Landmark decision: Arizona v. California, 373 U.S. 546 (1963).

Transcription

1 Notice of Motion[,] and Motion of the California Defendants to Require Further Answers of the State of New Mexico to nterrogatories[,] and Brief of the California Defendants in Support Thereof, Arizona v. California, No. 10 Original, 1955 Term (U.S.). Landmark decision: Arizona v. California, 373 U.S. 546 (1963).

2 N THE SUPREME COURT OF THE UNTED STATES STATE OF ARZONA, vs,. Complainant, STATE ~F CALFORNA, PALO VERDE RRGATON DSTRCT, MPERAL RRGATON DSTRCTj COACHELLA VALLEY COUNTY WATER DSTRCT, THE METROPOLTAN WATER DSTRCT OF SOUTHERN CALFORNA, CTY OF LOS ANGELES, CTY OF SAN DEGO, AND COUNTY OF SAN DEGO, UNTED STATES OF AMERCA.and STATE OF NEVADA, STATE OF NEW MEXCO and STATE OF UTAH, Defendants, nterveners, Parties. October Term, 1955 No, 10 Original Before the Hon, Simon H. Rifkind, Special Master o ~.'.. NOTCE OF MOTON AND MOTON OF THE CALFORNA DEFENDANTS TO REQURE FURTHER ANSWERS OF THE STATE OF. NEvi MEXCO TO NTERROGATORES AND BREF OF THE CALFORniA DEFENDANTS N SUPPORT THEREOF, ' l t. f: j : ;j \ i

3 N THE SUPREME COURT OF THE UNTED STATES i STATE OF ARZONA, vs. Complainant, STATE OF CALFORNA, PALO VERDE RRGATON DSTRCT, MPERAL RRGATON DSTRCT, COACHELLA VALLEY COUNTY WATER DSTRCT, THE METROPOLTAN WATER DSTRCT OF SOUTH.ERN CALFORNA, CTY OF LOS ANGELES, CTY OF SAN DEGO, AND COUNTY OF SAN DEGO, UNTED STATES OF AJU[RCA and STATE OF NEVADA, STATE OF NE\'1 MEXCO and STATE OF UTAH, Defendants, nterveners, Parties. October Term, 1955 No, 10 Original.. Cl 0 ~ : rl 0.. fj ~ y (.. ; Before the Hon. Simon H. Rifk1nd, Special Master NOTCE OF MOTON i.!jl J i.

4 ..! c\, u - i ' ''! ~ i. PLEASE TAKE NOTCE that the attached motion will be presented to the Hon: Simon H. R1fkind, Special Master, concurrently with this notice, to be heard ~t such time and place as the Special Master may specify. Dated: May 4, Respectfully submitted,. () :n : ~ ) 2. r L

5 l For the State of California EDMUND G. BROWN, Attorney General of the State of California, 6oo state Building, San Francisco, California, NORTHCU'"r ELY, ROBERT L, McCARTY, Special Assistant Attorneys General, 1200 Tower Building, washington 5. D.C., PRENTSS MOORE, Special Assistant Attorney General, 417 South Hill Street, GLBERT F. NELSON, Assistant Attorney General, CHARLES E. CORKER, HOWARD. FREDMAN, ~URTON J, GNDLER, JAMES B. McKENNEY,. Deputy Attorneys General, 909 South Broadway, Los Angeles 15, California, ELY, McCARTY AND. DUNCAN, CHARLES F. WHEATLEY, JR., of Counsel, 1200 Tower Building, Washington 5, D.C., For Palo Verde rrigation District FRANCS E. JENNEY, STANLEY.C. LAGERLOF, 458 South Spring Street, For the Metropolitan Water District of Southern California JAMES H. HOYARD, General Counsel, CHARLES C. COOPER, JR., Assistant General Counsel, DONALD M. KETH, Deputy General Counsel, H. KENNETH HUTCHNSON, Deputy General Counsel, FRANK P. DOHERTY, 306 West 3rd Street, For the City of Los Angeles ROGER ARNEBERGH, City Attorney, GLMORE TLLMAN, Chief Assistant City Attorney for Water and Power, JOHN H. MATHEWS, Deputy. City Attorney, 207 South Broadway, Los Angeles 12, California, For the City of San Diego J. F. Du PAUL, City Attorney, Civic Center, San Diego, California, T. B. COSGROVE, 1031 Rowan Building,. ' '(l o ' ~~,! ~ ; 0 ; ~. : i!;-1 l ). ' ; ~ '! 1, ~ ' i ; i '

6 !_. j. '.' L For mperial rrigation District HARRY W. HORTON, Chief.' Counsel, R. L. KNOX, JR., 101 uaw Building, El Centro, California, For the County of.' San Diego JAMES DON KELLER, District Attorney, Court House,. San Diego, California. For Coachell a Valley County Water District EARL RED\'NE, 3972 Main Street, Riverside, California, (l... "( r: ( ( l r f :! '!. l ' '.,~!..

7 :'! : N THE SUPREME COURT 0~ THE UNTED STATES : i i;! ' STATE OF ARZONA, va. Complainant, STATE OF CALFORNA, PALO VdRDE RRGATON DSTRCT, MPERAL RRGATON DSTRCT, COACHELLA VALLEY COUNTY WATER DSTRCT, THE METROPOLTAN WATER DSTRCT OF SOUTHERN CALFORNA, CTY OF LOS ANGELES, CTY OF SAN DEGO 1 AND COUNTY OF SAN DEGO, UNTED STATES OF PJ.lERCA and STATE OF NEVADA, STATE OF NEW MEXCO and STATE OF UTAH, Defendants, nterveners, Parties, October Term, 1955 No. 10 Original Before the Hon. Simon H. Rifkind, Special Master MOTON OF THE CALFORNA DEFENDANTS TO REQURE FURT'rlER ANS\'lERS OF THE STATE OF NE\ 1 MEXCO TO NTERROGATORES ' '..' d. '! ; l ; '; 1: i

8 Pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, the defendants, State of California, Palo Verde rrigation District, mperial rrigation District, Coachella Valley County Water District, The Metropolitan Water District of Southern California, City of Los Angeles, City of San Diego, and County of San Diego, move the Special Master for an order requiring the State of New Mexico to file further answers to nterrogatories Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 22, 23, 24, 25, 26 and 27 heretofore. served on the state of New Mexico on March 14, 1956, partial answers to which were served by the State of Ne\'1 Mexico on the California defendants on April 10, This motion is made on the ground that the ans~ers served are incomplete and not fully responsive, in that said partial answers do. not fully give the information requested in said interrogatories. Dated: May 4, Respectfully submitted, 6.

9 , For the State of California EDMUND G. BROWN, Attorney General of the State of California, 6oo State Building, San Francisco, California, NORTHCUTT ELY, ROBERT L. McCARTY, Special Assistant Attorneys General, 1200 Tower Building, Washington 5, D.C., PRENTSS MOORE, Special Assistant Attorney General, 417 South Hill street,.glbert F. NELSON, Assistant Attorney General, CHARLES E. CORKER, HOWARD. FREDMAN, BURTON J. GNDLER, JAMES B. McKENNEY, Deputy Attorneys General, 909 South Broadway, Los Angeles 15, California, ELY, McCARTY AND DUNCAN, CHARLES F. WHEATLEY, JR., of Counsel, 1200 Tower Building, vlashington 5. D.C. For Palo Verde rrigation District FRANCS E. JENNEY, STANLEY C. LAGERLOF, 458 South Spring Street, For the Metropolitan Water District of Southern California JAMES H. HOWARD, General Counsel, CHARLES C. COOPER, JR., Assistant General Counsel, DONALD M. KETH 1 Deputy General Counsel, H. KENNETH HUTCHNSON, Deputy General Counsel, FRANK P. DOHERTY, 306 West 3rd Street, For the City of Los Angeles ROGER ARNEBERGH, City Attorney, GLMORE TLLMAN, Chief Assistant City Attorney for Water and Power, JOHN H. MATHEWS Deputy City Attorney, 207 South Broadway, Los Angeles 12, California, For the Ci ty of San Diego J, F. Du PAUL, City Attorney, Civic Center, San Diego, California, T. B. COSGROVE, 1031 Rol<~an Building, ;. i i ' '.! til l\1 ~ < :!. > :.,...

10 i For mperial rrigation District HARRY vi, HORTON, Chief Counsel, R. L. KNOX, JR., 101 ~aw Building, El Centro, California, For the County of San Diego JAMES DON KELLER, District Attorney, Court House, San Diego, California. For Coachella Valley County Water District EARL REDYNE, 3972 Main Street, Riverside, California,

11 N THE SUPREME COURT OF THE UNTED STATES STATE OF ARZONA,. vs. Complainant, STATE OF CALFORNA, PALO VERDE RRGATON DSTRCT, MPERAL RRGATON DSTRCT, COACHELLA VALLEY COUNTY WATER DSTRCT, THE METROPOLTAN WATER DSTRCT OF SOUTHERN CALFORNA, CTY OF LOS ANGELES, CTY OF SAN DEGO, AND COUNTY OF SAN DEGO, UNTED STATES OF AMERCA and STATE OF NEVADA, STATE OF NEW MEXCO and STATE OF UTAH, Defendants, nterveners, Parties. October Term, 1955 No. 10 Original ui i. i Before the Hon. Simon H. Rifkind, Special Master BREF OF THE CALFORNA DEFENDANTS N SUPPORT OF THER MOTON TO REQURE FURTHER ANSrffiRS FROM THE STATE OF. NE\ f MEXCO TO NTERROGATORES

12 The nterrogatories addressed to the State of New Mexico by the California Defendants were attached to the Ans\'ier of 'the California Defendants to the Appearance and Statement in Behalf of New Mexico of its Claim of nterest in and to Lowe r Basin vlaters and were served upon the State of New Mexico and all other parties on March 14, Partfal answers to the interrogatories were served by the State of New Mexico at the pre-trial conference on April provides: Rule 33 of the Federal Rules of Civil Procedure "Within 10 days after service of interrogatories a"party may serve written objections thereto together with a notice of hearing the objections at the earliest practicable time." No objections have been raised by Nel>r Mexico under Rule 33 to the california interrogatories. Therefore, New Mexico cannot now contend that the interrogatories are obj~ctionable in any way, National Transformer Corp. v. France Mfg. co., 9 F.R.D, 606 (N.D ), See MOORE, FEDERAL PRACTCE pp, 2329~30 (2d ed. 1950). The only issue between New Mexico and California with respect to the interrogatories is whether or not New Mexico has supplied complete, explicit and responsive answers to the interrogatories as posed. We submit that, in each of the instances to which our motion is directed, the answers do not measure up to this standard,.l i 10,

13 ' nterrogatories Nos. 1 through 5: By these interrogatories, the California defendants sought information as to the -location and magnitude of beneficial consumptive uses incurred on 20,900.acres which New Mexico alleges is presently irrigated with Colorado River System w~ter in New Mexico and on 7,000 acres of additional land for which plans to irrigate are allegedly being made. New Mexico Statement, par, V. interrogatories is: New -Mexico's answer to these 11 These interrogatories involve irrigated acres and additional acres not yet in cultivation for both ndian and non- ndian lands; these questions cannot be answered in detail by the State of New Mexico until the United States has set forth its claims. Also, the questions call for a legal conclusion. 11 Obviously, this does not answer any of the five questions. Nor does it properly raise an objection to doing so. Considerably more than ten days have elapsed since the service of the interrogatories, No written objections having been served within that period, New Mexico is foreclosed from challenging the propriety of the interrogatories, Even if New Mexico could properly raise the objec~ tiona contained in her response, her objections should be overruled on the ground that neither i s sound, Regardless of what the United States may eventually claim in this lawsuit, the location of the acreages referred to in paragraph V of the New Mexico pleading is not likely to be changed. Nor will clarification of the United States position affect the quantity of beneficial consumptive uses ' :!,, ; :'.. 11.

14 presently incurred by existing irrigated acreage and contemplated for the additional acreage. These are facts which New Mexico should be able to. state regardless of \'lhat the ' United States may later plead. Even if New Mexico's objec~ion were valid, it could apply only with reference to the 11dian lands inqluded within the total acreages. With respect to the non-ndian lands~ New Mexico's answer is tantamount to an unqualified refusal to respond to the interrogatories. -The second objection is equally groundless. n ruling on the objections"to the interrogatories addressed by the California defendants to the United States, the Special Master has held that interrogatories are not objectionable because they call for legal conclusions with respect to contentions of the party interrogated. Tra~script of the Pre-Trial Conference; p See, 4 MOORE, FEDERAL PRACTCE. pp (2d ed. 1950). Moreover, this objection, even if valid, w~uld not be applicable to interrogatories 1 through 5 for the reason that these interrogatories call for factual data--not conclusions of law. nterrogatory No. 6: By this interrogatory, the defendants sought to locate on a map the 50,000 acres of additional land which New Mexico asserts in parag~aph V of her statement could be irrigated if a water supply were available. New Mexico's 11 answer is: No map at present available." ' ; ' r. ~ ~.f \ 12.

15 ., j j l l The interrogatory does not ask that Ne\ot Mexico prepare a map. t asks only that the acreages be located on a map, All.that is required is portrayal or the acreage on an existing -map. The fact that a map already pprtraying such acreage is not presently available ' does not excuse New Mexico fr.om the obligation of c~mplying with the California request as long as it is not burdensome. We submit that _inking in the locations of the referenced acreage on an exist.ing map is not an undue burden, and, indeed, is a lesser task than verbally describing the locations. nterrogatory No. 7: This interrogatory Yras designed to elicit from New Mexico information as to the quantity of beneficial consumptive use which would be required to irrigate the 50,000 acres of additional land referred to in paragraph V of the New Mexico Statement. The ans\tel' of New Mexico 'is the same as that supplied in response to interrogatories Nos. 1 through 5. our con~ents with reference to those interrogatories and the answer supplied are applicable here.!! : i : Ci ~ l ~.g 0 -~ 'u.j ~ J 1: :j nterrogatory No. 8: By this interrogatory, the defendants sought i~formation with respect _to the "50,000 acre-feet of water for municipal and industrial purposes 11 referred to in paragraph V of the New Mexico Statement. The information 13.

16 sought related to whether the figure represented a yearly requirement or a requirement for a different period and whether the figure refers to beneficial consumptive uses or diversions. New Mexico's answer is: "This involves water for potential industrial and municipal uses that nave not yet reached a project stage. " The answer is clearly not responsive. The question does not ask for details of the projects planned for the utilization of the water. t merely seeks information pertinent to the calculation of the total quantity to which reference is made. Enough is apparently known by New Mexico to provide a _figure of 50,000 acre-feet. New Mexico should be able to say whether the figure used is an estimated yearly requirement or is a requirement for a different period. Similarly, she should be able to say \ thether, in using the figure, she is referring only to diversions or to beneficial consumptive uses. : ;. ' ;! :. : - :.N! JJ n_>;,,,! nterrogat-ory No. 9: n this interrogatory, the defendants sought citations to engineering reports or other project descripti ons for the 7,000 additional acres referred to in paragraph V of the New Mexico statement. n her answer, New Mexico says: "As stated before, this involves i n a l arge measure ndian lands and the United States should answer~ The Bureau of Reclamation reports on the proposed New Mexico unit of the Central Arizona project describes approximately 6000 acres. The balance is ndian lands and miscellaneous uses." i4. '... i i' ' r,,

17 With respect to the non-ndian projects, the answer, referring to ''Bureau of Reclamation reports, 11 is insufficient. t does not identify the specific Bureau of Reclamation report to which reference is made. There have been numerous Bureau reports describing the Central Arizona Project. With respect to the r~st of the answer, New Mexico cannot properly shift to the United States the responsibility of answering interrogatories addressed to New Mexico. The fact that the lands, in part, are for ndian use does not excuse New Mexico from supplying information reasonably accessible to her with reference to the lands.., l ~ ' nterrogatories Nos. 11 and 12: These interrogatories sought to elicit specific information relating to the quantities of beneficial consumptive uses in various categories of \'lhich New Mexico seeks judicial confirmation. To these interrogatories, New Mexico responded: "Cannot answer at this time because the interrogatories are mixed questions of law and fact." This answer constitutes, in effect, an objection to the p~opriety of the interrogatories..such an objection, as we have demonstrated above, is untimely. Even if it were timely, it is without foundation for the reasons discussed in our comments on the answer to interrogatories Nos. 1 t~rough 5. H 1' :: '! 15.

18 nterrogatory No. 13:. This interrogatory sought to elicit from New Mexico her contentions with respect to the quantity of "rights which may now -exist," as that phrase is used in Article (a) of the Colorado River Compact, and "present perfected rights," as that phrase is used in Article V of.the Compact, "in 1922 and The answer, which asserts that _the "question calls for legal conclusions as to what-waters are embraced in (a) and (b) \llaters as used in the Compact, 11 is insufficient for the reasons stated in our comments to interrogatories Nos, 1 through 5, 11 and 12.. : nterrogatory'no. 14: By this interrogatory, the defendants sought infor- mation relating to whether New Mexico's claims are based upon appropriations under New Mexico law and, if so, descriptions of the.appropriative rights upon which reliance is placed. n her answer) New Mexico says: "The claimed rights are based upon appropriations heretofore made and potential uses yet to be made, To make a list of the appropriators and dates and quantities would involve a great deal of time in copying the. records in the State Engineer Office and in ascertaining what appropriations were made prior to f this is deemed material we.request additional time in which to prepare the information." The materiality of the information requested is conclusively established by the first sentence of the answer in which New Mexico states that she re~ies on these appropriative rights in this suit, f additional time is required.. J! ~ : J ;.:. l 16.

19 , to collect the information, California has no objection so long as New Mexico provides a reasonable date when the material will be available. ' : ' nterrogatory No. 22: By this interrogatory, the defendants sought--clarification of New Mexico's contentions with respect to the definition and measurement of beneficial consumptive use. New Mexico's answer stated: "The answer to this interrogatory requires legal and engineering conclusions, voluminous physical data and is one of the issues in this case to be determined. We respectfully suggest that New Mexico should not be required to answer it at this time. 11 As indicated in our comments to interrogatories Nos. 1 through 5 1 this is tantamount to an objection to the propriety of the interrogatory. The passage of more than ten -days from the service of the interrogatories precludes such an objection from New Mexico. The objection is unsound for the reasons stated in our comments on interrogatories N.os. 1 through 5. n addition, even the narrowest view of permissible scope of interrogatories would.not preclude questions asking for 11 engineering conclusions 11 in a lawsuit in which the principal issues of fact turn on varying engineering conclusions. ' ',. ;.'.l.l!~ :: ; ' 17.

20 nterrogatories Nos, 23 through 25: By these interrogatories, the defendants sought information relating to the quantity of Colorado River System water being used on ndian lands within the Lower Basin area 11 of New Mexico. New Mexico responded by saying: The :.! ~ i : t i '! ' 'i United States should answer this question, 11.. we are somewhat mystified by the answer. t is not clear whether New Mexico is suggesting that the United States would be.a better source of the information, or whether New Mexico does not possess and cannot reasonably acquire the information, or whether California has no right to interrogate New Mexico so long as the United States possesses the same information. n any case, a party to a lawsuit cannot escape his obligation to respond in good faith to proper interrogatories by pointing to another party as a more suitable object of interrogatories. All of the data requested should be readily available.to New Mexico and should be suppl~ed, Moreover, to the extent that the answer reflects any objection to the interrogatories, it is improperly made because of the lapse of the time provided by Rule 33 for ob jections to interrogatories. nterrogatories Nos. 26 and 27: By these interrogatories, the defendants asked if non-ndian federal uses in New Mexico are included within the New Mexico claims, and, if so, the location and quantities of

21 such uses. Again, New Mexico states that the United States should answer the question. Our comments with respect to int;errogatories Nos, 23 through 25 are applicable here with one additional comment, n contrast to interrogatories 23 through 25, which related to quanti,ties of ndian uses, interrogatory No, 26 does not request factual information concerning federal uses. t asks only if New Mexico includes such uses within her claims. The United States could not conceivably supply the answer to that question. Only New Mexico knows the answer and she. should be required to supply it r. Dated: May 4, Respectfully submitted,!. ' : j i :! 19.

22 For the State of California EDMUND G. BROWN, Attorney General of the State of California, 600 state Building, san Francisco, California, NORTHCUTT ELY, ROBERT L\ McCARTY, Special Assistant Attorneys General, 1200 Tower Building,. Was?ington 5, D.C., PRENTSS MOORE, Special Assistant Attorney General, 417 South Hill Street, GLBERT F. NELSON, Assistant Attorney General, CHARLES E. CORKER, HOWARD. FREDMAN, BURTON J. GNDLER, JAMES B. McKENNEY, Deputy Attorneys General, 909 South Broadway, Los Angeles 15, California, ELY, McCARTY AND DUNCAN, CHARLES F. WHEATLEY, JR., of Counsel, 1200 Tower Building, Washington 5, D.C., For Palo Verde rrigation District FRANCS E. JENNEY, STANLEY C. LAGERLOF, 458 South Spring Street, For the Metropolitan Water District of Southern California JAMES H. HOWARD, General Counsel, CHARLES C. COOPER, JR., Assistant General Counsel, DONALD M, KETH, Deputy General Counsel, H. KENNETH HUTCHNSO~, Deputy General Counsel, FRANK P. DOHERTY, 306 West 3rd Street, For the City of Los Angeles ROGER ARNEBERGH, City Attorney, GLMORE TLLMAN, Chief Assistant City Attorney for Water and Power, JOHN H, MATHErlS, Deputy City Attorney, 207 south Broadway, Los Angeles 12, California, For the City of san Diego J. F. Du PAUL, City Attorney, Civic Center, San Diego, California, T. B. COSGROVE, 1031 Rowan Building, ' ';. ' ; l! ;

23 ' 'l : :.. ~., For mperial rrigation District HARRY W, HORTON, Chief Counsel, R. L. KNOX, JR., 101 Daw Building, El Centro; California, For coachella Valley county Water District EARL REmllNE, 3972 Main Street, Riverside, California, For the County of San Diego JAMES DON KELLER, District Attorney, Court House, San Diego, California ~ r..,!"