State of Arizona v. State of California, 19

Citation283 U.S. 423,75 L.Ed. 1154,51 S.Ct. 522
Decision Date18 May 1931
Docket NumberNo. 19,19
PartiesSTATE OF ARIZONA v. STATE OF CALIFORNIA et al
CourtUnited States Supreme Court

[Syllabus from pages 423-426 intentionally omitted] Messrs. Thomas D. Thacher, Sol. Gen., and Robert P. Reeder, both of Washington, D. C., for defendant Wilbur, Secretary of Interior.

[Argument of Counsel from pages 426-432 intentionally omitted] Mr. U. S. Webb, Atty. Gen. (Messrs. W. B. Mathews and Charles L. Childers, both of Los Angeles, Cal., of counsel), for defendant State of California.

[Argument of Counsel from pages 432-434 intentionally omitted] Messrs. Clarence L. Ireland, Atty. Gen., and John S. Underwood, of Denver, Colo. (Messrs. Delph E. Carpenter, of Greeley, Colo., Thomas H. Gibson and L. Ward Bannister, both of Denver, Colo., and Raymond L. Sauter, of Sterling, Colo., of counsel), for defendant State of Colorado.

Mr. George P. Parker, Atty. Gen. (Mr. William W. Ray, of Salt Lake City, Utah, of counsel), for defendant State of Utah.

Mr. James A. Greenwood, Atty. Gen. (Messrs. William O. Wilson and Richard J. Jackson, both of Cheyenne, Wyo., and George W. Ferguson, of Thermopolis, Wyo., of counsel), for defendant State of Wyoming.

Mr. Gray Mashburn, Atty. Gen., for defendnt § tate of Nevada.

Mr. E. K. Neumann, Atty. Gen. (Mr. Francis C. Wilson, of Santa Fe , N. M., of counsel), for defendant State of New Mexico.

[Argument of Counsel from pages 434-438 intentionally omitted] Mr. K. Berry Peterson, Atty. Gen. (Messrs. Dean G. Acheson, of Washington, D. C., and Clifton Mathews, of Globe, Ariz., of counsel), for complainant State of Arizona.

[Argument of Counsel from pages 438-448 intentionally omitted]

Page 448

Mr. Justice BRANDEIS delivered the opinion of the Court.

The Boulder Canyon Project Act, December 21, 1928, c. 42, 45 Stat. 1057 (43 USCA §§ 617-617t) authorizes the Secretary of the Interior, at the expense of the United States, to construct at Black Canyon, on the Colorado river, a dam, a storage reservoir, and a hydroelectric plant; provides for their control, management, and operation by the United States; and declares that the authority is conferred 'subject to the terms of the Colorado River compact,' 'for the purpose of controlling the floods, improving navigation and regulating the flow of the Colorado River, providing for storage and for the delivery of the stored waters thereof for reclamation of public lands and other beneficial uses

Page 449

exclusively within the United States, and for the generation of electrical energy as a means of making the project herein authorized a selfsupporting and financially solvent undertaking.' Section 1 (43 USCA § 617).

The Colorado River Compact is an agreement for the apportionment of the water of the river and its tributaries. After several years of preliminary informal discussion, Colorado, Wyoming, Utah, New Mexico, Arizona, Nevada, and California-the seven States through which the river system extends-appointed commissioners in 1921 to formulate an agreement; and Congress, upon request, gave its assent, and authorized the appointment of a representative to act for the United States. Act of August 19, 1921, c. 72, 42 Stat. 171. On November 24, 1922, these commissioners and the federal representative signed an agreement to become effective when ratified by Congress and the Legislatures of all of these States. The Boulder Canyon Project Act approved this agreement subject to certain limitations and conditions, the approval to become effective upon the ratification of the compact, as so modified, by the Legislatures of California and at least five of the six other states. The Legislatures of all these states, except Arizona, ratified the modified compact, and the act was accordingly declared to be in effect. Proclamation of June 25, 1929, 46 Stat. 20.

On October 13, 1930, Arizona filed this original bill of complaint against Ray Lyman Wilbur, Secretary of the Interior, and the states of California, Nevada, Utah, New Mexico, Colorado, and Wyoming. It charges that Wilbur is proceeding in violation of the laws of Arizona to invade its quasi sovereign rights by building at Black Canyon on the Colorado river a dam, half of which is to be in Arizona, and a reservoir to store all the water of the river flowing above it in Arizona, for the purpose of diverting part of these waters from Arizona for consumptive use

Page 450

elsewhere, and of preventing the beneficial consumptive use in Arizona of the unappropriated water of the river now flowing in that state; that these things are being done under color of authority of the Boulder Canyon Project Act; that this act purports to authorize the construction of the dam and reservoir, the diversion of the water from Arizona, and its perpetual use elsewhere; that the act directs and requires Wilbur to permit no use or future appropriation of the unappropriated water of the main stream of the Colorado river, now flowing in Arizona and to be stored by the said dam and reservoir, except subject to the conditions and reservations contained in the Colorado River Compact; and that the act thus attempts to enforce as against Arizona, and to its irreparable injury, the compact which it has refused to ratify. The bill prays that the compact and the act 'and each and every part thereof, be decreed to be unconstitutional, void and of no effect; that the defendants and each of them be permanently enjoined and restrained from enforcing or carrying out said compact or said act, or any of the provisions thereof, and from carrying out the three pretended contracts hereiabov e referred to, or any of them, or any of their provisions, (meaning certain contracts executed by Wilbur on behalf of the United States for the use of the stored water and developed power after the project shall have been completed) and from doing any other act or thing pursuant to or under color of said Boulder Canyon Project Act.'

Process was made returnable on January 12, 1931; and on that day all of the defendants moved that the bill be dismissed. The grounds assigned in the motions are: (1) That the bill does not join the United States, an indispensable party; (2) that the bill does not present any case or controversy of which the court can take judicial cognizance; (3) that the proposed action of the defendants will not invade any vested right of the plaintiff or of any

Page 451

of its citizens; (4) that the bill does not state facts sufficient to constitute a cause of action against any of the defendants. The case was heard on these motions.

The wrongs against which redress is sought are, first, the threatened invasion of the quasi sovereignty of Arizona by Wilbur in building the dam and reservoir without first securing the approval of the state engineer as prescribed by its laws; and, second, the theatened invasion of Arizona's quasi sovereign right to prohibit or to permit appropriation, under its own laws, of the unappropriated water of the Colorado river flowing within the state. The latter invasion, it is alleged, will consist in the exercise, under the act and the compact, of a claimed superior right to store, divert, and use such water.

First. The claim that quasi sovereign rights of Arizona will be invaded by the mere construction of the dam and reservoir rests upon the fact that both structures will be located partly within the state. At Black Canyon, the site of the dam, the middle channel of the river is the boundary between Nevada and Arizona. The latter's statutes prohibit the construction of any dam whatsoever until written approval of plans and specifications shall have been obtained from the state engineer; and the statutes declare in terms that this provision applies to dams to be erected by the United States. Arizona Laws 1929, c. 102, §§ 1-4. See, also, Revised Code of 1928, §§ 3280-3286. The United States has not secured such approval; nor has any application been made by Wilbur, who is proceeding to construct said dam in complete disregard of this law of Arizona.

The United States may perform its functions without conforming to the police regulations of a state. Johnson v. Maryland, 254 U. S. 51, 41 S. Ct. 16, 65 L. Ed. 126; Hunt v. United States, 278 U. S. 96, 49 S. Ct. 38, 73 L. Ed. 200. If Congress has power to authorize the construction of the dam and reservoir, Wilbur is under no obligation to submit the plans and specifications to the state

Page 452

engineer for approval.1 And the federal government has the power to create this obstruction in the river for the purpose of improving navigation if the Colorado river is navigable. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 430, 15 L. Ed. 435; South Carolina v. Georgia, 93 U. S. 4, 11, 23 L. Ed. 782; Gibson v. United States, 166 U. S. 269, 17 S. Ct. 578, 41 L. Ed. 996; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 64, 33 S. Ct. 667, 57 L. Ed. 1063; Greenleaf-Johnson Lumber Co. v. Garrison, 237 U. S. 251, 258, 269, 35 S. Ct. 551, 59 L. Ed. 939. Arizona contends both that the river is not navigable, and that it was not the purpose of Congress to improve navigation.

The bill alleges that 'the river has never been, and is not now, a navigable river.' The argument is that the question whether a stream is navigable is oe of fact; and that hence the motion to dismiss admits the allegation that the river is not navigable. It is true that whether a stream is navigable in law depends upon whether it is navigable in fact, United States v. Utah, 283 U. S. 64, 51 Sup. Ct. 438, 75 L. Ed. 844;2 and that a motion to dismiss, like a demurrer, admits every well-pleaded allegation of fact, Payne v. Central Pacific Ry. Co., 255 U. S. 228, 232, 41 S. Ct. 314, 65 L. Ed. 598. But a court may take judicial notice that a river within its jurisdiction is navigable. United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, 697, 19 S. Ct. 770, 43 L. Ed. 1136; Wear v. Kansas, 245 U. S. 154, 158, ...

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