Earl Warren: Number 15, Original State of Illinois, Plaintiff, versus States of Michigan, Ohio, Pennsylvania, Minnesota, New York and Wisconsin. Mr. Forer. I -- are you -- oh, I beg your pardon. They gave me -- oh, Mrs. Forer, I beg your pardon.
Lois G. Forer: Mr. Chief Justice, may it please the Court. I'm here on behalf of the Commonwealth of Pennsylvania. We protested the proposed diversion of Great Lakes' water by the Elmhurst-Villa Park-Lombard Water Commission because as we stated in our letter which is attached to the complaint, the diversion added the Great Lakes and the Basin and into another watershed would constitute an infringement of the rights of Pennsylvania as a riparian sovereign. The lowering of the levels of Lake Erie constitutes immeasurable damage to Pennsylvania. But beyond this very real question of damages Pennsylvania is concerned with the theory of law upon which this proposed diversion is predicated. A theory of far reaching implications, we believe startling and without precedent. And Mr. Justice Brennan observed yesterday, if this corporation is entitled to take and divert Great Lakes Water then a precedent is established for innumerable users and commercial suppliers of water in the United States and Canada to divert without control or limitation. The complaint seeks to restrain the defendant state but it places no limitation on the plaintiffs. There were --
Felix Frankfurter: Mrs. Forer, I take it -- if I may say so, you're objecting to what Illinois is asking this Court to do --
Lois G. Forer: That is right.
Felix Frankfurter: -- and not worrying if this Court may pronounce a wrong legal theory.
Lois G. Forer: We are concerned -- first, if you have no jurisdiction to hear this.
Felix Frankfurter: That is -- that's conclusive on what you can do with it.
Lois G. Forer: Thank you. Several matters were discussed yesterday namely that there was no other community interested in taking Great Lakes' waters. And we have information from published newspaper accounts that other Illinois community such as Arlington, Barrington and Mt. Prospect are at this very moment considering going to Lake Michigan for water. In addition --
Earl Warren: There are no cities located on the --
Lois G. Forer: They are not riparian and most of them I believe are outside of the watershed, as is this complex of communities. They --
Earl Warren: They're in Illinois, are they?
Lois G. Forer: In Illinois, but not riparian and not within the Great Lakes watershed. In addition some question was raised yesterday with respect to Canada's position. Now of course obviously Canada is not before this Court. But we would like to call the Court's attention to a letter of April 9th, 1959 from the Canadian embassy to the United States and if I may I would quote this just as one sentence. Every diversion of water within Great Lakes watershed at Chicago inevitably decreases the volume of water remaining in the basin for all purposes. The Government of Canada is opposed to any action which will have the effect of reducing the volume of water in the Great Lakes Basin.
Hugo L. Black: Where is the full text of that, (Inaudible)
Lois G. Forer: This -- I am reading from the House of Commons Debate, Volume 103, Number 59, the Second Session, 24th Parliament, Official Report dated Thursday April 16th, 1959. In cases such as this involving natural resources, one who objects to a taking or a wasting of a resource is always placed in a dilemma articulated in the Old English Chancery case of Goldsmith against Tunbridge Wells Improvement Commission. Either, we are accused object -- objecting too early or because the taking or wasting is of a small amount or waiting too late until we are faced with a (Inaudible) plea, as we were in the Chicago Sanitary District case which, of course, you are all very familiar. The applicable law to this taking as we view it is well settled. All of the Great Lakes States including Illinois and also Canada adhere to the riparian doctrine of water law. This Commission is an Illinois corporation authorized to sell water to communities and industries, and there are plans for further expansion of the industries in this area. It is undisputed that these are none riparian users and indeed are outside of the Great Lakes Watershed. Whether they are 20 miles from the Great Lakes or 200 miles is in our opinion wholly irrelevant because if the State of Illinois can come in and claim that a non-riparian has a right to take and divert, then they make their claim with respect to any community within the entire state. Thus we say any analogy to what is being done in Milwaukee, Cleveland, and Chicago which are riparian municipalities entitled to use Great Lakes Water is implicit. All of the riparian communities along the Great Lakes with which are familiar use that water and return it to the basin in accordance with riparian law of reasonable use, all except Chicago of course. This corporation, the Elmhurst-Villa Park-Lombard Commission asserts a unilateral right as a non-riparian outside the watershed to take an unlimited quantity of interstate and international waters without regulation by any governmental agency and without the consent of the riparian sovereigns. While Illinois asserts that the amount of water to be taken is relatively small, the complaint itself seeks an unlimited right to take without any interference. In seeking to negotiate with Illinois, the thrust of the defendant states has been to require a return of the effluent which would constitute about 93% of the water taken. But while seeking such a return of that purified effluent will substantially reduce the damages, the right to take water at all is hereby challenged. The plaintiff's justification for taking, as alleged in paragraph 3 of the complaint is the urgent need of these communities. Mr. Bane in his argument adverted at some length to the engineering studies upon which the plan for this taking was based and this study is mentioned in paragraph 9 of the complaint although of course it is not in evidence. But like the affidavits, I attached to the motion to advance. This engineering study does not bear scrutiny. It sets forth exports two reasons for the plan on page 13. One is that the use of lake water instead of well water which save each household $16 a year for soap. Mr. Justice Brennan asked why these communities did not choose to purchase water from the sanitary district. And in answering that question, Mr. Bane again referred to the engineering report and stated that this was the recommendation of the engineers and of course this is true. But the reason for this recommendation is very interesting. If I may, I would like to read just one sentence there, one paragraph. Two practical methods of obtaining Lake Michigan water are available to the Commission. They are: one, negotiation for purchase of filtered water from the City of Chicago, or two, construction and operation of new supply and treatment facilities to be owned and operated by the Commission. A course analysis of the alternate methods indicates that the estimated unit course for filtered Lake Michigan water will be less if the Commission builds and operates its own independent system. This is the need of which has been asserted.
Earl Warren: Mrs. Forer, would you have any objection if they did buy their water from the sanitary district?
Lois G. Forer: Well, our objection might be different. We say that the sanitary district is a riparian authority which has the right and power to use Lake Michigan water. Since the taking of water by the sanitary district is subject to the opening decree of this Court we feel that we as defendant states would not be harmed by any additional servicing of other communities since any diversion of the water would be subject to the control of this Court. And therefore we say that any taking additional taking must of course be considered in original cases two, three, and four before this Court to determine to what extent any diversion at all out of the lakes is permissible and to what extent it damages all of us as defendant states. This would not involve a new principle of law that a non-riparian community could simply purchase one -- my new portion of land along the lake and put in a pumping station and divert waters down the State uninterruptedly. If the Metropolitan sanitary district does it, we say it is subject to the control of this Court entirely.
Earl Warren: Well, if those -- the thing that I -- I've been thinking about is this, if -- if they could by the water from the sanitary district so far as the effect on the lake is concerned wouldn't make any difference, would it?
Lois G. Forer: We think it would make a considerable difference.
Earl Warren: What -- what -- in what manner? That's what's bothering me.
Lois G. Forer: If the border is purchased from the sanitary district, we claim that the sanitary district is required to return the purified effluent to the Great Lakes Basin. This water commission, this corporation is established to sell water to pump and supply and sell water. It has no authority according to Illinois to purify the sewage and to return it. The plan of this corporation is to take the water from the Great Lakes, take it over the watershed, service these communities and industries at a profit or a certainly charging for it, and then simply let gravity and nature take its scores and the water will be -- go down the Mississippi Waterway. Now, I'd like to point out that we have heard at great length that only a small amount of water is involved.Under the decree of this Court, the sanitary district is taking 1500 cubic feet per second for the purpose of flushing out the canal. In addition, they are taking an unlimited quantity as domestic pumpage. And according to the figures of the sanitary district this is some 1700 cubic feet per second. Totalled together, this constitutes more water then flows through the Delaware River, so we are not talking about small amounts. And as I say, if this amount of water is added, every other community may also add and we see it is a very serious question.
Earl Warren: Well, I was thinking this that the -- the -- this new district does not propose to return the effluent --
Lois G. Forer: No.
Earl Warren: -- but neither does Chicago, does it?
Lois G. Forer: Well, we claim and that will be decided in the other case.
Earl Warren: In the other case, that it --
Lois G. Forer: That --
Earl Warren: Yes. Because --
Lois G. Forer: They are required to.
Earl Warren: -- of your advance in there. You --
Lois G. Forer: Yes.
Earl Warren: -- maintain that that position, I understand.
Lois G. Forer: That's right.
Earl Warren: I understand that now.
William J. Brennan, Jr.: Mrs. Forer, you're suggestion is with the -- they are the riparian. I think you -- the question using riparian communities and that -- is that -- and I gather that as a matter of law, it could be a community which is not within that definition. That should have no right to take in any event from the lake, is that it?
Lois G. Forer: We believe that that is the law and that the doctrine of equitable apportionment which was discussed at some length yesterday has in effect been misconstrued or misapplied. If we turn to those cases in which a non-riparian community was allowed to take waters, we find that it was not a case in which a non-riparian having no right to the waters simply was granted a division of these waters because it needed water. There was in effect a quid pro quo. Now, in the case of Connecticut against Massachusetts which was quite different, we work -- the Court was concerned with two wholly intrastate non-navigable rivers. Massachusetts, under a permit from the Secretary of the Army captured a limited amount of flood waters and the amount was limited by the permit. Flood waters within the State and withheld them from going down into Connecticut. Connecticut protested on the ground that it was losing a power potential. Now of course, there were no laws to navigation because these were non-navigable streams whereas of course we are contending that any loss to the Great Lakes very seriously affects navigation, the ports, and the shipping as General Reynolds pointed out. The loss of power potential was not deemed adequate grounds for damage because Connecticut not only had -- had no power installations but had no plans for any. Now, as we all know New York has extensive power installations and that any water taken out of the Great Lakes of Chicago reduces the flow there. This is not only a loss to New York but to Pennsylvania, a large portion of which is served by this tower.
William J. Brennan, Jr.: Well, what -- what -- I'm not quite clear about it, the argument. If this complex of community were to be annexed, I understand as the fact of the matter that's not in the Court, but if they were to be annexed in Chicago, if Chicago holds a riparian community, would not that annexation qualify? This complex also as the (Inaudible)
Lois G. Forer: To receive water as a part of a riparian community but we also say that this being a riparian water state and an inter -- interstate and international waterway, the doctrine of reasonable use of course requires that the water be treated and returned to the basin and therefore that if --
William J. Brennan, Jr.: Well, that would be true.
Lois G. Forer: -- it is taken --
William J. Brennan, Jr.: That I -- as I understand your position, that would be true whether or not this complex of the riparian community because you suggest that should preclude as to Chicago?
Lois G. Forer: Yes. We suggest that should be true as to Chicago and after these communities we suggest further that they have no initial right.
Felix Frankfurter: But your difficulty would be met if the effluents flow returned.
Lois G. Forer: Not entirely.
Felix Frankfurter: Well, expand that Mrs. Forter.
Lois G. Forer: All right. The damage would be substantially reduced by some 90% but the principle of law which would require if, for example, this Court were to permit the Board the complaint and were to enjoin the defendants from objecting to what the Commission proposed to do, this would be precedent which would authorize any non-riparian community to go to a water source and simply take without leave of any governmental agency or without negotiating with -- with the sovereigns and community which have a legal right to the water.
Felix Frankfurter: But Mrs. Forer, as I understood Mr. Bane, he isn't asking this Court to announce an abstract legal proposition but on riparian claimant or applicant has the right to tap lake waters. Illinois comes here and says there is a health emergency situation and the way to meet that is to get some of the lake waters. And if there's no basis for that and there is no basis for the suit, so isn't that in fact a legal question if they'd be asking us to announce? I follow you in saying that if you grant this there'll be pressure precedent or episode, if you will, have a way of multiplying and therefore there is that danger or all the consideration for circumscribing and carefully scrutinizing the claim that there is an emergency. But the starting point is not an abstract theory or a desire to establish a precedent but a desire or a compulsion within the meaning.
Lois G. Forer: Well, in answer to that Mr. Justice Frankfurter, we say that no need has been shown to date and we further say that Illinois has no standing here parens patriae. We, defendant states are in this Court to preserve a great natural resource which we believe rightfully belongs to the states and all their inhabitants. Illinois is here in quite a different capacity. Illinois is here in order that a corporation may sell revenue bonds. We think this case -- this situation is ruled by the case of Louisiana against Texas. In that case, Louisiana brought suit against the Governor of Texas and the health authorities because in the application of the quarantine laws, Texas had in effect put an embargo on Commerce from New Orleans. And Louisiana came to this Court and asked parens patriae that relief be granted and this Court sustained the demurrer saying that a financial loss to certain individuals within a State does not give rise to the kind of action which this Court can hear in its original jurisdiction.
Felix Frankfurter: Are you suggesting that this Commission is a commercial enterprise and no more, are not different?
Lois G. Forer: I'm suggesting that this Commission has no authority to do what it chooses to do. The Solicitor General in his brief, I believe its page 20, suggest that this Commission is authorized to divert this interstate waters and he cites the Illinois Act of 1957, page 20 of the Solicitor's brief. The pertinent part of that statute says that the Department of Public Works and Buildings may grant subject to the forgoing provisions of this Section a permit to any person, firm or corporation, not a riparian owner to use the water from any of the public bodies of water within the State of Illinois. That statute, we maintain, does not give this Commission, this corporation, the authority to take water from an interstate body or to divert water. It says that a corporation may use water when it is non-riparian.
Felix Frankfurter: Would your -- would your position be different if instead of operating through especially for ad hoc Commission seeking to accomplish this water need, to serve these water needs to these (Inaudible) the thing has been done through the joint arrangement of the Health Department, whatever they're called, of the three political units apparently. No intervening Commission, no intervening anything except the regular and municipal authorities of the three communities, would that -- would that makes the case different?
Lois G. Forer: I think the case might be different if the State itself were involved and because we are met with this answer as General Adams said, when we attempt to deal with this Commission and suggest that they in negotiation that they make arrangements to purify and return the effluent, we are met by the answer that this is a corporation of limited powers that it has no authority to deal with sewage and disposal. And therefore, all it has, the authority to do is to take the water.
Felix Frankfurter: But if --
Lois G. Forer: Therefore we are not dealing with a sovereign who has unlimited power to comply with a decree which would compel it to do these things.
Felix Frankfurter: (Inaudible) would ask that? Does that mean that if this Court conditioned the relief asked by Illinois with the duty to return the effluent that Illinois could -- if that decree, water could be taken and that qualification of the decree could be disobeyed and on citation for an intent upon it and it's action for contempt, would it be a good answer to say all but for the limited corporation would be ultra vires for us to obey this Court's decree?
Lois G. Forer: This is the answer that they have given us so far. I think --
Felix Frankfurter: The ultra vires, that's potentiality but I want to finish that part.
Lois G. Forer: Well, this is the answer that they have made in the course of conversations. So that we feel that this is not an appropriate way and indeed that this Court does not have jurisdiction to hear such a matter. I would like to point out that in the case of New Jersey against New York which is relied on so heavily by Illinois and the Solicitor General. That was a proper case of equitable apportionment of the Delaware River. There, New York City at its own expense built reservoirs and dams to capture the floodwaters of the Delaware. These floodwaters would have gone unused and wasted out to the sea. And this dam, these constructions were in effect a great help to the flood control on -- of the riparian states along the way and also to navigation. But in addition, this Court conditioned its decree upon the duty of New York to maintain a minimum flow of a certain number of cubic feet per second in the Delaware. And during this past summer which was a time of drought, New York City released from its reservoirs water which managed more than half of the flow of the Delaware all summer and in effect was deprived of the water which it had captured at its own expense. Now, this is a proper case of equitable apportionment where there is a division of benefits and burdens. New York did not take water belonging to the other states without giving them some compensating return. I'd like --
William O. Douglas: The -- is that the water case, the only case we've had where the Board has permitted the diversion from water -- from one watershed to another watershed?
Lois G. Forer: Well, there had been cases in the west were both States adhere to the doctrine of prior appropriation. There we think these cases are not of course applicable. In the case of Colorado against Kansas, Kansas at that time or at least for the waters involved adhered to the riparian doctrine, Colorado did not. The river there was a broken river. Its flow was interrupted. In effect it was two streams. And this Court raised the question as to whether a non-riparian user had a right to divert water and said this was a very serious question but under the fact of that case or other water was used for irrigation, it was returned to the stream and therefore in an arid region, the whole regimen of the stream and the area was improved by the use of the water. Now, in this case, it is difficult to see that there is any improvement or benefit conferred upon the Great Lakes space and as a whole or anyone else. All that is happening is that you save this particular small community money, the water is being taken to the detriment however large or small, of all of the other Great Lakes States. For this reason, we believe that the motion at least to file a complaint should be denied. And we point out that this does not leave these communities without relief. In the first place, they can buy water from the sanitary district if in fact there is a real shortage of well water. Illinois can negotiate for an agreement with the other states for a limited amount of non-riparian taking with the return of the effluent and if the sovereign make such a negotiation, the sovereign state will have to, of course carry out the undertaking.
Felix Frankfurter: I hope you wouldn't leave Canada's interest to all of it except in the arrangement among the State?
Lois G. Forer: Well, I should think that Canada's interest would have to be considered possibly on a diplomatic level.
Hugo L. Black: What do you think about the other states that are not what you would call riparian? Do they have any of them?
Lois G. Forer: The States outside of the Great Lakes water basin, we think that the States downstream along the Mississippi River have an interest and we have received any number of communications from communities down the way asking us to proceed most urgently with the other case because they feel that they are being harmed by the flushing of the sewerage down the Mississippi River. But with respect to taking water out of the Great Lakes, we do not see that the other states which do not -- water on the Great Lakes and are not part of the watershed have any particular interest.
Hugo L. Black: You mean the -- could the States that border on it divide it up and dry up the lake, apportioning, equitable apportionment?
Lois G. Forer: We feel that they could not.
Hugo L. Black: Why, if no other State has the interest?
Lois G. Forer: Well, we feel that that equitable apportionment does not mean a division of the waters but a -- the best and most beneficial use of this interstate water system is great resource that the Great Lakes States could not themselves get together under any kind of an interstate compact and apportion the waters out and deplete the natural resource. We believe that though we have a right to enter into compact, we are naturally (Voice Overlap).
Hugo L. Black: Your time is up and you have emphasized so much the rights of riparian owners that I'm wondering is it possible to define who the riparian owners are at Great Lakes? If -- if the people within 10-mile are, are they? Are riparian owners -- while the people within 20-mile of that are not riparian, who are riparian? How can you -- how can you define, put a label of the law and say that under the law, they have certain specific definite right because they are riparian?
Lois G. Forer: Right. And Mr. Justice Black, we believe that the municipalities which actually apply on a body of water are of course riparian and since the municipality --
Hugo L. Black: The municipality.
Lois G. Forer: Municipalities and of course individual communities.
Hugo L. Black: What about the county?
Lois G. Forer: Well, I think it might well depend upon local law what the --
Hugo L. Black: Well, that's the local law so far as the distribution is concerned that the State can control fully apart. What about a State if it's on the border of that?
Lois G. Forer: Well, this is the argument that Illinois is making. That in effect under the Supreme Court 1930 Decree, the entire State of Illinois has a right to divert out of the Great Lakes water for the benefit of all the communities in the State. This -- oh, we simply do not accept because -- it -- there, it seems to us that there were two rather well defined theories of water law in -- that are recognized in the United States, either riparian with a -- the modification of reasonable use and the doctrine of prior appropriation.
William O. Douglas: I thought in your supplemental brief, you would find using non-riparian in the sense of those who were occupying a geographical area that was in different watershed.
Lois G. Forer: Yes.
William O. Douglas: Is that right?
Lois G. Forer: Yes. Not only noncontiguous but they are in a different watershed and the watershed here is undisputed that these communities are outside of the watershed of the Great Lakes even though they are geographically rather close. And therefore that unless the water is -- actually comes back into the lakes, of course, it will not return.
Hugo L. Black: Well, if the stream is navigated, how can it be said that in effect that those within the particular space by the water would run out, taken out, are the only ones that have an interest and it's in the United States.
Lois G. Forer: We don't say they're the only ones who have an interest. We say that those people who abut in those communities which abut along a waterway have the right under existing law reasonably to use the water that flows pass them. They do not have a right to take it out of the watershed and remove it from the stream.
Hugo L. Black: You are drawing a distinction fairly true and on the basis of taking it out for use and putting it back.
Lois G. Forer: That's right. We say that if they used it and returned it to the stream even though of course there is some rule, but nevertheless that is a reasonable use that is quite proper. But if they take it out of the stream and divert it to some other areas so that it is never returned to the people downstream that that is not permissible.
Earl Warren: Mrs. Forer, from an engineering standpoint, do you know whether it would be (Inaudible) or not -- for these people to return the effluent if they took it (Inaudible)
Lois G. Forer: I do not know that because the engineering studies to which we have all adverted which of course they're not part of the record did not discuss the cause of making such a return. And of course we believe that that would be a matter of record. In conclusion, I would just like to say that we feel that this entire matter can properly be handled by this Court if the State of Illinois chooses any other action to ask leave to have this additional taking or diversion considered along with the others. And thus, this Court could make an appropriate order with respect to this great interstate and international resource which could be effectuated and carried out by sovereigns having a complete power to do so.
Earl Warren: Before you sit down, do you -- do you believe that this matter could be determined without a master?
Lois G. Forer: This particular --
Earl Warren: Proceeding. Yes.
Lois G. Forer: This particular proceeding --
Earl Warren: Yes.
Lois G. Forer: -- no indeed, because we do not feel that any of the facts are alleged with such particularity that we can accept them at all. We think all the questions of need and the feasibility of return and everything else would have to be explored in a factual manner by a master.
Felix Frankfurter: Could you add to the -- everything else? In addition, to mean the feasibility, could you particularize what you call everything else?
Lois G. Forer: Well, I think that the need of a community of course is one thing. The availability of other sources of water to which under our view of the law, they are rightfully entitled. That has not been explored in the engineering study by Illinois which I have seen. In other words, the only sources of water which were considered by these engineering studies were well water and the statement about the $16 per soap, and Lake Michigan water. Now, as we all know, there are many streams, the Fox and the Des Planes among them which run through this area. We do not know at this time whether those sources of supply would be adequate or appropriate. We think that should be considered too.
Earl Warren: Mr. Solicitor General.
J. Lee Rankin: Mr. Chief Justice, may it please the Court. United States of America has a great interest in this controversy. It has an interest by reason of the navigational facilities in the Great Lakes and the Saint Lawrence Seaway. It has an interest because of the hydroelectric projects that had been developed in the Saint Lawrence Seaway and the effect of any diversion of water on that hydroelectric development. It also has an interest because of the factor of pollution. The Federal Government through the Department of Health, Education and Welfare has a great interest in that regard. It has an interest because of these States and the fact that this matter has become a source of controversy and irritation between them and the United States thinks that it is an interest of the country that these great States having a common interest in this great resource should have this problem resolved and should be working on their common interest and problems and not be involved in this area of dispute which is making trouble between them. It also has a great interest in the matter because of the international situation and the fact that our great neighbor on the north has a common interest with this -- in this great resource, our common activities in the Saint Lawrence Seaway, and the whole navigational problem, the use of the water for the cities and communities on it. We have carefully examined Original 15 and we believe that this Court has jurisdiction that the complaint should be allowed to be filed, that the case should be considered along with two, three and four together so that the whole problem could be properly resolved. But there is no question of what this Court has the power to enter a declaratory judgment as in the original action. And we think the decisions we have cited in our brief well support that. The basic problem in this case involves the rights of the riparian. We think there is no question to what the State of Illinois properly represents these communities as water users within the State in this litigation and that any decree this Court would enter would bind the State of Illinois. And if they want to divert water from the Lake of Michigan, and this Court would say they would have to return the effluent to that lake as a condition. The State of Illinois would have to abide by that condition and every water user within the State that was -- and that the State was acting on behalf of and it would bind it. And these, the decisions of this Court make that very clear. In fact this Court has acted in the past to say that water users themselves were not proper parties in the litigation of this character. And that the States as quasi sovereigns would properly before in trying to resolve the interest of their water users. The problem we have is the question of the diversion of water out of the watershed by riparian interest. And the basic theory of riparian water has always been if you take water out and you put it back less the consumptive use. And therefore the common interest in the use of that pool of water is injured only to the extent of the actual consumptive use and no more. Now this problem presents the question of diverting it out of the watershed and not returning it. This Court has approved that type of action in two different matters involving riparian waters or waters where the riparian doctrines were recognized by the laws of the States that were involved. One was the case of the City of Boston where it was clearly taken out of the watershed, several rivers, and devoted to the use of the City of Boston because of its needs. The other one was the City of New York, New Jersey against New York, where a similar provision was made. And we think that the decisions of this Court have made it very clear that the principle equitable apportionment governs in these conflicts or disputes between States involving matters of this kind. The Court throughout the -- its history in the consideration of the litigation between States has said that it is not going to be bound by special rules of law that it is just going to devote itself to resolving those problems by the law of what is fair, just, and equitable between these great sovereigns that make up these United States. And that is the consideration that we think the Court must turn to in resolving this particular question. If the needs are found upon proper trial to be such that this community for its life has to have this water, and it can be fairly and just to be done under equitable principles, then we think this Court has the power to say that it can be diverted even out of the watershed and it will not return to the lake. That is a problem that will have to be resolved in the case upon a hearing, but it's not involved in our opinion in this question of whether the complaint is properly filed or should be allowed to be filed at this time. Now, I don't want to argue 2, 3 and 4 before you, but I think I need to touch upon it briefly in order to show you how it's related. The Court -- the Court, Members of Court have asked questions about whether or not this problem could be solved by allowing Chicago to furnish the water. The United States does not think that solves the problem because this is out of the watershed and there isn't as we read the decree of this Court in Wisconsin against Illinois, there is not anything involving the supplying of water as domestic pumpage to cities or communities outside of the watershed to be -- and diverted for that purpose. So that it appears to us that the decree in those cases contemplates domestic pumpage entirely as water that would be used within the watershed. Now, it does provide for diversion of the water after use outside of the watershed. And that's why I think I need to deal very briefly with the -- what the Court decided in the earlier decree in Wisconsin against Illinois. The Court will recall there were two different decisions. One was by Chief Justice Taft and the later one by Justice Holmes. And the basic principle that was involved was that the City of Chicago over a term of years had been engaged in withdrawing or diverting large amounts of water from Lake Michigan down through the complex of the Chicago Ship Canal and Des Planes River into the Illinois River. And it was a question of what authority legally there could be for such a diversion. On the first opinion the Court recognized that the diversion was basically made because Chicago did not have a proper sewage system. And instead of providing such as system it just proceeded to dump all its sewage right down this Chicago Ship Canal and leave it as a problem. And it got so bad that something had to be used to flash it out. And so they wanted to use the water from the lake in very large quantities as much as 8500 cubic feet per second to flash out this canal that was serving as a sewage disposal for the City of Chicago. The Court appointed the Master and the Master reported that Chicago must have some kind of adequate sewage disposal system but there is no properly legal grounds for using this water in that manner. And that the only real basis would be for the purposes of navigation. Then the matter was considered later and the final decree was entered. And you recall that first provided for a use of 6500 cubic feet per second. And in 1935 that was to be reduced to 5000 cubic feet per second and then it was later to be reduced to 1500 cubic feet per second. And that is what is being -- is allowed now under the decree and there were these certain reports. Now, the Court didn't find that there was any legal grounds under water law for the use of that amount of water for this sanitary condition. And they didn't find that it was necessary to have all of that water for purposes of navigation. But the Court did find that under equitable principles the conditions were so bad in this situation, had grown so bad, that something had to be done about it and that Court under equity did not have to injure or destroy this community but could provide for the correction of the situation as rapidly as it could be achieved under any reasonable prospects. So that was the scheme that was provided. And it was -- as we see it, not contemplated, that the City of Chicago would have the right to use as domestic pumpage of more than what was described in the decree as the water that it would pump through its mains, and within -- probably for the communities that Chicago then had and its reasonable developments as a part of Chicago.
William J. Brennan, Jr.: Well, Mr. Solicitor what about the sales? We understand they're now making to these other municipalities intervening to this complex in Chicago?
J. Lee Rankin: I can't say from that decree whether the Court ever contemplated that that kind of sales would be made. The Court carefully described in paragraph 3 of the decree that it would be such water as was pumped through the mains of the City of Chicago. And I think in order to interpret that properly you have to back to the situation at that time and see what was being done in the Chicago area in handling the water. And I think that could be established in -- by proper proof. But I don't see any sign that anybody contemplated at that time that the water would be used outside of the watershed of the Lake Michigan as far as the use was concern. Now, it was that -- it was contemplated to be diverted by -- after it passed through the sanitary system and then go down the Illinois River.
William J. Brennan, Jr.: Do we know whether any of these communities now getting water from Chicago are outside the watershed?
J. Lee Rankin: I assume that they're not although I don't know.
William J. Brennan, Jr.: All right.
J. Lee Rankin: We then get down to the problem after examining those decisions of the Court in 2, 3 and 4 of what was contemplated by the Court. The Court provided the 1500 cubic feet per second for this function of taking care of navigation and flashing out whatever is necessary. And then in -- on the top of that, it provided the domestic pumpage that Chicago would require. Well that is a figure of about 1700 and that would be added on to the 1500 cubic feet per second that's specifically provided for. The difficulty that the United States has had in 2, 3 and 4 particularly and we think it has a bearing directly upon 15 here is that we now have in the record, the information that was given us and we have tendered to the Court in our brief in 2, 3 and 4. The statement of the Corps of Engineers that all that is required for navigational purposes in the Illinois River in the canal is 1500 cubic feet per second. So, with the domestic pumpage being over 1700 cubic feet per second, that domestic pumpage itself would take all -- take care of all the navigational requirements of this canal and the Illinois River without water. Now, the claims made that because of the pollution that's involved, because Chicago was not able to produce more than 95% purity with its treatment of the sewage that there is still a need for this additional water to produce -- to provide additional oxygen so that they can handle and take care of the needs of this canal and Illinois River because if the stream is -- if that is too greatly polluted, it can't be used properly for navigation. Now, the difficulty we have with that is that in the decisions of the Court both the first and second, it seems very clear to us that the Court contemplated that there would be a complete treatment of sewage by Chicago. That the Court provided a detailed plan for the sewage treatment and that plan contemplated that they would use this facility to treat all of the sewage. Now, it was never -- I want to make it clear, it was never contemplated that the treatment would be perfect that it would be 100%. It was contemplated that that treatment would be satisfactory to extent of 85% to 95% and they have come within that range. In fact there is good showing that was made to me that they might really obtain the 95% they had recently because of some changes in their plant and additions and improvements that made it less satisfactory at the moment. But there's a good prospect they might obtain 95%. But there is also clear indication that there is a substantial portion as much as 3% annually of the sewage that they don't try to create at all. They just open the gates and let it run down the river in the canal. And consequently they have a condition of pollution by reason of that that would not occur at all if they would treat the sewage. Now, it isn't a simple problem and that's why we suggest that it would be in the interest of these cases and the handling of this whole matter in this proper disposition to have a special master. Because they say if we treat all the sewage and just -- don't just open up the gates when the flood times and let run down the canal, so we have all these raw sewage and pollution there, then we've got to have sewage plants that will be so large to take care of the flood waters that is entirely impractical. On the other side, there is the contention that that isn't necessary that there are all kinds of reservoirs and receptacles that can be developed under proper methods of engineering known to sanitary engineers at this time whereby you hold this material, the sewage in these reservoirs and properly taken care of until you can process and through your sewage plants. And then you don't throw all these raw sewage in and just ask these other bordering lake states to furnish the water to take care of it. Now, the basic problem it seems to me deals in the area of equity and fairness between these states board -- bordering found the Great Lakes. And that is if the city -- first, we have to start that the legitimate needs of the City of Chicago, one of the great cities of this country must be taken care of. And I think there is no difficulty between the States in agreeing to that proposition. But secondly that what ours of legitimate means? Can it call upon the other states to accept or take upon themselves burdens that within reasonable limits are not necessary. And I think that's the second part that has to be worked out and it would be best worked out by a special master in examination of the whole problem. Because if --
Hugo L. Black: I don't quite get what you mean by any burden on other States.
J. Lee Rankin: Well, if there is -- and a withdrawal of waters that reduces the amount of navigation that can be conducted in the Great Lakes and the St. Lawrence seaway which would not be necessary if they would properly treat this sewage or if they would avoid, if they would furnish the facilities to see that this raw sewage was not thrown into this canal. And therefore, they would not all the water they say they now in need to go in to canal because of the impurities they put in it themselves unnecessarily. The burden is placed upon these other states. If Chicago and Illinois take from -- divert from Lake Michigan water that is not really needed because to the extent of at least it's conceded at least five-eighths of an inch for each thousand cubic second feet of water that is diverted unnecessarily. There is a direct bearing upon the amount of navigation traffic that can be handled in the Great Lakes and therefore each of the States as well as the United States generally loses by that effect upon navigation.
Hugo L. Black: Another thing, the word loses, I didn't quite get the burden. I thought you meant there was some burden on that to have Illinois lose that.
J. Lee Rankin: No, no. I didn't mean in that sense. I meant that in the interest of trying to weigh the equities of what's fair in this situation it is unfair or inequitable to have Illinois ask to have more water than it needs to solve its situation. And that is the position --
Hugo L. Black: Do I understand -- I don't quite understand your basic premise.
J. Lee Rankin: Yes.
Hugo L. Black: Suppose it be true that there is some need of water at this time --
J. Lee Rankin: Yes.
Hugo L. Black: -- that is proven beyond any shadow of doubt that they need it, and they could get it from this lake. Is it your position, they have a right as a matter of law to get that water merely because they need it? Without taking into consideration the effect, the withdrawal of that water might have in the long run on a growing country, with an ever increasing population? And then the likelihood, if that what's -- it might destroy not merely a great source of navigation where people could make money, or a great source of recreation and use here, something that the country needs.
J. Lee Rankin: No Mr. --
Hugo L. Black: I don't quite get why it would be enough for them to show that a particular community needs something at a particular moment.
J. Lee Rankin: Oh, Mr. --
Hugo L. Black: That's true in the west were they have droughts.
J. Lee Rankin: Mr. Justice Black, I would not at all say that that was the principle involved. I think the need is a factor that this Court will have to consider. But they have no legal right that's why the equitable apportionment comes in to the question.
Hugo L. Black: Suppose they needed enough to where they -- to be shown within the next five years they needed enough water below that lake two inches and that that would seriously affect navigation and I believe it that a State where it seems to have the -- if I'm not be as pure as it is and so forth. Suppose they could show that, does that mean that they could on some basis of apportionment among the States around and get the water to the extent where they destroyed the great national value and the part of the international value that it have as a -- as a lake.
J. Lee Rankin: No, not at all. This Court would have to weigh that need and what it would involved as far as the rest of the lakes and the United States and Canada as well in accordance with our treaty obligations were involved and decide whether that need weighed against that and I think the Court would conclude in the case the due but of course that if need couldn't justify that injury to the rest of the country.
Hugo L. Black: How can it be done without having a long range of view of the situation as it is now as distinguished from a situation which existed when the original decree was rendered with the knowledge that not merely Chicago and other areas there increasing in population and necessity for water, both for industry and domestic purposes but all over the nation. How can it be decided? I'm a little frightened about that -- of a problem that arises, the purpose important as it is to these communities, how can it possibly be treated in isolation?
J. Lee Rankin: Well, the United States does not think it can be treated in isolation. We think that the whole problem -- the value of this great resource is too great for the entire United States as well as all of these lake states and these great cities to treat it in isolation. And that the whole matter should be carefully examined with the idea of providing legitimate needs where they can be but seeing that the country's interests are fully protected in doing so. And we think that by treating the cases together and having a Special Master that will examine this whole situation --
William J. Brennan, Jr.: When you say treating them, the government, the system, you mean treat them as if they were just one case and not independent?
J. Lee Rankin: Yes. And having a Special Master that will examine the whole situation and bring in to the Court an up-to-date presentation of a factual situation and the various equities and considerations that should be properly taken into account that this matter could then be determined by the Court in such a way as to protect all of the interest involved and resolve this sore that is being -- is making trouble for these great states.
Earl Warren: You do not think General then that this -- this particular issue in this case could be handled in a -- in a short -- very short period of time to think that that would have to await the larger problem.
J. Lee Rankin: Mr. Chief Justice, I think it would be unfair to the Court and the country try to resolve it too quickly because I'm fearful that the whole history of this litigation has shown a tendency, well, we're in such a bad situation because of what's developed that we've got to do something and everybody is prejudiced by the situation that has occurred and I don't think that's the best way to resolve a matter of this seriousness to our country.
Earl Warren: Mr. Solicitor --
Felix Frankfurter: (Voice Overlap) --
Earl Warren: Finish your question.
Felix Frankfurter: Go on.
Earl Warren: No.
Felix Frankfurter: No, no.
Earl Warren: I was going -- I'm just going to ask you one thing about -- about Canada in this position. I suppose, if we were to authorize the taking of water for this purpose, it would be very difficult for us to complain that Canada might do the -- might be doing the same thing, wouldn't it?
J. Lee Rankin: Well, Canada has made a protest at some length. We didn't think it was proper to develop it here because we didn't think that was the merits.
Earl Warren: Yes.
J. Lee Rankin: But we would develop that for the Court in any case on the merits.
Earl Warren: Yes.
J. Lee Rankin: It has claimed that because of two things, the Boundary of Waters Treaty and the Niagara Agreement, there is no right to divert any additional water from the Great Lakes system without the common action under those agreements. There are questions as to whether they are entitled to what was brought a claim that they've made and we'd have to present those properly to the Court and the position of our country in regard to it. But it is taking the position now and it was not done in regard to this litigation, I want to make it clear, but in regard to the legislation, that inquiry was made about yesterday, that any diversion was not permitted in light of those treaties. Now, we would -- we think that on the hearing on the merits, we should develop that whole problem fully to the Court and what the legal rights are regarding. But certainly, we have to measure whatever we have agreed to with Canada, what their rights properly are under those agreements against whatever we want to do as a nation.
Earl Warren: May I ask just one more question if I may. If -- if the situation were to evolve so that this district would take this water for this purpose and then return the effluent, do you think that that would -- it would be unwise to proceed on the theory of that kind as being destructive of the other interest that are involved?
J. Lee Rankin: Well, I don't believe that the States would have any objections if that was done. The United States thinks there's a -- the problem isn't quite that simple. We would still feel that the Court would have to decide whether the equities justified the Court in allowing that to be done taking it outside of the watershed even though it was moved back because under ordinary principles, that is isn't allowed even to -- even though they do return it to take it outside of the watershed.
William O. Douglas: You -- you have all the watershed -- you have ultimately a question of pollution I suppose even with the -- with effluent because it's a --
J. Lee Rankin: If you had enough of it, of course --
William O. Douglas: (Voice Overlap) --
J. Lee Rankin: -- the proof is pretty clear in the inquiry that I had that Milwaukee -- everybody is pretty busy putting effluent back. Now how much the pollution is, I would like to see properly developed before a Master.
Felix Frankfurter: Mr. Solicitor, on the -- since you've opened the light of each of this problem as -- I'd like to ask would it make some questions dealing with the (Inaudible)
J. Lee Rankin: Yes.
Felix Frankfurter: This problem and all its complexity and it's evolutionary weakness, is almost half century old --
J. Lee Rankin: Yes.
Felix Frankfurter: -- but it certainly began before the government, from my knowledge in 1912.
J. Lee Rankin: I think it goes back 1900 Your Honor there.
Felix Frankfurter: 1912 (Inaudible)
J. Lee Rankin: Yes.
Felix Frankfurter: -- when it came very active. That's giving about half a century. This Court on more than one occasion rather -- in rather implicit terms indicated that while of course access may be had and must be responded to by this Court under it's original jurisdiction this is not the best way to deal with this problem. It has indicated the desirability of having a standing body of -- standing agency which will reflect the changing need and also the changing and growing and different methods of responding to this means. A minute ago, you referred to the interest of Canada in a protest. Thanks to my Brother Douglas, I have read the full text of that note of April 9th. The very stiff note joined in as the debate showed by all the leaders of the various parties in Canada. But, I want to know is this, with this long preempt. What steps if any have been taken through the urging or the nagging or the stimulation of the Government of having such a standing body established among the States, between the States including also the presence of Canada whether if these -- these things will be brought out in their entirety instead of the almost necessary, limited, and sometimes mutilated way in which a litigation decide a conference controversy.
J. Lee Rankin: Well, as the -- Mr. Justice Frankfurter, as the briefs of the States indicate here, they have a compact involving the States of the Great Lakes Basin and they are able to resolve many questions.
Felix Frankfurter: Is there a standing, administrative mechanism under that contract?
J. Lee Rankin: Yes.
Felix Frankfurter: And is that operating the way the Canadian-American Joint Commission has been operating?
J. Lee Rankin: Well, it's different but when they get involved in the controversy that properly involves the Boundary Commission, it's been the practice to submit that and there are certain areas that the Boundary Commission does not have any jurisdiction or try to act in. But I think they have -- been able to handle things generally in that area. But here, they need badly to have some facts developed and also some law developed as to what their rights are because they are --
Felix Frankfurter: I'm just wondering whether the development of the fact wouldn't come more appropriately or more effectively with inner -- or oversight by such a joint body than by this appeal to litigation.
J. Lee Rankin: Well, I thought --
Felix Frankfurter: Of course, if it breaks down, it breaks down (Inaudible) a litigation, the pathology of social relations and where the Court is.
J. Lee Rankin: I thought maybe I had the illusion that maybe I could help with that function and did try to do some work on it and had several days that I'd put in and the States were very helpful in answering questions and cooperative, each one furnishing information. But when I got down to some further information that seem necessary, it seemed and I suggest to that -- maybe the States could work this out by them -- between themselves. It seemed that it was impossible to get it done on that basis and there's a feeling I think on the part of the Illinois that they're entitled as a matter of right to do this and that they don't have to furnish such information or that a State --
Felix Frankfurter: Does -- does Canada sit in on this compact --
J. Lee Rankin: No.
Felix Frankfurter: -- arrangements?
J. Lee Rankin: Not on that part. And I would question whether they would care to --
Felix Frankfurter: (Inaudible)
J. Lee Rankin: -- at that point.
Felix Frankfurter: Well, it's one thing whether they can't, another thing to give them a chance --
J. Lee Rankin: Yes.
Felix Frankfurter: -- otherwise, you wouldn't get to rather shop and know that, I mean to take as a discredit, it wasn't at all.
J. Lee Rankin: No.
Felix Frankfurter: But they've been increasingly feeling it as you've indicated it.
J. Lee Rankin: Yes.
Felix Frankfurter: And of course, the thing is you want to be less -- less troublesome in the future, trying to be more troublesome, isn't it?
J. Lee Rankin: That's right.
Felix Frankfurter: You'll be --
J. Lee Rankin: Growth population.
Felix Frankfurter: The growth of population and a new seaway.
J. Lee Rankin: That's right.
Hugo L. Black: Mr. Rankin, I'd like to add one word of what Justice Frankfurter said. I agree fully of that, the idea of it, (Inaudible) the Court has urged the States to get together. Speaking for myself, in any such agreement of that kind, I'd work that out, I would think that the United States should have a representative by reason of the fact that the lake is a national asset certainly in some of its aspects. It could not be properly treated without it when state compacts of course have to go to Congress. But I -- I certainly want to back up what he said as to the great help that can come from having an effort by the States and those who handle it to get together rather than to try to submit it, it's difficulties on the lawsuit.
J. Lee Rankin: I want -- I would like before I leave to make it very clear that the United States agrees with the remarks of Mr. Justice Black about the fact that nobody could dry up these lakes or even injure them without us being there to fight about it and insist that the lakes are a great resource not only of these area but of the United States.
Earl Warren: Mr. Wines.
William C. Wines: Mr. Chief Justice, may it please the Court. In brief reply to the arguments on behalf of the other states and the observations of the Solicitor General, may I return the Court's mind to the imperious exigency that is confronting these communities comprising some 90,000 inhabitants or more. Your Honors, they are on the verge of extinction unless water is worth coming from Lake Michigan. Our brief and the materials submitted to the Court do demonstrate notwithstanding deprecation of those brief by opposing counsel that there is no source of water except Lake Michigan for these communities. Now, in the 1930 decree, if Your Honors please, this Court recognized the right of Illinois to take water for domestic pumpage without any odd measurement by the terms of that decree in cubic feet per second or gallons per second. Chicago sanitary district in the means Illinois permitted to take the water to this necessary to sustain the life of her inhabitants and sustain the necessities of drinking, bathing, and industrial use. The authority cited in our brief all testified to the fact that the use of water for domestic consumption is paramount, is primary that other uses such as contemplated uses for power even for navigation have to await the use for drinking daily, living itself. There has been discussion as to whether any problems would arise for this Court's justification if Elmhurst Villa Park and Lombard would purchase water from Chicago. We say with all the earnestness at our command that legally, the situation is precisely the same whether the water is taken directly by these municipalities or whether it's obtained through the intermediacy of the City of Chicago. A gallon of water taken from Lake Michigan is a gallon of water taken from Lake Michigan whether it flows through Chicago's conduits or aqueducts built by some other instrumentality of the State of Illinois. I'm not too clear and I certainly don't want to misrepresent the arguments of counsel for the other states but I didn't hear a serious challenge to the issue of need. They do say they don't know. No effort apparently has been made to ascertain the point in those sources of water rather than Lake Michigan and we assure the Court that they're right on such source. I'm every anxious to impress on the Court this vital consideration. Your Honors, we need that water and we need it in the very immediate future. The suggestion has been made that a master be appointed. Mr. Solicitor General Rankin suggested in his briefs in Numbers 2, 3 and 4 that such a supervisory functionary ought to be installed. He does not say like he says that the complainant states in that case have not made any cause for relief and that there is no occasion to grant the relief at this time. He suggests that a Master be appointed that have supervisory functions for reasons that we have submitted in our brief in response to that suggestion. We don't think that there is any occasion for the appointment of a Master but be that as it may with respect to these three communities, there isn't -- the amount of water that we seek to take is imperceptively small. It can't affect tonnage by a fraction of an ounce nothing that can be measured. Now, practically however, there is a great difference between buying water from Chicago and obtaining it in the manner that is contemplated by these communities. And one has only to have a general knowledge of Chicago and its environs to realize that for water to be taken through Chicago we'd have to tear up some of the most miles and miles and miles of the most highly developed, valuable real estate in the world. The -- the consideration is impaired impractical whereas the solution that we propose is immanently feasible. Much has been said about who is a riparian proprietor but there has been some suggestion that the periphery of the concept of the riparian interest depends on the contours of the watershed. Well most of Chicago lies outside the Great Lakes watershed. In some places, that -- that watershed is only a mile in width. It's our submission, if Your Honors please, that the need here is urgent. The amount to be taken is small. We needn't fear these vague threats of vast depredations on the lake front. There -- I won't say there'll never be another municipality that may need a little but there is -- there is no -- there are no municipalities that are going to take any -- any huge amounts from the lake and not put it back. The economics of the region wouldn't support it. What we're asking for is this. We've been stopped from raising the revenues needed to build this vitally necessary plant by intimations from our sister states that if we sell those bonds, trouble will be made for someone. We have no place to come but this Court for recourse. And we are asking leave to fail this application and that its merits be considered as promptly as possible. I am implying --
Speaker: Can I ask you a question before you sit down?
William C. Wines: Please Your Honor.
Speaker: What's the position of Illinois as you've been stated or are these communities on the return of the effluent?
William C. Wines: We say that it is not feasible, not practical, will do no good or be of no -- no particular help, the amount involved is that -- it can't be measured and the expenses enormous and that is our position. However, we are most insistent on our right to take the water and use it. We don't think that we have to return it. Some of the suggestions here is that we don't even have a right to take it because we're not riparian. That, Your Honors means, that these communities have to wither and perish. And we can't believe that anything in the jurisprudence that should govern sovereign states in their relation requires any such result of that. Thank you Your Honor.