Warren E. Burger: We will hear arguments next in Nevada against the United States, consolidated with Cappaert against the United States. Mr. Lionel, you may proceed when you are ready.
Samuel S. Lionel: Mr. Chief Justice and may it please the Court. This case presents dramatic features of both fact and law, but it can be decided on a narrow basis. Factually, this case presents a contest between two endangered species. On the one hand, the individual farm operator of the United States whose numbers decline no less than 40% between the years 1959 and 1969 and on the other hand a species of fish known as cyprinodon diabolis. Cyprinodon is also known as pupfish and it inhabits the Death Valley Area of Nevada and California. There are many species of pupfish, five of which in 1970 were declared to be endangered. Cyprinodon diabolis has a life span of approximately one year and at maturity it is almost one inch in length. Its numbers have been stabilized for several years now at several hundred. Legally, this case presents a contest between two disparate rules of law, both formulated by this Court. The first which was in effect between the years 1935 and 1955 laid down that the Congress by the Desert Land Acts, no later than 1877 severed the land and the water in the Western Arid States and then territories and ceded all jurisdictions over nonnavigable water in the public domain to those states and territories. The other which was first espoused in 1955 by this Court and later extended and expanded laid down that when the United States reserved a land in the public domain, it could also reserve water if there was intent to reserve water and such intent could be implied.
Potter Stewart: The first rule of law to which you refer i.e. that while reserving the land, the United States back as in the late 19th century, 1877, ceded jurisdiction over nonnavigable waters to the states. Does this means jurisdiction to the term on the rights of the waters under state law, is that it?
Samuel S. Lionel: That is correct.
Potter Stewart: It did not cede the waters to the state?
Samuel S. Lionel: It did not. It said it belonged to the public and to be given as provided by the states and under the laws of the several states.
Potter Stewart: And what public, are you saying that it also ceded or conveyed or gave up to the Federal Property?
Samuel S. Lionel: Well, in the California Power cases Court said that the Congress by those acts had severed land from the water and that the water then would belong to the public to be given out as provided by the several states.
Potter Stewart: And to what public, the Federal public or population of the states?
Samuel S. Lionel: No. In other words, that the states had jurisdiction and control over that water and it would be up to the states involved to determine water rights to that water and as pursuant to the laws of those several states.
Potter Stewart: But prior in 1877, the Federal Government under your submission or prior at least to sometime of that 19th century, the Federal Government and the territories had jurisdiction over the land and the water to apply its Federal Law to the ownership of the land and water and also, do you concede, had ownership of both land and water?
Samuel S. Lionel: I concede that at some point, the Federal Government had ownership of both land and the water, but the California Power Case, that doctrine enunciated there said by 1877 at the latest there was a severance of water and land and jurisdiction ceded to the states. There were series of Desert Land Acts.
Potter Stewart: Jurisdiction to determine who did on the water, was that it?
Samuel S. Lionel: No, jurisdiction to determine who was entitled to the water.
Potter Stewart: Well, who had the water rights?
Samuel S. Lionel: The right to beneficial use of that water.
Potter Stewart: Jurisdiction to determine that, but no rights in and off themselves, except the right to decide, is that it?
Samuel S. Lionel: It said it belonged to the public and to be given out pursuant to the laws of the several states interpreted --
Speaker: (inaudible)
Samuel S. Lionel: That is correct, precisely.
William H. Rehnquist: And it repudiated the riparian concept in the West, unless it were to be adapted by the individual state?
Samuel S. Lionel: In substance yes, but said that the state was still free to use whatever the states felt should be used by that state for the water in the public domain --
Potter Stewart: And the fact that the Western States do not apply the right riparian rule, they apply the appropriation rule, am I correct?
Samuel S. Lionel: That is correct. Now, in the view of the Cappaerts, the owners of a large farm in Nevada, neither question need be determined, but this case can be decided on a more narrow basis by giving consideration to the reservation of public land here involved and the effect given that reservation below and I will show that there are five cumulative reasons why the judgment below does not properly flow from that reservation. Briefly, in January 1952 and that date is significant and I will recur to it later in several connections. In January 1952 the president reserved a 40-acre tract of land in order to preserve a pool of water known as Devil’s Hole in Nevada. The proclamation described that pool as being a remarkable underground one and of outstanding scientific importance of then interests. There was nothing in that proclamation about water and yet on the strength of that proclamation that Cappaerts have been enjoined from pumping water on 21 square miles which is effectively their entire fall and as a matter of economics will utterly destroy their business enterprise and how is such result --
Harry A. Blackmun: This proclamation did refer to a pool, is it not?
Samuel S. Lionel: Yes.
Harry A. Blackmun: So there is something said about water?
Samuel S. Lionel: Well, yes, but it refers to it as being a remarkable underground pool. It does not say anything about water in there. The word water never occurs. How was this result justified below? Because said both Courts here, pumping from this 21 square miles of your farm will endanger this pupfish which by reason of later legislation, a legislation many years after the withdrawal have been deemed to be endangered, and therefore, entitled to special protection. As I said before, I will show five cumulative reasons why this result, this conclusion was unjustified and wrong. First, the terms of the proclamation do not support the effect given to it below. That proclamation’s text appears on pages C1 to C3 and the Cappaert's petition for certiorari, that is a small very blue book. The proclamation reserves 40 acres containing this pool. It explains why the pool known as Devil’s Hole is of remarkable scientific importance and interest. It does not say that about the pupfish. The proclamation states that the pool should be afforded special protection. The pupfish referred to only in a fourth of five preambles and then only as further confirming geologic evidence of the importance of the pool. I stress --
Thurgood Marshall: Mr. Lionel?
Samuel S. Lionel: Yes sir, Mr. Justice Marshall.
Thurgood Marshall: If your clients pump water that will diminish the pool by reason (Inaudible)?
Samuel S. Lionel: That is the level of water in the pool. Yes sir.
Thurgood Marshall: And that broad language in there by this great pool, it would be eventually destroyed, would it not?
Samuel S. Lionel: Well, the pool is of great depth, no one knows the depth. They know it much more than 200 feet.
Thurgood Marshall: Well, it would interfere with --?
Samuel S. Lionel: Interfere?
Thurgood Marshall: With the pool.
Samuel S. Lionel: Well, the level of water fluctuates every day by reason of various things.
Speaker: (Inaudible)
Samuel S. Lionel: It does not take water out of the pool. It is only for hydraulic reasons that the pumping of wells on the Cappaert’s property affects the level of that water. We are not taking any water out of that pool. The Cappaerts pump water under their own land.
Speaker: (Inaudible)
Samuel S. Lionel: Well, it will affect the water level because of the hydraulic relationship between our wells and the pool.
Speaker: (Inaudible)
Samuel S. Lionel: I will not agree, it will take out the water. The effect of our pumping will be to reduce the level, but our pumping is not reaching their water.
Speaker: (Inaudible)
Samuel S. Lionel: Yes, yes sir. I stress geologic evidence because there is nothing in that proclamation saying that the fish are biologic, zoological or ethologic evidence of any kind. There was nothing in the proclamation saying that the pupfish were of scientific importance other than as being such confirming geologic evidence. There is nothing in that proclamation which says that the pupfish warrant preservation and yet the denial of the Cappaerts right to pump on 21 square miles rested on that proclamation. I come now to the second reason why the judgment below is wrong and that is because it involves judicial ex post facto action. As I stated before, the proclamation dates from January 1952 and yet the first Act of Congress providing for endangered species did not come into being until October 1966, fourteen-and-half years later and it was not until October of 1970 that these pupfish were declared endangered species. That was 18 years and nine months after this proclamation which was construed below to warrant the destruction of the Cappaerts ranch and all without compensation.
Harry A. Blackmun: When did the Cappaerts get to acquire their property?
Samuel S. Lionel: They started farming there in 1967. They acquired shortly before.
Harry A. Blackmun: 1967?
Samuel S. Lionel: 1967 and approximately half the land was acquired in exchange with the government in 1969. Cappaerts acquired other land which they traded to the government and at the time they traded it, in determining the value of the land being acquired from the government part of their ranch, it was predicated on the basis that Cappaerts would be able to pump water.
Harry A. Blackmun: I suppose what you really want is the government to condemn this interest if the government wants it?
Samuel S. Lionel: That is an obvious way. As a matter of fact implied reservation doctrine has often been called a financial doctrine that enables the government under that doctrine to acquire water from people who had not paid for it.
William H. Rehnquist: On the expectations of the Cappaerts, the findings of the District Court and the Court of Appeals are against you, are they not, insofar as any representations by the government were concerned?
Samuel S. Lionel: We do not argue with estoppel in this Court. We did below. All of the endangered species provide for condemnation of lands required to preserve endangered species, provides for the condemnation of land, land rights, interest in lands in the 1973 with respect to water there can be condemnation. I turn now to third reason why the judgment below is wrong and that stems from the legislation of which we have -- the withdrawal affected by the proclamation rested. The sole authority cited in the proclamation is the 1906 Act for the Preservation of the American Antiquities that authorizes a reservation of warrant, excuse me, that authorize a reservation of land in certain instances to become national monuments. It does not authorize withdrawal or reservation of warrant. The history of that act, the legislative history and it is voluminous, demonstrates that it was sponsored by a consortium of archaeological societies who were seeking congressional approval for the preservation and gathering of these artifacts and objects of antiquities which were then being uncovered in Southwestern part of the United States.
Warren E. Burger: Are you then suggesting Mr. Lionel that the 1906 authorization would not be broad enough to undertake the preservation of anything except land as such?
Samuel S. Lionel: Precisely.
Warren E. Burger: What about something like Crater Lake which is a unique lake (Inaudible) somewhere in that same part of the country, could they not preserve Crater Lake under that statutory authorization?
Samuel S. Lionel: I am not prepared to say they can. Maybe there must be other authority for the Federal Government to do it, but clearly not for the purpose of preserving any --
Warren E. Burger: The 1906 Act did not say real estate antiquities or anything of that kind, did it?
Samuel S. Lionel: Well, I am not arguing at this point that the preservation of Devil’s Hole could not have -- would not be justified under the 1906 Act. My point is that the 1906 Act would not authorize the reservation of land and concomitant ration of water under an implied reservation doctrine with -- because of the fish in there and that is the government’s contention in this case. There is nothing in the Act which deals with --
John Paul Stevens: Is it your position that the fish are not an object of historic or scientific interest?
Samuel S. Lionel: That is correct.
John Paul Stevens: Within the meaning of the statute?
Samuel S. Lionel: Within the meaning of the 1906 Act because the entire intent of that Act is to deal with artifacts, prehistoric artifacts. Indeed the title of that Act, the Acts for the preservation of American Antiquities so indicates. The Act provides for the gathering of these artifacts and placing them in museums for permanent preservation and the Cappaerts asked how does one, placed in a public museum for permanent preservation, a fish with a lifespan of less than one year.
William H. Rehnquist: If they located a dead dinosaur, they could have reserved the area, but not a live dinosaur?
Samuel S. Lionel: If one could say that it was an artifact I do not think so. I think an artifact is probably man-made. I would say that some would be prevalent, the 1906 Act would authorize the creation of a national monument to preserve that.
William H. Rehnquist: Well, if you -- but the Grand Canyon was -- the reservation of Grand Canyon, was that not based on the 1906 Act?
Samuel S. Lionel: Yes it was and that is Cameron in 252 U.S. which I am aware. Now, in that case, this Court held that the Grand Canyon was an object of scientific importance and interest --
William H. Rehnquist: Surely it is not man-made?
Samuel S. Lionel: Surely, it is not, I agree with that and I say that there is nothing in that opinion indicating that this Court’s attention was directed to the legislative history of the 1906 Act and I have since read the briefs in that case, which represent that there was nothing in the briefs that called the Court’s attention to the history of 1906 Act in Cameron. But the important thing is that in Cameron, this Court was not concerned with whether or not the Act could be used with respect to living creatures. It was purely natural phenomenon. Now, the fourth reason, why this judgment is wrong also rests on the terms of the authorizing statute. The House Report, the debate, and indeed the express terms of the Act provide that withdrawals of land under it shall be limited to the smallest area compatible with the proper care and maintenance of the objects to be protected. Let us see what we have here. On the one hand, we have a 40-acre tract reserved, as a matter of interest, that is protected by a barbwire with only VIPs and the zoological world are allowed to go to Devil’s Hole and see what is there, provide the National Park Service will permit them entry and on the other hand, in consequence of that 40-acre reservation of land, the Cappaerts have been enjoined effectively from pumping on 21 square miles of the land. Now, thus far, I have restricted myself to speaking about the 21 square miles where the Cappaerts have been enjoined from pumping, but based on the expert testimony in this record, pumping in an area of 4500 square miles, the size of the groundwater basin here involved called Anacapa will in time, affect the level of the water in Devil’s Hole. No one knows when, no one knows where, but this water just percolates and seeps under the earth in no defined paths, little droplets going under the ground and as shown by the record, the experts were unable to predict. As a matter of fact, the government expert said, here if we have two wells, one adjacent to the other. Pumping under one may affect the level of the water in Devil’s Hole pumping in the other may not. Thus, if the decision below is affirmed, this 40-acre withdrawn may control pumping in an area of 4500 square miles and that is the land area of the State of Connecticut. Now, the Cappaerts do not have to conjure a possibilities, probabilities or imaginable horribles. The amici do that and counsel for the State of Nevada will explain to this Court, the difficulties the states will have in administering their water laws if this case is affirmed. It is enough for the Cappaerts to point to the final decree in this case in which they have been enjoined from pumping 21 square miles in the lines of a withdrawal of only 40 acres and that based on the authority of a statute which says, withdrawals from the public domain shall be of the smallest piece of -- a parcel of land possible. How great a conversion, a conversion of legislative or congressional intent can we have? The Cappaerts say that Congress just did not authorize the wide ranging impairment of ownership affected and approved below. I come now to the fifth reason why the judgment below is wrong and that is the failure of the Courts below to consider the proclamation in its setting, they consider the proclamation in its setting, the legal setting. As our brief shows, the law of this Court between 1935 and 1955, the jurisdiction over nonnavigable water in the West had been ceded to the several states and territories. It was not until 1955, the Federal Power Commission versus Oregon that any question arise with respect to the session of jurisdiction over that water. And it was not until 1963 in Arizona versus California that the implied doctrine with respect to -- implied reservation doctrine with respect to federal enclaves was first announced and even in that case, it dealt with navigable water, the Colorado River not nonnavigable water. Now, as Nevada says and Nevada is an arid land state indeed, I hope this Court will reaffirm the earlier doctrine and sharply limit the implied reservation doctrine, but as counsel for the Cappaert, I need not and I do not go that far. It would be sufficient if this Court would view that controlling proclamation in the legal climate which existed at the time it was signed and consider it in the light of the law as it was at that time and as everyone understood the law to be. As we show in the brief, the sovereign doctrine was first comprehensively formulated by this Court in 1935. It was reaffirmed in Ickes versus Fox in 1937. Both --
Speaker: (Inaudible)
Samuel S. Lionel: We say the Indian reserve -- there was an Indian case and we think they should not be considered in the same light --
Byron R. White: I do not blame you for not wanting to consider it?
Samuel S. Lionel: Well, let me tell you what, Mr. Justice White. We think the Indians are wards of the Court. This Court has said so many times and if the government wants to reserve land, it should reserve water, if it does have power to do so.
Byron R. White: But what about the Indian Reservation cases?
Samuel S. Lionel: The Indian Reservation cases came into be because of treaties made by the government with the --
Byron R. White: I know, but nevertheless you set aside the land and all of the sudden the Federal Government claims some water rights in connection with them and it is held that they intended to do so when they reserved the reservation?
Samuel S. Lionel: Because they said it would be unjust and unfair for the government to not --
Byron R. White: But the case said that we cannot imagine if the government did to intend to reserve some water because they did not want -- they certainly did not -- they certainly realized the Indians needed some water to live on?
Samuel S. Lionel: That is correct.
Byron R. White: Now this proclamation said we are interested on that -- in that -- among other things we are interested in that pool water?
Samuel S. Lionel: That is all it said, and in fact it did not say they were interested in the pupfish, did not say the pupfish --
Byron R. White: I am not through with the fish yet, I am to the water and that is what the argument is. We are arguing about the level of water in this case and if there were not any pupfish in it at all, I suppose it could be argued that under the proclamation, the government was in essence maintaining that pool which it said was a unique pool?
Samuel S. Lionel: But there is nothing --
Byron R. White: And it would not be there if it disappeared?
Samuel S. Lionel: Well, there was no authority we say under the 1906.
Byron R. White: I understand that argument, but I am --
Samuel S. Lionel: And of course we are showing --
Byron R. White: You are saying that it was a -- you are saying that first time that anybody ever heard of the reserve water idea was in 1955? I am just suggesting that they have heard of it in the Indian Reservation cases long before that?
Samuel S. Lionel: Not with respect to a reservation by the government for the government’s purposes out of the public domain.
Byron R. White: Well, what do you think an Indian reservation is?
William H. Rehnquist: Well, is it not true counsel that in the Winters’ case which I guess is the leading Indian Reservation case, there had been an earlier grant by the Indians to the government of a much larger territory and then a grant back of a smaller area as an Indian reservation?
Samuel S. Lionel: That is correct and the other one --
Byron R. White: How about the (Inaudible)?
Samuel S. Lionel: Well, it had been Indian land in the public domain, but the larger portion abutted on the water.
Byron R. White: At some points, (Inaudible)
Samuel S. Lionel: It might very well have been. At any rate both those decisions were unanimous by this Court and they reaffirmed in later cases and in May of 1951, this Court in Dority versus New Mexico which it dismissed for lack -- for one of a substantial Federal question and did so on the basis of the California Power Case. Thus this Dority case was only eight months prior in time to the date of the proclamation and if the California Power Doctrine was a law of this Court which it clearly was and everyone understood it to be, jurisdiction over the water in the West had been ceded to the several states, and therefore, there was no water to reserve, and therefore, there was no way that United States or the President of the United States or President acting for the United States could have intended to reserve water and intention is to touch tone of the implied reservation doctrine.
John Paul Stevens: Mr. Lionel, let me be sure I have your position correct. You are saying that in February of 1952, somebody bought land right outside the 40-acre tract, dug a well and drained the water out and reduced the water level within the pool that would not have been inconsistent with the President’s intention, that is what I understand your argument to be?
Samuel S. Lionel: Well, I try to differentiate between the pool and the pupfish because it is clearly the intention was to preserve the pool, preserve the pool, that is not necessarily my position, but I say that we are only talking --
John Paul Stevens: Now that you say they could have done that in February 1952, they could have drained the water out of the pool if they stayed outside the 40-acre tract, that is what I understand your argument to be?
Samuel S. Lionel: Under law, that is true because of the session of jurisdiction.
John Paul Stevens: Mr. Lionel, suppose the (Inaudible) water rights, gets adjudicated at least in state proceedings?
Samuel S. Lionel: That is correct.
John Paul Stevens: Are you saying that in accordance with the state law?
Samuel S. Lionel: That is correct.
John Paul Stevens: And you would argue apparently that the government has always had this pool set aside and it never given it to Arizona, what about it? It would not have qualified as an appropriate use under the state law?
Samuel S. Lionel: Well, the state would have a right to say that they can have water, that they may be a beneficial use because of its being a natural phenomenon.
John Paul Stevens: You would say, at least it would be determined by state laws?
Samuel S. Lionel: That is correct.
William H. Rehnquist: Would you not fall by your answer Justice Stevens' question as to whether they could pump right outside the pool by saying, if the law of Nevada permitted them to that?
Samuel S. Lionel: That is clearly and the Law of Nevada would not grant a permit for someone to drill and pump that this would affect the beneficial use by someone else and that is one of the problems which will arise by an affirmance of this case as it will be shown by counsel for the State of Nevada.
Warren E. Burger: Mr. Lionel, do you mind sharing your time with your colleague, you have used a lot of his time up already.
Samuel S. Lionel: I have 30 minutes, he has 15 minutes. I note that I do reserve the balance of my time.
Warren E. Burger: Mr. Allison?
George Allison: Mr. Chief Justice and may it please the Court. As it has been indicated, I am representing the State of Nevada and I think the assertion by the United States Government that Nevada's concern in this and I think the concern of several western states is indicated by the briefs that were filed on amicus capacity is that it is substantially broader in our eyes than the conflict between the rancher and pupfish at this time. And if there is a substantial conflict, not only a present conflict, but a real potential for future conflict then that conflict is the State, Federal conflict in the use and management of water in all the Western States, particularly a state like Nevada, but there are many others that fall in the same category. Nevada happens to be that drives all the states. It gets less 9 inches of rain, but I think Arizona and many of the other states qualify.
Harry A. Blackmun: Mr. Allison would you expand on that a little bit. It is difficult for me to see why the states are so exercise in this case, is it because of the Taylor Grazing Act
George Allison: No, not necessarily. The principle, historically the states have controlled the determination of water rights for use in a particular the states and the principle that has evolved is that, and that includes the United States government as I think one of the Justices indicated earlier, except in the case where Congress expressly indicated otherwise. Everything else was left historically to the prerogative of the states. Now, this principle resulted in a great deal of certainty in determining water rights. A certainty in determining the water rights in those states was probably, well probably still is, not then, but is now the single most important factor in the development, the economic development of those states and the certainty only came because the states were allowed to determine those rights unless Congress expressly indicated otherwise. Then when you insert not an expressed -- an expression of Congress, but an implied right considered it a later time in the reservation, right away you begin to raise havoc with the certainty that the states have established in determining those rights. It is at this point that the states become concerned because the reservation, or position of the government as I understand it is the mere act of reserving the land, but nothing further. No consideration of the circumstances, the need, the extent of injury, the importance of the water, the mere act of reserving the land automatically establishes the priority for the water date. Now, that water right may not be ascertained by the United States Government for 20 years in the future. In the meantime, the state of Nevada is granting rights to many adjacent property owners. So they begin using these adjacent water rights for 20 years. Suddenly 20 years later, the government says we have a water right and our priority date is the date we reserve it even though at that time we did not know we wanted it and that is what is causing us concern and I think the magnitude of that is amplified if I might quote just one or two short statistics is that in the state of Nevada for example and in fact, I am think in 11 of the Western States, where 61% of the land and 11 of Western States that is federally reserved land. Right now in the state of Nevada, you cannot have a major ranch unless it is either next to or part of federally reserved land. You simply cannot have it because there is so much Federal reserved lands, 76% of the state of Nevada is federally reserved land. All major sources of water in the State of Nevada come from Federal reserved land and that includes underground water which is charged by water from runoff from federally reserved land and that is why the magnitude of the problem is so severe to Nevada and this is true of all the other states.
William H. Rehnquist: I gather from the brief filed by the State of Arizona that the city of Tucson is entirely dependent on underground water, pumped water not just for irrigation, but for domestic water use?
George Allison: That is my understanding of Arizona’s position and I assume that is true and I do not find that hard to believe because if the Justices are familiar with the State of Nevada, the three populations or I should say two-and-half population centers that we have are located in areas where there is access to water right next to federally reserved land and the underground water is just becoming a major source of water. That simply is enough other water and there really is enough underground water, but without that there is no other development in the state and I think Arizona is essentially the same problem. So, it is not just farmers --
Potter Stewart: Give me another example where a so called prior reserved right would seriously interfere with the states?
George Allison: You mean --
Potter Stewart: Besides this case, I could understand how it operates in this case, but just, using -- setting aside a national forest or something like that, there usually who does not imply reserving any water other than what the falls on it and runs on?
George Allison: I might briefly give an example and I do not know what I am quoting the facts of this case. There is an existing case in the state engineer’s office and there are some other ramifications to it, so I do not pretend I know all the facts, but there is a river, the Carson River that runs out of the Sierra which is a federal reserved forest, that river runs down through and into water holding area in Lake Lohontan. Carson City which is our capital, does not have any other source of water right in the moment and there is a moratorium on building in Carson City. As a result of that, the City Council of Carson City went to the next county to try to get water from wells. The wells happen to be next to the Carson River. The government has protested that and if you track that out, the only legal basis they have to protest that is that the river is going to go down because Carson City is pumping water to supply its people and the basis for that is that the Carson River comes off the federally reserved land, and therefore, they have the right, the priority to the use of that and make then control --
Byron R. White: For what?
George Allison: Because they own the land from the water comes, because they reserve the forest.
Byron R. White: They are claiming they have some rights in the water, downstream water?
George Allison: I do not want to get into position of saying that I know the government’s argument. You asked me if I could cite you an example.
Byron R. White: But in any way, you have other argument in your states with the government over reserved rights?
George Allison: Yes we have a very clear argument on surface water and the Pyramid lake in Ickes. There are 15,000 defendants in that case, an Indian case. It is a very real problem and it is in the district court level right now. I hope I did not misstate the government’s position in that, but I think it applies the logic. It is not Nevada’s position that there is not an implied right. That is not what we are saying. What we are saying is that the doctrine of an implied reserved right came out of the Winters’ case. It came out of an Indian case and in that case they just did not say Congress must have intended, in that particular case, this Court waived the competing interests and that is how the doctrine rules. They looked at what harm would come to the other users on the river, on the surface stream. They just did not automatically say okay there is an implied -- that Congress must have intended that and what we are really saying is that the Federal Government should have the burden of establishing very carefully the importance of the need, the extent of injury, and all the competing interest that go into it before we imply an intent.
Speaker: In what form?
George Allison: In what form? Our position is that that should be in the initial form in the state procedure that is already the existing, established used procedure.
Speaker: You mean the court?
George Allison: In our state it means an administrative procedure first, subject of course --
Speaker: (Inaudible) where?
George Allison: In a Federal Court because it is a federal question and I think this is consistent with this Court’s position in the EEO case that came out of Colorado.
Potter Stewart: Do you mean the case was in the Federal District Court?
George Allison: Yes.
Potter Stewart: Under what head of jurisdiction because the plaintiff was the United States?
George Allison: Yes and they filed --
Potter Stewart: Well, then would it be you position that clearly there was a statutory jurisdictional basis for the Federal Court to take the case that it was incumbent upon the Federal Court to apply Nevada Law, that I suppose would be what follows from your brother’s argument?
George Allison: No.
Potter Stewart: There was a cession of jurisdiction over these waters back in the 19th century, that the State of Nevada determine it within its -- under its law that even the Federal Court should sort of by analogy to Erie Railroad v. Tompkins kind of situation would have a duty to apply Nevada Law, is that your point?
George Allison: No sir, my point is that there are really three. Nevada recognizes the implied reservation doctrine, whatever kind of law we want to call that, State or Federal Law, we happen to grant water rights to our citizens by the appropriative means. But that does not mean that the state engineer in the administrative procedure in the state of Nevada cannot also recognize an implied right, if the circumstances warranted and that is all we are asking that the states have the opportunity to do. That in the existing system of which all other water rights are determined that they have the opportunity initially to determine –-
William J. Brennan, Jr.: To a duty to the extent of the Federal Law?
George Allison: Right. Subject to review in the Federal Courts.
William H. Rehnquist: But when you say that Federal Courts thought, what is the normal procedure for a review of your engineer’s decision?
George Allison: Well, that is a State District Court.
William H. Rehnquist: Yes, and then to the Supreme Court of Nevada.
George Allison: Yes.
William H. Rehnquist: So do you not really mean that the only Federal Court that would be reviewing would be this Court on certiorari?
George Allison: Well, yes really. Yes. Yes, it will be a direct review by this Court on certiorari, that is right.
Potter Stewart: Yes, that was in a Federal District Court by reason of very explicit jurisdictional statute, is that not right that the United States was the plaintiff?
George Allison: Yes, well the argument that we have expressed in that particular case because we expressed it in a District Court is at that point, I even conceding those concurrent jurisdiction in the sense that they did have jurisdiction because it was the Federal Government. In this particular case of course, we have the additional problem of the fact that they did appear in an administrative proceeding and not as alluded to in their brief, they just did not appear as a friend of the engineer. They appeared and advocated as strongly as they could and that if for no other reason in this particular case, they raised you to code of principle or the collateral stuff of principle should be applied.
Thurgood Marshall: (Inaudible)
George Allison: I am sorry.
Thurgood Marshall: Was United States a party?
George Allison: Well, they were a party --
Thurgood Marshall: As easy, yes or no, you know (Voice Overlap)?
George Allison: No, Mr. Justice I do not think it is that easy because I do not think you say they appeared, they cross-examined, they presented witness, they orally argued on opening, and they orally argued closing. I think that is a party. Every time I appear for a party that is all the things that I do, but they claim they are not a party.
Thurgood Marshall: What was the title of the case?
George Allison: What was the title of the case? Well, the way it arose was that the Cappaerts filed an application to appropriate underground water. At the time that that is filed, the government filed protest on the basis that the pumping would reduce the water level on Devil’s Hole. Pursuant to our procedure which is an administrative procedure, a hearing was set, a formal hearing at which the state engineer presided. At that time, the government presented their evidence. Everything they had, presented witnesses, presented the proclamation --
Thurgood Marshall: Which side you are on?
George Allison: Your Honor, government side --
Thurgood Marshall: So it was free for all?
George Allison: The State of Nevada, United States Government, and Cappaert.
Thurgood Marshall: (Inaudible)
George Allison: Well, it is not a suit. I think the question is you are a real party in interest if you have a vital interest in the outcome of the proceedings.
Thurgood Marshall: This would not be a regular court action?
George Allison: It definitely was not a court action, it was administrative hearing, but the result is the same.
Thurgood Marshall: (Inaudible)
George Allison: The United States Government was not much a party as anybody else, no question about that in my mind.
John Paul Stevens: Mr. Allison, did the government take the position that they oppose the reduction of the water level because that was the factor that should be weighed in deciding whether or not to grant the permit or do they take the position that legally they had a right to object because the own water in effect?
George Allison: I think they did not quite go so far as advocate, at least the Solicitor General Representative did not go quite so far as advocate that was a legal right. They felt that it was a fact that it should be considered by the state engineer and they at that time did not have sufficient evidence and said well, we would like you to weigh, however, they did introduce the proclamation and by inference, by reading the transcript, I think they alluded to the fact that was their legal basis and that really it was their right, although the government counsel did not make an extended argument that way.
John Paul Stevens: Did the engineer rule on that issue, the legal issue?
George Allison: He ruled to the extent that he indicated that there was a reference to a Federal Right and in his opinion there was not sufficient evidence to establish one. That was three or four lines in his decision.
Lewis F. Powell, Jr.: Mr. Allison was the government a party in the sense that it would enabled it to take an appeal to the Nevada Court from the administrative decision of the engineer? Could the government have gone up within your judicial system from that administrative decision?
George Allison: Yes, I think they could have, yes, I think they could have. I am not sure that I can quote you a precedent for that, but I do not know of have any reason, nor I cannot pick a case out right now.
Lewis F. Powell, Jr.: Any part that interests us, all through may be allowed to appeal from an administrative tribunal decision?
George Allison: Yes, I assume again that to be consistent, they could then come directly to the United States. Even then I think all the machinery is there right now without even a ruling from this Court.
William J. Brennan, Jr.: (Inaudible)
George Allison: They want to abide by it.
Harry A. Blackmun: Are you sure about your position? This balancing of the respective interest whatever they may be?
George Allison: Yes sir.
Harry A. Blackmun: What you say is the technique that should be applied?
George Allison: That is what came out of the Winters case.
Harry A. Blackmun: Yes and that is what you should -- you say should have happened in the first instance in your administrative proceeding?
George Allison: Yes.
Harry A. Blackmun: Or if the United States was properly in the United States District Court as apparently it was under the head of jurisdiction as the one that brought the suit?
George Allison: Right.
Harry A. Blackmun: The same technique should be the governing one to determine these respective rights, is that it?
George Allison: Yes.
Harry A. Blackmun: Now, what is the law? State law or is it --
George Allison: The law in my opinion is the Winters case set down by this Court and that is an implied right and an implied right in this very nature involves weighing the circumstances to find what they intended. I think that is the law. It is not a state --
Harry A. Blackmun: I know but the principles whether they apply in your State Tribunals or Courts or in the Federal Court or what, Federal Principles whether are state principles?
George Allison: I do not know if it makes any difference if they call it a Federal principle or state principle. It is not the system that we used under the appropriation method. It is not the riparian doctrine and as I indicated in my brief, in my opinion it is a third way that has been set forth by this Court to establish a water right.
Potter Stewart: But suppose as -- under -- it has been imposed upon state law, has it not as an addition or --
George Allison: Yes, right. It is another way --
Potter Stewart: It is an addition to your prior appropriation or qualification or whatever?
George Allison: Yes, it is an addition. Now, instead of one way, we have two ways in the State of Nevada to establish a water right.
William J. Brennan, Jr.: Mr. Allison, before you sit down, does your State in Nevada in its administrative proceedings or anything else, make any distinction between surface water and underground water?
George Allison: No, not really in the procedure that they go about it because the underground water refers back to the surface water statute and the procedure of finding the application and getting the determination by the state engineer is essentially the same. If there is a difference to some extent in that, once you receive a permit you also have to establish a period of beneficial use. In other words, you have to put it to use to determine the amount that you are entitled to. You just do not get them and use it at all.
William J. Brennan, Jr.: That is an old principle, is it not?
George Allison: Yes.
William J. Brennan, Jr.: Western Water right, but in other words then, you almost concede the hydrological if that is the right word, connection between surface water and underground water?
George Allison: Well, not for purposes of implied reservation doctrine. I concede only that the hydrologist tells me that there is a cycle that they are going to relate it, but I know that you cannot determine from the surface where the underground water is and if you cannot determine whether, like I said as an example in this case, I am quite confident that President Truman or none of the people that were involved in invoking this proclamation were any or as near aware of the connection of the underground water in that basin. And so it is very difficult to understand how you can go back and say, well, they must have intended to do certain things, if you cannot determine from the surface where it is. Now, it seems to me there is a solution to that, that is not an impossible burden. Certainly, we have enough technology that the government can determine before they make a reservation as to what the existence or non-existence of groundwater is and what the connections are and all we are saying is that that is one burden that they should meet before the can imply an attempt.
Byron R. White: You are not asking us to overturn the Oregon case or the Winters case. You accept the doctrine in general of applied reservation of water right that is overlaid as a matter of Federal Law on state adjudication?
George Allison: Yes with two questions. I am not asking you to. We accept the Winters doctrine and the implied reservation doctrine as an addition to creating a right in the State of Nevada. The Pelton Dam case in my opinion is distinguishable and their reasoning on the reserved right I do not think was complete and I think that case could have been decided --
Byron R. White: Your colleague here suggested this whole issue should be determined as a matter of state law entirely, but I gather that you seem to accept the implied reservation doctrine in some forms as a matter of Federal Law because you --
George Allison: Well, I accepted because the case --
Byron R. White: Because the case says that it exists?
John Paul Stevens: Mr. Allison, one more question and maybe I should ask your opposition this. In the U.S. Code, Section 431, following it is a list of national monuments in the proclamation under which they were established. I have reviewed it several times. I do not find this particular monument listed. Is this of any significant? You are not raising any question that this is not a national monument?
George Allison: No, from the State of Nevada standpoint, I am not and I did not understand that that was a question in the case.
John Paul Stevens: I do not think it is but I was curious and maybe Mr. Lionel --
George Allison: We are definitely not. Yes, I think we have always assumed that it was a national monument.
Warren E. Burger: Mr. Randolph, I will try to let you complete today.
Raymond Randolph Jr.: Thank you Mr. Chief Justice.
Warren E. Burger: They have used their time up completely.
Raymond Randolph Jr.: Mr. Chief Justice and may it please the Court. The United States brought the suit to prevent the Cappaerts from extinguishing Nevada's on the population of cyprinodon diabolis, the Devil’s Hole pupfish. We contend in this case the Devil’s Hole National Monument was established in 1952 to protect to the pool that has been referred to and the fish in it. That the water right of the United States is measured by reference to that purpose and that the Cappaerts pumping of water must be regulated to ensure that they do not interfere with that United States Water Right, a Federal right. I think I will tell the Court a little bit about the facts of this case and particularly the circumstances that exist at Devil’s Hole. At the center of this case is an anomaly, a fish that lives in the desert. The area involved, Southern Nevada near the California border and not very far from Death Valley was not always once the desolate place that it is now. Thirty thousand years ago it was cool and wet, streams, lakes, rivers abounded and in fact Death Valley itself was a lake more than 100 miles long more than 600 feet deep. This was the home of the ancestors, the pupfish that live in Devil’s Hole today, but the climate gradually changed, the glaciers to the north receded, the land dried and the animals of the area which included the (Inaudible) all disappeared. Somehow however, the pupfish managed to survive, taking refuge on what one writer has called Tiny Islands of Water in the sea of sand. Of the four remaining species of cyprinodon, the Devil’s Hole pupfish has been isolated the longest. The scientist that testified in this case estimate that this fish entered Devil’s Hole approximately 10,000 years ago. Between in then and now, this tiny fish which has Mr. Lionel pointed out is but one inch long has performed nothing short of an evolutionary miracle, evolving to its present status, present condition today, adapting to extreme circumstances in what is evolutionary-wise a blink of the eye. The pool in which cyprinodon diabolis now resides is the smallest sole natural habitat of any species on the face of the earth. The fish themselves make up the smallest population of the species of fish known to man. The surface of this pool which we have been talking about measures 10 feet by 65 feet. It is open to the sky, but it is 50 feet below the surrounding land surface. All but the western end is bordered by sheer rocks. The water temperature is a constant 92 degrees Fahrenheit year round. The entire structure of Devil’s Hole and the pool was once a limestone cavern. The geologist testified that years ago the roof of the Cavern collapsed, perhaps by the dissolving action of the water inside, sending rocks down to the bottom as Mr. Lionel said more than 200 feet below, divers have gone down to at least 200 feet in Devil’s Hole, but no one knows the exact depth. But one piece of rock, not very much larger than this table here, about 9 feet wide at its widest and perhaps 16 feet long wedged below the surface of the pool to form a natural shelf. In the summer months, sunlight reaches the shelf and about one half of the pool itself only for a few hours a day allowing algae and other small organisms to grow there. In the winter, they are only shadows and the alga dies. The pupfish as the District Courts specifically found are totally dependent on this natural shelf. They spawn there, they feed there and when the alga dies, a great part of the pupfish population dies with it, only hopefully to recover again the following spring. It is a precarious existence, but the pupfish have been successful for it for 10,000 years. These fish, remarkable fish are unable to tolerate extreme temperature changes and ranges in salinity up to six times that of seawater, but ever since the first study of them began in 1936, they have been subjects of intense scientific interest.T here are dozens of studies in this either in the record in this case or referred to by the witnesses in this case and all of them relating to the pupfish.
William H. Rehnquist: What do they do if anything for humanity, Mr. Randolph?
Raymond Randolph Jr.: Let me read what Dr. Fister, who was one of the biologists that testified Mr. Justice. On page 157 of the appendix, I am reading from it now. As a research potential, he says, these again and he is talking about the fish, have almost unlimited future. Right now, I know of any number of graduate students who would just literally give anything to have an adequate number of fish to use for experiments at the doctoral level to go through and do research papers.
William H. Rehnquist: What about, you know, I mean, the fact that there are a number of graduates who maybe interested in the archaeological history, there may be a perfectly useful human occupation, but is there anything else?
Raymond Randolph Jr.: Yes. Let me continue. At the bottom, at page 157, he talks philosophically, I am not going to repeat that, but at the bottom of page 157, he says that if this specie does become extinct and heaven forbid, we can never bring it back for all the expertise we developed ecologically. Prior to that, on page 157, he says these species, these little animals, they may very well hold the key to our future as human beings as they learn to adapt to the changes in their own habitat, just as we are having to do for our own polluted waters and our own smog and so on.
Potter Stewart: It does not sound like a very rosy future if each was one inch long—[Laughter]
Raymond Randolph Jr.: I do not think we --
Potter Stewart: It would be -- dying within a year.
Raymond Randolph Jr.: Well, this case is about the extinction of species of fish. I notice at one point in the testimony that Mr. Lionel said, well, is it not true doctor, I think it was another doctor, Dr. Deacon (ph) that this fish will become extinct and Dr. Deacon said, yes that is true and so homosapiens, what we are talking about here is the exhilaration of the process. And I think that is relevant and I think it is relevant on page 158 what Dr. Fister says that it is impossible to judge the value of these fish. There is intent studies going on now. Genetic studies, biological studies, studies by fish experts to determine precisely what it is that caused this fish to adjust unlike any other species in the world. What they are worth to us in 2072 cannot be measured by what we know even today at this point. I do not think any great scientific breakthrough has come from them yet.
John Paul Stevens: Mr. Randolph, does the record tell us why the government reserved 40 acres, I take it the pool is only 65 feet long?
Raymond Randolph Jr.: I think the surrounding area of the rocks and everything, the directive in the act was to reserve the smallest area consistent with maintaining it. If you reserve just the pool, obviously could not put a fence around it and I think this was just a discretionary judgment by the President as he has the authority to do that.
John Paul Stevens: So, is it conceivable to take out Mr. Lionel’s argument that this is the area from which the President intended to exclude wells, thinking this would be sufficient to protect the pool?
Raymond Randolph Jr.: No, I do not think that is conceivable and I will explain why later in my argument. Because of their vulnerability, there have been numerous attempts to raise the pupfish to transplant them between 1947 and 1972. There were 10 attempts, all the, failed, There is a reference in the record here to a later attempt at Hoover Dam which at one point looked like it might work, but all the scientist testified that they could not qualify it as a success. It started out with 24 pupfish, by the time the case had reached, June 1973, there are a 170 pupfish in this small aquarium in the Hoover Dam and I notice and I distributed to the Court the latest report of the special master which has attached to it a report of Dr. Deacon which points out that the pupfish population at Hoover Dam is dwindling. It is now down to 65. One reason for this is population threshold and I think this is important to this case. The minimum population needed for specie to survive indefinitely, 24 cyprinodon diabolis may not be enough and the scientists have testified. In breeding occurs because of the lack of genetic variation. The past inter fusion is an example as one of the biologist testified in this case, although thousands of them were left after they have been haunted. They were below their minimum population threshold level and despite efforts to preserve them, they died off. That was the testimony in the record that some scientists believe they are blue whale for example has reached that point. The threshold level of Devil’s Hole pupfish obviously cannot be known until it is too late. The testimony in the record, some scientists believe that it was somewhere between 100 and 200 fish. As I stated earlier, the natural shelf at the Devil’s Hole is crucial to the existence of the pupfish and this of course is essential that it be covered with water. Despite the remarkable ability to adapt to changing circumstances, the one thing that the pupfish has not learned to adapt to is the absence of water. At the normal level, the shelf is fully submerged. It is 1.2 feet below a copper washer which is used as a marker and was installed by the National Park Service in 1962. The Cappaerts began pumping water in 1968. Yearly, they were taking out in this area 2 billion 281 million gallons of water for their ranch in the desert. The evidence that shows incidentally that some, but not all of their wells are hydraulically connected with Devil’s Hole. As they pumped over the years, the water level in Devil’s Hole dropped and in turn the natural shelf began to be exposed. In 1970, the natural shelf was 46% covered although it had been 100% before the pumping. By 1971, the shelf became only 21% covered with water. By June of 1972, when the first hearing of this case was held, the natural shelf was covered only with 10 to 15% with water. The usual summer population of pupfish at Devil’s Hole is about 700. In 1961, it reached a high between June -- in June between 200 and 300 fish, less than half of that that had been in existence before the pumping started, it did slightly better in 1972 going up to about 400, but I notice in the latest special master's report that is before the Court now, that last year in 1975, the highest pupfish population reached was about 294. The evidence shows, therefore, and the District Court found that it is necessary to maintain the water level at Devil’s Hole so it covers the shelf. That is 3 feet below the copper marker. This is the only way to have a continuing viable population there and that is what the District Court ordered. Now, Mr. Lionel in his argument talked about being prevented from pumping on 21 square miles of his ranch that is not accurate. Number one, with respect to the wells that were under the injunction in this case, he is not prevented from pumping. They are only pumping -- their pumping has to be regulated so they do not drop the water level between 3.0 feet. Mr. Lionel said in his opening statement and I quoted this that “the injunction in this case utterly destroys his business enterprise. There is no evidence whatsoever in the record to that effect.”
William H. Rehnquist: Given the water table, certainly that requirement could be a proscription against pumping if the water table gets low enough?
Raymond Randolph Jr.: I would refer you Mr. Justice Rehnquist the special master's reports, one of which I filed which shows the hours of pumping from the wells at the Cappaerts ranch. It is not a proscription against pumping and I might point out while I am talking about this that some of the wells in the ranch are not even covered by the injunction. The reason is that the hydrologist who testified for the Federal Government in this case said they were not hydraulically connected with Devil’s Hole, even though they were about a few miles from Devil’s hole.
William H. Rehnquist: Well supposing Mr. Cappaert turns on those pumps that are covered by the injunction and the special master learns that the water in the pool diminishes down below the three -- of the three-foot mark, then how is the mandate of the injunction carried out?
Raymond Randolph Jr.: Well, he has to stop pumping until the water level recovers.
William H. Rehnquist: And if it does not recover for several weeks that is a proscription against pumping for several weeks, does it not?
Raymond Randolph Jr.: I am talking on a yearly basis. Some days, he may not be able to pump, on other days, he may be able to pump.
William H. Rehnquist: Well and if it is a critical time for irrigating a crop not being able to pump for several weeks, maybe the same is not being able to pump all year?
Raymond Randolph Jr.: Well, that may be. That may be, but the injunction nevertheless does not say Mr. Cappaert, incidentally the farmers are who live in Vicksburg, Mississippi and when I referred to them. I am not referring that they are doing the pumping, it is people that run the ranch with them, it does not say that they cannot pump. It says that you cannot pump to a certain extent and beyond that, Mr. Lionel refers to the 21 square miles of ranch. The Court examines the decree in this case, it does not cover the entire ranch. There is a great portion in Northwest section in this ranch that is not covered by the injunction. The reason is that although it is a few miles away, it is not hydraulically connected with Devil’s Hole. It is served by another system in the aquifer, and therefore, pumping there will not have any effect on Devil’s Hole. While I am on this topic, I notice throughout the brief that Mr. Cappaert filed -- that Mr. Lionel filed for Mr. Cappaert and also through the State of Nevada; they talk about this 40-acre tract controlling 45 hundred square miles of an aquifer that by reserving just 40 acres, the United States has thereby served the authority of a 4500 square miles aquifer, that is not so. The testimony in the record and I will give the Court the citation so that you can look at them up, at appendix page 79, the government’s expert talked about the aquifer in this 4500 square miles and I think and I believe, I am looking at it now that Mr. Lionel was cross-examining, and he said if there was substantial pumping for example from the site, 40 miles northeast of Devil’s Hole, the ground would have moves from the Northeast towards Devil’s Hole, what effect would that have? Well, over a period of decades, there maybe a small effect. Pumping at another site 40 miles away at the rate of 2000 gallons a minute which is 28 million gallons a day, would, the hydrologist testify, this is again, after a period of time, have a slight perhaps indiscernible effect on the water level at Devil’s Hole. At page 80 of the appendix, (Inaudible) well was referred to, but 15miles to north of Devil’s Hole. Testimony was unconnected, that is not connected in any way with Devil’s Hole.
Speaker: You could pump it all you want?
Raymond Randolph Jr.: You could pump there all you want. At page 98 and 99, there is further testimony, I will not go into it, but the point is as the hydrologist testified at page 99 of the appendix, if you get any considerable distance away from the Devil's Hole, “The amount of recharge was base and would pick up between the center of pumping in Devil’s Hole would replenish it, it would not have any kind of discernible effect on Devil’s Hole.” We are talking about an area directly involved in this case and area surrounding Devil’s Hole and area, but just a few miles on it.
William H. Rehnquist: Do you have a record citation for that statement you just made that that it is just an area, just a few miles from it?
Raymond Randolph Jr.: Yes, the map that the defendant’s exhibit 'I' is the location of the wells that are involved in this case. Now --
Speaker: (Inaudible)
Raymond Randolph Jr.: Sorry?
John Paul Stevens: How many areas?
Raymond Randolph Jr.: Between I think two-and-half miles is for this one Mr. Justice Stevens. Now, first of all, let me deal with the first argument that petitioners make in this case which relates to the Act to preserve American Antiquities. An antiquity incidentally is something belonging to a dating from the time long past and I think the pupfish qualify for that. But as petitioners have indicated, the Devil’s Hole national monument was set aside by President Truman in 1952 and Mr. Justice Blackmun that appendix to 43 U.S.C. or 16 U.S.C. 431 does not include all the national monuments. I think it is a sampling and I do not know the sampling by which they were selected, but there are any number that are not in there, including I think the Grand Canyon as a matter of fact. Is it there?
Harry A. Blackmun: (Inaudible)
Thurgood Marshall: [Laughter]The antiquity mentioned by President Truman was the pool, was it not?
Raymond Randolph Jr.: Well, I do not think so.
Thurgood Marshall: What else was mentioned?
Raymond Randolph Jr.: Because the way the Act is Mr. Justice, the way --
Thurgood Marshall: I am talking about the proclamation, what else is mentioned other than the pool?
Raymond Randolph Jr.: The pupfish themselves and I will relate that if I can first talk about the Act and then the proclamation.
Thurgood Marshall: The proclamation said pool?
Raymond Randolph Jr.: That is right. Yes sir.
Thurgood Marshall: And as antiquity, as an antique?
Raymond Randolph Jr.: No, antiquity means something from the past relating to the past.
Thurgood Marshall: But who has been there quite a while agree on that (Inaudible)?
Raymond Randolph Jr.: No, antiquity, not antique. Now, that act authorizes the President in his discretion to reserve public land for preservations of objects of historic or scientific interest. Petitioners say that under this act there could be no monument to protect the pool and the fish in it. It is hardly clear why? Pupfish are certainly objects of scientific interest. The Cappaerts in their brief and I notice in their arguments also say that the act extends only to artifacts appropriate for preservation in public museums. Aside from the fact that the Grand Canyon is a national monument and was held to be properly so in Cameron and I do not know if any museum that could hold it, the C&O Canal is a national monument, not very far from here. Mr. Lionel talks about the act as preserving only dead objects I suppose. Let me give you an example. We pointed out in our brief that Mr. Justice Rehnquist may be familiar with this, the Sonoran National Monument south of Phoenix was set aside in 1933 and I quote from the presidential proclamation there because of “the exceptional growth thereon of various species of cacti, there are other national monuments that preserve living things, the Buck Island Reef National Monument in the Virgin Islands, the Oregon Pipe Cactus National Monument also in Arizona, the Joshua Tree National Monument in California --
William H. Rehnquist: Are these all under the antiquities?
Raymond Randolph Jr.: Yes, Mr. Justice they are. It is we submit untenable to say that under an act for the preservation of objects of scientific interests, the President of the United States could create a monument to protect the pupfish only after they have died and become fossilized, but that is precisely what Mr. Lionel’s argument leads to. Now, as far the proclamation is concerned, we believe it clearly indicates that Devil’s Hole Monument was set aside to preserve the pool and the pupfish in it. It is difficult we think to read it in any other away. President Truman was not acting to protect the rocks in this case. The proclamation he referred to geologic data, but he also refer to on page C2 of the appendix from which Mr. Lionel quoted that said pool is of such outstanding scientific importance that it should be given special protection. The pool is of outstanding scientific importance not because of the rocks surrounding it, but because the unique species of fish found nowhere else in the world living it.
Thurgood Marshall: Where does the proclamation say that?
Raymond Randolph Jr.: Well, I think it fairly does Mr. Justice. The preceding paragraph when it refers to the scientific importance of the pool, the paragraph proceeding that states that the presence in this pool of a peculiar race of desert fish and zoologist have demonstrated this race of fish found nowhere else in the world involved only a gradual drying up, more or less the statement of facts that I just had given the Court, we think indicates that scientific interest of that pool is the fish in it. And if you remove the fish, you extinguish the scientific interest in the pool. The record in this case is replete with studies, scientific studies. There are dozens and dozens of them. There is not a single study that I know of in this record and I stand correct if I am wrong that relates to the Devil’s Hole by a geologist in some way unrelated to the pupfish. Every study that is either referred to or in this record is because of the pupfish.
John Paul Stevens: Mr. Randolph, if there is no interest in protecting the rocks, why did they need 40 acres?
Raymond Randolph Jr.: I that was. You know, there were scientific interests who know whether they were going to require to set-up some kind of a building there to study the fish.
John Paul Stevens: Are you going to explain to me why it is unreasonable to assume that that was the area from which it was attended to exclude wells?
Raymond Randolph Jr.: I think that when President Truman set this aside, I think the area surrounding it was public land. At that time, I do not think that it was necessary so far as it appears in 1952; there was no indication that there were any wells in that area. There was no necessity for him to have to gobbled up a great big chunk of land because there were no wells.
John Paul Stevens: But supposing they had done what I suggest to Mr. Lionel and dug a well just 41 acres away, whatever the distance would be, could he not then have increased the size of the monument?
Raymond Randolph Jr.: Yes.
John Paul Stevens: Protect it that way?
Raymond Randolph Jr.: I think so by condemnation, but I will talk about it later, well, maybe I will mention it now, I think the condemnation argument is sort of red herring in this case. The fact is when this was set aside in 1952, there was nothing to condemn. To say now, as Mr. Lionel says, well, you can -- what you want to do is take our rights by condemnation is to assume the very issue in this case that are against the United States, they have some rights to take.
William H. Rehnquist: Yes, but your argument partially assumes that the other way because they left the unreserved part over and above the 40 acres open to patent and people came in and either got patents or it was exchanged?
Raymond Randolph Jr.: Well, let me put it this way. If you have a stream as in the Winters case, as in Arizona versus California, as in Eagle County, any of those cases, United States reservation whether Indian or non-Indian on a piece of land that is adjacent to the stream in any way. If you follow this theory what it means is that in order to prevent somebody upstream from the diverting water and depriving water that you source you will have to take all the stream. In other words, you should take the entire stream. The Court has never held that. Arizona versus California is to the contrary, Eagle County is to the contrary. The Winters case itself is to the contrary. Powers which is another Indian case to sought of this court on the reservation doctrines to the contrary. The Pelton down case is to the contrary.
William H. Rehnquist: Well how do you reconcile what these cases you have just cited in your description of the holding with the statement from Beaver versus Portland Cement that following the Act of 1877, if not before, all nonnavigable waters then part of the public domain became publici juris, subject to the primary control of the President of the United States?
Raymond Randolph Jr.: Number one, that was dictum.
William H. Rehnquist: You are saying then that is no longer good law?
Raymond Randolph Jr.: Oh! No, absolutely not!
William H. Rehnquist: Why because of Pelton Dam?
Raymond Randolph Jr.: Absolutely.
William H. Rehnquist: Do you think Pelton Dam represented a carefully considered repudiation of Beaver?
Raymond Randolph Jr.: I do not think it was repudiation. The Court even cites Beaver and I think you can find other statements in the California Oregon Power Case that there are inconsistent with the statement you just cited. I read the briefs in that case and the government’s briefs and I think it was carefully considered yes.
William H. Rehnquist: Well, certainly it was not the reason in any way, Pelton Dam has about one paragraph?
Raymond Randolph Jr.: Yes, because if you read, first of all if you read the Desert Land’s Act, it says nothing about separating the water, the water from the land or anything like that, it does not say that at all. All it says is that with respect to the public lands of the United States, the people are entitled to get a water right pursuant to state law. The statement in the case that Mr. Lionel relies upon was just a statement in regard to that. It was not the Act.
William H. Rehnquist: Well, but I always thought Beaver was regarded as the leading case construing the Desert Land Act of 1877, do you disagree with that?
Raymond Randolph Jr.: In this case, if you are talking about public land, if you are talking about somebody establishing a water right on public land and the public domain, I would say absolutely yes. If you are talking about reserve rights and land that is not in the public domain like Devil’s Hole, I would say, no, it is not and Pelton Dam is -- if you follow the Beaver case, look at what you would have to overrule. You would have to overrule Arizona versus California. You would have to overrule --
William H. Rehnquist: The statement in Arizona versus California was not really a very reasoned statement, was it?
Raymond Randolph Jr.: Judge Simon Rifkin was special master for that.
William H. Rehnquist: Well, he is not a Justice of this Court as I recall?
Raymond Randolph Jr.: And Justice Black I think followed precisely with Judge Rifkin --
Byron R. White: (Inaudible)
Raymond Randolph Jr.: Sorry?
Byron R. White: (Inaudible)
Raymond Randolph Jr.: Well, I think after presiding over Arizona versus California he became --
Byron R. White: (Inaudible) he did not cite Pelton, I mean he never --
Raymond Randolph Jr.: That argument is incidentally the same argument was made --
Byron R. White: Pelton never presided the Indian case?
Raymond Randolph Jr.: That is right. Pelton is inconsistent with the Indian case because how could -- how could the United States -- in 1897 --
Byron R. White: Well, if it is there, you should rely on Arizona against California, and cite Pelton?
Raymond Randolph Jr.: I do not cite it for the Desert Lands Act. I cite it for the Reserved Rights Act. Remove the pupfish as I said and you remove the scientific importance of this pool and I think President Truman understood that full well. The President referred specifically to the fish as I have said and thus we think a plain that and the Courts below incidentally agreed, that the Devil’s Hole became a national monument not because of the rock formation, but because of the pool water in the desert containing a remarkable race of fish that had been there for 10,000 years. That is something worth protecting and preserving and President Truman did it in 1952 and that question obviously concerns the reservation doctrine and we discussed that somewhat, but under this doctrine, it is simply that the United States by reserving public lands may reserve the waters pertinent to the land, unappropriated waters and those reasonably necessary to fulfill the purposes of the reservation. The petitioner says that requires intent. Well, we submit that President Truman’s intent is clear from the face of the proclamation. Certainly, more so than -- there is not much to -- one talks about implied reservation doctrine, there is certainly very little to infer in regard to water. In President Truman’s proclamation, but the constitutional basis for the doctrine is hardly is startling one. It simply the property clause of the constitution, giving the authority to the United States to act under the Property Clause with respect to this land and the Court in Arizona versus California held that under this clause and I quote “there can be no doubt about the power of the United States to reserve water rights for its reservations and its property, that was 1963. In 1971, this Court held and I emphasize held, this was not dictum, in the Eagle County case that again reaffirming Arizona versus California saying that as we said in that case, the Federal Government had the authority both before and after a state is admitted into the union to reserve waters for the use and benefit of federally reserved lands. The federally reserved lands, include any Federal enclave as what Mr. Justice Douglas speaking for the Court incidentally, who was from a Western State and he said also that the reservation of waters may be only implied and the amount will reflect in the nature of the Federal enclave. Here however, as I have stated, there is very little to, if anything to infer, the reservation of waters. Waters as mentioned, the pool of waters and Mr. Cappaert or Mr. Lionel has not really explained when he says in his brief that that proclamation did not intend to reserve one single drop of water, how you can preserve a pool of water without intending to have water in it. Now, the fact that the government can reserve water rights as a matter of Federal Law should hardly be surprising. After all, the Cappaerts are asserting a water right against the United States. The only difference here is that their right supposedly arises under State law. We are saying that Federal right arises under Federal Law. None of the parties in this case in this case or the amici I might add have suggested that the United States cannot have water rights at all. Rather the argument is that the United States should submit the state law and state procedures to establish them. Aside from the overruling of cases that would be necessary to get to this result, it is simply another way of saying there can be no United States Water Right in Devil’s Hole and the reason for that is like --
Speaker: (Inaudible)
Raymond Randolph Jr.: The reason for that is like most western states, Nevada follows a doctrine of appropriation, that is a rule of capture. You capture the water, priority in time, first come, first served. It requires at least two things; a diversion of the water from its natural source and application of the water diverted to a beneficial use. We are not diverting any water in Devil’s Hole. We are seeking to preserve it and I might add that under the usual doctrine of beneficial use, beneficial use is defined in state law as application things like irrigation to stock ordering, industrial uses, it was only in 1969 that Nevada amended its law, a great movement forward to allow beneficial use to mean recreation.
William J. Brennan, Jr.: Are you suggesting on what Nevada argued it today namely that there ought to be in some forum the kind of balancing of all these interests would mean that the Federal government submitted to it then Federal government is bound to lose?
Raymond Randolph Jr.: There is no way the United States can get a water right under state law of Nevada.
Byron R. White: (Inaudible) that the United States were noticed into Nevada waterhearing to adjudicate its right, it would not have to (Inaudible)
Raymond Randolph Jr.: Oh! No! As a matter of fact --
Byron R. White: Are you suggesting that in such a proceeding, your right would be measured by Federal Law?
Raymond Randolph Jr.: Absolutely, as a matter of fact.
Byron R. White: In fact, which is what the Eagle River Case is saying?
Raymond Randolph Jr.: That is right. I rely on that incidentally Mr. Justice White. I rely on the general adjudication proceeding and the reason I rely upon that is we have heard a lot about the uncertainty, well, this creates an uncertainty. We do not know how much order the Federal Government has. We do not know the connection of wells. If Nevada wants to end that uncertainty, they can do so tomorrow. They can start a general adjudication in a basin. That is the Ash Meadows basin which would adjudicate priorities of all the rights of the people that are involved in this case and other people who might be involved and so on and so forth and make it absolutely definite. They have never done that. They have the right to do it. They have the statutory authority. They can enjoin the United States in that proceeding pursuant to the McCarran Act, but it is still a Federal Right that is involved in this case.
William J. Brennan, Jr.: (Inaudible) as you recognize it as you define it today?
Raymond Randolph Jr.: Absolutely.
William J. Brennan, Jr.: And that would mean you are bound to win just as you did below?
Raymond Randolph Jr.: Yes that we have a Water Right, that means that it should not be interfered to a certain extent. Now, there is some indication --
Potter Stewart: At this point in time, this just goes back to the date of the presidential proclamation?
Raymond Randolph Jr.: Presidential proclamation. If there are other appropriative rights existing at that time, you notice the proclamation says subject to vested rights, so all it takes is something that was no one else had an entitlement to it at that time. There is also some suggestion here that this case would -- involves groundwater, surface water, there is a distinction. The reserve rights doctrine sure has been applied the surface water, but do not apply at the ground water. In other words, this suggests the case would come out differently if instead of being fed by underground aquifers, Devil's Hole was fed by a surface stream, that was diverted by the Cappaerts for irrigation purposes. There is no logical reason why the result should be different. Both situations establish that the monument is the same and the purpose is the same. To reserve sufficient water to preserve the pool and the pupfish in it. Both cases incidentally deal with water in those situations. The same resource and we quoted in our brief, I think at page 32, the fact of the interrelationship between groundwater and surface water cycles. I might also say that it is not entirely clear to us that the Devil’s Hole is groundwater. It is a pool, a standing pool and it is open to the sky. It might be considered ground water in some regimes and others that may be considered surface water.
Speaker: (Inaudible)
Raymond Randolph Jr.: Just like a spring fed lake for example. They also say, Nevada says that the movement of groundwater is uncertain. Effect of pumping from wells might not be known for years and well users could invest money only to have them realize years later that they were affecting someone else’s right, in which case, they would have to stop pumping.
William J. Brennan, Jr.: Your last answer to me suggest that even if the government office permits that nevertheless a proceeding might still be initiated to determine (Voice Overlap) --
Raymond Randolph Jr.: Oh yes!
William J. Brennan, Jr.: -- whether there was any vested back in the day of --
Raymond Randolph Jr.: Yes. The procedure in Nevada is it can be done on the petition from the water rights owners or upon --
William J. Brennan, Jr.: Is filed where --?
Raymond Randolph Jr.: With the state engineer or --
William J. Brennan, Jr.: So it is --
Raymond Randolph Jr.: Or on the state engineer’s own initiative if sees fit to do so.
William J. Brennan, Jr.: And what would he do, set up a proceeding in which again the initial --
Raymond Randolph Jr.: I think the word is inter cc (ph), he would determine the rights of the various pumpers and people vis-à-vis each other who has priority, who has junior right so and so forth.
William J. Brennan, Jr.: Always review again in the Nevada Courts and ultimately here?
Raymond Randolph Jr.: And the United States is subject to that under the McCarran Act. They could enjoin the United States if any at all. As far as this uncertainty, the fact is that that is true under Nevada Law too. If you got a water right, a permit to pump it may not be years -- until years later that you find out that you are interfering with somebody else down the road and that is not the reason for denying the United States the right. Moreover the fact of this case is that hydraulic connection between the eight wells of the Cappaerts in Devil’s Hole was shown and shown conclusively. As a matter of fact, in June of 1973, the Cappaerts finally stipulated to the fact that they regulate the water level in Devil’s Hole by pumping from their wells. I have already talked about condemnation as an argument and I think that it is adequately answered. That it assumes the issue in the case, that is that they have a right as against the United States, even though they did not come on to this property until 1967 and starting pumping that. As far as res judicata which I notice is alluded to in the brief by both parties in this case, but was raised below, if it all anybody, the Nevada State of Nevada. This decision of the state engineer was not res judicata with respect to the United States. The state law requires the state engineer to decide this and give a permit for pumping subject to existing rights. This is a suit to determine whether the United States had existing rights and the state engineer when he decided this case said and you find at the very end of the proceedings, this permit is given subject to existing rights. Indeed the Cappaerts do not even have according to the record in this case any water right perfected in Nevada now. All they have is a permit to pump and so far as the record shows they are never gone back and got a certificate of appropriation which would give them a vested right under Nevada law. Moreover, there were only, out of the eight wells involved in this case, there were only two of those wells were pumped and drilled after this case was begun in 1972. They were not even part of this proceeding before the state engineer. Beyond that their areas of the ranch that were not involved beyond that the injunction applies to future wells. We do not think that the decision of the state engineer, an engineer trained in hydraulic mattes was an adjudication of the government’s right in this case. There was one mention of a Federal Order Right in Devil’s Hole, but that was not mentioned by Mr. Cappaert’s counsel, not by the government and as they said in that case at the time the government was conducting studies to find out the hydrology of the area and I think as even the Cappaert’s counsel said, no matter what we decide in this water proceeding now, this proceeding for a permit, those studies will go on, so there is no need to wait for them and they did go on. And six months later, the United States determined that Cappaert’s were responsible for lowering the order level in Devil’s Hole and that is why we brought this suit. Therefore, we suggest and we submit that the decision of the Court of Appeals in this case should be affirmed. Thank you.