No. 8, Original: Arizona v. California - Reply to Exception of State Parties



No. 8, Original


In the Supreme Court of the United States

STATE OF ARIZONA, COMPLAINANT

v.

STATE OF CALIFORNIA, ET AL.

ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER

REPLY BRIEF FOR THE UNITED STATES
IN RESPONSE TO THE EXCEPTION
OF THE STATE PARTIES


SETH P. WAXMAN
Solicitor General
Counsel of Record

LOIS J. SCHIFFER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

JEFFREY P. MINEAR
Assistant to the Solicitor
General

F. PATRICK BARRY
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


QUESTION PRESENTED

Whether this Court's decisions in Arizona v. California, 373 U.S. 546 (1963)(Arizona I), and Arizona v. California, 460 U.S. 605 (1983) (Arizona II),preclude the United States and the Quechan Tribe from asserting water rightsclaims in this proceeding.



In the Supreme Court of the United States

No. 8, ORIGINAL
STATE OF ARIZONA, COMPLAINANT
v.
STATE OF CALIFORNIA, ET AL.

ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER

REPLY BRIEF FOR THE UNITED STATES
IN RESPONSE TO THE EXCEPTION
OF THE STATE PARTIES


STATEMENT

This case is before the Court on exceptions to the Report of Special MasterMcGarr. The Master has recommended approval of the parties' proposed settlementof the water rights claims of the Fort Mojave and Colorado River IndianReservations, but has rejected the water rights claims for the Fort YumaReservation. See McGarr Rep. 12-14. We have summarized the background ofthis case and the Master's rulings in the United States' Brief in Supportof its Exception to Master McGarr's Report. See U.S. Except. Br. 1-12.

The only contested issue before the Court is whether the water rights claimsrelating to disputed "boundary lands" of the Fort Yuma Reservationare precluded by prior litigation. The State of Arizona, the State of California,the Coachella Valley Water District, and the Metropolitan Water Districtof Southern California (collectively the State Parties) argued before theMaster that the claims for the disputed portions of the Fort Yuma Reservationare precluded by: (1) this Court's prior decisions in Arizona v. California,373 U.S. 546 (1963) (Arizona I), and Arizona v. California, 460 U.S. 605(1983) (Arizona II); and (2) a consent judgment entered by the United StatesClaims Court in Quechan Tribe of the Fort Yuma Reservation v. United States,Indian Claims Comm'n Docket No. 320 (Aug. 11, 1983) (reprinted at U.S. Except.Br. App. 66a-67a), which resolved a reservation boundary dispute betweenthe United States and the Quechan Tribe. The Master rejected the State Parties'first argument, but accepted the second. McGarr Rep. 7-8; id. App. 2(A)at 1-10.

The State Parties have excepted to the Master's resolution of their firstargument (State Parties Except. Br. 1), while the United States and theQuechan Tribe have excepted to his resolution of the second argument (U.S.Except. Br. I; Quechan Except. Br. i). This brief responds to the StateParties' Exception.1

SUMMARY OF ARGUMENT

The State Parties are mistaken in their submission that this Court's decisionsin Arizona I and Arizona II preclude the United States and the Quechan Tribefrom asserting water rights claims in this proceeding. The Court ruled inArizona I that the Special Master erred in adjudicating boundary disputesrespecting the Fort Mojave and the Colorado River Indian Reservations. TheCourt concluded that the Tribes' water rights claims respecting the disputedboundary lands should instead be resolved at a later date, 373 U.S. at 601,and it entered a Decree that expressly directed that result, 376 U.S. 340,345 (1964). The United States did not attempt to adjudicate the analogousboundary lands claims for the Fort Yuma Reservation in Arizona I, but themanifest implications of that decision, the nature of those claims, theCourt's subsequent modifications of the Decree, 439 U.S. 419, 421 (1979),and the Court's statements in Arizona II, 460 U.S. at 634, all establishthat the Fort Yuma claims were subject to the same rule and could not havebeen asserted at that time. The Court accordingly expected Master McGarrto decide those claims on their merits in the current proceedings.

Moreover, the State Parties' specific legal arguments respecting claim preclusionare flawed. Contrary to the State Parties' assertions, the Court's preclusionrationale concerning "omitted lands" in Arizona II does not applyto the boundary lands for the Fort Yuma Reservation. The boundary landsclaims, unlike the omitted lands claims, present legal issues that werenot adjudicated in Arizona I. Furthermore, this Court's reasoning in ArizonaI established that the boundary lands claims could not have been adjudicatedin that proceeding. Under bedrock principles of res judicata, it would beinappropriate to preclude the United States and the Tribe from litigatingthose claims. The State Parties have waived their right to invoke a claimpreclusion defense. But waiver aside, the defense is inapplicable here forthe straightforward reason that the United States and the Quechan Tribedid not, and could not, assert their boundary lands claims in the priorproceedings.

ARGUMENT

THIS COURT'S DECISIONS IN ARIZONA I AND ARIZONA II DO NOT PRECLUDE THE UNITEDSTATES AND THE QUECHAN TRIBE FROM ASSERTING WATER RIGHTS CLAIMS FOR BOUNDARYLANDS IN THIS PROCEEDING

The State Parties contend that the Court's prior decisions in this ongoingoriginal action preclude the United States and the Quechan Tribe from assertingwater rights claims based on changes in the boundaries of the Fort YumaReservation that the United States recognized during the course of the litigation.To place the State Parties' argument in perspective, we begin by reviewingthe history of the so-called boundary lands claims. We then address theState Parties' specific contentions.

A. The Origins And History Of The Boundary Lands Litigation DemonstrateThat This Court Intended Master McGarr To Decide The Boundary Lands ClaimsOn The Merits

Arizona commenced this original action in 1952 to obtain a judicial resolutionof its entitlement to waters of the Colorado River Basin. See U.S. Except.Br. 2-3. In response, the United States asserted water rights for the reservationof the Quechan Tribe as well as for the reservations of four other Indianentities: the Chemehuevi, Cocopah, Fort Mojave, and Colorado River IndianTribes. See id. at 3. When the first Special Master in this case, SimonRifkind, evaluated the United States' Indian water rights claims, he concludedthat he needed to resolve certain existing boundary disputes respectingthe Fort Mojave and Colorado River Indian Reservations to determine the"practicably irrigable" acreage in each of those Reservations.See id. at 4; Rifkind Report 274-278, 283-287 (1960). This Court concluded,however, that the Master should not have reached those "boundary lands"issues. The Court stated that it was "unnecessary to resolve thosedisputes here" because, "[s]hould a dispute over title [to theboundary lands] arise because of some future refusal by the Secretary [ofthe Interior] to deliver water to either area, the dispute can be settledat that time." Arizona I, 373 U.S. at 601.

At the time that the proceedings in Arizona I were taking place, the UnitedStates was engaged in litigation with the Quechan Tribe, before the IndianClaims Commission, respecting the boundaries of the Tribe's Fort Yuma IndianReservation. See U.S. Except. Br. 18-19. Although Master Rifkind had addressedthe Fort Mojave and Colorado River Indian Tribes' boundary disputes, hehad no occasion whatsoever to resolve the Quechan Tribe's ongoing boundarydispute. The United States did not assert a water rights claim for the QuechanTribe's boundary lands in the Arizona I proceedings because the Solicitorof the Department of the Interior had previously determined, in a 1936 opinion,that the Quechan Tribe did not own those lands. The United States had reliedon the Solicitor's determination in the Indian Claims Commission proceeding.See id. at 17-18. The United States accordingly determined that it was notappropriate to assert a water rights claim in the proceedings before MasterRifkind for lands that the United States contended, in another forum, theTribe did not own. The United States' conclusion that it should not asserta claim for the disputed boundary lands of the Fort Yuma Reservation inthe face of the Indian Claims Commission proceeding proved to be consistentwith this Court's decision in Arizona I. As we have explained, the Courtheld that the Master should not have resolved boundary lands disputes involvingthe Fort Mojave and Colorado River Indian Reservations. See 373 U.S. at601. By the same reasoning, the Master could not have resolved the analogousboundary land disputes involving the Fort Yuma Reservation.

Following its decision in Arizona I, the Court entered its initial Decree,which contained three provisions of current interest. See Arizona v. California,376 U.S. 340 (1964). First, the Decree recognized the prospect that futuredeterminations of reservation boundaries could alter the water rights ofthe affected Tribes. Article II(D)(5) stated, with specific reference tothe Fort Mojave and Colorado River Indian Reservations, that the quantitiesof water provided for those Reservations "shall be subject to appropriateadjustment by agreement or decree of this Court in the event that the boundariesof the respective reservations are finally determined." Id. at 345.Second, Article VI provided that the parties should provide the Court witha list of the outstanding present perfected rights (including Indian waterrights) in the mainstream waters and that, if the parties were unable toreach agreement, any party could apply to the Court for determination ofpresent perfected rights. Id. at 351-352.2 Third, Article IX provided thatthe Court would retain "jurisdiction of this suit for the purpose ofany order, direction, or modification of the decree, or any supplementarydecree, that may at any time be deemed proper in relation to the subjectmatter in controversy." Id. at 353.

The parties were unable to reach agreement on the present perfected rightsand, in 1977, they returned to the Court and moved for a determination ofthose rights. See U.S. Except. Br. 5; Arizona II, 460 U.S. at 611-612; TuttleReport 18-19.3 During the following year, while those motions were pending,two significant events occurred. First, the five individual Indian Tribes,including the Quechan Tribe, moved to intervene in the suit on the groundthat the United States was not adequately representing their interests.See Arizona II, 460 U.S. at 612; Tuttle Report 20-21. Second, the StateParties and the United States were able to reach agreement on the questionof present perfected rights and, on May 30, 1978, they filed a joint motionfor entry of a Supplemental Decree describing those rights. See id. at 18-19.

The State Parties and the United States initially opposed the Tribes' intervention,but the United States later dropped its opposition and, on December 22,1978, moved for entry of a Supplemental Decree to grant additional waterrights to the Indian Tribes. Arizona II, 460 U.S. at 612. Those proposedwater rights encompassed both the disputed boundary lands for the Fort YumaReservation and other Reservations, as well as certain other lands, knownas "omitted" lands, that were within the 1964 boundaries of theReservations but for which the United States had not claimed water rights.See ibid.; Tuttle Report 22-24. The United States' change in position wasmotivated, in part, by a change in the Interior Department's views respectingthe boundaries of the Fort Yuma Reservation. On December 20, 1978, the Secretaryof the Interior had entered an order holding that the United States did,in fact, hold the disputed boundary lands in trust for the Quechan Tribe.See U.S. Except. Br. 20-24. The United States therefore revised its positionin the Arizona v. California suit to protect the Quechan Tribe's entitlementto water rights in the ongoing litigation. See id. at 25; see also ArizonaII, 460 U.S. at 632-633 (describing the boundary lands claims respectingthe Fort Yuma Indian Reservation).

This Court responded to those developments by: (1) entering the 1979 SupplementalDecree; (2) denying the motions of the Fort Mojave, Chemehuevi, and QuechanTribes to intervene insofar as they sought to oppose entry of the SupplementalDecree; and (3) referring other matters raised by the United States andthe five Tribes to a second Special Master, Senior Judge Elbert P. Tuttle,for his recommendations. See Arizona II, 460 U.S. at 612. Significantly,the parties agreed to revise Article II(D) of the 1964 Decree to enlargethe number of Tribes that could assert boundary lands claims. See Arizonav. California, 439 U.S. 419, 421 (1979). As a result of the 1979 SupplementalDecree, Article II(D)(5) Decree stated:

The quantities [of water] fixed in [the 1964 Decree sections setting forththe water rights of each of the five Tribes] shall continue to be subjectto appropriate adjustment by agreement or decree of this Court in the eventthat the boundaries of the respective reservations are finally determined.

Ibid. (as quoted, with bracketed passages supplied by this Court, in ArizonaII, 460 U.S. at 634). In the words of this Court, the 1979 SupplementalDecree "not only expressly left unaffected Article II(D)(5) providingfor possible adjustments with respect to the Colorado River and Fort MojaveReservations, but it also left open the issues about the boundaries of theother Reservations." Ibid. The Court referred the boundary lands issues,together with the omitted lands issues, to Master Tuttle. Ibid.

Master Tuttle prepared a Final Report explaining his recommendations. SeeArizona II, 460 U.S. at 612-613. He concluded that the Tribes should beallowed to intervene, see Tuttle Report 22-23, and he then addressed theomitted lands issues, see id. at 29-55, and the boundary lands issues, seeid. at 55-76. In the case of the omitted lands claims, the State Partiesargued that the Tribes were precluded by principles of res judicata fromclaiming additional water rights because the United States should have madeclaims for those lands in the proceedings before Master Rifkind. See id.at 29-30. Master Tuttle rejected that argument and concluded that ArticleIX of the Decree, which preserved the Court's power to modify the Decree,376 U.S. at 353, permitted the United States and the Tribes to seek theadditional water rights. See Tuttle Report 32. In the case of the boundarylands claims, the State Parties did not raise a preclusion defense. To thecontrary, as Master Tuttle explained:

All the parties agree that the Court should now determine any additionalpresent perfected rights. Although the 1964 Decree acknowledged and expresslyprovided for boundary disputes only with respect to the Fort Mojave andColorado River Indian Reservations, the additional proviso of the 1979 Decree,issued after the Court was apprised of boundary disputes concerning theother Reservations, indicates that the amounts determined for all five Reservations"shall continue" to be subject to adjustment. Thus, adjustmentsfor boundary determinations affecting any of the Reservations were explicitlyprovided for in the 1979 Decree and impliedly contemplated in the 1964 Decree"in the event that the boundaries of the respective reservations arefinally determined." [footnote omitted]

The State Parties concede that when the boundary lines have been finallydetermined, the Court should allot the water rights in proportion to thepracticably irrigable acreage of additional boundary lands, and urge thatthe Court should now consider such an allotment [footnote omitted]. Theycontend, however, that the boundaries have not been finally determined andthat I should make a de novo determination of the boundaries for recommendationto the Court. The issue, then, is whether the Secretarial orders, courtjudgments, and Act of Congress relied on by the Tribes and the United Statesare the sort of final determinations contemplated by the Court's Decrees.

Tuttle Report 56-57.4 Master Tuttle determined that he should not make denovo boundary findings and instead concluded that "the determinationsthat have been made with respect to the stated boundary changes"- includingthe Secretarial order respecting the Fort Yuma Reservation of the QuechanTribe-"may be accepted as final for the purpose of considering additionalallocations of water rights to the Reservations." Id. at 63.

This Court's Arizona II decision rejected Master Tuttle's determinationsthat preclusion principles do not apply to the omitted lands, 460 U.S. at615-628, and that Secretarial orders respecting the Fort Yuma, Fort Mojave,and Colorado River Indian Reservations constituted "final" determinationsof the Reservation boundaries, id. at 628-641. But the Arizona II decisionin no way suggested that the Tribes' boundary lands claims were precludedby prior litigation. To the contrary, the Court recognized that the boundarydisputes affecting the Fort Yuma Reservation shared the same undecided statusas the boundary disputes affecting the Fort Mojave and Colorado River Indian Reservations:

Our supplemental decree of 1979 did not * * * resolve these [boundary] disputes.Rather, it not only expressly left unaffected Article II(D)(5) providingfor possible adjustments with respect to the Colorado River and Fort MojaveReservations, but it also left open the issues about the boundaries of theother reservations.

Id. at 634. In addition, the Court indicated its understanding that theboundary lands issues had not been- but would be-determined on the merits:

It is clear enough to us, and it should have been clear enough to others,that our 1963 opinion and 1964 decree anticipated that, if at all possible,the boundary disputes would be settled in other forums.

Id at 638. Plainly, if the Court believed that its decisions in ArizonaI and Arizona II had precluded any of the Tribe's boundary lands disputes,it would not have directed that they "would be settled" elsewhere.Instead, the Court directed that the parties should attempt to resolve theboundary lands issues through district court litigation. Ibid. Thereafter,the Court reiterated, through its 1984 Supplemental Decree, that the waterrights for all five Indian Reservations "shall be subject to appropriateadjustments by agreement or decree of this Court in the event that the boundariesof the respective reservations are finally determined." Arizona v.California, 466 U.S. 144, 145 (1984).

The district court ultimately proved to be an inappropriate forum for resolvingthe boundary lands claims, which led to a renewal of proceedings in thisCourt and the appointment of Master McGarr to resolve those claims. SeeMetropolitan Water Dist. of S. Cal. v. United States, 830 F.2d 139 (9thCir. 1987), aff'd by an equally divided Court, 490 U.S. 920 (1989); McGarrReport 4-6. In light of the foregoing history, there can be little doubtthat the Court did not view its decisions in Arizona I and Arizona II asprecluding the claims for the disputed boundary lands of the Fort Yuma Reservation.To the contrary, the Court's decision in Arizona II and the 1979 and 1984Supplemental Decrees made clear that Master McGarr was to determine allof the Indian water rights claims arising from boundary lands disputes,including those of the Fort Yuma Reservation, on their merits. Against thatbackground, we next address the State Parties' specific arguments.

B. The Court's Preclusion Rationale Concerning "Omitted Lands"In Arizona II Does Not Apply To The Boundary Lands Claims For The Fort YumaReservation

The State Parties contend that the rationale that this Court expressed inArizona II for precluding the United States and the Indian Tribes from assertingomitted lands claims should also preclude the United States and the QuechanTribe from pursuing boundary lands claims for the Fort Yuma Reservation.State Parties Except. Br. 19-20. The State Parties overlook at least threefundamental distinctions between the omitted lands claims at issue in ArizonaII and the boundary lands claims at issue here.

First, the Court concluded in Arizona II that the omitted lands claims shouldbe precluded primarily because the Court should "not reopen an adjudicationin an original action to reconsider whether initial factual determinationswere correctly made." 460 U.S. at 623-624, 625. The Court noted that"while the technical rules of preclusion are not strictly applicable"to sequential proceedings in a single case within the Court's original jurisdiction,the res judicata principles upon which those rules are founded "shouldinform our decision." Id. at 619. The Court gave special weight tothe "fundamental precept of common-law adjudication" that "anissue once determined by a competent court is conclusive." Ibid. (citingMontana v. United States, 440 U.S. 147, 153 (1979)). The Court's decisionin Arizona I had comprehensively addressed and resolved the factual questionsrespecting what lands within the 1964 reservation boundaries were "practicablyirrigable," and the Court was understandably reluctant to recalculatethe irrigable acreage. The Court recognized that allowing relitigation ofthose factual issues could "open what may become a Pandora's Box, upsettingthe certainty of all aspects of the decree." Id. at 625.

The current dispute over the boundaries of the Fort Yuma Reservation restson a different footing. The boundary lands claims do not call for the redeterminationof factual issues that were fully and fairly litigated in the Arizona Iproceedings. Rather, they turn on the validity of a 1978 Secretarial orderholding, based on an opinion of the Solicitor of the Interior, that certainfederal lands are, and have always been, part of the Fort Yuma Indian Reservation.See U.S. Except. Br. 23-24. The validity of that order presents a questionof law-the meaning and effect of an 1893 Agreement between the United Statesand the Quechan Tribe (see U.S. Except. Br. App. 1a-10a)-that was not briefedor decided in the prior proceedings.

Second, the boundary lands claims for the Fort Yuma Reservation could nothave been decided in the Arizona I proceedings. This Court expressly ruledin Arizona I that Master Rifkind erred in deciding the boundary lands claimsof the Fort Mojave and Colorado River Indian Tribes. See 373 U.S. at 601.The Court essentially held that Master Rifkind had acted prematurely inresolving the underlying boundary disputes, which might be resolved in otherfora. See ibid. By the same reasoning, Master Rifkind could not have resolvedthe analogous boundary dispute concerning the Fort Yuma Reservation, whichwas already the subject of litigation before the Indian Claims Commission.See pp. 5-6, supra.

The res judicata principles of merger and bar can preclude claims that wereor could have been advanced in prior litigation between the parties. See,e.g., Rivet v. Regions Bank, 522 U.S. 470, 476 (1998); Richards v. JeffersonCounty, 517 U.S. 793, 797 n.4 (1996); Allen v. McCurry, 449 U.S. 90, 94(1980); Cromwell v. County of Sac, 94 U.S. 351, 352-353 (1876); Restatement(Second) Judgments §§ 17-19, 24 (1982). Those principles, however,do not preclude claims that could not have been decided in the prior proceedings.See, e.g., Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 327-328(1955); Restatement (Second) Judgments §§ 20, 26 (1982); CharlesA. Wright et al., Federal Practice and Procedure § 4415, at 122 (1981)("Preclusion is inappropriate * * * as to matters that could not beadvanced in the first action."). For example, the Restatement pointsout:

A valid and final personal judgment for the defendant, which rests on theprematurity of the action or on the plaintiff's failure to satisfy a preconditionto suit, does not bar another action by the plaintiff instituted after theclaim has matured, or the precondition has been satisfied, unless a secondaction is precluded by operation of the substantive law.

Restatement (Second) Judgments § 20(2) (1982). Compare Arizona I, 373U.S. at 601 ("We hold that it is unnecessary to resolve [the boundary]disputes here. Should a dispute over title arise because of some futurerefusal by the Secretary to deliver water to [a disputed] area, the disputecan be settled at that time.").

Third, the Restatement likewise points out:

When any of the following circumstances exist, the general rule of [Restatement]§ 24 [against splitting claims] does not apply to extinguish the claim,and part or all of the claim subsists as a possible basis for a second actionby the plaintiff against the defendant:

(a) The parties have agreed in terms or in effect that the plaintiff maysplit his claim, or the defendant has acquiesced therein;

(b) The court in the first action has expressly reserved the plaintiff'sright to maintain the second action;

* * * * *

Restatement (Second) Judgments § 26(1) (1982); see, e.g., Charles A.Wright et al., Federal Practice and Procedure § 4413, at 106 (1981)("A judgment that expressly leaves open the opportunity to bring asecond action on specified parts of the claim or cause of action that wasadvanced in the first action should be effective to forestall preclusion.").That principle is directly applicable here, for the 1979 and 1984 SupplementalDecrees expressly provided for adjustment of water rights upon final determinationof reservation boundaries. See Article II(D)(5) of the 1984 SupplementalDecree, 466 U.S. at 145 (The water rights of all five of the Indian Tribes"shall be subject to appropriate adjustments by agreement or decreeof this Court in the event that the boundaries of the respective reservationsare finally determined."); Article II(D)(5) of the 1979 SupplementalDecree, 439 U.S. at 421 (accord). By contrast, no provision of the 1964Decree or the 1979 and 1984 Supplemental Decrees expressly provided foradjustment of water rights based on "omitted lands."

Those general principles should inform the Court's decision here. This Court'sdecision in Arizona I, which expressly held that Master Rifkind erred inprematurely reaching disputed boundary issues respecting the Fort Mojaveand Colorado River Indian Reservations, 373 U.S. at 601, leaves no doubtthat Master Rifkind likewise could not have entertained the boundary landsclaims respecting the Fort Yuma Reservation. The Court expressly deferreddecision on those claims through Article II(D)(5) of its 1964 Decree, itretained jurisdiction over this case under Article IX, and it expresslyleft open the boundary lands issues for all five Reservations in the 1979and 1984 Supplemental Decrees. As the Court noted in Arizona II, 460 U.S.at 624, it frequently retains jurisdiction precisely because of "theneed for flexibility in light of changed conditions and questions whichcould not be disposed of at the time of an initial decree." (emphasisadded). See also Tuttle Report 56-57 n.73 ("Article IX, even most narrowlyconstrued, would recognize the propriety of entertaining claims as to the* * * Fort Yuma [Reservation].").

In short, the Court's decisions in Arizona I and Arizona II, as well asits 1979 and 1984 Supplemental Decrees, make clear that the boundary landsclaims for the Fort Yuma Reservation present open issues that are to bedecided in an appropriate forum and at an appropriate time. This Court'sdecisions pose no bar to the Master's resolution of those issues on theirmerits in proceedings on remand.

C. The Preclusion Defense Has In Any Event Been Waived In, And ForeclosedBy, Prior Proceedings In This Case

The State Parties admit that they did not raise their preclusion defenseto the boundary lands claims for the Fort Yuma Reservation in this Courtuntil July 19, 1989, when they initiated the current proceedings. See StateParties Except. Br. 16. Recognizing that they have raised a preclusion defenselate in this litigation, the State Parties argue that they "did notwaive their right" to present that defense and that they have not presentedthe defense in an "untimely" manner. State Parties Except. Br.21-24, 24-26. We disagree.

This Court's Rules state that the Federal Rules of Civil Procedures "maybe taken as guides" in the conduct of actions within the Court's originaljurisdiction. Sup. Ct. R. 17.2. See Nebraska v. Wyoming, 507 U.S. 584, 590(1993). The Federal Rules direct that "a party shall set forth affirmatively"in its pleadings affirmative defenses and expressly includes, among thosedefenses, "res judicata." Fed. R. Civ. P. 8(c); see also Fed.R. Civ. P. 12(b). See Rivet, 522 U.S. at 476 ("Claim preclusion (resjudicata), as Rule 8(c) of the Federal Rules of Civil Procedure makes clear,is an affirmative defense."); Blonder-Tongue Labs., Inc. v. Universityof Ill. Found., 402 U.S. 313, 350 (1971) ("Res judicata and collateralestoppel are affirmative defenses that must be pleaded."). If a partyfails to plead res judicata, the courts deem the affirmative defense waived.See Huffman v. Pursue, Ltd., 420 U.S. 592, 607-608 n.19 (1975) ("appellantsdid not plead res judicata in the District Court, and it is therefore notavailable to them here").

The State Parties contend that they have not waived that affirmative defensebecause the 1979 and 1984 Supplemental Decrees do not expressly preventthe Court from considering it (State Parties Except. Br. 21-24). But, asthe term affirmative defense implies, the fact that the Supplemental Decreesdo not mention claim preclusion did not absolve the State Parties of theiraffirmative obligation to raise that defense in response to the United States'December 22, 1978, Motion for Modification of the Decree. The State Partiesalso contend that their defense is not untimely because, in their view,a court may raise a res judicata defense sua sponte at any time (State PartiesExcept. 24-26). While this Court has observed that "trial courts mayin appropriate cases raise the res judicata bar on their own motion,"Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 231 (1995), the fact remainsthat neither Master Tuttle nor the Court did so in the Arizona II proceedings.The State Parties' invocation of that defense in these proceedings comesfar too late.

More fundamentally, not only did the State Parties fail to raise res judicataas an affirmative defense, but they stipulated to a Supplemental Decreein 1979 that expressly extended to all five Reservations the provisionsof Article II(D)(5) of the 1964 Decree-which had theretofore expressly appliedonly to the Fort Mojave and Colorado River Indian Reservations-for appropriateadjustments in previously adjudicated water rights in the event that theboundaries of the five Reservations were thereafter "finally determined."Because the purpose of Article II(D)(5) of the 1964 Decree was to providefor adjustments of water rights based on the inclusion of boundary landsin the Fort Mojave and Colorado River Indian Reservations notwithstandingthe Court's decision in Arizona I, the express extension of that Articleto all five Reservations in 1979-after the United States sought additionalwater rights for the boundary lands of the Fort Yuma Reservation-necessarilyallows for such adjustments respecting the Fort Yuma Reservation, notwithstandingthe Court's decision in Arizona I.

If the State Parties had thought otherwise, and believed that they had avalid preclusion defense to the boundary lands claims for the Fort YumaReservation even after entry of the 1979 Supplemental Decree, they certainlywould have raised that defense in the proceedings before Master Tuttle.They did not do so. To the contrary, the State Parties consented to a determinationof the boundary lands claims on the merits. See Tuttle Report 56-57. TheState Parties' willingness to have the boundary lands claims determinedon the merits stands in stark contrast to their approach to the Tribes'omitted lands claims. The State Parties vigorously asserted a preclusiondefense to those claims in the proceedings before Master Tuttle. See TuttleReport 29-55. The State Parties' decision to raise a preclusion defenseto the omitted lands claims, but not to the boundary lands claims, suggestsboth that they made a strategic decision to forgo raising a preclusion defensein response to the latter claims and that they understood that such a defensewas foreclosed by Article II(D)(5) of the 1979 Supplemental Decree.

If the Court concludes that the defense is not altogether foreclosed, however,the defense should be rejected on the merits. As we explain in Point B,supra, the boundary lands claims for the Fort Yuma Reservation are not precludedby this Court's decisions in Arizona I and Arizona II because those claimswere not decided, and could not have been decided, in the prior litigation.Instead, those claims were left open for future decision in accordance withthe express terms of the 1979 and 1984 Supplemental Decrees.

D. The Master's Ultimate Recommendation That This Court's Decisions In ArizonaI And Arizona II Do Not Preclude The Boundary Lands Claims Is Correct

The State Parties challenge the Master's reasoning that res judicata doesnot preclude the United States and the Quechan Tribe from asserting boundarylands claims because the Secretary's 1978 order recognizing that the landsin question are part of the Fort Yuma Reservation was a "later andunknown circumstance" that the United States could not have anticipated.State Parties Except. Br. 26-27. See McGarr Report App. 2(A) at 7. Althoughthis Court customarily retains jurisdiction to modify its Decrees in responseto changed circumstances, see, e.g., Nebraska, 507 U.S. at 590-593; ArizonaII, 460 U.S. at 624-625, the United States does not rely on that rationalein this case. Rather, we submit that the boundary lands claims are not precluded,under basic principles of res judicata, because that defense is foreclosedand because this Court's decisions in Arizona I and Arizona II establishthat those claims were not decided, and could not have been decided, inthe prior proceedings. See pp. 5-21, supra. The Master's ultimate recommendationis surely correct standing on those bases alone, and there is no occasionto explore the more difficult and fact-specific question of what types of"changed conditions" would justify the modification of this Court'swater rights decrees. See Nebraska, 507 U.S. at 593.

E. The Boundary Lands Claims For The Fort Yuma Reservation Should Be RemandedFor Further Proceedings

The Master properly rejected the State Parties' argument that this Court'sprior decisions preclude the United States and the Quechan Tribe from assertingboundary lands claims for the Fort Yuma Reservation. The Master erred, however,for the reasons set forth in the Brief for the United States in Supportof Exception, in holding that the 1983 consent judgment entered in the UnitedStates Claims Court precluded the United States and the Tribe from makingthose claims. See U.S. Except. Br. 14-41. The Court should therefore remandthose issues to the Master for further proceedings. As we have said in ourown Exception Brief (at 42-43), we are hopeful that, if the matter is returnedto the Master, a proposed settlement can be reached. But if the partiesare unable to negotiate a proposed settlement of those issues, the issuesshould be adjudicated on the merits. Ibid.

CONCLUSION

The exception of the State Parties to the Report of the Special Master shouldbe overruled.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
F. PATRICK BARRY
Attorney

FEBRUARY 2000


1 We note that an entity entitled the West Bank Homeowners Association hasmoved to file a brief amicus curiae objecting to the Master's recommendationthat this Court approve the proposed settlement of water rights claims respectingthe Colorado River Indian Reservation. The Association consists of a numberof persons who lease property from the United States within the currentboundaries of the Colorado River Indian Reservation and object to the UnitedStates' determination that those lands are part of the Reservation. ThisCourt and Master McGarr have each denied the Association's request to intervenein this proceeding. See Arizona v. California, 514 U.S. 1081 (1995); MemorandumOpinion and Order No. 17 of Special Master McGarr (Mar. 29, 1995). As theMaster noted, the Association and its members do "not own land in thedisputed area and makes no claim to title or water rights," id. at2, and their interests will "not be impeded or impaired by the dispositionof this litigation," id. at 4. As a consequence, the Association'sobjections, which raise matters that belong in other fora, are not germaneto the issues before this Court. See generally Objection of the State ofCalifornia, the Metropolitan Water District of Southern California, theCoachella Valley Water District, and the Colorado River Indian Tribes tothe Motion of the West Bank Homeowners Association for Leave to File BriefAmicus Curiae; see also Reply of the Colorado River Indian Tribes to theProposed Brief Amicus Curiae of the West Bank Homeowners Association.

2 The State Parties erroneously identify Article II(d)(5) as the Articleproviding for submission of lists of present perfected rights. See StateParties Except. Br. 10.

3 As we explain below, the Court appointed Judge Elbert P. Tuttle to succeedSimon Rifkind as the Special Master in this case. His report, filed in 1982,describes those motions and the ensuring events.

4 Master Tuttle also noted that Article IX, which allowed the Court to modifythe existing Decree, "even most narrowly construed, would recognizethe propriety of entertaining claims as to the Chemehuevi, Fort Yuma, andCocopah Reservations paralleling those that can be raised as to the FortMojave and Colorado River Reservations under Article II(D)(5)." TuttleReport 56-57 n.73.

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