U.S. Supreme Court STATE OF ARIZONA v. STATE OF CALIFORNIA, 292 U.S. 341 (1934)

[Page 292 U.S. 341, 345]

On February 14, 1934, Arizona moved for leave to file in this Court its original bill of complaint to perpetuate testimony in an action or actions arising out of the Boulder Canyon Project Act which 'at some time in the future' it will commence in this Court against California, and others therein named as defendants. [Footnote 1] The bill sets forth:

[Page 292 U.S. 341, 347]

would not be admissible in evidence; opposed also on the ground that the United States is an indispensable party; and insisted that the bill should not be received in the absence of consent by the United States to be sued. The Secretary of the Interior conceded that this Court has jurisdiction, but objected on th same grounds as California to granting the motion. Thereupon a brief was filed by Arizona, reply briefs by respondents, and a brief amicus curiae by the city and county of Denver, Colo.

First. No bill to perpetuate testimony has heretofore been filed in this Court; but no reason appears why such a bill may not be entertained in aid of litigation pending in this Court, or to be begun here. Bills to perpetuate testimony had been known as an independent branch of equity jurisdiction before the adoption of the Constitution. [Footnote 2] Congress provided for its exercise by the lower federal courts. [Footnote 3] There the jurisdiction has been repatedly invoked;4 and it has been recognized by this Court. [Footnote 5]

[Page 292 U.S. 341, 349]

compact which Arizona contends is the proper one. It claims that this paragraph, which declares: 'In addition to the apportionment in Paragraph (a), the lower basin is hereby given the right to increase its beneficial consumptive use of such waters by 1,000,00 acre-feet annum,' means, 'that the waters apportioned by Article III(b) of said compact are for the sole and exclusive use and benefit of the State of Arizona.'

The bill charges that the Secretary of the Interior and the other defendants refuse to accept such construction; and that, by certain contracts made between the Secretary and the California defendants, they are asserting a right to appropriate the said 1,000,000 acre-feet of water to California uses. The bill states that the decision in some future action construing paragraph (b) will materially affect rights of Arizona arising under the Boulder Canyon Project Act, in particular section 4(a) thereof. [Footnote 6]

[Page 292 U.S. 341, 353]

By article III the apportionment is made: '(a) 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.' '(b) In addition to the apportionment in Paragraph (a), the lower basin is hereby given the right to increase its beneficial consumptive use of such waters by 1,000,000 acre-feet per annum.' '(d) The States of the upper division (Colorado, New Mexico, Utah and Wyoming) will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of 10 consecutive years reckoned in continuing progressive series beginning with the first day of October next succeeding the ratification of this compact.'

Article III does not in terms apportion as between the upper and the lower basin the surplus waters in excess of the amounts specifically allocated. But it recognizes in paragraph (c) that there may be 'surplus' waters in the river, applicable to the lower basin. [Footnote 7]

[Page 292 U.S. 341, 357]

the compact. Arizona rests her rights wholly upon the acts of Congress and of California. Arizona claims that California's construction of section 4( a) of the statute would allow her water which under the compact has been assigned to Arizona, and that a conflict is thus raised between the statute and the compact which the suggested testimony is competent to resolve. But the resolution of this alleged conflict can never be material to any case based on the compact considered as contract, since Arizona neither has nor claims any contractual right.

Fifth. Nor does Arizona show that article III(b) of the compact is relevant to an interpretation of section 4(a) of the Boulder Canyon Project Act upon which she bases her claim of right. It may be true that the Boulder Canyon Project Act leaves in doubt the apporti nment among the states of the lower basin of the waters to which the lower basin is entitled under article III(b). But the act does not purport to apportion among the states of the lower basin the waters to which the lower basin is entitled under the compact. The act merely places limits on California's use of waters under article III(a) and of surplus waters; and it is 'such' uses which are 'subject to the terms of said compact.'

There can be no claim that article III(b) is relevant in defining surplus waters under section 4(a) of the act; for both Arizona and California apparently consider the waters under article III(b) as apportioned. [Footnote 9] It is true that Arizona alleges (not in the bill however but in her brief) that she 'hopes to be able to show in the case hereafter to be brought' by evidence of Congressional Committee hearings and other legislative history that the failure in the statute to apportion the 1,000, 000 acre-feet of waters was due to an understanding by Congress that article

[Page 292 U.S. 341, 360]

tions, preparatory works, and diplomatic correspondence of the contracting parties to establish its meaning. Nielsen v. Johnson, 279 U.S. 47, 52, 49 S.Ct. 223. Compare United States v. Texas, , 16 S. Ct. 725; Terrace v. Thompson, 263 U.S. 197, 223, 44 S.Ct. 15; Cook v. United States, , 53 S.Ct. 305. See Yu , The Interpretation of Treaties, pp. 138, 192; Chang, The Interpretation of treaties, p. 59 et seq. But that rule has no application to oral statements made by those engaged in negotiating the treaty which were not embodied in any writing and were not communicated to the government of the negotiator or to its ratifying body. There is no allegation that the alleged agreement between the negotiators made in 1922 was called to the attention of Congress in 1928 when enacting the act; nor that it was called to the attention of the Legislatures of the several states.

As Arizona has failed to show that the testimony which she seeks to have perpetuated could conceivably be material or competent evidence bearing upon the construction to be given article III, paragraph (b), in any action which may hereafter be brought, the motion for leave to file the bill should be denied. We have no occasion to determine whether leave to file the bill should be denied also because the United States was not made a party and has not consented to be sued.

Leave to file bill denied. Footnotes

Footnote 1 Namely, Colorado, Nevada, New Mexico, Utah, Wyoming, Harold L. Ickes, Secretary of the Interior, Palo Verde Irrigation District, Imperial Irrigation District, Coachella Valley Water District, Metropolitan Water District of Southern California, City of Los Angeles, City of San Diego, and County of San Diego.

Footnote 2 1 Pomeroy's Equity Jurisprudence (4th Ed.) 211; West v. Lord Sackville, L.R. (1903) 2 Ch.Div. 378.

Footnote 3 Revised Statutes, 866 (28 USCA 644): '... any circuit ( district) court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States. ...'

Footnote 4 New York, etc., Coffee Polishing Co. v. New York Polishing Co. (C.C .) 9 F. 578; Id. (C.C.) 11 F. 813; Richter v. Jerome (C.C.) 25 F. 679; Westinghouse Machinery Co. v. Electric Storage Battery Co. (C.C.A.) 170 F. 430, 25 L.R.A. (N.S.) 673, reversing (C.C.) 165 F. 992; The West Ira (D.C.) 24 F.(2d) 858; Todd Engineering, etc., Co. v. United States (C.C.A.) 32 F.( 2d) 734; Union Solvents Corp. v. Butacet Corp. (D.C.) 2 F.Supp. 375.

Footnote 5 Richter v. Union Trust Co., 115 U.S. 55, 5 S.Ct. 1162; compare Green v. Compagnia Generale, etc. (D.C.) 82 F. 490, 494-495.

Footnote 6 It is claimed that a future decision as to the meaning of article III(b) will affect rights also under (a) the Colorado River Compact, (b) the conditions required by the Boulder Canyon Project Act to be attached to patents, grants, contracts, concessions, leases, permits, rights of way, and other provileges from the United States, (c) the relative and respective rights of each of the parties (to the suit to perpetuate testimony) in the waters of the Colorado and its tributaries, and the use thereof and the burdens and restrictions upon such use.

Footnote 7 Paragraph (c) provides: 'If, as a matter of international comity, the United States of America, shall hereafter recognize in the United States of Mexico any right to the use of any waters of the Colorado River system, such waters shall be supplied first from the waters which are surplus over and above the aggregate of the quantities specified in paragraphs (a) and (b); and if such surplus shall prove insufficient for this purpose, then, the burden of such deficiency shall be equally borne by the upper basin and the lower basin, and whenever necessary the States of the upper division shall deliver at Lee Ferry water to supply one-half of the deficiency so recognized in addition to that provided in paragraph ( d).'

Footnote 8 That is, the 7,500,000 of the article III(a) waters and the 1,000, 000 of the article III(b) waters.

Footnote 9 The Secretary of the Interior in his brief seems to be of the opinion that waters under Article III(b) might be surplus waters under section 4(a) of the act.