State of Arizona v. State of California 8212

• Citation: 80 L.Ed. 1331,56 S.Ct. 848,298 U.S. 558
• Parties: STATE OF ARIZONA v. STATE OF CALIFORNIA et al. * No. —- Original
• Decision Date: 25 May 1936
• Court: United States Supreme Court

298 U.S. 558

56 S.Ct. 848

80 L.Ed. 1331

STATE OF ARIZONA

v STATE OF CALIFORNIA et al.^*

No. —- Original.

Argued April 28, 1936.

Decided May 25, 1936.

Mr. James R. Moore, of Phoenix, Ariz., for the State of arizona.

Mr. William W. Ray, of Salt Lake City, Utah, for defendants State of Colorado et al.

Mr. Phil D. Swing, of San Diego, Cal., for defendants State of California et al.

Mr. Justice STONE delivered the opinion of the Court.

This case arises upon the petition of the state of Arizona for leave to file in this Court her bill of complaint against the several states named as defendants and upon their returns to the order of this Court, 296 U.S. 552, 56 S.Ct. 303, directing them to show cause why the prayer of the petition should not be granted. The returns raise numerous objections to the sufficiency of the proposed bill of complaint, only two of which we find it necessary to consider. One is that the proposed bill fails to present any justiciable case or controversy within the jurisdiction of the Court. The other is that the United States, which is not named as a defendant and has not consented to be sued, is an indispensable party to any decree granting the relief prayed by the bill.

The relief sought is: (1) That the quantum of Arizona's equitable share of the water flowing in the Colo- rado river, subject to diversion and use, be fixed by this Court, and that the petitioner's title thereto be quieted against adverse claims of the defendant states. (2) That the state of California be barred from having or claiming any right to divert and use more than an equitable share of the water flowing in the river, to be determined by the Court, and not to exceed the limitation imposed upon California's use of such water by the Boulder Canyon Project Act, 45 Stat. 1057, (43 U.S.C.A. §§ 617—617t), and the act of the California Legislature of March 4, 1929, c. 16, Stats.Cal.1929, p. 38. (3) That it be decreed that the diversion and use by any of the defendant states of any part of the equitable share of the water decreed to Arizona pending its diversion and use by her shall not constitute a prior appropriation or confer upon the appropriating state any right in the water superior to that o Arizona. (4) That any right of the republic of Mexico to an equitable share in any increased flow of water in the Colorado river made available by works being constructed by or for California shall be supplied from California's equitable share of the water, and that neither petitioner nor the defendant states other than California shall be required to contribute to it from their equitable shares as adjudicated by the Court.

The proposed bill this, in substance, seeks a judicial apportionment among the states in the Colorado River Basin of the unappropriated water of the river, with the limitation that the share of California shall not exceed the amount to which she is limited by the Boulder Canyon Project Act and by her statute, and with the proviso that any increase in the flow of water to which the republic of Mexico may be entitled shall be supplied from the amount apportioned to California. Our consideration of the case is restricted to an examination of the facts alleged in the proposed bill of complaint and of those of which we may take judicial notice.

The Colorado river, a navigable stream, see Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154, having a total length of 1,293 miles, rises in Colorado and flows through that state 245 miles, then through Utah 285 miles, then through Arizona 292 miles, then on the boundary between Arizona and Nevada 145 miles, then on the boundary between Arizona and California 235 miles, then on the boundary between Arizona and Mexico 16 miles, and then through the republic of Mexico to the Gulf of California 75 miles. For 688 miles, more than half its length, the river flows in Arizona or upon her boundary.

Two dams have been built across the Colorado river by the Secretary of the Interior, acting under authority of acts of Congress. One, Boulder Dam, 378 miles below the intersection of the river with the boundary between Arizona and Utah, creates Boulder Reservoir, extending along the bed of the river 115 miles above the dam. The other, Laguna Dam, is located 18 miles above the point where the Colorado river becomes the boundary between Arizona and Mexico. Two other dams are projected and in course of construction under contracts entered into by the Secretary of the Interior, pursuant to acts of Congress. Boulder Canyon Project Act § 1, 43 U.S.C.A. § 617; United States Session Laws 1935, 49 Stat. p. 1039, § 2. See United States v. State of Arizona, 295 U.S. 174, 55 S.Ct. 666, 79 L.Ed. 1371. Both are in that part of the river which flows between Arizona and California. One Parker Dam, is approximately 150 miles south of Boulder Dam, and the other, Imperial Dam, is 4 1/2 miles above Laguna Dam.

The average annual undepleted flow of the Colorado river in Arizona, at Imperial Dam, is approximately 16,840,000 acre feet.¹ Of the total undepleted flow approxi- mately 6,100,000 acre feet per annum have been appropriated and put to beneficial use in the United States and the Mexican Republic.² After deducting all existing appropriations, there remains in the river subject to future appropriation a net average annual flow of at least 9,720,000 acre feet.³

About 2,027,000 acres of land are under irrigation by water diverted from the Colorado river and its tributaries other than the Gila, of which 72,120 acres are in Arizona.⁴ There are more than 2,000,000 acres of land in Arizona that are not irrigated, but are susceptible of economic irrigation from the unappropriated water of the Colorado River and its tributaries other than the Gila, and which cannot be irrigated from any other source. There are 5,000,000 additional acres of land in Arizona 'potentially susceptible of economic irrigation' from the waters of the river. There are pending projects to irrigate more than 1,000,000 acres of this unirrigated but irrigable land, of which more than 100,000 acres are owned by the state of Arizona. The amount of water required for such irrigation is in excess of 4,000,000 acre feet annually.

By the Colorado River Compact, see Arizona v. California, supra, entered into by the defendant states and approved by Congress, but to which Arizona is not a party, the undepleted flow of water of the Colorado river is apportioned between the upper basin and the lower basin of the river valley; the point of division being Lees Ferry, 23 miles below the southern boundary of Utah. To each basin there is apportioned 7,500,000 acre feet per annum, and the lower basin has the additional right to increase its 'beneficial consumptive use' of the water by 1,000,000 feet per annum.

By the Boulder Canyon Project Act, the Secretary of the Interior was authorized, subject to the terms of the Colorado River Compact (St.Cal.1929, p. 1 et seq.), to construct, operate, and maintain a dam and incidental works at the present site of Boulder Dam, with an appurtenant hydroelectric plant, and to use and dispose of the water stored above the dam for irrigation and for the development of power. The act also provided that no authority should be exercised under it until six of the states in the Colorado River Basin, including California, should ratify the compact, and, unless the state of California, by act of its Legislature, should agree with the United States, for the benefit of all the states in the river basin, that the aggregate annual use of water from the river by the state of California should not exceed 4,400,000 acre feet annually, plus one-half of any excess of surplus waters unapportioned by the compact. The compact was duly ratified by the six defendant states, and the limitation upon the use of the water by California was duly enacted into law by the California Legislature by Act of March 4, 1929, supra. By its provisions the use of the water by California is restricted to 5,485,500 acre feet annually.⁵

The Secretary of the Interior acting under authority of section 5 of the Boulder Canyon Project Act (43 U.S.C.A. § 617d), has entered into contracts with California corporations for the storage in the Boulder Dam reservoir and the delivery, for use in California,⁶ of 5,362,000 acre feet of water annually, for a stipulated compensation. The proposed bill of complaint charges that, notwithstanding the limitation upon the use of the water by California, certain California corporations, with the aid of the United States, propose to divert from the river and use consumptively in California an aggregate amount of 14,330,000 acre feet annually, including that which the Secretary of the Interior has contracted to deliver, or 8,444,500 acre feet in excess of the amount which California is permitted to take by the Boulder Canyon Project Act and her own statute, and sufficient to use all but about 1,000,000 acre feet of the unappropriated annual flow of the river.⁷

Arizona asserts that she is damaged by the impending appropriations of water by California by reason of the fact that future reclamation of land in Arizona can be accomplished only by large scale projects, contemplating the irrigation of large areas to be operated and administered as a single unit, and, because of the great cost of diversion works and large expenditures required to establish such projects, it will be impossible to finance them, 'unless water for the irrigation of said land can be appropriated and unclouded, undisputed and incontestable rights to the permanent use thereof acquired at or prior to the time of constructing such works.'

It is conceded both by the bill of complaint and the returns that all the states in the Colorado River Basin except California, and California so far as material to the present case, apply the doctrine of appropriation to the waters of flowing streams in their respective territories. Under this...