| OCR Text |
Show COLORADO RIVER LITIGATION 541 retary of the Interior conceded that this Court has jurisdiction, but objected on the 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, Colorado. First-No bill to perpetuate testimony has heretofore been filed in this Court; but no reason appears why such a bill may not be enter- tained in aid of litigation pending in this Court, or to be begun here * * ¦ * ? 3 4 5 The sole purpose of such a suit is to perpetuate the testimony. To sustain a bill of this character, it must appear that the facts which the plaintiff expects to prove by the testimony of the witnesses sought to be examined will be material in the determination of the matter in controversy; that the testimony will be competent evidence; that depositions of the witnesses cannot be taken and perpetuated in the ordinary methods prescribed by law? because the then condition of the suit (if one is pending) renders it impossible, or (if no suit is then pending) because the plaintiff is not in a position to start one in which the issue may be determined; and that taking of the testimony on bill in equity is made necessary by the danger that it may be lost by delay. The allegations of the bill presented by Arizona are sufficient to show danger of losing the evidence by delay; and also to show Ari- zona's inability to perpetuate the testimony by the ordinary methods prescribed by law for the taking of depositions. The only question which requires consideration is whether the testimony which it is pro- posed to take would be material and competent evidence in the litiga- tion contemplated. Second.-The action or actions which Arizona expects to bring may rest upon a claim that "the stored water is used in such a way as to interfere with the enjoyment by Arizona, or those claiming under it, of any rights already perfected or with the right of Arizona to make additional legal appropriations and to enjoy the same." Specifically, Arizona claims rights under §4(a) of the Boulder Canyon Project Act; these rights, it is said, are governed in turn by the terms of the Colorado River Compact. Briefly, the Compact apportions the waters of the Colorado River between a group of States, termed the upper basin, north of Lee Ferry, and a group south thereof, the lower basin, among which are Arizona and California. The interference appre- hended will, it is alleged, arise out of a refusal of the respondents to accept as correct that construction of Article III(b) of the Compact which Arizona contends is the proper one. It claims that this para- graph, 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 1,000,000 acre-feet per 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 de- fendants 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 »s«5 [Omitted] |
