State of Arizona v. State of California, No. 8

CourtUnited States Supreme Court
Writing for the CourtBlack
Citation373 U.S. 546,10 L.Ed.2d 542,83 S.Ct. 1468
PartiesSTATE OF ARIZONA, Plaintiff, v. STATE OF CALIFORNIA et al. riginal. Re
Docket NumberO,No. 8
Decision Date03 June 1963

373 U.S. 546
83 S.Ct. 1468
10 L.Ed.2d 542
STATE OF ARIZONA, Plaintiff,

v.

STATE OF CALIFORNIA et al.

No. 8, Original.
Reargued Nov. 13 and 14, 1962.
Decided June 3, 1963.

[Syllabus from pages 546-549 intentionally omitted]

Page 549

Mark Wilmer, Phoenix, Ariz., for complainant.

Northcutt Ely, Washington, D.C., for defendant State of California.

Page 550

R. P. Parry, Twin Falls, Idaho, for intervener State of Nevada.

Sol. Gen. Archibald Cox for intervener United States.

Mr. Justice Black delivered the opinion of the Court.

In 1952 the State of Arizona invoked the original jurisdiction of this Court 1 by filing a complaint against the

Page 551

State of California and seven of its public agencies.2 Later, Nevada, New Mexico, Utah, and the United States were added as parties either voluntarily or on motion.3 The basic controversy in the case is over how much water each State has a legal right to use out of the waters of the Colorado River and its tributaries. After preliminary pleadings, we referred the case to George I. Haight, Esquire, and upon his death in 1955 to Simon H. Rifkind, Esquire, as Special Master to take evidence, find facts, state conclusions of law, and recommend a decree, all 'subject to consideration, revision, or approval by the Court.'4 The Master conducted a trial lasting from June 14, 1956, to August 28, 1958, during which 340 witnesses were heard orally or by deposition, thousands of exhibits were received, and 25,000 pages of transcript were filled. Following many motions, arguments, and briefs, the Master in a 433-page volume reported his findings, conclusions, and recommended decree, received by the Court on January 16, 1961.5 The case has been extensively briefed here and orally argued twice, the first time about 16 hours, the second, over six. As we see this case, the question of each State's share of the waters of the Colorado and its tributaries turns on the meaning and the scope of the Boulder Canyon Project Act passed by Congress in

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1928.6 That meaning and scope can be better understood when the Act is set against its background—the gravity of the Southwest's water problems; the inability of local groups or individual States to deal with these enormous problems; the continued failure of the States to agree on how to conserve and divide the waters; and the ultimate action by Congress at the request of the States creating a great system of dams and public works nationally built, controlled, and operated for the purpose of conserving and distributing the water.

The Colorado River itself rises in the mountains of Colorado and flows generally in a southwesterly direction for about 1,300 miles through Colorado, Utah, and Arizona and along the Arizona-Nevada and Arizona-California boundaries, after which it passes into Mexico and empties into the Mexican waters of the Gulf of California. On its way to the sea it receives tributary waters from Wyoming, Colorado, Utah, Nevada, New Mexico, and Arizona. The river and its tributaries flow in a natural basin almost surrounded by large mountain ranges and drain 242,000 square miles, an area about 900 miles long from north to south and 300 to 500 miles wide from east to west—practically one-twelfth the area of the continental United States excluding Alaska. Much of this large basin is so arid that it is, as it always has been, largely dependent upon managed use of the waters of the Colorado River System to make it productive and inhabitable. The Master refers to archaeological evidence that as long as 2,000 years ago the ancient Hohokam tribe built and maintained irrigation canals near what is now Phoenix, Arizona, and that American Indians were practicing irrigation in that region at the time white men first explored it. In the second half of the nineteenth century a group

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of people interested in California's Imperial Valley conceived plans to divert water from the mainstream of the Colorado to give life and growth to the parched and barren soil of that valley. As the most feasible route was through Mexico, a Mexican corporation was formed and a canal dug partly in Mexico and partly in the United States. Difficulties which arose because the canal was subject to the sovereignty of both countries generated hopes in this country that some day there would be a canal wholly within the United States, an all-American canal. 7

During the latter part of the nineteenth and the first part of the twentieth centuries, people in the Southwest continued to seek new ways to satisfy their water needs, which by that time were increasing rapidly as new settlers moved into this fast-developing region. But none of the more or less primitive diversions made from the mainstream of the Colorado conserved enough water to meet the growing needs of the basin. The natural flow of the Colorado was too erratic, the river at many places in canyons too deep, and the engineering and economic hurdles too great for small farmers, larger groups, or even States to build storage dams, construct canals, and install the expensive works necessary for a dependable year-round water supply. Nor were droughts the basin's only problem; spring floods due to melting snows and seasonal storms were a recurring menace, especially disastrous in California's Imperial Valley where, even after the Mexican canal provided a more dependable water supply, the threat of flood remained at least as serious as before. Another troublesome problem was the erosion of land and the deposit of silt which fouled waters, choked irrigation works, and damaged good farmland and crops.

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It is not surprising that the pressing necessity to transform the erratic and often destructive flow of the Colorado River into a controlled and dependable water supply desperately needed in so many States began to be talked about and recognized as far more than a purely local problem which could be solved on a farmer-by-farmer, group-by-group, or even state-by-state basis, desirable as this kind of solution might have been. The inadequacy of a local solution was recognized in the Report of the All-American Canal Board of the United States Department of the Interior on July 22, 1919, which detailed the widespread benefits that could be expected from construction by the United States of a large reservoir on the mainstream of the Colorado and an all-American canal to the Imperial Valley.8 Some months later, May 18, 1920, Congress passed a bill offered by Congressman Kinkaid of Nebraska directing the Secretary of the Interior to make a study and report of diversions which might be made from the Colorado River for irrigation in the Imperial Valley.9 The Fall-Davis Report,10 submitted to Congress in compliance with the Kinkaid Act, began by declaring, '(T)he control of the floods and development of the resources of the Colorado River are peculiarly national problems * * *'11 and then went on to give reasons why this was so, concluding with the statement that the job was so big that only the Federal Government could do it.12 Quite naturally, therefore, the

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Report recommended that the United States construct as a government project not only an all-American canal from the Colorado River to the Imperial Valley but also a dam and reservoir at or near Boulder Canyon. 13

The prospect that the United States would undertake to build as a national project the necessary works to control floods and store river waters for irrigation was apparently a welcome one for the basin States. But it brought to life strong fears in the northern basin States that additional waters made available by the storage and canal projects might be gobbled up in perpetuity by faster growing lower basin areas, particularly California, before the upper States could appropriate what they believed to be their fair share. These fears were not without foundation, since the law of prior appropriation prevailed in most of the Western States.14 Under that law the one who first appropriates water and puts it to beneficial use thereby acquires a vested right to continue to divert and use that quantity of water against all claimants junior to him in point of time.15 'First in time, first in right' is the short hand expression of this legal principle. In 1922, only four months after the Fall-Davis Report, this Court in Wyoming v. Colorado, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999, held that the

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doctrine of prior appropriation could be given interstate effect.16 This decision intensified fears of Upper Basin States that they would not get their fair share of Colorado River water.17 In view of California's phenomenal growth, the Upper Basin States had particular reason to fear that California, by appropriating and using Colorado River water before the upper States, would, under the interstate application of the prior appropriation doctrine, be 'first in time' and therefore 'first in right.' Nor were such fears limited to the northernmost States. Nevada, Utah, and especially Arizona were all apprehensive that California's rapid declaration of appropriative claims would deprive them of their just share of basin water available after construction of the proposed United States project. It seemed for a time that these fears would keep the States from agreeing on any kind of division of the river waters. Hoping to prevent 'conflicts' and 'expensive litigation' which would hold up or prevent the tremendous benefits expected from extensive federal development of the river,18 the basin States requested and Congress passed an Act on August 19, 1921, giving the

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States consent to negotiate and enter into a compact for the 'equitable division and apportionment * * * of the water supply of the Colorado River.'19

Pursuant to this congressional authority, the seven States appointed Commissioners who, after negotiating for the better part of a year, reached an agreement at Santa Fe, New Mexico,...

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297 practice notes
  • Northern Cheyenne Tribe of Northern Cheyenne Indian Reservation v. Adsit, Nos. 79-4887
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 22, 1982
    ...in trust to the federal government. Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908); Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), overruled on other grounds, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1977). Federal courts have cons......
  • California ex rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep't of the Interior, Nos. 12–55856
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 19, 2014
    ...held that the Boulder Canyon Project Act limited California's Colorado River allotment to 767 F.3d 7884.4 mafy. Arizona v. California, 373 U.S. 546, 564–65, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). California could exceed this annual allowance only if (1) the other lower-basin states did not u......
  • San Diego Cnty. Water Auth. v. Metro. Water Dist. of S. Cal., A146901
    • United States
    • California Court of Appeals
    • June 21, 2017
    ...upon managed use of the waters of the Colorado River System to make it productive and inhabitable." ( Arizona v. California (1963) 373 U.S. 546, 552, 83 S.Ct. 1468, 10 L.Ed.2d 542.)In 1929, a federal act authorized construction of Hoover Dam to generate electricity, regulate the Colorado Ri......
  • U.S. & Coeur D'Alene Tribe v. State (In re Csrba Case No. 49576 Subcase No. 91-7755), Docket Nos. 45381
    • United States
    • Idaho Supreme Court
    • September 5, 2019
    ...Cappaert v. United States, 426 U.S. 128, 139, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976) (citing Arizona v. California (hereafter Arizona I ), 373 U.S. 546, 598, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), judgment entered sub nom. Arizona v. California (hereafter Arizona II ), 376 U.S. 340, 84 S.Ct. 7......
  • Request a trial to view additional results
291 cases
  • Northern Cheyenne Tribe of Northern Cheyenne Indian Reservation v. Adsit, Nos. 79-4887
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 22, 1982
    ...in trust to the federal government. Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908); Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), overruled on other grounds, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1977). Federal courts have cons......
  • California ex rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep't of the Interior, Nos. 12–55856
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 19, 2014
    ...held that the Boulder Canyon Project Act limited California's Colorado River allotment to 767 F.3d 7884.4 mafy. Arizona v. California, 373 U.S. 546, 564–65, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). California could exceed this annual allowance only if (1) the other lower-basin states did not u......
  • San Diego Cnty. Water Auth. v. Metro. Water Dist. of S. Cal., A146901
    • United States
    • California Court of Appeals
    • June 21, 2017
    ...upon managed use of the waters of the Colorado River System to make it productive and inhabitable." ( Arizona v. California (1963) 373 U.S. 546, 552, 83 S.Ct. 1468, 10 L.Ed.2d 542.)In 1929, a federal act authorized construction of Hoover Dam to generate electricity, regulate the Colorado Ri......
  • U.S. & Coeur D'Alene Tribe v. State (In re Csrba Case No. 49576 Subcase No. 91-7755), Docket Nos. 45381
    • United States
    • Idaho Supreme Court
    • September 5, 2019
    ...Cappaert v. United States, 426 U.S. 128, 139, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976) (citing Arizona v. California (hereafter Arizona I ), 373 U.S. 546, 598, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), judgment entered sub nom. Arizona v. California (hereafter Arizona II ), 376 U.S. 340, 84 S.Ct. 7......
  • Request a trial to view additional results
4 books & journal articles
  • State Water Ownership and the Future of Groundwater Management.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 7, May 2022
    • May 1, 2022
    ...v. Tennessee, 142 S. Ct. 31, 39-41 (2021). (250.) See Cappaert v. United States, 426 U.S. 128, 138 (1976); Arizona v. California, 373 U.S. 546, 598 (251.) See infra Section IV.B. (252.) Hughes v. Oklahoma, 441 U.S. 322 (1979). (253.) See infra notes 309-318; accord Torres, supra note 95, at......
  • Rethinking the Supreme Court’s Interstate Waters Jurisprudence
    • United States
    • Georgetown Environmental Law Review Nbr. 33-2, January 2021
    • January 1, 2021
    ...contracts convinced the Court that the waters of the lower Colorado had already been fully allocated by law. See Arizona v. California, 373 U.S. 546, 565 (1963) (“Where Congress has so exercised its constitutional power over waters courts have no power to substitute their own notions of an ......
  • Application of the ESA to Indian Tribes and Their Lands
    • United States
    • Endangered species deskbook
    • April 22, 2010
    ...have reserved water rights both on-reservation and of-reservation. 24 For example, in Winters v. United 16. See Arizona v. California, 373 U.S. 546, 598 (1963); Parravano v. Babbitt, 70 F.3d 539, 26 ELR 20232 (9th Cir. 1995), cert. denied , Parravano v. Babbitt, 518 U.S. 1016 (1996). See al......
  • Sustainability and Justice
    • United States
    • Rethinking sustainability to meet the climate change challenge
    • May 11, 2015
    ...Reisner, Cadillac Desert: The American West and Its Disappearing Water (1986). 53. Pub. L. No. 90-537; 82 Stat. 885 (Sept. 30, 1968). 54. 373 U.S. 546 (1963). Sustainability and Justice 217 pleading the case against dams at Echo Park and Split Mountain. In what many describe as the galvaniz......

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