Annotations to Arizona v. California 1931 Opinion

Dramatis Personae - In Order Of Appearance

Dean Acheson

A future Secretary of State, Dean Acheson would later describe himself as being present "at the creation" of the vast changes in the world order that followed World War II. He was instrumental in the implementation of the Marshall Plan for European recovery and in the creation of NATO. Acheson, a Democrat, was "of counsel" to Arizona in this case, meaning that he assisted with the briefing of the case but took no part in the oral argument. Interestingly, from 1919 to 1921, Acheson was a former secretary of Justice Brandeis, who wrote the opinion in this case.

Acheson would also later gain notice of a different kind for his defense of Alger Hiss in the early nineteen-fifties, against Senator Joseph McCarthy's accusations of spying. He ended his term as Secretary of State in 1953 and thereafter served as a Presidential advisor.

Justice Louis Brandeis

Louis Dembitz Brandeis was born in 1856 in Kentucky, and was educated in Germany before he attended Harvard Law School.

Brandeis was an activist lawyer throughout the late nineteenth and early twentieth century. His vigorous actions on behalf of workers and unions won him a great deal of attention as a progressive legal scholar, his cases including antitrust actions against railroad monopolies in New England, attempts to secure low-cost life insurance for workers in Massachusetts, and shorter working hours for working women in many states.

Brandeis was among the first to use social science as justification for "public policy" legal arguments. A public policy argument is one in which an attorney argues that an outcome which favors their client also protects some important public interest. An argument which basis this public policy evaluation on social science (instead of the more usual legal theory) is still called a "Brandeis brief" after its originator.

When he was appointed to the Supreme Court by President Woodrow Wilson in 1916 (the first Jew ever to attain the position), he quickly became known as a supporter of judicial conservatism, in which the Court rules as narrowly as possible on the arguments before it, and continued his progressive work, especially vigorous in attempting to protect New Deal legislation from being struck down by the political conservatives of the court.

You can clearly examples of both Brandeis' judicial conservatism and social progressivism in this opinion. After Brandeis left the court in 1941, he continued his activism in the American Zionist movement.

To get some idea of how long Arizona v. California has been pending in the courts, when Brandeis was appointed to the Supreme Court, the Imperial Valley irrigation effort had been underway for eleven years. When Brandeis died, his Supreme Court seat was filled by Justice Douglas, who would dissent in the 1963 Arizona v. California decision. When Douglas died, his Supreme Court seat was filled by Justice Stevens, who would dissent in the 1983 Arizona v. California decision and who will hear the argument this month in the latest incarnation of the case.

Secretary of the Interior Ray Lyman Wilbur

Wilbur, a Californian, was a doctor, who was a public health officer when the typhoid epidemic of 1902 hit. He said in his memoirs that at 4:30 in the morning his duties called him to go down with a shotgun to a particularly virulent and recalcitrant dairy farm to make sure that no typhoid-infected milk left the premises.

He was Dean of the Standford Medical School, later President of Stanford. As President, he denied the Ku Klux Klan the right to use campus buildings. He also was active in the Save-the-Redwoods League, an early conservation group.

Justice James McReynolds

Another Kentuckian liberal and Wilson appointee, Justice James Clark McReynolds was appointed to the Supreme Court in 1914, after serving two stints as Attorney General of the United States, when he made legal history with the first-ever antitrust suit against AT&T. McReynolds dissented very briefly in this case.

The Opinion

Hoover Dam

The story of Hoover Dam's construction is ably (and terrifyingly) told in Ken Burns' tremendously good "American Experience" episode of that name. Constructed at the height of the Depression, the Hoover Dam became in many ways a symbol of hope for desperate workers who needed, first, work, at whatever price, and second, reassurance that America's greatness lay ahead and not behind. America has never been closer to revolution than it was during the Great Depression, but it was at that time that the dam at issue in this case was constructed.

[ Concrete being
poured at
Hoover Dam ] Before you go any further in the opinion, think a little bit about how Congress decided to fund the construction of Hoover Dam. Congress issued bonds which were purchased by private investors. The money from the sale was used to build the dam. The turbines on the dam are capable of producing up to 2 gigawatts of power. The sale of hydroelectric power from the dam was then to be used to pay back the bonds over the next forty years. It went perfectly according to plan, and Hoover Dam has been solvent ever since. What problems do you see with this approach to large government works like dams? What advantages do you see? Does it make a difference if the government work is a National Park whose entrance fees are meant to pay for the maintenance of the park?

[ Hoover Dam at night
] The Hoover Dam is still alive and well, producing power and regulating the flow of the Colorado. Visit the Department of the Interior's Hoover Dam homepage. The Lake Mead National Recreation Area created by the dam receives about nine million visitors every year.

The States

Consider for a moment the provisions of the Colorado River Compact which this case interprets. Remember that there there is a division between the Upper Basin states of Wyoming, New Mexico, Colorado, and Utah and the Lower Basin states of Arizona, California and Nevada. The Upper Basin States are required to deliver 7.5 million acre-feet of water at Lee's Ferry every year, or alternately, 75 million acre-feet every ten years. How would they want this case to be decided, in favor of California and the Boulder Canyon Dam project or against it?

Official State Information

Arizona: Dams Must Be Approved By Arizona Officials

Arizona law requires that the state engineer approve any dams erected on Arizona soil. Hoover Dam was not even submitted to the state engineer for approval.

Response: The U.S. isn't bound by Arizona law

Assuming that the United States is acting in a Constitutionally permissible, Congressionally authorized manner, it does not have to conform with Arizona law. The cases cited by Brandeis for this belief include:

Johnson v. Maryland, 254 U.S. 51 (1920). Mr. Johnson, a postman, was arrested while driving a post office truck between Mt. Airy, Maryland and Washington, for driving without a license. The Supreme Court held that Johnson must be released because of immunity provided by the federal government. "It seems to us that the immunity of the instruments of the United States from state control in the performance of their duties extends to a requiement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them and pay a fee for permissionto go on. Such a requirement does not merely touch the Government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders and requires qualifications in addition to those that the Government has pronounced sufficient. It is the duty of the [Post Office] to employ persons competent for their work and that duty it must be presumed has been performed." Johnson v. Maryland, 254 U.S. at 57. Read this case at FindLaw.
Hunt v. United States, 278 U.S. 96 (1928). The Kaibab National Forest and Grand Canyon National Game Preserve in Arizona became dangerously overpopulated with deer, and several attempts by the Secretary of Agriculture to remove some of the deer had failed. Orders were issued by the Secretary of Agriculture for large numbers of deer to be killed and the carcasses shipped. Governor Hunt of Arizona sued, saying that the act was forbidden by the game laws of Arizona. A lower court held that so long as the Secretary did not attempt to license private hunters to kill deer within the Preserve, the act was permissible. On appeal, the U.S. didn't fight the exception, and the act was upheld. "The direction given by the Secretary of Agriculture was within the authority conferred upon him by act of Congress. And the power of the United States to thus protect its lands and property does not admit of doubt, the game laws or any other statute of the state to the contrary notwithstanding. " Hunt v. United States, 278 U.S. at 99. Read this case at FindLaw.

Then Brandeis says that the federal government has the legitimate Constitutional power to improve navigation on rivers. This power has to do with the Commerce Clause of the Constitution.

The Commerce Clause is in Article I, Section 8 of the Constitution:

The Congress ahall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

It has been used both as a grant of national power (as it is in this case), and as a limitation on state power (the so-called "dormant commerce clause"). In the early days of the nation, riverways were used more often than roads to move goods across state lines, and so the Congress was always concerned with improving the navigability of the rivers. The Commerce Clause was Congress' authorization to undertake these measures.

So, the opinion says, if Congress can legitimately authorize the building of Hoover Dam, then the Dam does not have to be approved by Arizona's state engineer. For Congress to legitimately authorize the building of Hoover Dam, two things must be true:

The Colorado must be navigable.
The intention of building the dam must be to improve navigation.

Arizona: The Colorado River is not navigable. Court: Au Contraire.

Arizona alleged that the Colorado River is not navigable (and never has been), and therefore the federal government can't regulate it, because it is not usuable in interstate commerce.

Ordinarily, because this case came to the Court on a motion to dismiss, the Court would take all of Arizona's factual allegations as true. A judge, when looking at a motion to dismiss, assumes for the purposes of deciding the motion that everything the plaintiff says is true. "Even assuming everything you say is true," says the judge mentally, "is there enough of a dispute over facts that there is a case here?"

However, the Court chose to take judicial notice of a contradictory fact, that the Colorado River is navigable. In fact, there was a bustling steamboat trade on the Colorado for many decades through the nineteenth century. Just because the River was not in 1931 used for much trade, if any, does not mean that it somehow loses its status as a navigable river.

Arizona: The Act's purpose is not really to improve navigation on the Colorado, but instead just to steal water under the Compact.

Arizona ingeniously pointed to language in the Compact, whose approval was a condition for the activation of the Boulder Canyon Project Act. The Compact even says that the Colorado is not navigable. How could the Boulder Canyon Project Act legitimately be said to be for the purpose of improving navigation if the Compact which underlies it states that trade on the Colorado is a lost cause?

The Court said that the Supreme Court may not inquire into the motives of Congress in passing a bill unless there is a lot more evidence of an impermissible pretext for the decision than Arizona was able to muster in this case. The Congressional authorization to build Hoover Dam said that navigation was one of its purposes, and whatever the Compact might say, Congress' intent is the question.

Arizona: Even if Congress did mean to improve navigation through the Act, the Act is still invalid because it impairs Arizona's legal right to appropriate water from the Colorado

There is a fairly good summary of Arizona's position in the court opinion itself. The standard law of rivers indicates that unused portions of a river may be "appropriated" and used in accordance with the laws of the state in which the river is found, so long as the use of the water doesn't restrict anyone who has put the waters to use before. For example, if I divert water from the Colorado in Nevada to irrigate my field, so long as I leave enough that people downstream from me can use the same amount they always have, and follow the laws of Nevada, I acquire a right to divert that same amount of water every year afterwards, by appropriation.

Arizona's contention in this case is that the Boulder Canyon Project Act will prevent it from appropriating the water it needs from the Colorado River to develop its irrigable lands.

Why follow the doctrine of "prior appropriation"? Early law about rivers were most concerned with eliminating "waste" - defined as water which actually reached the sea unused. Is a river flowing in its natural course really "wasted"? Modern environmental thought says that it is not, but environmental concerns did not inform the legal decision-making of the time. Prior appropriation was a way of encouraging people to develop the natural resources of the river as quickly as possible.

This is nowhere more evident than in the Court's response.

Response: Arizona will still have the water it has already appropriated, and it can't complain about water which it hasn't appropriated yet. Besides, there's plenty of water.

The Supreme Court replied to Arizona's concerns with a two-part argument.

First, the Boulder Canyon Project Act explicitly states that all actual prior appropriations are still valid. So Arizona can't lose any water that it has already taken. And Arizona can't complain about the removal of potential future appropriations, because prior appropriation only applies to water that has been actually put into use.
Second, even after the construction of the dam and the allocation of water in the method described in the Compact and the Boulder Canyon Project Act, Arizona will still have a great deal of water available. This is worrisome to us in the modern day, because we know that there is actually an average of 14 to 15 million acre-feet of water annually in the Colorado River - not 17.5 million as estimated by the delegates to the Compact, and certainly not 18 million as stated by the Court here.

In short, Arizona lost the first round - the Boulder Canyon Project Act was valid and construction of Hoover Dam could go forward.

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