Arizona v. California
460 U.S. 605 (1983)

Annotate this Case

U.S. Supreme Court

Arizona v. California, 460 U.S. 605 (1983)

Arizona v. California

No. 8, Orig.

Argued December 8, 1982

Decided March 30, 1983

460 U.S. 605

ON EXCEPTIONS TO SPECIAL MASTER'S REPORT AND

RECOMMENDED DECREE AND MOTIONS TO INTERVENE

Syllabus

This extended litigation over rights to the waters of the Colorado River began in 1952, when Arizona brought an original action in this Court against California and several of its public agencies. Later, Nevada, New Mexico, Utah, and the United States became parties. Following the report of a Special Master, the major issue in the case -- the apportionment of water among the lower basin States -- was resolved in the Court's opinion, 373 U. S. 373 U.S. 546, and 1964 decree, 376 U. S. 376 U.S. 340. A supplemental decree identifying present perfected rights was entered in 1979. 439 U. S. 439 U.S. 419. Pursuant to the Court's initial opinion and decree, the United States acquired water rights for the reservations of five Indian Tribes that are dependent upon the river for their water. The proper standard for measuring the water rights intended for the reservations was held to be "practicably irrigable acreage," and the Special Master's calculation of the amount of such acreage was approved. The United States, and the Tribes which ask to intervene in the action, now seek to have those water rights increased to account for (1) "omitted lands" -- irrigable lands within recognized reservation boundaries for which water rights were not claimed in the earlier litigation; and (2) "boundary lands" -- irrigable lands claimed to now have been finally determined to lie within the reservations. A Special Master appointed by the Court issued a preliminary finding allowing the Tribes to intervene and a final report concluding that the Tribes are entitled to the additional rights.

Held:

1. The Indian Tribes' motions to intervene are granted. Since the Tribes do not seek to bring new claims or issues against the States, but only ask leave to participate in an adjudication of their water rights that was commenced by the United States, this Court's judicial power over the controversy is not enlarged by granting leave to intervene, and the States' sovereign immunity protected by the Eleventh Amendment is not compromised. Moreover, the Tribes satisfy the standards for permissive intervention set forth in the Federal Rules of Civil Procedure, which serve as a guide in an original action in this Court. Pp. 460 U. S. 613-615.

2. The States' exceptions to the Special Master's conclusion that the Tribes are entitled to increased water rights for omitted lands are sustained.

Page 460 U. S. 606

The prior determination of Indian water rights in the 1964 decree precludes relitigation of the irrigable acreage issue. Article IX of the 1964 decree -- which provided that this Court would retain jurisdiction of the action

"for the purpose of any order, direction, or modification of the decree, or any supplementary decree, that may at any time be deemed proper in relation to the subject matter in controversy"

-- must be subject to the general principles of finality and repose, absent changed circumstances or unforeseen issues not previously litigated. The principles of res judicata advise against reopening the calculation of the amount of practicably irrigable acreage to which the Tribes are entitled. To apply the law-of-the-case doctrine in this Court's original actions, as the Special Master would here, would weaken the finality of the decrees in such actions, particularly in a case such as this one, which turns on statutory, rather than Court-fashioned, equitable criteria. Recalculating the amount of practicably irrigable acreage runs directly counter to the strong interests in finality in this litigation, a major purpose of which has been to provide the necessary assurance to the States and various private interests involved of the amount of water they can anticipate receiving from the Colorado River. Article IX did not contemplate a departure from these fundamental principles so as to permit retrial of factual or legal issues that were fully and fairly litigated 20 years ago. The absence of the Indian Tribes in the prior proceedings does not require relitigation of their reserved rights. Pp. 460 U. S. 615-628.

3. The States' and state agencies' exceptions to the Special Master's finding that certain reservation boundaries extended by order of the Secretary of the Interior have been "finally determined" within the meaning of Article II(D)(5) of the 1964 decree -- which provided that the quantities of water fixed in the provisions of the decree setting forth the reservations' water rights in the Colorado River shall be subject to appropriate adjustment by agreement or decree of this Court in the event "the boundaries of the respective reservations are finally determined" -- are sustained. But with respect to the boundaries determined by judicial decree in certain quiet title actions, the exceptions are overruled, and the Special Master's conclusion that these boundaries were "finally determined" within the meaning of Article II(D)(5) is adopted. Accordingly, the 1979 supplemental decree in this case should be amended to provide to the respective reservations appropriate water rights to service the irrigable acreage the Special Master found to be contained within the tracts adjudicated by the specified quiet title judgments to be reservation land. Pp. 460 U. S. 628-641.

Exceptions to the Special Master's Report sustained in part and overruled in part, and motions to intervene granted.

Page 460 U. S. 607

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and in Part III of which BRENNAN, BLACKMUN, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN and STEVENS, JJ., joined, post, p. 460 U. S. 642. MARSHALL, J., took no part in the consideration or decision of the case.

JUSTICE WHITE delivered the opinion of the Court.

The problem of irrigating the arid lands of the Colorado River Basin has been confronted by the peoples of that region

Page 460 U. S. 608

for 2,000 years and by Congress and this Court for many decades. Today we conclude another chapter in this original action brought to determine rights to the waters of the Colorado River. In earlier proceedings in this case, the United States, an intervenor in the principal action, acquired water rights for five Indian reservations that are dependent upon the river for their water. The United States, and the Tribes which ask to intervene in the action, now seek to have those water rights increased.

I

The Colorado River Compact of 1922 divided the waters of the Colorado River between the Upper- and Lower-Basin States, but fell short of apportioning the respective shares among the individual States. Nor did the Boulder Canyon Project Act of 1928, 45 Stat. 1057, as amended, 43 U.S.C. § 617 et seq. (1976 ed. and Supp. V) (Project Act), a vast federal effort to harness and put to use the waters of the lower Colorado River, expressly effect such an apportionment. The principal dispute that became increasingly pressing over the years concerned the respective shares of the Lower-Basin States, particularly the shares of California and Arizona.

This litigation began in 1952 when Arizona, to settle this dispute, invoked our original jurisdiction, U.S.Const., Art. III, § 2, cl. 2, by filing a motion for leave to file a bill of complaint against California and seven public agencies of the State. [Footnote 1] Arizona sought to confirm its title to water in the Colorado River system and to limit California's annual consumptive use of the river's waters. Nevada intervened, praying for determination of its water rights; Utah and New Mexico were joined as defendants; and the United States intervened, seeking water rights on behalf of various federal establishments, including the reservations of five Indian

Page 460 U. S. 609

Tribes -- the Colorado River Indian Tribes, Fort Mojave Indian Tribe, Chemehuevi Indian Tribe, Cocopah Indian Tribe, and Fort Yuma (Quechan) Indian Tribe.

After lengthy proceedings, Special Master Simon Rifkind filed a report recommending a certain division of the Colorado River waters among California, Arizona, and Nevada. The parties' respective exceptions to the Master's report were extensively briefed, and the case was twice argued. The Court for, the most part, agreed with the Special Master, 373 U. S. 373 U.S. 546 (1963), and our views were carried forward in the decree found at 376 U. S. 376 U.S. 340 (1964).

The long and rich story of the efforts on behalf of the States involved to arrive at a mutually satisfactory plan of apportionment is set forth in the Special Master's report and the Court's opinion, and need not be repeated here. We agreed with the Special Master that the allocation of Colorado River water was to be governed by the standards set forth in the Project Act, rather than by the principles of equitable apportionment which, in the absence of statutory directive, this Court has applied to disputes between States over entitlement to water from interstate streams. Nor was the local law of prior appropriation necessarily controlling. The Project Act itself was held to have created a comprehensive scheme for the apportionment among California, Nevada, and Arizona of the Lower Basin's share of the mainstream waters of the Colorado River, leaving each State its tributaries. Congress had decided that a fair division of the first 7.5 million acre-feet of such mainstream waters would give 4.4 million acre-feet to California, 2.8 million acre-feet to Arizona, and 300,000 acre-feet to Nevada. Arizona and California would share equally in any surplus. 373 U.S. at 373 U. S. 565.

Over strong objection, we also agreed with the Special Master that the United States had reserved water rights for the Indian reservations, effective as of the time of their creation. Id. at 373 U. S. 598-600. See Winters v. United States,207 U. S. 564 (1908). These water rights, having vested before

Page 460 U. S. 610

the Project Act became effective on June 25, 1929, were ranked with other "present perfected rights," [Footnote 2] and as such were entitled to priority under the Act. 373 U.S. at 373 U. S. 600. Rejecting more restrictive standards for measuring the water rights intended to be reserved for the reservations, we agreed with the Master and the United States, speaking on behalf of the Tribes, that the "only feasible and fair way by which reserved water for the reservations can be measured is irrigable acreage." Id. at 373 U. S. 601. We further sustained the Master's findings, arrived at after full, adversary proceedings, as to the various acreages of practicably irrigable land on the different reservations. Ibid. These findings were subsequently incorporated in our decree of March 9, 1964. Article II(D) of our decree specified each reservation's entitlement to diversions from the mainstream.

Not all aspects of the case were finally resolved in the 1964 decree. First, in the course of determining irrigable acreage on the reservations, the Master resolved a dispute between the United States and the States with respect to the boundaries of the Colorado River and Fort Mojave Indian Reservations, generally finding that the reservations were smaller than the United States claimed them to be. Although we based the water rights decreed to these two reservations on the irrigable acreage within the boundaries determined by the Special Master, we found that it had been "unnecessary" for the Special Master finally to have determined these

Page 460 U. S. 611

boundaries [Footnote 3] and provided in Article II(D) that the quantities of water provided for the Fort Mojave Indian Reservation and the Colorado River Indian Reservation

"shall be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined."

376 U.S. at 376 U. S. 345. See460 U. S. infra. Second, Article VI of the decree provided that the parties, within two years, should provide the Court with a list of the outstanding present perfected rights in the mainstream waters. Finally, in Article IX of the decree, we retained jurisdiction over the case for the purpose of further modifications and orders that we deemed proper.

On January 9, 1979, we entered a supplemental decree identifying the present perfected rights to the use of the mainstream water in each State and their priority dates as agreed to by the parties. 439 U. S. 439 U.S. 419. We also decreed that, in the event of shortage, the Secretary of the Interior shall, before providing for the satisfaction of these present perfected rights, first provide for the satisfaction in full of the Indian water rights set forth in the 1964 decree for the five reservations. We expressly noted that these quantities, fixed in paragraphs 1 through 5 of Article II(D) of the 1964 decree

"shall continue to be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined."

439 U.S. at 439 U. S. 421. The 1979 decree thus resolved outstanding issues in the litigation. But before that decree was entered new questions arose: the five Indian Tribes, ultimately joined by the United States, made claims for additional water rights to reservation lands.

Page 460 U. S. 612

Because the United States had represented their interests, the Indian Tribes previously had no part in the litigation. In 1977, however, the Fort Mojave, Chemehuevi, and Quechan (Fort Yuma) Indian Tribes moved for leave to intervene as indispensable parties. By April 10, 1978, the Colorado River Indian Tribes and the Cocopah Indian Tribe had also filed petitions for intervention. Three of the Tribes sought intervention to oppose entry of the 1979 decree that was to set the priority order for water rights in the Colorado River. The Tribes also raised claims for additional water rights appurtenant to two types of land: (1) the so-called "omitted" lands -- irrigable lands, within the recognized 1964 boundaries of the reservations, for which it was said that the United States failed to claim water rights in the earlier litigation; and (2) "boundary" lands -- lands that were or should have been officially recognized as part of the reservations and that had assertedly been finally determined to lie within the reservations within the meaning of the 1964 decree.

Initially, both the state parties and the United States opposed intervention. Subsequently, the United States dropped its opposition to the Tribes' intervention. Still later, on December 22, 1978, the United States joined the Indians in moving for a supplemental decree to grant additional water rights to the reservations. In our 1979 decree, we denied the motion of the Fort Mojave, Chemehuevi, and Quechan Tribes to intervene insofar as they sought to oppose entry of the supplemental decree. Other matters raised by their motion, as well as that of the United States' and the other two Tribes, were not resolved. We appointed Senior Judge Elbert P. Tuttle Special Master, and referred these motions to him. 439 U.S. at 439 U. S. 436-437.

II

After conducting hearings, the Special Master issued a preliminary report on August 28, 1979, granting the Indian Tribes leave to intervene in subsequent hearings on the

Page 460 U. S. 613

merits. In addition, the Special Master concluded that certain boundaries of the reservations had now been finally determined within the meaning of Article II(D) of the 1964 decree, primarily because of administrative decisions taken by the Secretary of the Interior. These decisions purported considerably to enlarge the reservations affected and, with respect to the Colorado River and Mojave Reservations, were, for the most part, reassertions of the positions submitted by the United States to Special Master Rifkind, rejected by him, and left open by us to later final resolution. We refused to allow the States to file exceptions at that time, 444 U.S. 1009 (1980), and the Special Master held further hearings on the merits.

On February 22, 1982, the Special Master issued his final report. The Special Master's findings were almost entirely consistent with the position of the United States and the Indian Tribes. Rejecting the States' strong objections to reopening the question of whether more practicable irrigable acreage actually existed than the United States claimed, Special Master Rifkind found, and our 1963 opinion and 1964 decree specified, the Special Master concluded that each of the Tribes was entitled to additional water rights based on land that he determined to be irrigable over and beyond that previously found. Furthermore, based on his earlier boundary determination, the Master determined that there was additional practicably irrigable acreage for which the Indians were entitled to further water rights. The States have filed exceptions to both of these determinations, as well as to various factual findings concerning the amount of practicably irrigable acreage.

III

The States have also refiled their exceptions to the Special Master's preliminary findings allowing the Indian Tribes to intervene in the action. We consider this matter first.

We agree with the Special Master that the Indian Tribes' motions to intervene should be granted. The States oppose

Page 460 U. S. 614

the motions and insist that, without their consent, the Tribes' participation violates the Eleventh Amendment. [Footnote 4] Assuming, arguendo, that a State may interpose its immunity to bar a suit brought against it by an Indian tribe, United States v. Minnesota,270 U. S. 181, 270 U. S. 193-195 (1926), the States involved no longer may assert that immunity with respect to the subject matter of this action. Water right claims for the Tribes were brought by the United States. Nothing in the Eleventh Amendment "has ever been seriously supposed to prevent a State's being sued by the United States." United States v. Mississippi,380 U. S. 128, 380 U. S. 140 (1965). See, e.g., United States v. Texas,143 U. S. 621, 143 U. S. 646 (1892); United States v. California,297 U. S. 175 (1936); United States v. California,332 U. S. 19, 332 U. S. 26-28 (1947). The Tribes do not seek to bring new claims or issues against the States, but only ask leave to participate in an adjudication of their vital water rights that was commenced by the United States. Therefore, our judicial power over the controversy is not enlarged by granting leave to intervene, and the States' sovereign immunity, protected by the Eleventh Amendment, is not compromised. See, e.g., Maryland v. Louisiana,451 U. S. 725, 451 U. S. 745, n. 21 (1981).

The States also oppose intervention on grounds that the presence of the United States insures adequate representation of the Tribes' interests. The States maintain that the prerequisites for intervention as of right set forth in Rule 24 of the Federal Rules of Civil Procedure are not satisfied. Aside from the fact that our own Rules make clear that the Federal Rules are only a guide to procedures in an original action, see this Court's Rule 9.2; Utah v. United States,394 U. S. 89, 394 U. S. 95 (1969), it is obvious that the Indian Tribes, at a minimum, satisfy the standards for permissive intervention

Page 460 U. S. 615

set forth in the Federal Rules. The Tribes' interests in the water of the Colorado basin have been, and will continue to be, determined in this litigation, since the United States' action as their representative will bind the Tribes to any judgment. Heckman v. United States,224 U. S. 413, 224 U. S. 444-445 (1912). Moreover, the Indians are entitled "to take their place as independent qualified members of the modern body politic.'" Poafpybitty v. Skelly Oil Co.,390 U. S. 365, 390 U. S. 369 (1968), quoting Board of County Comm'rs v. Seber,318 U. S. 705, 318 U. S. 715 (1943). Accordingly, the Indians' participation in litigation critical to their welfare should not be discouraged. [Footnote 5] The States have failed to present any persuasive reason why their interests would be prejudiced, or this litigation unduly delayed, by the Tribes' presence. The Tribes' motions to intervene are sufficiently timely with respect to this phase of the litigation. Of course, permission to intervene does not carry with it the right to relitigate matters already determined in the case, unless those matters would otherwise be subject to reconsideration. The motions to intervene are granted.

IV

We turn now to the first major question in the case: whether the determination of practicably irrigable acreage within recognized reservation boundaries should be reopened to consider claims for "omitted" lands for which water rights could have been sought in the litigation preceding the 1964 decree. The Special Master agreed with the United States and the Tribes that it is not too late in the day to modify the 1964 adjudication and decree, notwithstanding his own finding that "[t]he claim in the original case . . . embraced the totality of water rights for the Reservation lands." Tuttle Report at 31. We disagree with the Special Master, and sustain

Page 460 U. S. 616

the exceptions filed by the States and state agencies to his conclusion. In our opinion, the prior determination of Indian water rights in the 1964 decree precludes relitigation of the irrigable acreage issue.

Arizona v. California, unlike many other disputes over water rights that we have adjudicated, has been and continues to be governed mainly by statutory considerations. The primary issue in the case -- the allocation of the waters of the Lower Colorado River Basin among the States -- was resolved by the distribution of waters intended by Congress and written into the Project Act. The question of Indian water rights -- an important, but ancillary, concern -- was also decided by recourse to congressional policy, rather than judicial equity. We held that the creation of the reservations by the Federal Government implied an allotment of water necessary to "make the reservation livable." 373 U.S. at 373 U. S. 599-600. See Winters v. United States,207 U. S. 564 (1908); Cappaert v. United States,426 U. S. 128, 426 U. S. 141 (1976). We rejected the argument, urged by the States, that equitable apportionment should govern the question. We were

"not convinced by Arizona's argument that each reservation is so much like a State that its rights to water should be determined by the doctrine of equitable apportionment."

373 U.S. at 373 U. S. 597.

"Moreover, even were we to treat an Indian reservation like a State, equitable apportionment would still not control, since, under our view, the Indian claims here are governed by the statutes and Executive Orders creating the reservations."

Ibid.

We went on to reject Arizona's further arguments that (1) the doctrine of Pollard's Lessee v. Hagan, 3 How. 212 (1845), and Shively v. Bowlby,152 U. S. 1 (1894), prevented the Federal Government from reserving waters for federally reserved lands, 373 U.S. at 373 U. S. 597; (2) water rights could not be reserved by Executive Order, id. at 373 U. S. 598; and (3) there was insufficient evidence that the United States intended to reserve water for the Tribes, id. at 373 U. S. 598-600.

Page 460 U. S. 617

The standard for quantifying the reserved water rights was also hotly contested by the States, who argued that the Master adopted a much too liberal measure. Our decision to rely upon the amount of practicably irrigable acreage contained within the reservation constituted a rejection of Arizona's proposal that the quantity of water reserved should be measured by the Indians' "reasonably foreseeable needs," i.e., by the number of Indians. The practicably-irrigable-acreage standard was preferable, because how many Indians there will be and what their future needs will be could "only be guessed," id. at 373 U. S. 601. By contrast, the irrigable-acreage standard allowed a present water allocation that would be appropriate for future water needs. Id. at 373 U. S. 600-601. Therefore, with respect to the question of reserved rights for the reservations, and the measurement of those rights, the Indians, as represented by the United States, won what can be described only as a complete victory. A victory, it should be stressed, that was in part attributable to the Court's interest in a.fixed calculation of future water needs. Applying the irrigable-acreage standard, we found that the Master's determination as to the amount of practicably irrigable acreage, an issue also subject to adversary proceedings, was reasonable. Our subsequent decree reflected this judgment. 376 U. S. 376 U.S. 340 (1964).

The Tribes and the United States now claim that certain practicably irrigable acreage was "omitted" from those calculations. [Footnote 6] There is no question that, if these claims were presented in a different proceeding, a court would be without power to reopen the matter due to the operation of res judicata. That would be true here, were it not for Article IX of the 1964 decree which provides: [Footnote 7]

Page 460 U. S. 618

"Any of the parties may apply at the foot of this decree for its amendment or for further relief. The Court retains jurisdiction of this suit for the purpose of any order, direction, or modification of the decree, or any supplementary decree, that may at any time be deemed proper in relation to the subject matter in controversy."

We agree with the United States and the Tribes that this provision grants us power to correct certain errors, to determine reserved questions, and, if necessary, to make modifications in the decree. We differ in our understanding of the circumstances which make exercise of this power appropriate.

The Special Master believed that the decision whether to exercise that discretion should be governed by "law of the case" principles. Unlike the more precise requirements of res judicata, law of the case is an amorphous concept. As most commonly defined, the doctrine posits that, when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. See 1B J. Moore & T. Currier, Moore's Federal Practice

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