberg: Your theory [Inaudible]
Claude L. Rowe: Yes.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Yes.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: That's right.
Arthur J. Goldberg: But nevertheless [Inaudible]
Claude L. Rowe: Well, this is what the Secretary represented to the Congress that he intended to do. This is in regard now to the rights between Friant Dam and Gravelly Ford.
Arthur J. Goldberg: My basic question is --
Claude L. Rowe: Yes.
Arthur J. Goldberg: How can you [Inaudible]
Claude L. Rowe: Yes.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: No. I said that the Secretary may take by either eminent domain or condemnation any right authorized by Congress. Now --
Potter Stewart: Your argument is that this authorization which Mr. Justice Goldberg illustrated is limited. He may take all property necessary for said purposes.
Claude L. Rowe: Yes.
Potter Stewart: And that said purposes do not include the statutory power to take water out of that section of the San Joaquin River between Friant Dam and Gravelly Ford for the purpose of building those canals north and south of Friant Dam, isn't that right?
Claude L. Rowe: This is what the --
Potter Stewart: Because the Reclamation Act directs him to follow state law --
Claude L. Rowe: And because --
Potter Stewart: -- and because you have the county and watershed of origin.
Claude L. Rowe: And because you interpret their power by such statements as this “There are certain existing rights downstream from Friant which have to be supplied including the riparian rights on the river between Friant Dam and Mendota pool, water needed for preservation of fish life and water bowl. It has been determined a 150,000 acre feet of Class 1 water must be reserved to meet these requirements. Now that is set forth in the record at 2284. In other words --
Potter Stewart: The Secretary testifying --
Claude L. Rowe: Mr. Stoner --
Potter Stewart: -- before Congress.
Claude L. Rowe: Engineer Stoner was testifying for the Secretary --
Potter Stewart: Before the National Committee.
Claude L. Rowe: -- before the Bureau. When they come in and say, “That's what we want the money for and we're going to protect these rights there,” I think the people along the river do have rights. As I say, I think the county of origin flow also protects them.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: If you will notice, I do not see the State of California brief here. I have a letter that Mr. Moss was not appearing or authorizing anyone and he is the only one, the Attorney General. He appeared up to a certain time. I do not see how he could have. He asked --
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Yes, yes.
Arthur J. Goldberg: No reason of [Inaudible]
Claude L. Rowe: No brief --
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Yes. And I also make the point that the Attorney General came in to the District Court and asked that California be dismissed from this action and the District Court dismissed them and I do not see how he can legally file a brief after that unless it was a mixture, I agree. I might say that the Governor or the Attorney General first came in on the side of the plaintiffs to eat fish and then there was a change and the Attorney General opposed us. I admit that opposition. He then came in and ask to get out of the case and I do not think any appearance after he was dismissed from the case as the legal appearance but you will notice that the Attorney General has no longer come in and opposed us on his last brief.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: I would say so because as I understand the rules of this Court, you cannot come in and file an amicus curiae brief without permission of all parties which we did not grant and without getting the permission of this Court and I may be wrong.
Tom C. Clark: The State can, under our rule or any political body can like the state, a city or a county. If you're a private individual, you have to --
Claude L. Rowe: You can assume that the Attorney General, I had a letter, I didn't want to get involved in personalities. I was going to file Mr. Goldberg and Mr. Veeder and I have fought for about 12 years here. I have decided I shouldn't try to exclude anybody from arguing this.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: Yes.
Arthur J. Goldberg: [Inaudible]
Claude L. Rowe: I think the state is absolutely neutral today or they wouldn't be in here. I -- in closing, I do call your attention to the Grimes' case that the Secretary of the Interior does not have the power to go into the general welfare business of the nation, that has left the Congress. And he can -- as there -- he could not put a high fish license tax to spend on the welfare of the Indians, these are here made a secondary put a high tax upon the cities to aid the farmers. If they want to be aided beyond the interest charged then it's up to Congress. Thank you for your attention.
Archibald Cox: Mr. Justice Black, may it please the Court. I think it might be most helpful if I spent my time treating these cases as run together dealing with three topics. First, it might be helpful to describe again, exactly what was the judgment that Fresno got in the District Court which is before this Court. Second, I want to deal with an argument which Mr. Rowe makes in his brief and which impressed Judge Peirson Hall in the District Court although it was rejected by the Circuit Court to which that we had consented. And third, I would like to deal with the county of origin and watershed statutes. Now Fresno obtained under the District Court judgment, three things. First is an allegedly overlying owner. It obtained an injunction against the Reclamation Bureau of Fisheries and the United States enjoining the operation of Friant Dam as a great work, carrying water north and south. As to that issue, the United States was dismissed in the Court of Appeals, that is to say the judgment was reversed as to us and the question would be whether we consented and whether the action against the individual defendants can be maintained and I dealt pretty much with the second of those points. The second thing that Fresno got was a declaratory judgment really against the United States and only the United States in this respect to the effect that its right to make future appropriations of water from the prime -- from the San Joaquin River. This isn't its right as an overlying -- this is making appropriations out of the river, was superior to any water rights the United States might get in the river and that seems to me clearly and indisputably to be a judgment against the United States and only the United States. The third thing that Fresno got is a declaration and I guess an injunction saying that Fresno was entitled to water -- it was entitled not to have the natural flow of the stream interfered with unless she got water from the project at 350 and in effect, that seems to me to be a declaration that the United States or somebody must furnish affirmatively property of the United States at this price and I really see no escape from the proposition that that is a judgment against the United States and clearly wants to be dismissed unless we have consented. Now there is at this stage, really no dispute about Fresno getting water. Her contract for water from the project covers all the water that Fresno can possibly use within the intermediate to run future. There is a testimony that Fresno might someday have uses in demands in excess of this contract. But for the present, as soon as she builds the necessary work, she will get all the water she can use for some time.
Potter Stewart: Is this from the San Joaquin River or is it the --
Archibald Cox: This would be for the pro -- from the project.
Potter Stewart: As of now, Fresno gets its water supply from wells, isn't it?
Archibald Cox: That's right. But that won't be indefinitely enough.
Potter Stewart: And the -- and the claim is the level of these wells is going down because --
Archibald Cox: Yes. It wouldn't be enough even if it didn't go down. It wouldn't be enough even if it didn't go down and her effort to get the declaratory judgment relates to getting water that --
Potter Stewart: From the project.
Archibald Cox: -- wells wouldn't supply from the -- well, either from the natural flow or from the project.
Potter Stewart: Yes.
Tom C. Clark: Are you saying what the project offers to give Fresno, is presently sufficient?
Archibald Cox: As a practical matter, it is for the -- it is for the short for the intermediate run future. The amounts are covered in the contract. It's -- and her needs won't exceed those for long.
William J. Brennan, Jr.: Well, let's see. This is not only what's offered but what by contract --
Archibald Cox: We've signed the contract to give and that the contract fixing its price of course not subject to the determination of the price by this Court but subject to the decree in this case. That is to say the price is fixed unless they win this case and then they get whatever -- so they didn't give up any litigation rights they had.
Byron R. White: Mr. Solicitor General, can you tell us what the range of prices is to various municipalities. I think you mentioned that --
Archibald Cox: They run -- it's a sliding scale. It isn't that different municipalities get different prices but it depends on a number of factors as to how much water you take when it runs up to 1050. Fresno would be treated uniformly as I understand it with all other cities taking water from the Central Valley project.
Byron R. White: So there is a formula which when applied --
Archibald Cox: Yes --
Byron R. White: To $10.
Archibald Cox: She wants to get it at the rate that we supply to irrigate it. The cities, the municipalities are the formula applicable to them that charges a higher rate and I'll show the statutory authority for that --
William J. Brennan, Jr.: Now tell me Mr. Solicitor. Is it relevant at all to any one of your three points whether that river existed doesn't it?
Archibald Cox: No sir, no sir. And this map is intended to have the main feature showing this area. It was -- it wasn't really made even for the purposes of the case which seem to me would be helpful, but I -- I'm willing to conceive for present purposes that this watershed is a different watershed for this one. I don't think we need to argue with this one.
Arthur J. Goldberg: And your -- the point about the county of origin is under your position. Is that --
Archibald Cox: Well, I -- it's -- well our position -- may I postpone answering that question. I do mean to deal with it, but I think that it would be better to deal with it a little more length than trying to deal with it halfway now. Since the one common question probably to all three suits is whether the United States has consented to be sued, I want to deal with that first and then I will come to the county of origin and watershed legislation. Judge Hall said that we had consented to be sued because of the statute that appears on pages 2 and 3 of our brief in Number 51. That's the City of Fresno case. You'll note that it provides the consent is hereby given to join the United States as a defendant in any suit for the adjudication of rights to the use of water of a river system or other source or for the administration of such right, where it appears the United States is the owner of or is in the process of acquiring water rights by appropriation under state law and the United States as a necessary party to such suit. It is our view that that statute has no application because it applies only to a particular class of litigation to the well-known suit in western water law for the general adjudication of all rights in a river system that it does not apply as a reverse to suits by some owners on the stream against the United States to enjoin the United States from interfering with their water rights. I rely really on three lines of argument. The first deals with words. You will note that the statute does not give permission to sue the United States. It gives permission to join the United States as a defendant and thus implying that there will be other real defendants whose interests are diverse to the United States imply normally other private parties. This certainly is consistent with the notion of this being a special kind of well known suit. Second, it speaks of a suit for the adjudication of rights to the use of water -- of a river system or other source. It's not all suits dealing with the interference of right -- with water rights or alleged trespassory conduct. It's suits for the adjudication of rights and we think it means all rights to the use of water from a river system. And then finally over on the top of page 3, it again speaks of a case in which the United States is a necessary party and we think this confirms our reading because of the obvious fairness of not having when the United States has acquired a great many water rights on western streams, of not having the whole class of suits for the general adjudication of rights preceded by the fact that you can't join the United States. So the statute says, where you have a suit like that, the United States is a necessary party then you can join them. In addition to the words, we rely very strongly on the legislative history. In this course of the Senate report describing this bill, the report quotes at some length from the decision of this Court in Pacific Live Stock Company against Oregon Water Board and the passage that it quotes is describing the kind of suit that the statute deals with is described in this way. All claimants are required to appear and prove their claims. No one could refuse without forfeiting his claim and all have the same relation to the proceeding. It is intended to be universal and to result in a complete ascertainment of all existing rights to the end first that the water maybe distributed among all lawful claimants. Second, that the rights of all maybe evidenced by appropriate certificates and third that the amount of surplus or unclaimed water maybe made available to appropriate it.
Hugo L. Black: What page is that?
Archibald Cox: This? I was reading from page 16 of our brief in Number 51.
Hugo L. Black: Thank you.
Archibald Cox: In the -- two of the committee reports that I just quoted as it quoted a prior decision of this Court explaining the kind of suit, there's a test correspondence between Senator Magnuson and Senator McCarran who was the chairman of the committee and author of the bill. And while I hesitate to read, I think this is so directly in point, I'm going to take liberty. Senator Magnuson said and he had some foresight. I visualize the possibility of an individual group, an individual or group having water rights on that stream bringing suit to adjudicate their respective rights thereby preventing the Bureau of Reclamation from going ahead with the -- Hells Canyon project while litigation is in the process pending. Such action of the part of the appropriators might be taken on their own initiative or might be stimulated by third parties who are opposing this development. And then he went on and said if that isn't the purpose, we ought to make this clear in the committee report or some similar way by legislative history. Senator McCarran wrote back S-18, speaking the bill that became the law that I was dealing with, is not intended to be used for the purpose of obstructing the project to which you speak or any similar project and it is not intended to be used for any other purpose then to allow the United States to be joined where in it is necessary to adjudicate all the rights of various owners on a given stream. This is so because unless all the parties owning on process of acquiring water rights on a particular stream can be joined as party defendants and a subsequent decree would be of little value which fits right in with the words I think. I agree with you that for the purposes of legislative history the report should show that S-18 is not intended to be used for the purpose of obstructing or delaying Bureau of Reclamation project for the good of the public and water users by the method of which you speak and I'm translating that into legal terms. I would think that it finally was not intended to be used for the purpose of a suit to manage the way the project is carried on as it's happening here or as to prevent it from being built as to what have happened if we have brought this -- the action had been brought a little earlier. Third, I would point out that both the Fifth and in a case prior to this one, the Ninth Circuit have interpreted the statute in a way that we contend that it should be interpreted and the Ninth Circuit particularly of course is one familiar with water law and with this kind of problem. The case to which I refer in the Ninth Circuit unfortunately is not in our brief. The reference is Nevada against the United States, Nevada against the United States, 279 F.2d 699, 279 F.2d 699 Fifth Circuit case, is in our brief. Now we have set forth in our brief the respects in which this case fails to be a suit for the general adjudication of water rights. There are a number of them. Without taking time, I'll simply going to refer to one and that is that it is perfectly claimed that this decree does not adjudicate any rights as between the various water owners -- well, various water rights owners on the stream. It simply adjudicates what are alleged to be rights against the United States.
William J. Brennan, Jr.: Well, how could the Ninth Circuit deal with this problem?
Archibald Cox: It said just exactly what I'm saying now. It said that for the reasons mentioned in our brief that this was not a suit for the general adjudication of water right. The most important of those reasons is that Judge Hall in the District Court himself said and I quote from his opinion, “This is not a suit wherein plaintiff seeks to establish for each of them their separate rights [Inaudible] to a given quantity of water as between themselves or as against one another. And again, this is not -- this suit is not a case where water users either riparian or overlying are seeking to enforce any separate or several rights. In the findings and conclusions, the judge said, it is not the intention of the Court to attempt to divide the waters of the San Joaquin River between the plaintiffs. This was plainly a suit against us. It wasn't for a general declaration of right. Now, there is only one other thing I need to add on this point. Even if there could be doubt as to whether this statute gives consent to the kind of suit seeking a physical solution which I don't think there's anybody, even if it could, it certainly doesn't give consent to a suit seeking a declaration of the price that the Secretary shall charge for a project water and it certainly doesn't constitute consent to a declaratory judgment as between the United States and Fresno just the two of them as to future rights through appropriation in the natural flow of the stream. So that we think that the Ninth Circuit was quite plainly correct on this point in ruling in favor of the United States that it had given no consent to be sued.
Hugo L. Black: May I ask you? Suppose that the charge if there was, this case was brought based on the fact that the Secretary has somehow arbitrarily taken a surprise that the statute absolutely prevail. Would that lie?
Archibald Cox: I think that -- I think that there is some possibility that such an action as that would lie. There are decisions which would seem to sustain -- Swigart and Baker was a case of that kind Justice Black, the one referred to by Mr. Rowe. There it was claimed that the Secretary had wrongly included the cost of maintenance in calculating the rates that were to be charged for irrigation of water because the maintenance budget and he threatened to cut off the water as I recall it unless the owners pay them. The suit was allowed to proceed to enjoin the cutting off of the water on the ground that it was a wrongful interference with the irrigators' rights because of the unauthorized act of the Secretary to which that he had not computed according to the statutory formula. But note that it was -- he had done something, he was alleged to be doing something outside of his authority whereas here -- and the suit wasn't against the United States, whereas here, the judgment is sought against the United States. It is sought in advance to bind the Secretary as to what he shall do and it doesn't run against anybody threatening to cut off Fresno's water from the project because Fresno hasn't built the system and equipment, it can't take any water from the project. So that what I'm saying is that if sometime in the future when Fresno were taking water, the Secretary should determine a rate which it was alleged that he had no authority under the statute to determine then I would think that there was at least an argument. Certainly, they would be under Swigart and Baker that the action could be maintained. Now the reason I put it, it may quite --
Hugo L. Black: But in any rate -- in any rate that just had to do with your argument, your other argument that the remedy would be if the suit was taken would not be a defense to such a suit?
Archibald Cox: No, no. I think this is applicable only to Fresno.
John M. Harlan II: [Inaudible] agreement that this is an unconsented suit. What then is the situation?
Archibald Cox: Well, I would think that if it were held that the United States had consented under the statute then I think there are a number of issues which we still would be free to argue and I presume in the Ninth Circuit. For example, we don't admit for a minute, we think we're plainly right with respect to the rate for reasons that are spelled out in our brief.
John M. Harlan II: And so I thought you argued virtually in relation to your consented suit -- unconsented suit there.
Archibald Cox: There are but we don't admit.
John M. Harlan II: I understand.
Archibald Cox: And we -- I believe that the point was reserved in the Ninth Circuit. This is no--
John M. Harlan II: Well, putting it more directly, supposing you lose in your immunity position, can this case be reversed or dealt with up here or on the merits or it has to go back to the Court of Appeals?
Archibald Cox: Well, I would think that it would be wiser to have it back to the Court of Appeals. For one thing, I'm afraid that we haven't given the Court all the materials necessary to decide it up here.
Potter Stewart: We're talking about 51 now.
Archibald Cox: I'm talking about 51 now.
John M. Harlan II: Well, if it goes back to the Court of Appeals, they've already decided it?
Archibald Cox: 51? No, no. Because the Court of Appeals hasn't decided the merits --
William J. Brennan, Jr.: Dismissed the United States.
Archibald Cox: Yes. It has --
John M. Harlan II: Alright, I see your point now.
Archibald Cox: It dismissed the United States -- it has decided nothing, Mr. Justice Harlan --
John M. Harlan II: Yes.
Archibald Cox: On the merits of Fresno's special claims --
John M. Harlan II: Quite right.
Archibald Cox: -- as a city.
John M. Harlan II: Quite right.
Archibald Cox: And we would have some arguments in that point.
John M. Harlan II: I agree.
Archibald Cox: Now, if I might, I would like to deal with the county of origin and watershed of origin our problem. If I were representing the plaintiffs, the argument that I might try to make is that the county of origin and watershed of origin statutes of California bind the United States that the United States and its officials were given no authority to make any takings in violation of those statutes and that therefore they did act outside the scope of their authority. Now, there are -- I'll give answers after lunch.