Hugo L. Black: Before proceeding, the Court exceeded to the request of the parties granting the time which they asked arguing in this case because of its very great importance and the numerous issues involved. The Court, however, is unanimous of the opinion. The time allotted is not compulsory. No one, no member of those attorneys, we decide, needs be there. That will be held against him if he filed. We can discuss his fees in a shorter period in that which has been allotted.
Stanley Mosk: I shall bear that in mind, Mr. Justice Black. If I may, for just a moment until this diagram is placed for your viewing. May it please the Court. The State of California and seven public agencies of California are before this Court as defendants in a suit Arizona commenced nearly 10 years ago over rights to use waters of the Colorado River System. We're defending the fourth suit Arizona has brought in this Court against California. In terms of its consequences, this is the most important suit in which California has ever engaged. Whatever the Court's decision, the outcome will deeply affect all of the states in the South Western part of the United States. More waters at issue, many times over, that in all of the previous interstate suits which this Court has heard involving Western Interstate Water Rights. Arizona initiated this suit in order to obtain an adjudicated right to water for the proposed Central Arizona Project, a reclamation project which could convey water from the main Colorado River to irrigate lands in the Phoenix area. In Arizona's statement, accompanying her motion for leave to file a bill of complaint, Arizona alleged the contending parties assert conflicting claims to the right to use certain quantities of Colorado River System water. These claims are mutually exclusive. As to each quantity of water involved, a recognition of the Arizona claim requires a denial of the California claim, and vice versa. Now, Arizona's statement is undeniably accurate in that respect. This litigation, in terms of its results, is a contest which will decide, if it decides anything at all, whether the water now being used by existing projects in California is to be taken away from those projects for new projects in Arizona and Nevada. Now, if I may, let me briefly describe the three California projects, the rights of which are at issue here. This map behind me and in front of you will illustrate the location of these projects. First, the Palo Verde Irrigation District. The Palo Verde Irrigation District is located on the Colorado River about 212 miles below Hoover Dam. It is California's oldest project with water rights initiated back in 1877. Second, the All-American Canal Project. That canal serves the defendants, Imperial Irrigation District and Coachella Valley County Water District, and also that portion of the Yuma Project which is in California but which is not a defendant in this proceeding. These areas are located, as you can see from that diagram, in the south east and central part of California immediately north of the international boundary with Mexico. The All-American Canal replaced a diversion canal to the Imperial Valley which began service back in 1901 and it takes its name from the fact that it replaced a diversion route which left the river in the United States and crossed Mexican territory on its way to Imperial Valley. And, third, the Metropolitan Water District of Southern California. Metropolitan built and maintains the Colorado River Aqueduct which diverts water form the Colorado River at Parker Dam, transports that water 242 miles over and through the mountain range which separates the great cities on the coast from the Colorado River. Metropolitan's Colorado River Aqueduct supplies the defendant City of Los Angeles, the defendant City of San Diego and nearly 90 other cities which are not named as defendants by Arizona.
William O. Douglas: Is that all taken from the Colorado?
Stanley Mosk: Yes, all from the Colorado, and it's transported this 242 miles through the Aqueduct.
William J. Brennan, Jr.: But that's not the only source, is it, of water for those?
Stanley Mosk: Well, that's the only source of water for the Colorado River Aqueduct which is -- which supplies the Metropolitan Water District of Southern California.
William O. Douglas: What percentage of California's use of the Colorado River water takes that water into a different drainage basin? The Colorado River Aqueduct apparently does because the water that would -- was used, would be left over, would not flow back into the Colorado, would it?
Stanley Mosk: No.
William O. Douglas: What percentage of the -- roughly, is there any table or --
Stanley Mosk: I'm going right back, Mr. Douglas.
William O. Douglas: Don't stop to ask me now -- answer now, Mr. Attorney General, but I'd be interested to know --
Stanley Mosk: Yes, we will --
William O. Douglas: What that figure would be.
Stanley Mosk: We'll have that figure for you, Mr. Justice Douglas. The cost of this entire project of the Colorado River Aqueduct was over a half a billion dollars and, I might add, these were depression-sized dollars. This Colorado River Aqueduct was initiated almost 40 years ago. It's been in service now for over 20 years, yet, even with that initiation 20 years ago, it's still California's newest Colorado River Project. Under the law of California which, in this respect, is identical to the law of prior appropriation of the other Western States. Metropolitan's rights are due here to the rights of California's two great agricultural projects which were earlier initiated. Hence, Metropolitan would feel the brunt of the Master's decision. The demonstrable effect of that decision is to wipe out Metropolitan's entire Colorado River supply whenever the limitation imposed on the Lower Basin by the Colorado River Compact is enforced. Under the Master's recommended decree, there is not water at all for this great project unless there is available to the Lower Basin very substantially more than the 8.5 million acre-feet of water per year which the Colorado River Compact specifies for use in the Lower Basin. Quite naturally --
Potter Stewart: I don't--
Stanley Mosk: -- this con --
Potter Stewart: I don't quite understand that. Do you mean to say that the agricultural users in California would use up all of the California's quota?
Stanley Mosk: Yes, that is correct. They have priority.
Potter Stewart: How many million acre-feet?
Stanley Mosk: These two projects have priority. Well, --
Potter Stewart: We understand they have priorities, but how many acre -- million acre-feet would they use in the --
Stanley Mosk: Well, it is -- under the Master's recommendation, as we see it --
Potter Stewart: Yes.
Stanley Mosk: California gets 45 -- 44/75 of the first seven-and-a half million acre-feet available not from the stream and the tributaries --
Potter Stewart: From the stream itself.
Stanley Mosk: But from the congregated mainstream alone.
Potter Stewart: Yes.
Stanley Mosk: From Lake Mead down to the Mexican boundary.
Potter Stewart: Yes.
Stanley Mosk: Now, this means 44/75 times 6 million or about 3.5 million acre-feet. 3.8 --
Potter Stewart: Where do you get that -- where do you get the 6 million?
Stanley Mosk: Well, 6 million is in the lower stream, 2 million in the tribute -- tributaries according to our evidence.
Potter Stewart: But, these are not findings to the Master?
Stanley Mosk: No, they are not but that leaves 3.5 million acre-feet according to our calculations. 3.85 is used by the prior users before Metropolitan gets a single drop of water.
Potter Stewart: 3.85 million acre-feet per anum.
Stanley Mosk: That's correct.
Potter Stewart: By the California agricultural users.
Stanley Mosk: That is correct. That leaves nothing whatever for Metropolitan --
Potter Stewart: I understand --
Stanley Mosk: -- under this --
Potter Stewart: I understand your --
Stanley Mosk: Under this evidence. Now quite naturally, this consequence is rather frightening to the seven million Californians who depend on Colorado River water. Between 1950 and 1960, the population in the Southern California area served by Colorado River water, just the increase alone in that one decade, was nearly 3,200,000 persons. That increase alone is double the entire population of Arizona and Nevada combined in 1960.
William O. Douglas: Has there been a comparable increase in Arizona?
Stanley Mosk: Percentage-wise, yes but, numerically, no.
William O. Douglas: Yes.
Stanley Mosk: The Special Master accurately reports that, at the date of the trial, California's projects were using about 4.6 million acre-feet of water. Now, that was the 1956-1957 figure to which evidence relate. 1960, we used about 5.1 million acre-feet. Now, on California's contentions, there's only about 4.6 million acre-feet of water permanently available to California. We are temporarily able to use more than that, a half million more acre-feet, only because the Upper Basin has not yet put to use its Colorado River water apportion. Now, of course, we cannot ask this Court to reverse the laws of nature nor do we ask this Court to relieve us of the responsibility or the consequences of either of the two agreements which California entered into on March 2, 1929, the Colorado River Compact or the California Limitation Act. We do earnestly ask this Court not to rewrite the law of the river to impose on California a drought more severe than that which nature could accomplish.
Felix Frankfurter: May I ask whether -- what do you use now, 5.1, is it?
Stanley Mosk: Yes.
Felix Frankfurter: And that's in necessity from your point of view?
Stanley Mosk: Yes, it is.
Felix Frankfurter: May I ask you how you will supply the deficit if the Upper Basin uses its appropriate share?
Stanley Mosk: We've -- this would dry up our source. It would dry up the Metropolitan Water District almost immediately if the Upper Basin states use the amount they're entitled to under the Colorado River Compact.
Felix Frankfurter: You mean, in -- what would happen to the people?
Stanley Mosk: The people would go with -- do without water, I'm afraid --
Felix Frankfurter: If the law intend --
Stanley Mosk: Until such time as we could find an alternative source.
Felix Frankfurter: Pardon me?
Stanley Mosk: Where they would have to do without water until such time as we could find an alternative source.
Felix Frankfurter: I can't imagine that enterprises in California would let them go without water.
Stanley Mosk: We believe, Mr. Justice Frankfurter, that's the result of the Master's recommendation to this Court.
Felix Frankfurter: No, but apart from the Master's repu -- report or conclusions, you have a deficit just in the Upper Basin if they use they're appropriate share.
Stanley Mosk: Yes, we do.
Felix Frankfurter: And you almost have thrown up your hands in answer to my question what you're going to do for them.
Stanley Mosk: Yes, we have no -- we have no ready answer for this deficit that will exist and if -- the deficit is certain to exist if the Master's report is adopted. The issue, as we see it in this case, is not whether California will have water for a new project from the Colorado River. We don't seek any new project. The issue was not whether any existing project in Arizona or Nevada will be required to give up water that it is now using, nor even to forego its planned development. We concede to Arizona and to Nevada the full quantity of water required for the full development of all of their existing projects. We don't oppose any future project in the Lower Basin if its rights are recognized as being junior to the rights of existing projects. No water, not even water temporarily available, should be permitted to waste to the sea. The ultimate issue, in terms of the impact upon people and their way of life, is whether an existing California project, probably the greatest municipal water supply project in the world, must be wholly destroyed to permit the building of a new reclamation project for the central Arizona area.
Potter Stewart: Now, the Metropolitan Water District gets water from sources other than the Colorado River, does it not?
Stanley Mosk: Yes, some.
Potter Stewart: Underground water?
Stanley Mosk: No, not at all -- excuse me. Not at all, Mr. Ely reminds me.
Potter Stewart: None?
Stanley Mosk: That is correct.
Potter Stewart: I understood --
Stanley Mosk: Solely dependent upon the Colorado River Aqueduct.
Potter Stewart: Well, is this also true of -- well, let's say water users in Los Angeles and San Diego, they use -- the only water there is Colorado River water, is that correct?
Stanley Mosk: No, they get water from the Sierras as well, but Metropolitan project --
Potter Stewart: But it's not supplied through the Water District, is that it?
Stanley Mosk: Sir?
Potter Stewart: But the Sierra water is not to supplied through the Metropolitan Water District, is that it?
Stanley Mosk: That is correct. Metropolitan is solely dependent upon Colorado River water.
Potter Stewart: But the -- but then, so I fully understand it, Los Angeles and San Diego get water then from sources other than the Metropolitan Water District, is that right?
Stanley Mosk: Only Los Angeles, not San Diego.
Potter Stewart: I understand.
Stanley Mosk: San Diego is wholly dependent upon Metropolitan. Destruction of Metropolitan's water supply results, as the Master has said with rather commendable frankness, we think, not from resolving Arizona and California's historic controversy in Arizona's favor. The historic controversy between Arizona and California has been over the Colorado River Compact. The Master would resolve that conflict in every material particular to save one in accordance with California's contentions, but that single particular is his conclusion that the Colorado River Compact is irrelevant.
William J. Brennan, Jr.: Mr. Attorney General, just -- do I understand -- isn't there some state project in effect in Northern California for turning rivers around for --
Stanley Mosk: That --
William J. Brennan, Jr.: -- the water to Southern California?
Stanley Mosk: That was excluded from evidence and we think properly so in this case, Mr. Justice Brennan.
William J. Brennan, Jr.: But -- well, just a matter of curiosity, is that to supply water to the area served by the Metropolitan Water District in substitution?
Stanley Mosk: It will not be in substitution for the Metropolitan Water District Project. This will be to provide for the expanding population of California, but I stress the fact that this was properly, we think, excluded from evidence by the Master. The Master's conclusion in this instance that the Colorado River Compact is irrelevant is contrary to the pleaded contentions of Arizona and of California in this suit and in the three suits which preceded this one. Such a conclusion was never suggested in any form in which this controversy was mooted until after the close of the trial in the present suit. Water supply in which 7 million people depend should not be destroyed on the basis of an issue discovered for the first time decades after the project had been constructed. Now, of course, this Court is well aware of the fact that the Master denies that the decree recommended will have the disastrous effect that aren't tested. He says, at page 115 of his report, "Existing California users are in no danger of curtailment unless and until many vast new projects, some of which are not even contemplated at this time, are approved by Congress and constructed." His optimism is repeated in the briefs of the other parties. If the Master is right, this suit is premature and unnecessary but the ultimate issue in terms of legal consequences is this. Who should bear the risk that the Master's optimism is ill-founded? Throughout the West, under the law of prior appropriation, the risk of water supply is on the newest project. The sponsors of a new project can best calculate the risk. They alone can decide whether to undertake that risk. We have sought priority only to the extent of 4.4 million acre-feet per annum and only insofar as the dates of initiation of our projects make them senior to later initiated projects in other states.
Felix Frankfurter: Would all the potential projects of Arizona require congressional approval or executive approval?
Stanley Mosk: Yes, they would.
Felix Frankfurter: So that the contingency which you fear is dependent upon congressional action.
Stanley Mosk: Yes, that is correct. The risk we are unwilling to assume is one that -- is one that places the entire supply of the Metropolitan Water District of Southern California at the hazard of certain destruction if the Colorado River Compact is ever enforced against the Lower Basin. That's a risk, we believe, that should be born, if it all, by a new project and not prior project on which seven million people have come to depend. Now, if it please the Court, I will present Mr. Northcutt Ely. He's the Special Assistant Attorney General of California. He will argue on behalf of all of the California defendants.
Hugo L. Black: Mr. Ely.
Northcutt Ely: Mr. Justice Black and may it please the Court.
William O. Douglas: That -- before you start, just to get my own thinking straight. I noticed on page 347 of the Master's report, if sufficient mid -- mainstream water is available to satisfy seven-and-a half million acre-feet, then that is divided in a certain way, is this -- is that the -- the point of the division, is that the main controversy between you and Arizona?
Northcutt Ely: There are two main points of controversy arising out of the Master's report, Mr. Justice Douglas. That is a one often them, what we call the limitation issue. That is
William O. Douglas: Yes.
Northcutt Ely: -- the quantities.
William O. Douglas: Now --
Northcutt Ely: The second is a question of priorities of Judge (Inaudible).
William O. Douglas: Yes. Now, on page 21 of your brief, in the first full paragraph --
Northcutt Ely: Which of our brief?
William O. Douglas: Your main brief.
Northcutt Ely: The --
William O. Douglas: Your opening brief. You further narrow the issue down apparently to a question of 8 -- 80,000 acre-feet of water, is that right?
Northcutt Ely: No, Your Honor. The 80,000 acre-feet is the quantity of uses in Arizona and the Nevada which would not be safely protected by what we call the safe annual yield of the river. That is their --
William O. Douglas: But the --
Northcutt Ely: -- only risk.
William O. Douglas: This is your proposal, is it?
Northcutt Ely: Yes, if our proposal were adopted, all of the existing Arizona-Nevada Projects would be fully protected out of the safe dependable supply of the Colorado River --
William O. Douglas: Except for 80,000 people.
Northcutt Ely: Except for the 80,000 people, whereas, under our own proposal, if our estimate of the water supply is correct, then we are not in that favored position. We would have available to us out of the dependable supply some-800,000 acre-feet less than the capacity of our constructive projects. We would available 4,600,000. Their capacity is 5,400,000.
William O. Douglas: Now, just to go back to par -- that paragraph on page 347 of the Master's report. But this -- this mean that the difference on this point between you and Arizona would be resolved if the apportionment to California was increased by 80,000 acre-feet?
Northcutt Ely: No, sir, not at all. Not at all, if I may say.
William O. Douglas: It's not as simple as that?
Northcutt Ely: No, sir, not at all. The 80,000 acre-foot figure is the margin which Arizona and Nevada projects would have it at risk. The balance of their uses for their full requirement should be ordered is 1,200,000 acre-feet when fully -- when fully completed. All of that except 80,000 is protected out of what we call the safe annual yield of the dependable supply, no risk at all involved. We concede them in such in, say, full supply. We are not in that happy position. The controversy between Arizona and California rising from the Master's report is of the magnitude of 1,200,000 acre-feet, not 80,000. Your Honor -- Your Honors, there are three issues which I propose to argue arising out of the Master's report. I shall use them for ready identification, namely, the limitation issue, the priority issue, and the water supply or justiciability issue. First, may I explain what I mean by the limitation issue. All three of these, I may say, arise out of these questions of law out of his interpretation of the Boulder Canyon Project Act in its relation to the Colorado River Compact and a third statute, the statute of California called the California Limitation Act. I'll explain this as I go along, but all three of them were proclaimed to be in effect simultaneously on June 25, 1929 by the President of the United States. They use interlocking terms, the same terms, and our basic quarrel with the Master is that he assigns interpretations to the same words in the Colorado River Compact and the California Limitation Act in diametrically opposite directions. This is the limitation issue. May I refer to the map and, to -- along with it, the reprint which you have before you of Section 4 (a) of the Boulder Canyon Project Act, Article III (a) of the Colorado River Compact and Section 5 of the Project Act. Section -- these statutes came to -- into existence in this way. The Colorado River Compact was an agreement among the seven states of the Colorado River Basin shown on the map behind me, Map A, in 1922. All promptly ratified it in 1923, except Arizona for reasons which I'll come to. The Boulder Canyon Project Act was approved by the President on December 21,1928. It authorized the construction of the Hoover Dam and the All-American Canal and they gave consent to the Colorado River Compact but it made the construction of these works, the authority to construct them, conditional upon the President's proclamation that either seven states had ratified the Colorado River Compact or if Arizona refused to -- continue to refuse to do so. Then, upon this proclamation, that six states would ratify it, including California, and that, in addition in that event, California should have enacted a Limitation Act limiting her rights in the Colorado River System. These things were all done. Arizona did not ratify, six states did, including California, California passed a Limitation Act, the proclamation was so issued on June 25, 1929. The specific issue of statutory construction involved, first, on the limitation issue is this. If I may refer to the reprint of Section 4 (a), this is the section that prescribed that the Project Act should become operative only upon the satisfaction of this conditions.
William J. Brennan, Jr.: Excuse me, Mr. Ely, you said we have a reprint copy?
Northcutt Ely: Yes, sir, distributed to the members of the Court.
William J. Brennan, Jr.: This morning?
Northcutt Ely: Yes.
William J. Brennan, Jr.: Excuse me. There it is.
Northcutt Ely: Thank you. This section provides that the Act shall not become effect -- become -- not take effect, these were the opening words, until certain conditions are carried out. The first appears on page 1. Until, one, the States of Arizona, California, and so on ratify the Compact and the President proclaims or two, if the seven states fail to ratify, then until the alternative takes place. The alternative is six-state ratification plus enactment by California of a Limitation Act which, and as to this we have placed that requirement in Italics on the first page, “Until the State of California, by act of its legislature, shall agree irrevocably and unconditionally with the United States and for the benefit of the States of Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming as an expressed covenant and in consideration of the passage of this Act that the aggregate annual consumptive use, diversions less returns to the river of water of and from the Colorado River for use in the State of California, including all uses under contracts made under the provisions of this Act and all water necessary for the supply of any rights which may now exist shall not exceed.” And here we come to the two components of the limitation, "One, 4,400,000 acre-feet of the waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact. The second component, plus not more than one-half of any excess or surplus waters unapportioned by said Compact, such uses always to be subject of the terms of said Compact." Article III (a) of the Colorado River Compact appears on page 4 of this reprint and it says, "There is hereby apportioned from the Colorado River System, in perpetuity to the Upper Basin and to the Lower Basin respectively, the exclusive beneficial consumptive use of 7,500,000 acre-feet of water per annum which shall include all water necessary for the supply of any rights which may now exist." The specific issue with respect to this language arises on page 173 of the Master's -- Special Master's report where he says this, "I have concluded that Congress intended, in limiting California to 4.4 million acre-feet of the waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact, simply to limit California's annual uses of water to 4.4 out of 7.5 million acre-feet.” Congress referred to Article III (a) of the Compact solely as a short-hand way of saying 7,500,000 acre-feet per annum. This inappropriate reference to the Compact has been the cause of seeming inconsistency in the Act and of much confusion in its interpretation. Reflection has led to the conviction that the statutory language does not accurately express the true congressional intention. Thus, I hold that Section 4 (a) of the Project Act and the California Limitation Act refer only to the water stored in Lake Mead and flowing in the mainstream below Hoover Dam despite the fact that Article III (a) of the Compact deals with the Colorado River System which is defined in Article II (a) as including the entire mainstream and the tributaries. The effect of this distinction is shown upon the map A and also in map B. I refer to map A. Here, shown in red is that segment of the main Colorado River which the Master refers to as the "mainstream," a word of art in the report meaning Lake Mead and below. That is shown in this map in red. The Colorado River System, as he correctly defines it, is not the area in red. It is the segment in red plus the river shown in blue. The difference, mathematically, is this. The Colorado River System, as defined by the Colorado River Compact, includes all the tributaries as well as the main river. He so holds correctly, we believe. The uses -- the supply of the tributaries in the Lower Basin, that is the area on map A shown in white below the shaded area, the uses supplied supported by the tributaries are the general order of two million acre-feet per annum. That, by the terms of the Colorado River Compact, is included within the III (a) apportionment. These are rights which may now exist in 1929. In any event, they are long since put to use and they are accountable, basin versus basin, as part of the Lower Basin apportionment. The total apportionment to the Lower Basin made by Article III (a) is seven and one half million acre-feet including that resource. By a simple subtraction, therefore, whenever the Upper Basin invokes against the Lower Basin the “limitations on appropriations,” as he calls them, the ceilings on appropriations provided by Article III (a), seven-and-a half million in total. Then, out of the main river, Arizona, California, Nevada may take within that III (a) ceiling only 5.5 million acre-feet. Nevertheless, the Master interprets the language I just read to you, Section 4 (a) of the Project Act and the identical language in the California Limitation Act, which is the operating statute or self limitation, as meaning that the three states were intended to divide up 7.5 million acre-feet out of the region -- the segment shown in red. There is, thus, a built-in shortage. Significantly, note the main river between Lee Ferry, the division point between the Upper and Lower Basin, and Lake Mead. It is shown, here, in blue. That is because the Master specifically redefines the main river itself between Lee Ferry and Lake Mead as a tributary. He says, in so many words, it is intended to be treated exactly as a tributary. Now, the -- this has a number of a -- it presents a number of problems. The second component of the limitation, which appears on page 2 of this reprint, provides plus not more than one-half of any excess or surplus waters unapportioned by said Compact. The quarrel between Arizona and California that was pleaded here was whether or not that second component does or does not permit California to share in the advantages of Article III (b) of the Colorado River Compact which is printed at page 373 of the report. Article III (b) provides that, in addition to the apportionment made in paragraph (a), the Lower Basin is hereby given the right to increase its beneficial consumptive use of such waters by one million acre-feet per annum. Arizona contended that we were precluded -- excluded from that million acre-feet in the second component. We said we're entitled to participate. The Master decides that in our favor that, on the phase of the statutory language, California is not excluded.
William J. Brennan, Jr.: That's no longer an issue in the Court.
Northcutt Ely: We think you're correct, Your Honor. We do -- we're happy to accept his determination as to the interpretation of the statute but, as I'll now show you, mathematically, he does exclude us from the benefit of that holding and have --
William J. Brennan, Jr.: But my point was, as I understood the brief, Arizona no longer quarrels with you as to your right to share half of that extra million between the water.
Northcutt Ely: I believe you're correct and we hope so. We think that issue is out of the case and we have won that one. We disagree with the Special Master as to the -- the reason but I shall not in to that at the moment. But, as I shall show you now, we are --
William J. Brennan, Jr.: But I'm not wrong about that, am I?
Northcutt Ely: No, you're correct. You're correct, Mr. Justice. As I shall now endeavor to show you, however -- or the issue initially was and the one presented here --
Felix Frankfurter: What issue is left?
Northcutt Ely: The issue, and I'll demonstrated by this chart mathematically, if I may have chart one please. Chart one is before you in a small reproduction and --
Speaker: (Inaudible)
Northcutt Ely: -- no, I beg your pardon. You do not have small reproductions of it. It's only upon that. Now, line one of this chart shows the Article III (a) apportionment to the Lower Basin. Let me stop here and say the Master throughout holds that these "apportionments" are truly ceilings on appropriations. Now, this is a distinction that may be more than just words. The apportionment to the Upper Basin of 7.5 half million acre-feet per year is a ceiling on appropriations, not on Upper Basin appropriations somehow but upon -- it's a ceiling imposed for our protection. Let me explain this rather curious feature of the Master's report, whereas the Compact purports to apportion in perpetuity to the Upper Basin seven-and-a half million and to the Lower Basin seven-and-a half million. He treats these as reciprocal ceilings on appropriations. The protection to the Upper Basin is not the apportionment made in perpetuity to that basin but the Upper Basin's right to invoke against the Lower Basin a seven and one half million acre-foot ceiling on our appropriations found in the apportionment to us. So, also with this million acre-feet, III (b) right of the increase of use. In other words, the Upper Basin may, when it needs the water, impose upon the Lower Basin the enforcement of these ceilings, 8.5 half million acre-feet on our appropriations.
Felix Frankfurter: Except, they are not reciprocal.
Northcutt Ely: No, they are reciprocal undoubtedly but instead of treating the apportionment to the Upper Basin as a reservation in perpetuity like that for an Indian reservation or what it calls it, “an apportionment in perpetuity,” instead, the protection for the Upper Basin is not that apportionment to them but their right to invoke the reciprocal ceiling on our appropriations.
Felix Frankfurter: (Inaudible) to be 7.5.
Northcutt Ely: Yes, but they may never get up to that point because the water supply may not support it.
William J. Brennan, Jr.: Well, is there a practical consequence during this year?
Northcutt Ely: Yes, sir, there quite probably is.
William J. Brennan, Jr.: (Inaudible)
Northcutt Ely: Yes, because of a probability that the water supply will never, never support in fact 15 million or 16 million acre-feet of consumptive use. The problem of shortage that we face is not contingent upon the Upper Basin putting to use seven-and-a half million acre-feet. It is contingent upon the point being reached where they have to invoke the ceiling on our appropriations. Now, to -- they may have to do that to build up uses for themselves or more of anything more than four million. In other words, we do not face a happy possibility that shortage will not hit us until the Upper Basin uses 7.5 million acre-feet. To the contrary, shortage will hit us when they invoke the ceilings on our appropriations to permit them to use four or four-and-a half or five million acre-feet.
Felix Frankfurter: All this is in the realm of the speculation fundamentally, namely, the speculation about the (Inaudible). So, we could have a more important speculation between the findings and then draw it from the circumstances.
Northcutt Ely: No, I think it's quite the contrary, Mr. Justice Frankfurter, because, as I shall indicate by another chart in a moment, we're practically up to that ceiling right now.
Felix Frankfurter: Well, what do you say when the Colorado River Compact had 15 million acre-feet, exactly what appeared to be (Inaudible)
Northcutt Ely: It was based upon the estimate then available as to reasonable -- reasonable apportionments. The chart on the rack behind me illustrates the effect of the Master's interpretation. The Article III (a) apportionment appears in line 1, 7.5 million acre-feet. The Article III (b) item, the right to increase the Lower Basin's use by 1 million is in line two. The total Compact imposed ceiling on the Lower Basin whenever the Compact is invoke is, thus, eight-and-a half million acre-feet, but that encompasses the uses on the tributaries which are of the order of 2 million acre-feet. Consequently, the residents should --
Arthur J. Goldberg: May I ask you a question.
Northcutt Ely: Please.
Arthur J. Goldberg: Is 2 million acre-feet from the tributaries being used or is that just its production?
Northcutt Ely: That is the quantity in fact being used at the present time with respect to the Gila River, the greatest of these tributaries. It is also its full dependable production. It is fully put to use. With respect to the other tributaries, 200,000 acre-feet of thereabout is used from them. They produce more than that but the excess flows into the main river and is a part of the main river supply already appropriated there.
Felix Frankfurter: Does that mean the 5.1 is drawn from the tributaries?
Northcutt Ely: 5.5.
Felix Frankfurter: You use now 5.1.
Northcutt Ely: Yes.
Felix Frankfurter: Is that drawn from the tributaries?
Northcutt Ely: That is used by diversion from the main river. The physical supply that reaches us in -- comes mostly from the inflow at Lee Ferry but also it is supplemented by the inflow of the tributaries above Hoover Dam which, upon the map A or B, are the Virgin River coming in from Utah and the -- by Arizona and Nevada and the Little Colorado coming in from New Mexico and Arizona.
Felix Frankfurter: Which brought the map in Court.
Northcutt Ely: That is right, sir. That is right. That's entirely outside the scope of the decree of writ. Now, the 2 million acre-feet on the tributaries is encompassed within the Compact ceiling or apportionments to Lower Basin. The residue available out of the mainstream, therefore, is not over 6.5 million acre-feet for appropriation by Arizona, California, Nevada whenever the Compact ceilings are enforced against the Lower Basin. Now, if I may anticipate my argument somewhat, the last segment of this chart shows the effect of the Master's report upon California because he allocates to California 44/75, as Mr. Douglas pointed out earlier, of the quantity available from Lake Mead and below. If it's 7.5 million or less, we get 44/75 of it. 44/75 of 6.5 million is 3.8 million acre-feet for California. Now, the second -- now, may I pause here to say that if the language in the limitation means the Colorado River System and the area in the red plus the area in blue in the Lower Basin, you have no problem of shortage in meeting the appropriations up to the Compact ceiling because they're written in the same terms. The production, as was called a moment ago, of the tributaries plus the 5.5 million we may appropriate out of the main river will supply 8.5 million acre-feet of consumptive use. You reach no problem of shortage in that respect, but if they -- if the limitation is severed from the Compact and given a separate interpretation, if the quantity is covered by the limitation or the area in red, you have this built-in shortage. You cannot supply 7.5 million acre-feet from Lake Mead and below out of a supply limited by the Compact to 6.5 million, and that brings us to the second issue of the Master of what he does about this shortage.
Arthur J. Goldberg: I don't understand. If 7.5 million feet must, in all events, be sleuths through at Lee Ferry, then why doesn't that amount of water reach Lake Mead?
Northcutt Ely: Well, let met come to grips at once with that. I take it, you're referring perhaps to Article III (d) of the Compact. Article III (d) which, perhaps we should refer to at the Master's report at about page 373, is an entirely separate provision of the Compact which says this. That the states of the upper division, that's Colorado, New Mexico, Utah and Wyoming will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75 million acre-feet for any period of 10 consecutive years reckoned in continuing progressive series beginning with the first day of October next, exceeding the ratification of this Compact. A guarantee of a minimum supply at Lee Ferry of 75 million acre-feet for 10 years. One of the issues initially in this case was the contention by Arizona that this 75 million is the same thing as the 7.5 million acre-feet referred to in Article III (a). The Master rejects that contention and does so properly in our review. And, I -- well, at page 144, he disposes of that.
Speaker: If it becomes necessary to exclude the Compact, how could we do that with the absence of all the Upper Basin States?
Northcutt Ely: We raise the same question here, Your Honor. When we moved to join them, the Court ruled against us by a divided vote. The Mater does construe the Compact. It's a foundation of his report, although he says that it cannot be construed it their absence.
Speaker: Then, by one of those durations, it's difficult reaching the conclusion there, but he ends up by saying the Compact is irrelevant for the purposes of this litigation. If he's rights then, of course, the absence of the Upper Basin States is not important.
Northcutt Ely: Well, it is a -- the Compact is truly relevant as it's intertwined throughout his report in a way I've just described, but it's relevant in another sense, to which I'll come to on the third issue of justiciability. The Master, as you'll see in the page I'm about to read from, does construe the Compact. He does so repeatedly throughout his report. If he didn't, he couldn't reach the conclusion he does. He says that, lastly, Arizona argues that Article III (a) relates to the mainstream only because III (a) and III (d) are correlative. III (d), being III (a) multiplied by 10, and Article III (d) is fairly a mainstream measurement. This argument is unacceptable since Article III (a) imposes a limit upon appropriation whereas III (d) deals will the supply at Lee Ferry, an interpretation which makes these two provisions correlative, one to another, as inadmissible since a substantial quantity of water is lost through reservoir of operation and channel losses as it flows from Lee Ferry, the point where the III (d) obligation is measured, to the diversion points downstream from Hoover Dam where most of the appropriations are made. 7,500,000 acre-feet of water at Lee Ferry will supply a considerably smaller amount of appropriations below Hoover Dam. Moreover, III (a) extends to appropriations on Lower Basin tributaries, as well as the mainstream. Such appropriations cannot possibly have any relation to the quantitative measurement of the flow of the water at Lee Ferry. We think he's entirely correct on that.
Potter Stewart: Do you agree wholeheartedly on that?
Northcutt Ely: We do, indeed. Yes, sir.
William O. Douglas: What were you reading? What page was that?
Byron R. White: 144.
Northcutt Ely: That was from page 144.
Byron R. White: 144, thank you.
Northcutt Ely: Let me be sure if my reference is correct. Now, this brings me to the question what the Master does about this built-in shortage. If the Compact is enforced, this brings us to what they call a priority issue. This issue arises primarily from his interpretation of Section 5 of the Project Act which is also reprinted in the folder you have before you and primarily from the first and last sentences of Section 5. Section 5 provides that the Secretary of Interior is hereby authorized, under such general regulations as he may prescribe, to a contract for the storage of water in said reservoir and for the delivery thereof at such points on the river and on said canal as may be agreed upon for irrigation and domestic uses. It goes on with generation of electric power, recovery of cost, and so on. And, concludes with the final sentence, contracts respecting water for irrigation and domestic uses shall be for permanent service and shall conform to paragraph (a) of Section 4 of this Act. "No person shall have or be entitled to have the use for any purpose of the water stored as aforesaid except by contract made as herein stated.”
Felix Frankfurter: (Inaudible)
Northcutt Ely: Yes sir.
Felix Frankfurter: (Inaudible)
Northcutt Ely: Right.
Felix Frankfurter: (Inaudible)
Northcutt Ely: Substantially so. He rejects our contention that shortage is inevitable by holding that there's no assurance whatever, noting to indicate that the Compact will ever be invoked against us. There's nothing to show that projects will be built in the Upper Basin to a level which will require the invocation of the ceiling upon our appropriations.
Felix Frankfurter: They're not (Inaudible)
Northcutt Ely: Well, unfortunately, the answer to that is no, Mr. Justice Frankfurter. The issue of the rapidity of Upper Basin development was not litigated. Such references as are in the record are truly thereby accident. Unfortunately, the facts are just dead against the Master's optimistic interpretation as our expectation, as I'll indicate by Committee reports in Congress and by a simple mathematical subtraction. We are living obviously on borrowed water and borrowed time if we use more than 6.5 million acre-feet out of the main river. It is -- if the Com--
Felix Frankfurter: If you read the Compact of how much (Inaudible)
Northcutt Ely: Well, we think you're right. We think the forecast of the his -- based on the history of the river is valid evidence. He rejects it completely. If accepted, it would show that, instead of having 6.5 million acre-feet available, we would have probably less than six in view of the latest information on the water supply of the river system, less than six. The most we can claim is 6.5 million if the Upper Basin develops beyond its present level of about four million. We are right at the breaking point. We're on a collision course with the Upper Basin as of this moment. Any expansion in the Upper Basin, as I'll come to with another chart in a moment, will bring us smacked against the imposition of this six-and-a half in the city.
Felix Frankfurter: (Inaudible)
Northcutt Ely: Well, that is not the point, Mr. Justice Frankfurter. The seven-and -- the 75 million acre-feet at Lee Ferry, the III (d) guarantee, is not the same as our 7.5 million exceeding on Lower Basin III (a) appropriations, as the Master had so clearly demonstrated. Our 7.5 million encompasses the tributaries. We can claim all of the main river only 5.5 million under III (a). The 75 million delivered at Lee Ferry must, therefore -- it will be partly used up, burned up by channel losses, reservoir losses which he treats as a diminution of supply, not a consumptive use, between Lee Ferry and the diversion points and, more important, it includes the Upper Basin share of the Mexican treaty burden of the 75 million acre-feet at Lee Ferry required by Article III (d) every decade. 25 million is not available for use in the United States. The reason is that the Mexican Water Treaty will require 15 million of that and losses -- unavoidable losses from Lee Ferry to Mexico are some 10 million acre-feet per decade in excess of the tributary inflow. That is fundamental. There is no equation between the 75 million III (d) delivery at Lee Ferry and our ceiling on appropriation of 7.5 million for two basic reasons. The 7.5 million encompasses a tributary uses. The second basic reason is that 75 million of supply at Lee Ferry must include water for Mexico in part and must include losses. There --
Felix Frankfurter: Well, this does not quantify the generosity upon (Inaudible)
Northcutt Ely: He does, Your Honor, and they are at -- on page 125.
Felix Frankfurter: Mr. Ely, (Inaudible)
Northcutt Ely: No, Your Honor. His figures I -- in fairness to the Master, I must say, if we accepted them, the si -- our situation is even more extreme and desperate. The figures he gives for losses, we think, will be reduced in the future. If we used his figures, the situation is truly catastrophic. He shows evaporation from the two reservoirs below Lake Mead. These are Lake Mohave at Davis Dam and Lake Havasu at Parker Dam. The two of them combined, they burn up about 300,000 acre-feet a year in evaporation loss, nothing you can do about it. Channel losses between Hoover Dam -- Hoover Dam and the International Boundary are shown there below that and, as you will see, they have averaged, for the two periods you give, something of the order of a million acre-feet. Now, in addition, there are losses between Lee Ferry and Lake Mead. They are just about offset by a tributary inflow there, but if you add up the losses he gives on page 125, you will see that they are of the order of 1,300,000 acre-feet per year. And, there's no substantial tributary inflow of the Gila as fully appropriated and the Little Bill Williams River doesn't produce much. That's the only truth.
Hugo L. Black: I'm a little confused about your statement with this respect. What do you understand, under the Compact, the amount of water which the Upper Basin is entitled to have and to use for itself? The people have said it's to the apportionment. Is it?
Northcutt Ely: The Upper Basin is entitled to put to use water up to the ceiling on appropriations, in the Master's expression, imposed by the Colorado River Compact. That ceiling on appropriations is a ceiling which will come into operation when the Upper Basin is faced with the necessity of delivering 75 million acre-feet of water at Lee Ferry plus perhaps part of the Mexican burden, another problem, and the residue may or may not be 7.5 million or six million or five million. They can use only so much water as does not interfere with the prime mortgages that the Compact has imposed upon them, (a) the Mexican Water Treaty, (b) the Article III (d) delivery requirement of Lee Ferry. When we were before you on the adjoining argument, Mr. Justice Black, all of us at that time were raising our argument on pleadings which treated the apportionment to the Upper Basin as 7.5 acre-feet. It is quite clear from the water supply evidence in this case that it is impossible for the Upper Basin to ever use 7.5 million acre-feet and honor its III (d) obligation. If that evidence were not here--if that evidence were not here, the Master's interpretation, nevertheless of the Compact as imposing reciprocal ceilings on appropriations, means that the Upper Basin does not have an apportionment or title or patent or grant of 7.5 million acre-feet. It has a ceiling imposed upon it which will come into operation long before it ever uses seven-and-a half million. That ceiling is the one invoked to permit or make possible the flow of 75 million acre-feet at Lee Ferry.
Hugo L. Black: Am I correct or incorrect in making it your argument as to what other waters have you divided in the Lower Basin must inevitably affect the amount of water which the Upper Basin can utilize of itself?
Northcutt Ely: Not -- not necessarily. We don't -- well, it may, Your Honor, but we do not differ from the Master's approach in that respect.
Hugo L. Black: Exactly how are we to accept this consultation about the Master --
Northcutt Ely: Yes.
Hugo L. Black: And other self intentions whether you're arguing -- you're making reference to the apportionment of the Lower Basin, meaning that inevitably you are bound except for the apportionment of seven million acre-feet in the Upper Basin would be below that?
Northcutt Ely: No, Your Honor. The effect on the Upper Basin is not dependent at all upon your adoption of our view of the proper allocation on the Lower Basin or the Master's view of it. In either event, we both go on the assumption that the Article III (d) limitation or guarantee is going to be enforced and it is that which will make impossible the full utilization of their use in the Upper Basin. That has nothing to do with how you divide up the water in the Lower Basin.
Arthur J. Goldberg: How can that be a question in this case because it depends upon how much water there will actually be and nobody knows that?
Northcutt Ely: Well, Your Honor, there are two problems. One, shall the Colorado River Compact be treated as a -- as truly a covenant among these states in operating, intended to be enforced, and did Congress pass the Project Act and require the limitation of California in the expectation that it would be enforced or shall it be treated as a scrap of paper? We don't know whether the Upper Basin will ever develop. We don't know what the water supply will be in the Compact. It's, hence, irrelevant, as the Master believes. Now, as I will indicate when I come to the third point of my argument, justiciability in water supply, the physical flow at Lee Ferry has always been of the order for any period you want to take, 10 years, 20, 30, 40, any long period has always been of the order of eleven-and-a half million acre-feet or more. The maximum claims of Arizona, California, and Nevada, added to their Mexican requirements, added to all losses are less than 11.5 million acre-feet. They don't have a shortage now. There's no occasion for a cross word between Arizona and California, truly, but for the existence of the Colorado River Compact and the fact that the Compact entitles the Upper Basin to enforce against all three of us a ceiling on appropriations and, hence, reduces the supply below the claims and creates a justiciable controversy. If the Colorado River Compact didn't exist, there'd be no justiciable controversy here because, in that event, the rights of state versus state, basin versus basin, would be controlled by the law, the rule this Court has developed of equitable apportionment, priority of appropriation as a primary consideration. The Arizona appropriations, and ours, and Nevada's are all senior to a new undreamed of projects in the Upper Basin. We wouldn't be before you. The quarrel would come someday when the Upper Basin states endeavor to bring forward these junior projects and collide it with Arizona, California, Nevada senior projects. We're here, today, only because the Colorado River Compact exists. What meaning shall be given to it? Does it or does it not impose upon the Lower Basin states a ceiling on their appropriations? If it doesn't, we have no quarrel with Arizona. This case is not justiciable. If the Compact, however, is given effect, then the ceiling on our appropriations in the Lower Basin from the main river is 6.5 million acre-feet. The Master's requirement would give us 3,800,000 acre-feet for California, which is 800,000 acre-feet less than our existing uses at the time of trial. Some of our projects are going to be destroyed. It happens to be the Metropolitan Water District. But we'd be just as disturbed about it, on behalf of the state of California, if it were Palo Verde or All-American, or any other. You don't destroy existing uses, existing projects to build a new one under any law this Court has devised heretofore. You're only driven to that if the Colorado River Compact has restricted the supply available to these three states and has given some effect and if you construe the limitation on California, although it is terms of the same Colorado River Compact, Article III (a) as being an inappropriate reference. Somehow, the resource of supply is limited by the Compact but we're told to divide it up on a formula which, although it uses Compact terms, did so inappropriately.
Felix Frankfurter: Too much of the Limitation Act do environment meets the requirement.
Northcutt Ely: We think exactly so. Yes, we want to do that. We -- we will --
Felix Frankfurter: Suggest that the Compact adhere.
Northcutt Ely: Yes, sir, and I will develop that. In this legislative environment, the limitation has to mean the same thing that the Compact means. These -- the upper states couldn't get a seven-state Compact because Arizona rejected it. The next best thing was a six-state Compact accompanied by a limitation enacted by California. You can't accomplish the purpose of a seven-state Compact by the substitute device of a six-state Compact that had collateral agreement by California, unless a collateral agreement by a California written in Compact terms means the same things as those same terms in the Compact itself. This -- this problem can be simplified in this way. So far as the limitation issue is concerned, I'm not talking about the priority issue now, the limitation issue, does the Limitation Act, when it says “Compact” mean Compact? It's just that simple, just that simple.
Felix Frankfurter: (Inaudible)
Northcutt Ely: Yes.
Felix Frankfurter: (Inaudible)
Northcutt Ely: You're right, Mr. Justice Frankfurter. The Master's report reduces this great controversy, this dispute over the destinies of these states to a problem of parsing sentences in the statute. It's not that simple, it's not that simple. We have involved here the history of four decades of interpretation controversy over the meeting of the Colorado River Compact and, in fact, I analogize it in this way. With respect to the limitation issue, we're somewhat like five partners who are attempting to draw drafts against the bank account in a bank that has country branches, the tributaries, and there's 7.5 million dollars involved that we can draw drafts against. California has made an agreement. We will not draft more than $4,400,000 against that total account in the main office and all the branches. And, that leaves a residue of $3,100,000 we're precluded from. Our partners go to the branch banks and cash drafts for $2,000,000, that's the tributary banks. And then, they come to the main office and say “Here's our draft for $3,100,000.” We say "You can't do that. You've already drawn $2,000,000 out of the country banks." They say “No, this reference to the country banks is inappropriate. You just give us this $3,100,000, out of the main office and we will keep the $2,200,000." And, California says “You can't do that. We got a claim for $4, 400,000. There's only $5,500,000 on deposit at the main office." And then, the Master says, “Well, that being so, we'll prorate and see,” and they'll prorate. Our draft is good. This is our agreement. Now, to come to this question of priorities, what do you do when you don't have the resource to pay? And before I do that, let me say I'll analogize this in another way. We're like people who quarrel for 30 years over a contract that says it's governed by the laws on New York, incorporates a New York statute by specific reference. It's Article III (a) of some New York statute. And, after the trial is all over, all argued, all briefed after three years, the decision comes down from the Master. “The reference in your contract to the laws of New York was inappropriate. It should have said North Dakota.” Now, that's a little late and he is very candid about this. In oral argument in New York, when they called this to his attention and said, “Nobody -- nobody in 30 years has ever suggested, has ever litigated the idea that the limitation, when it says paragraph (a) or Article III of the Colorado River Compact doesn't mean that, it means the red water from Lake Mead down, it doesn't mean the system.” Nobody's ever suggested that. They only said, “I agree with you.” But if this were -- if this were a patent case, I'd claim novelty on it. Well, novelty in a patent case may be a very good idea but it's not a good way to offset a rule properly.
Felix Frankfurter: Mr. Ely, is there a great big difference in meaning. No quality interpretation has explained it and the Court at least who adjudicated this (Inaudible).
Northcutt Ely: Well, of course you're right, Mr. Justice Frankfurter. What I am attempting to say is that this has become a rule of property through four previous -- three previous decisions of this Court. Administrative actions, investment of $600 million in the California Projects, you don't likely offset all that by a patent or novelty.
Felix Frankfurter: So, you might even say this has not been indicated for 30 years until it changes for the Master.
Northcutt Ely: It wasn't litigated there. That's my point. Nobody made this issue.
Felix Frankfurter: What?
Northcutt Ely: It wasn't before this Court on the joint of motion.
Felix Frankfurter: Perhaps that's the contention that your argument is supposed to indicate but is bound by the social conflict of it.
Northcutt Ely: No, I do not -- I do not mean that. I mean to say that you don't offset the -- by the parsing of -- by the parsing of sentences, you don't --
Felix Frankfurter: (Inaudible)
Northcutt Ely: Exactly so, and I'm saying that even if his interpretation might have had basis, as of June 25, 1929, President Hoover had proclaimed this to be interpretation or, on December 21, 1928, President Coolidge had. Then, we would have had a clean slate.We could have decided do we or don't we take the gamble on this? Do we or do we not build a Metropolitan Aqueduct that cost $600 million based upon the expectation of no water at all for it if the Compact is ever invoked? That wasn't the gamble we took at all.
Felix Frankfurter: Wasn't that what he brought here? He might have written a conclusion.
Northcutt Ely: You're right. I'll read you a little later from what he does say on that. It's appalling. All it really is an assumption of abundance into the future. Now, the priority issue, I've been on the edge of that for a while. The priority issue is simply this. If there is not enough water to satisfy the 7.5 million acre-feet within the III (a) apportionment from Lake Mead down, the Master's mainstream, you have a -- not Mead again. If we don't have within the red area on this -- on this map 7.5 million acre-feet to satisfy the claims within the III (a) apportionment, what do you do about it? The Master says we are going to prorate.California shall have 44/75 of whatever is there. Arizona 28/75, Nevada, 3/75. The 44/75 for California he gets out of his interpretation of the limitation, which I have read to you. We would have had 4,400,000. If 7.5 million were there, he's going give us 44/75. The shares for Arizona and Nevada are 2,800,000 and 300,000. He gets that -- those out of contracts which the Secretary of Interior made in 1944 with those two states. I'm going to postpone discussion of that until I reach it in the chronological order but, for the moment -- for the moment, I shall simply say that the Master proposes to prorate the quantity available. Now, that is irrespective of the fact that the projects affected in California are built existing -- using water more than 4,400,000 acre-feet. The projects in Arizona that, on the same proration schedule of 28/75, would get something like 2,240,000 acre-feet -- 2,400,000, excuse me -- 2,400,000 would go to Arizona. All of their existing projects, when fully developed, will use about 1,100,000 -- 1,200,000. Water will, thus, be set aside for expansion in Arizona to the extent of about 1,200,000. In other words, about double the requirements of their existing projects. As to Nevada, the result percentage-wise is more extreme because they're using very little. California says that, in the event of shortage, it should be borne by application of the rules this Court has developed in its equitable apportionment cases. Their priority of appropriation is a guiding principle, modified by the rule that you do not destroy existing uses. We rely upon both legs -- both legs of the equitable apportionment rule as developed here. Our priorities are senior. Our uses are in existence. Never before has this Court abrogated the rule of priority of appropriation, destroy its existing uses to set aside water for future use by projects which, in the Master's expression, may never come into existence except by acts of Congress hereafter. Now, we say that if he's right about that, if the shortage depends upon the enactment of statutes hereafter to authorize new projects, then maybe we're litigating the wrong statute and doing so prematurely because if the harm is going to be occasion not by what's in the Boulder Canyon Project Act but by what Act X by a senator whose yet to un-elect it says, "Then we are here before you prematurely because if the new statute that authorizes the new project says on its face, this is without prejudice and subject to the priorities of projects now in existence, we have no quarrel to that sort of a statue.” If the new project will take that risk, as Attorney General Mosk told you, our quarrel is with the fact the risk is thrown upon our existing projects and that's not right.
Felix Frankfurter: Mr. Ely, may I ask of you about the judgment of the jury, I can bring you any prejudice of the jurisdiction, starting with the jurisdiction of the fact of this litigation. By litigation, I mean consider the attempt to (Inaudible). Are you saying that (Inaudible) concluded a legal appeal doctrine that was involved, he had rejected an unconditional doctrine?
Northcutt Ely: The latter, sir.
Felix Frankfurter: Can it -- can the Court mean (Inaudible) not been involved?
Northcutt Ely: I think, Your Honor, the answer -- I think the answer is -- the answer is no. I believe that, truly, I must give you that answer but that isn't quite our situation. The trouble is that the Master decided the case was never litigated, never pleaded, never at issue.
Felix Frankfurter: That's why you at -- you'd take (Inaudible)
Northcutt Ely: That is right, sir. Had they heightened this, I'd put it in a nutshell. Had Arizona's bill of complaint tendered here in 1952, which California respond, “We have no objection to the filling of this bill. We want this controversy decided. That is our response.” Had the Arizona bill of complaint then tendered said on its face what the Master's report now says, that complaint would have read something like this, “Arizona desires a determination of the availability of water supply for its proposed Central Arizona Project.” We have not made up our minds where we're going to divert, whether above Hoover Dam or below. We are next to a bill of complaint on map which shows the three routes were now considering. Two of them are shown in blue on the map behind me and in front of you, map A or map B, either one. The third is shown in red below Hoover Dam. We desire a decree that will say that if we divert below Hoover Dam, the diversion from the Central Arizona Project with about 1,200,000 acre-feet is to be encompassed by the decree and charged against the 2,800,000 acre-feet we want. But if we decide to build this above Hoover Dam to divert from Rich Canyon or Marvel Canyon, the two routes, I may interject, that are now under active investigation, then that water is to be in addition to the decreed water and not encompassed within it. That is what the Master's proposed decision says. Now, if that bill of complaint had said that and had gone on in paragraph two to say what the Master says that there is no indication of shortage for California's projects or for ours, including our proposed Central Arizona Project, unless and until Congress authorizes vast new projects, some of which are as yet unformulated in the Upper Basin, then had gone on to say that, “We desire a construction of the limitation which shall say that the references to the Colorado River Compact were inappropriate and we want a pro rata wiping out California priorities for your existing projects." Point one, do you think we would have acquiesced in the filing of such a bill with a method of threshold, as the three earlier suits were met, by opposition to the filing of such bill and, second, I don't think this Court would ever permit it to be filed. It shows on its face a non-justiciable controversy, one that says that the Colorado River Compact may or may not ever be invoked. It's irrelevant. The pleadings that came here presented precisely the opposite issue. You may recall Arizona tendered three issues. They all involved the Colorado River Compact. What she said was that the California Limitation Act imposes on California a limitation written in terms of the Colorado River Compact. There is a dispute between us -- a dispute between us as to whether the beneficial consumptive use chargeable to Arizona shall be reckoned by diversions less returns, as California says and as the Master holds, or on some basis more favorable to Arizona. They call it "depletion theory." I won't go into that. And, second, what do you do about reservoir evaporation losses? Are they treated as a consumptive use chargeable within the Compact, chargeable within the Limitation Act? The Master says, "No, they're not. They're a depletion of -- diminution of supply." And, third, Arizona's pleading said, "Is California precluded from the million acre-feet of so-called III (b) water?" Master decides that for us, too, "No, we're not precluded. We can share in it." The three issues tendered were those upon which we took a calculated risk in building our projects and we won all three of them. We're glad to have those litigated and decided, but we'll lose this case here because the Master decides it upon an issue never tendered. Had it been tendered, it would've been within the compass of a complaint which on its face, we think, would have shown a non-justiciable controversy.
Felix Frankfurter: In effect, (Inaudible) She has agreed (Inaudible) that she wanted to involve the (Inaudible).
Northcutt Ely: Yes.
Felix Frankfurter: In fact, it's there, isn't it?
Northcutt Ely: Substantially so, sir.
Felix Frankfurter: (Inaudible). He pretty much exercised the conviction in a desperate (Inaudible) if the plea was entered to recognize the cause and he insisted that he couldn't use what the (Inaudible) exact way to do it with contention to (Inaudible).
Northcutt Ely: Well, I would say so, Your Honor, because she alleged that the claims of the two states were mutually exclusive. The premise of the Master truly is that they are not mutually exclusive because you won't know until new projects were authorized in the Upper Basin, vast new projects, where there may not be water enough for everybody. If this were -- the dispute would involve the Mississippi River and were a controversy between New Orleans and Memphis, you wouldn't care what their formula was. There'd be so much water, you just wouldn't care. You -- it's the fact that the formulas applied against a water supply that either is or is not limited by the Colorado River Compact that brings us here. The Master says, "It's not." If not, then why are we here?
Hugo L. Black: Still, it wasn't impaired by the fact that he indeed (Inaudible) turned back the subjects. Maybe I -- do you tend to the fear of danger in California's existing conflicts on the basis that the Upper Basin may use the water which is entitled to you by the Compact.
Northcutt Ely: Or even a major fraction of it, yes, sir.
Hugo L. Black: What if --
Northcutt Ely: Or even a major fraction of it, yes, sir. May I have -- let me come to --
Hugo L. Black: Does that mean that you really have a controversy there with the Upper Basin?
Northcutt Ely: No, not at all, Your Honor. If the Upper Basin honors its III (d) minimum commitment, which of course it will, then that is a -- that is the reason why the Upper Basin cannot expand very much.
Hugo L. Black: What I understood -- that's why I want to be clearer. What I understood was, you mean to say, they use that potential, I presume it means that they are authorized to use under the Compact and then California would suffer, you say, without the Compact.
Northcutt Ely: No. I have not made myself clear. Let me come to grips with that. May I have chart 3?
Arthur J. Goldberg: As I understand you, Mr. Ely, does it come down to this? Your claim is that Arizona should be charged with the water that it may remove from the Colorado River between Lee Ferry and Lake Mead.
Northcutt Ely: In part, that is a very important part of our contention. The other is that --
Arthur J. Goldberg: What else?
Northcutt Ely: The other is that Arizona is accountable, chargeable for her uses upon the tributaries, the Gila primarily. Let me put it this way. The Limitation Act excludes us from 3,100,000 acre-feet of the waters referred to in paragraph (a) of Article --
Arthur J. Goldberg: Well, I understood -- I intended to say from the Colorado River including its tributary --
Northcutt Ely: That is correct.
Arthur J. Goldberg: -- the system --
Northcutt Ely: That is right.
Arthur J. Goldberg: -- between Lee Ferry and Lake Mead, is that it?
Northcutt Ely: No, it includes -- our problem includes the Gila which comes in below and the Gila is the greatest of the items involved in the equation.
Arthur J. Goldberg: I see.
Northcutt Ely: It's -- it's this, Your Honor. We're precluded from 3,100,000 acre-feet of the waters referred to in paragraph (a) of Article III. We've agreed to that. Can 3,100,000 acre-feet be claimed in its entirety from the stretch of the river from Lake Mead to Mexico, the area in red on the maps before you, or may it be claimed instead from the area in red plus the tributaries shown in blue? We say the latter. If we we're right, then some-two million acre-feet of that 3,100,000 is accounted for by those tributary uses not over 1,100,000 maybe acclaimed within Article III (a) from the main river, the red area, by Arizona and Nevada.
Felix Frankfurter: Does Justice Black's question become circling in cases where there was planning in tributaries in the Lower Basin?
Northcutt Ely: No sir. It --
Felix Frankfurter: Although it's been briefed -- it's been briefed. Could you please answer this question?
Northcutt Ely: I will try to.
Felix Frankfurter: Are there something that the rule does not require? The rule is not -- they're not part of the exhibit on --
Northcutt Ely: I'll try to --
Felix Frankfurter: (Inaudible)
Northcutt Ely: I'll try to do it both ways.
Felix Frankfurter: Is that not the real question of it?
Northcutt Ely: I'll -- I will try.
Felix Frankfurter: But, it's a (Inaudible) if you have a group of waters that bind the state, or so put it, then you have no problems with reference to the Upper Basin, is that it?
Northcutt Ely: We don't have any reference to any quarrel with the Upper Basin in either event, but we --
Felix Frankfurter: (Inaudible)
Northcutt Ely: I'll -- I will -- I'm not sure I understand the difference in the two questions of which I'm confronted, but I'll do my best to --
Felix Frankfurter: Well, my --
Northcutt Ely: To sort them out.
Felix Frankfurter: My mind is very in eagerness to get your answer.
Northcutt Ely: Yes, sir. I'll try, I'll try.
Hugo L. Black: Mr. Ely, I'll simply ask you just to redefine to permit the basin -- the Upper Basin that you may be part of it. As I have understood your argument, a large part of it has been based on the Upper Basin is entitled to get -- is or is not entitled to get a certain amount before it goes downstream. Now, what I'm asking you is, suppose there were only -- if it turned out to be only 12 million acre-feet available both below and above, is it your argument that the Upper Basin has to lose a part of its 7,500,000 feet?
Northcutt Ely: Yes, but not in consequence of any division you may make between Arizona, California and Nevada. It's in consequence of Article III (d)'s guarantee of 75 million every 10 years and a consequence of the obligation assumed in Article 3 (c) --
Hugo L. Black: Of the Compact.
Northcutt Ely: Of the Compact.
Hugo L. Black: And, that --
Northcutt Ely: It does not have anything to do with how you decide Arizona versus California.
Hugo L. Black: If that is true, can we decide your problem without deciding one way or the other on what the Upper Basin is entitled to receive?
Northcutt Ely: Well, we don't ask you to decide what the Upper Basin is entitled to receive.
Hugo L. Black: Or to keep.
Northcutt Ely: Or to keep. What we do say, Your Honor, is that a simple mathematical subtraction will show you that the Master is unfortunately wrong in his optimistic assurance of plenty to us. If I may have your attention to this chart behind me, the line one -- first of all, this chart is -- shows the Upper Basin depletion which would not impair the Lower Basin mainstream supply of 7.5 million acre-feet of consumptive use. This is the Master's premise that there is nothing to indicate, for the foreseeable or the unforeseeable future, developments in the Upper Basin that will reduce the Lower Basin below 7.5 million acre-feet in the red segment of the river. This table is in millions of acre-feet of consumptive use per year. The first column gives descriptions. The second column is captured in maximum of a 48-year period, 1909 to 1956, the next column, minimum of 27-year period, 1930 to 1956. Now, let me explain these captions first. If you'll turn to page 118 of the Master's report, you'll find tabulated there the so-called undepleted or virgin flow of the Colorado River at Lee Ferry. This is a term devised by the Bureau of Reclamation. It is a calculation by the Bureau and published by the United States Geological Survey of the quantity of water which would have been flowing at Lee Ferry in each of these years had there been no Upper Basin depletions whatever. This does not say that the flow of the river in 1792, the virgin undepleted flow would be such and such. It's a calculation of how much would've been there in the year 1951 had there been no Upper Basin depletions. Now, this method of calculation was developed in the trial. It's used by the Bureau of Reclamation. These figures are accepted by all of us. I don't tell you that you can -- anybody can perform this calculation to a precision. It's Arizona's evidence. We don't -- we use it all as a working tool. Now, the Master shows at the bottom of the page the averages for poor selected periods. The greatest of these is the figure 15,211,000 acre-feet for the period of 1909 to 1956.
Felix Frankfurter: I'm sorry, where are you?
Northcutt Ely: Page 118, sir.
Felix Frankfurter: 118?
Northcutt Ely: Yeah, 118.
Felix Frankfurter: Thank you very much.
Northcutt Ely: The largest of these is the figure 15,211,000 acre-feet per year. This is flow, not consumptive use, for the period 1909 to 1956. If you select any other period, you are dealing with a smaller resource.
Potter Stewart: Why is that?
Northcutt Ely: The reason, Your Honor, is that in the -- they do not install gauges at Lee Ferry until 1922. Before that time, all of the flows rest in us. And, before that time, the --
Potter Stewart: Before that, you said --
Northcutt Ely: Pardon me?
Potter Stewart: You said before that -- estimate.
Northcutt Ely: Estimate, yes, sir.
Potter Stewart: I beg your pardon. Thank you.
Northcutt Ely: They are estimates and the figures are inflated by the fact that in those estimates appear some tremendous floods which are ga -- estimated only by the height the River rose by leaving debris on the canyons. Any figures before 19 --
Potter Stewart: 1909 is a very important date.
Northcutt Ely: That's right sir.
Potter Stewart: Before 1914.
Northcutt Ely: 1909, 1912, 1914, 1917.
Potter Stewart: 1921?
Northcutt Ely: No. To pose error, you may remember Wyoming versus Colorado. The Court threw out the evidence of the four biggest years. It said it wasn't going to depend on them. If you did that here, you would throw out these tremendous flood years for two reasons, one, because nobody knows that these floods really happened and, second, because if they did happen, the flood is so tremendous, it's beyond the capacity of any reservoir to fully save and equate. You're going to lose part of it by a spill to Mexico. Anyhow, the total resource, the whole universe, is shown in the four lines at the bottom of the page. If you're optimistic, if you believe that the flows of 1909 are really going to come again or 1917, and that you're going to have reservoirs big enough and empty enough to catch them and save them and use them then, in that event, assume a virgin flow of 15,200,00 acre-feet as being your resource. If, on the other hand, you -- you're cautious, take the period that began with the period you selected in Nebraska versus Wyoming, 1903, and I -- in that event, you'd have 13,085,000. That's the whole resource if neither basin -- I mean, if the Upper Basin was not using a singled drop. Now, if you're still more pessimistic, you wouldn't use any of these four figures. You'd use the one from 1931 to 1940. That's the period by coincidence. That was the limiting drought period in Nebraska versus Wyoming and, in that event, you'd be down to less than 12 million, about 11.5 million. Now, if you'll turn to my chart, under the maximum column, we have started with the most hopeful of these figures, 15,200,000 acre-feet per year of undepleted or virgin flow, from page 118 of the Master's report. And, under the minimum per -- column, we have taken the least optimistic that for 1930 to 1956, 13,100,000. Now, in line two, we have subtracted the two figures that must be subtracted to determine what residue the Upper Basin can actually use consistently with the III (d) requirement. If the Master is right, the 7.5 million acre-feet can -- is going to be consumed from the red segment of the river and if Mexico is going to get its 2.5 -- its 1.5 million acre-feet, and if this million acre-feet of losses is going to be met, then there must flow at Lee Ferry every year a constant or an average at least of 10 million acre-feet. Now, if you subtract that obligation and decide what the residue the Upper Basin has for itself, line three shows it. If you're dealing on the hopeful basis of the maximum resource, 15,200,000 acre-feet of virgin flow, then the Upper Basin would have left 5,200,000. If you're dealing with a more pessimistic assumption of virgin flow, the Upper Basin would have left 3,100,000. Now, let me pause there. Those are the figures that I am talking about, not 7.5 million apportioned to the Upper Basin. Line four shows for you the existing and authorized Upper Basin depletions. Those are in evidence. Those are -- a report from the United States Bureau of Reclamation to the committees of Congress. As to the depletions to be occasioned by projects already authorized or already in existence in the Upper Basin, you can't do anything about that. That is water literally over the dam. That is 3,900,000 acre-feet. Subtract that and line five shows you the margin remaining for Upper Basin depletions if the Lower Basin is to have from the red segment of the river 7.5 million acre-feet of consumptive use.
Potter Stewart: Well, I know all that all adds up, but I gather -- get it that the III (d) in Mexico requirement even at the maximum, as you put it, most encouraging protection, mean that the Upper Basin can never have seven-and-a half.
Northcutt Ely: Precisely. That is right. They cannot expand more than 1,300,000 acre-feet above their present authorizations and the Bureau of Reclamation has also projected the date at which the million hundred -- 1,300,000 acre-feet will be put to use and it's within a few decades, about the length of time since the Compact was signed.
Hugo L. Black: Do we have to decide that here as to what maximum the Upper Basin can have?
Northcutt Ely: No. I would say, Your Honor, that if the -- I'd put it the other way around that it would be breaking all precedent that you established in the Nebraska versus Wyoming and Wyoming versus Colorado where you did examine water supply so carefully to proceed on the assumption that nothing can happen here to interfere with the prospect of abundance. Of course it can happen here. The Colorado River Compact is looking us in the eye and you cannot assume that the Upper Basin is going to fold its hands and say “we quit.” We have an apportionment of perpetuity, it says here, seven-and-a half million but we're content with 3,900,000 now on the books. Of course not, bills are pending in Congress at this moment to increase that.
William O. Douglas: Could you stop for a minute? Give me the reconciliation between the table that you've been referring to on page 118 of the Master's report and the one on the previous page, 117.
Northcutt Ely: Yes, sir.
William O. Douglas: They're both there at the same measurements at the same place and the same units but they're vastly different.
Northcutt Ely: They are, Your Honor, and this is the reason. The 117 table is captioned "Historic flow of the Colorado River at Lee Ferry,” the emphasis toward “historic flow.” That is the measured flow since 1922, the estimated flow prior to that time. That is what in fact was there. 118 is the calculation by the Bureau of Reclamation engineers as to what would have been there if there had been no Upper Basin depletions at all. It is called the undepleted or virgin flow. The total Upper Basin depletions are of the general order of two million within the period covered by these two tables. It's of the general order of two million acre-feet if you -- excuse me?
Felix Frankfurter: (Inaudible)
Northcutt Ely: If you -- and that represents, in general, a magnitude of the difference between them not year by year but on average.
Felix Frankfurter: When did you say that gauges were introduced at Lee Ferry?
Northcutt Ely: 1922, Your Honor.
Felix Frankfurter: Well, is the big thing is that, even after that, the figures differ between the historic flow and the virgin flow.
Northcutt Ely: It would be, Your Honor. Let me be clear on that. It should be different for every year. By historic flow, perhaps that's the wrong word for it, I don't mean by that measured flow, I mean that the physical flow actually there with the measure estimated.
Felix Frankfurter: Well, I've -- my question and my ignorance is why should they estimate after they had meet and measured it accurately?
Northcutt Ely: Well, they didn't, no. The -- let me just take this up from 1922 on. The equation is simply this that the historic flow on page 108 -- 117 plus the upstream depletions, more or less two million, should equal the virgin flow shown on page 118.
Potter Stewart: As a matter of fact, the page, as I gather, only gauge what goes through and you have to add the depletion --
Northcutt Ely: That is correct, sir.
Potter Stewart: To get the virgin flow.
Northcutt Ely: That is right. That is exactly so. You take the historic flow shown at page 117. That sh -- the gauges show it went through there. Add to it the depletions to arrive at the figure shown on page 118.
Potter Stewart: The virgin flow is an imaginary figure.
Northcutt Ely: Yes, sir. It's a hypothetical figure.
Potter Stewart: A hypothetical?
Northcutt Ely: Yes, it's imaginary.
Potter Stewart: But, with the flow -- what flow would've been if nobody above had taken any water out.
Northcutt Ely: Exactly so. And, it's a concept everyone has difficulty in accepting but that's the tool that we work with.
Felix Frankfurter: Clear up some more on my part. What do you gauge if it's imaginary? What imaginary figure the gauge has gauged?
Northcutt Ely: Well, that's the, imaginary perhaps is the wrong word, hypothetical flow. You want -- you know as a --
Felix Frankfurter: I'm still troubled. I don't understand what you measure.
Northcutt Ely: Well, we have --
Felix Frankfurter: How do you measure the imaginary?
Northcutt Ely: We've had the same trouble we pursued there as on the witnesses on this subject but, in fairness, what it comes down to is simply this. That if you -- if you wanted to know how much water was flowing to great falls above the -- in the platonic here, you'd go up and measure. But if you wanted to know how much water would be flowing there if no diversions have been made upstream by any community above, then you'd have to find out what those diversions were and add them back in. That's the difference.
Potter Stewart: That's not really hypothetical.
Felix Frankfurter: Is that the basis of the objectivity and--
Northcutt Ely: That's right. Oh yes, it's not -- I used wrong word, imaginary.
William J. Brennan, Jr.: It didn't actually go through to the extent that it had been depleted before it got there, but you can arrive at what had been depleted before it got there.
Northcutt Ely: As you can calculate for the reasonable accuracy of the upstream depletions, you can go there and measure it and you add it into the historic flow at Lee Ferry and you have the sum is equal to what would have been the undepleted flow or the virgin flow.
Potter Stewart: Because I suppose you have to adjust it. I don't want to get too complicated for the evaporation.
Northcutt Ely: Oh yes.
Potter Stewart: That would've occurred.
Northcutt Ely: It's --
Potter Stewart: Other water that, in fact, was depleted.
Northcutt Ely: That is correct. It is an engineering equation but you're correct.
Felix Frankfurter: But, after we've had the figures of the exposition in your part, is it true that all this is irrelevant to the problem we have to face on your -- on the basis of your argument that, in any event -- in any event, what goes through -- what gets to the Lower Basin is unaffected by what the Upper Basin may get out of its hypothetical or out of this abstract seven million fund?
Northcutt Ely: Well, my -- the thrust of my argument is simply to answer the Master's reassurance to us, there's no possibility of shortage, the Compact is irrelevant. You're concerned what Congress does here after, I don't know, it may never build this project.
Felix Frankfurter: What I was -- in answer to Justice Black's question is we needn't bother about these figures, whatever may be the differences, the fact is that 7,500,000 is merely an unreal ceiling for the Upper Basin.
Northcutt Ely: That is correct. That is right. It can never -- it can never --
Felix Frankfurter: And that's your position.
Northcutt Ely: That is correct. That's right. And that's the thrust of this table that --
Potter Stewart: Before you -- excuse me.
Northcutt Ely: Pardon?
Potter Stewart: Are you -- about ready to leave --
Northcutt Ely: Yes, sir.
Potter Stewart: Part of this charge?
Northcutt Ely: One final figure which is in the red on the chart before you shows that if you assume the resource is only the undepleted flow of 1930 to 1956, why, Armageddon is already here. The Upper Basin can't supply 3,900,000 acre-feet of projects that's already built or is building now by -- to the extent of 800,000 acre-feet and still meet its III (d) obligation of 75 million and the -- its share of the maximum treaty burden. We're busted -- somebody's busted now.
Potter Stewart: Well, I'm -- I may be a bit confused but item 2 there, II (a), the downstream requirements use -- put the 7.5 million there for consumptive use form the mainstream. Your point is that it's not limited to the mainstream.
Northcutt Ely: Exactly, Your Honor.
Potter Stewart: This as though accepting the Master.
Northcutt Ely: That is right, yes, sir.
Potter Stewart: Is that it? Yes.
Northcutt Ely: We're -- we are trying to meet his hypothesis that there is no possibility of shortage of 7.5 million from the red area, the mainstream, from Lee Fer -- from Lake Mead to Mexico.
Potter Stewart: I see.
Felix Frankfurter: May I ask this question? I uphold Justice Black's question. The answer that you give, we can forget all about the Upper Basin, there's no bearing to the -- on the controversy. That's true, isn't it? That's your essential position.
Northcutt Ely: Essentially so, I -- probably, if I thought it through, I'd hinge a little but, essentially, that's right.
Felix Frankfurter: Subject to that lawyer's reserve, do you speak for all the parties when you said that's your position, the Upper Basin -- the waters of the Upper Basin is unrelated to our problem?
Northcutt Ely: By other parties, you mean our opponents?
Felix Frankfurter: All, yes.
Northcutt Ely: I certainly hesitate to speak for our opponent.
Felix Frankfurter: But, I mean, from what -- from what their position as known to you.
Northcutt Ely: Well, the Arizona --
Felix Frankfurter: I didn't mean to have you speak for them, but --
Northcutt Ely: I -- I am certainly get in trouble if I do.
Felix Frankfurter: No, I understand that but, as far as you understand that.
Northcutt Ely: Well --
Felix Frankfurter: Is that part of your answer?
Northcutt Ely: No. I'm -- may this Your Honor, the position taken in Arizona's exceptions is that the Colorado River Compact has been misconstrued by the Master. It's said, imposes a greater burden on the Upper Basin and we say it does. They say the seven-and-a half million of III (a) water, the million of III (b) water is all to be found at Lee Ferry and the Compact itself excludes all the tributaries. We don't argue with it.
Felix Frankfurter: Because I understand that, but --
Northcutt Ely: And, if that's so, then the figures I have left here for Upper Basin margins would have to be shrunk in material.
Felix Frankfurter: But -- I know but, in all event, they wouldn't have to be -- they wouldn't be expanded, would they? What I want to know is whether the basics of your argument that the relation, the interest of the Upper Basin States on the water from Colorado are not relevant -- is not a relevant problem for the disposition of this case by us.
Northcutt Ely: Well --
Felix Frankfurter: If it is, then, from my point of view, we're in trouble.
Northcutt Ely: Well, from the --
Felix Frankfurter: From -- you are then adjudicating rights that aren't before us.
Northcutt Ely: Well the -- if the Mas -- let me -- let it cross-grain a little bit. If the Master is right that the Compact is irrelevant, then we say you don't have any justiciable controversy because our water supply is unlimited. The historic flow has exceeded anything we've ever asked.
Felix Frankfurter: We've got a limitation statute?
Northcutt Ely: Well, we intend to abide by it, but when I say the -- where the supply exceeds the demands, I am taking as California's demand, the demand limited by the limitation agreement. If you add up the requirements of these states, California limited by our limitation statute, Calif -- Arizona's demand for 2,800,000, 300,000 for Nevada, you're well under 9 million acre-feet. Add in Mexico, add in losses, you're well under 11.5 million. And, the historic flow --
Felix Frankfurter: If it comes down?
Northcutt Ely: Yes, exactly so, if it comes down. Now, the historic flow upholds -- on page 117, the flow that's always been there in the past for any period you want to take ending in 1958, whether it's 10 years, 20, 30, 40, roll the calendar back as you wish, it has always been an average of more than eleven-and-a half million acre-feet. We have no quarrels with anybody. It's only the Compact's effect. Now, then, consequently, I don't know honestly how to answer your question as to the impact on the Upper Basin. If the Compact has a ceiling on our appropriations, then they're surely going to invoke it. It is the -- we're in a state of euphoria if we believe otherwise. Look at this chart. They can't go above 3,900,000 acre-feet. They can't go in fact above 3,100,000 if we have water for the future like we've had for the last -- since 1930, the last 30 years. Are they going to throw away the Colorado River Compact that they imposed in the Boulder Canyon Project Act 27 times? It's written into that Act 27 times. For what purpose? Are they going to throw away and let us use, as the Master thinks, 7.5 million out of the mainstream instead of 6.5? They've got to impose it. It's unrealistic to assume that this Compact is a scrap of paper but that is the blinders the Master puts on this case. Don't look at the Compact, it's irrelevant.
Hugo L. Black: Does that lead us enough of this question, under your argument, that we must assume that it may be left and that, therefore, there must be some method of apportioning it between the two, either by the way the Master has suggested by his percentage figures or by the doctrine of apportionment?
Northcutt Ely: No, Your Honor. There is a preliminary question. There is not a shortage if the limitation is read as written, that the reference to Article III (a) of the Compact means III (a) of the main river and the tributaries because when the resources of the tributaries are added to the 6.5 million available under the Compact in the main river, there's no shortage. You don't reach the question of proration versus priority. You'll only reach it if you adopt the Master's premise that these two are to be severed and snipped apart, that is the limitation from the Compact. Now, before I -- on that very point, may I have chart 2, if you please. This chart's caption, “The water required to supply California, 4.4 million on the basis of proration,” that's the Master's assumption, “In millions or acre-feet of consumptive use.” The first group of figures is -- the head of the -- if the Compact is incorporated in the limitation. Here, as you'll see, no problem of shortage. There are three columns of figures, one shown -- captioned “Mainstream,” one captioned “Tributaries,” one captioned, “Total.” California might claim 4,400,000 acre-feet from the mainstream, nothing from the tributaries, we have none, for the total of 4,400,000 acre-feet. The other Lower Basin states might claim the 3,100,000 from which were excluded, in the last column, and that 3,100,000 is made up of two components, 1,100,000 from the mainstream and 2,000,000 from the tributaries. There's no shortage, no problems involved. There is in the mainstream 5,500,000 acre-feet of III (a) water available. We may have four, for the other states 1.1, but if the Compact is excised from the limitation, then you reach the second group of figures. Here, look at the last column first. In order for California to have 4,400,000 acre-feet, there must be 9,500,000 acre-feet available in the main river plus the tributaries because the other states on the Master's hypotheses are entitled to claim 5,100,000, of this, two million on the tributaries, 3,100,000 from the main river. A total from the main river alone is 7.5 million, from the tributaries, two million, a total of 9.5 million. Now, that is one million in excess of the Lower Basin's ceiling on appropriations, a total of III (a) plus (b). You can't find under the proration rule, 4,400,000 acre-feet for California unless the Lower Basin, as a whole, is at least one million acre-feet in excess of its III (a) and III (b) ceilings. The problem -- the essential on the limitation issue is always this, can the other states claim the 3,100,000, which we're precluded, from the red river, Lake Mead to Mexico or from the system, The main river plus tributaries? Now, on this matter of proration versus priorities, I'd like to call your attention to the different way in which the -- well, first, before reach that, everything I'm going to say on priorities relates to this 4,400,000 acre-foot component of our limitation. In the reprint before you, the one brought back is number one. The second component, one-half of the excess or surplus, I don't talk about in terms of priority at all. It says “one-half.” One-half means one-half. We concede that the effect of that is proration not because it says so, but because our priorities in fact exceed one-half and we're cut back to it. On the priority issue, I'm talking about the 4,400,000 acre-feet, the first component. Here's what the Master does with respect --
Potter Stewart: The other way is priority issue, one that comes in the case of -- if there's been a shortage.
Northcutt Ely: It only comes into the case in the event that you agree with the Master that the 3,100,000 acre-feet can be claimed from the red segment instead of the system. It depends on your deciding the limitation issue against us and as you've decided it. If you decide the limitation issue with us, you do not reach the priority question. Now, on the question of priorities, the basic rule which has been -- may I have the map again, the map A please. The basic rule which would be applicable throughout the Colorado River Basin in the absence of the Colorado River Compact and the absence of the Project Act and the Absent Limitation Act is unquestionably the rule of equitable apportionment interstate, but this Court has evolved and the latest of the cases would be Nebraska versus Wyoming.