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It is agreed that during the progress of the work of constructing said 1919 dam, or weir, the second party may employ and retain an inspector on said work to ascertain and determine if such construction is being prosecuted in accordance with the terms of this agreement, and first party agrees to reimburse second party for such reasonable compensation as may be paid by it to such inspector, not to exceed per diem.
It is understood and agreed that owing to the fact that first party is a Jmunicipal corporation of the State of California it may be necessary or appropriate, in the event of the breach of any of the terms or covenants of this agreement, for second party to sue hereunder, or under said reimbursement bond, in the State of California, and that such proceedings, if had, will result in additional cost and expense to second party; wherefore, first party, in consideration thereof and said premises, hereby promises and agrees to pay to second party, in the event of action being brought hereunder, or under said reimbursement bond. in the State of California, the sum of $1,000, to reimburse second party for the additional cost and expense to it of suing in the State of California, and such additional sum for attorney's fees as may be deemed reasonable by the court trying such action.
In witness whereof the said party of the first part has, by order of its board of directors, caused these presents to be executed in its corporate name by its president and secretary, and attested by its seal, the day and year first above written.
IMPERIAL IRRIGATION DISTRICT. By J. S. Nickerson, Its President. Attest: F. H. McIvKR, [seAL.] - Secretary.
Whereas by section 10 of an act of Congress approved March 3, 1899, entitled “An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes,” it is provided that it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river or other water of the United States outside established harbor lines or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill. or in any manner to alter or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary, of War prior to beginning the same : And whereas application has been made to the Secretary of War by the Imperial irrigation district of California, for authority to repair and rebuild its temporary diversion dam or weir (originally constructed under authority of War Department permit dated February 14, 1917), located in the Colorado River at or near Hanlon's Heading at the site shown on the map hereto attached, and to maintain said structure until July 1, 1920 as recommended by the Chief of Engineers; Now, therefore, This is to certify that the Secretary of War hereby authorizes the said work of repairing and rebuilding the Imperial irrigation district's temporary diversion dam or weir, in the Colorado River at or near Hanlon's Heading and maintaining the same until July 1, 1920, upon the following conditions: 1. That it is to be understood that this authority does not give any property rights either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining State assent to the work authorized. It merely expresses the assent of the Federal Government so far as concerns the public rights of navigation. (See Cummings v. Chicago, 188 U. S., 410.) 2. That the work shall be subject to the supervision and approval of the district engineer, engineer department at large, in charge of the locality, who may temporarily suspend the work at any time if, in his judgment, the interests of navigation so require. 3. That if any pipe, wire, or cable is herein authorized, it shall be placed and maintained with a clearance not less than that shown by the profile on the plan attached hereto. 4. That so far as any material is dredged in the prosecution of the work herein authorized it shall be removed evenly, and no large refuse piles shall be left. It shall be deposited to the satisfaction of the said district engineer and in accordance with his prior permission or instructions, either on shore above high water or at such dumping ground as may be designated by him, and where he may so require, within or behind a good and substantial bulkhead or bulkheads, such as will prevent escape of the material into the waterway; and so far as the pipe, wire, or cable is laid in a trench, the formation of permanent ridges across the bed of the waterway shall be avoided and the back filling shall be so done as not to increase the cost of future dredging for navigation. If the material is to be deposited in the harbor of New York, or in its adjacent or tributary waters, or in Long Island Sound, a permit therefor must be previously obtained from the Supervisor of New York Harbor, Army Building, New York City. 5. That there shall be no unreasonable interference with navigation by the work herein authorized. 6. That if inspections or any other operations by the United States are necessary in the interests of navigation, all expenses connected therewith shall be borne by the permittee. 7. That the permittee assumes all responsibility for damages to the work or structure herein authorized, and for damage caused by it or by work of the permittee in connection there with to passing vessels or other craft, and shall 1\ot attempt in any way to prevent free use by the public of the area at or adjacent to the work or structure. 8. That if future operations by the United States require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Secretary of War, it shall cause unreasonable obstruction to the free navigation of said water, the permittee will be required, upon due notice from the Secretary of War, to remove or alter the structural work or obstructions caused thereby without expense to the United States so as to render navigation reasonably free, easy, and unobstructed ; and if, upon the expiration or revocation of this permit, the structure, fill, excavation, or other modification of the watercourse hereby authorized shall not be completed, the permittee shall, without expense to the United States, and to such extent and in such time and manner as the Secretary of War may require, remove all or any portion of the uncompleted structure or fill and restore to its former condition the navigable capacity of the watercourse. No claim shall be made against the United States on account of any such removal or alteration. 9. That if the display of lights and signals on any work hereby authorized is not otherwise provided for by law, such lights and signals as may be prescribed by the Bureau of Lighthouses, Department of Commerce, shall be installed and maintained by and at the expense of the permittee. 10. That the permittee shall notify the said district engineer at what time the work will be commenced, and as far in advance of the time of commencement as the said district engineer may specify, and shall also notify him promptly, in writing, of the commencement of work, suspension of work, if for a period of more than one week, resumption of work, and its completion. 11. That before this permit shall become operative the said district shall give a good and sufficient bond satisfactory to the Secretary of War, in the penal sum of $25,000, conditioned for the prompt and complete removal of the said diversion dam or weir at any time on the order of the said district engineer, and in any event on or before July 1, 1920; and also a bond in the penal sum of $500,000 satisfactory to the Secretary of the Interior, to reimburse the United States and the Yuma County Water Users' Association for any damage caused by the said structure to lands, works, or property of the United States or members of the said association. 12. That adequate measures satisfactory to the district engineer shall be taken by the permittee for furnishing him prompt warnings of floods and for maintaining by the site of the said structure material and equipment sufficient for its prompt removal. -
13. That arrangements satisfactory to the Secretary of War shall be continued to dispense as speedily as possible with the necessity for placing diversion dams in said river, and that the said district shall report in detail to the said district engineer on the 1st and 15th day of each month while this authorization continues in force what measures are proposed for that purpose and the progress made thereon.
14. That unless previously revoked or specifically extended, this authorization shall expire July 1, 1920.
Witness my hand this 16th day of June, 1919.
NEwton D. BARER,
DEPARTMENT of THE INTERIOR, Washington, August 5, 1918. Mr. LEROY Hoi.T. President Imperial Irrigation District, El Centro, Calif.
DEAR MR. Holt : Your letter of June 7, transmitting draft of contract as approved by your directors, was duly received, and reply thereto has been delayed owing to my absence and that of Messrs. Bradley and Davis from the city. It has now, however, been given careful consideration, and I herewith inclose approved draft accepting most of the changes you have made and differing only in two particulars. The plans by the United States for the development of Yuma project propose the development of power upon the Colorado River near Pilot Knob, and this might be locally shifted to accommodate the Imperial district; but if the point of such power development is, for the benefit of Imperial Valley, taken to some point distant from Pilot Knob, farther away from Yuma project, it would be hardly fair to expect Yuma, which would receive no benefit from this change, to stand the expense therefor, as your draft would require. The language has therefore been changed to agree with the former draft that the charge is to be made on the basis of the cost of development at the power house, and this seems to be just, especially as you are allowed 10 per cent profit on this power, which will cover a portion of the cost of carrying it to Pilot Knob. The provision in paragraph 14 that the share of Yuma project in the water supply be limited to one-fourth of the water which can be diverted at Laguna Dam places upon the Yuma project the burden of providing for any water rights that may be adjudicated to the lands which have been cultivated in connection with the Imperial Valley concession. This does not seem equitable, as neither the United States nor the Yuma project has had anything to do with this concession or the obligations which may have grown up under it. This has therefore been changed to read “one-quarter of the water in the river above Laguna Dam.” With these changes, which I think the Government must insist upon, the contract is approved, and you will note that most of the suggestions you have made have been adopted. The Yuma people have objected to the change which you have requested occurring at the close of paragraph 12, because under the language you propose any water that may be dropped at Pilot Knob for power might be dropped into the river, thereby necessitating its rediversion into your canal until the allAmerican line is built, and this they fear might lead to further requests for the construction of a dam in the river. - The assumption, however, that the Imperial district would go to all the expense of building a large canal to connect with Laguna Dam and then deliberately throw away its advantages for no reason, appears to be so violent that I have accepted your wording without change, but this is written to emphasize the fact, that it is not intended that this provision should give occasion for the reconstruction of a dam in the Colorado River at Hanlon heading. In fact, this dam is such a menace to the safety of the Yuma Valley that it can only be permitted as a temperatory expedient pending some adequate provision for forestalling its necessity such as this contract provides, and unless the Imperial district takes immediate steps to secure a safe and permanent method of diverting water from the Colorado I will not again favor the placing of such a structure in the river.
ExHIBIT I. - WAR DEPARTMENT, Washington, April 11, 1918. Mr. LFROY Holt, President Imperial Irrigation District, El Centro, Calif.
I}EAR MR. Holt : You were recently handed form of contract under which, when ratified according to law by the stockholders of your corporation and properly executed by the Secretary of the Interior, connection of the canal system of Imperial irrigation district with the diversion works of the Yuma project at Laguna Dam may be made. It is understood that the terms of this contract were agreed upon as being fair and reasonable by your representatives and by representatives of the Yuma County Water Users’ Association, and that they represent the final determination of the Interior Department upon the points in controversy.
It is hoped that formal action looking to the ratification or rejection of this agreement may be taken by you speedily, as such action must necessarily have an important bearing upon the subject of the weir dam in the Colorado River at Hanlon headling. That dam is regarded as a serious menace to the Yuma project, the further toleration of which can be justified by this department only in connection with convincing evidence, such as ratification of the proposed agreement and diligence in carrying out its provisions of a definite and dependable plan for speedily removing the need of such a structure.
Very truly, yours,
THE AT TORNEY GENERAL to THE SECRETARY OF STATE,
SIR: I have the honor to acknowledge the receipt of your letter of the 5th ultimo in which you refer to the concurrent resolution of Congress passed April 29, 1890, providing for negotiations with the Government of Mexico with a view to the remedy of certain difficulties mentioned in the preamble of such resolution, which arise from the taking of water for irrigation from the Rio Grande above the point where it ceases to be entirely within the United States and becomes the boundary between the United States and Mexico. I have also the copy which you inclose of the note of the Mexican minister to yourself, slated October 21, 1895, in which he states at length the position taken by his Government.
“The negotiations with which the President, acting through the Department of State, is charged by the foregoing resolution can not be intelligently conducted unless the legal rights and obligations of the two Governments concerned and the responsibility of either, if any, for the disastrous state of things depicted in the Mexican minister's letter are first ascertained.”
I have the honor, therefore, to call your attention to the legal propositions asserted in Mr. Romero's letter and to inquire whether, in your judgment, those propositions correctly state the law applicable to the case. In other words—
(1) Are the provisions of article 7 of the treaty of February 2, 1848, known as the treaty of Guadalupe Hidalgo, still in force so far as the River Rio Grande is concerned, either because never annulled or because recognized and reaffirmed by article 5 of the convention between the United States and Mexico of November 12, 1884?
(2) By the principles of international law, independent of any special treaty or convention, may Mexico rightfully claim that the obstructions and diversions of the waters of the Rio Grande in the Mexicon minister's note referred to are violations of its rights which should not continue for the future and on account of which, so far as the past is concerned, Mexico should be awarded adequate indemnity?
I reply as follows:
(1) Article VII of the treaty of Guadalupe Hidalgo, while it was declared to have been rendered nugatory for the most part by the first clause of article 4 of the treaty concluded December 30, 1853, and proclaimed June 30, 1854, was, by the second clause thereof, reaffirmed as to the Rio Grande (now Rio Bravo del Norte) below the point where, by the lines as fixed by the latter treaty, that river became the boundary between the two countries. Said Article VII is recognized as still in force by Article V of the convention concluded November 12, 1884, and proclaimed September 14, 1886.
So far, therefore, as it affects the subject now in hand, said Article 7, in my opinion, is still in force. I am unable, however, to agree with the minister in the interpretation which he gives it.
His statement is that the city of El Paso del Norte has existed for more than 300 years, during almost all of which time its people have enjoyed the use of the water of the Rio Grande for the irrigation of their lands. As that city and the districts within its jurisdiction did not need more than 20 cubic meters of water per second, which was an almost infinitesimal portion of the volume of water, even in times of severest drought they had sufficient water for their crops until about 10 years ago, when a great many trenches were dug in Colorado, especially in the St. Louis Valley, and in New Mexico, through which the upper Rio Grande and its affluents flow, so greatly diminishing the water in the river at El Paso that, except when rains happen to be abundant, there is scarcity of water from the middle of June until March. In 1894 the river was entirely dry by June 15, so that no crops could be raised, and even fruit trees began to wither. The result has been to reduce the price of land and cause great hardships to the people, whose numbers in Paso del Norte, Zaragozza, Tres Jacalles, Guadalupe, and San Ignacio diminished from 20,000 in 1875 to one-half that number in 1894.
The minister further states that from a report of the assistant quartermaster general, addressed to the general in chief of the United States Army, dated September 5, 1850, it appears that Capt. Lowe (meaning Love), United States Army, ascended the river in a vessel to a point several kilometers above Paso del Norte, showing that it was then navigable at that place. The minister has been misinformed. The original report, which is before me now, shows that Capt. Love was instructed to carry“ to the highest attainable point in the Rio Grande" his small keel boat, which “drew, with her crew, provisions, arms, etc., on board, 18 inches of water." He found this point at some "impossible falls," which he names “Brookes Falls.” Carrying around them “the skiff which had accompanied his boat,” he rowed 47 miles farther to other falls, which he named “Babbitts Falls.” Beyond this point he “ found it impossible to proceed with the skiff, either by land or water," and it was “about 150 miles by land below El Paso.”
The "minister contends that the irrigation ditches in Colorado and New Mexico, which result in diminishing the flow of water at El Paso, come within the treaty prohibitions of “any work that may impede or interrupt, in whole or in part, the exercise of this right” (of navigation), because, as he says, “nothing could impede it more absolutely than works which wholly turn aside the waters of these rivers." But Article VII is limited in terms to “the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico." Article IV of the treaty of 1853 continues the provisions of said Article VII in force “ only so far as regards the Rio Bravo del Norte below the initial of said boundary provided in the first article of this treaty.” It is that part alone which is made free and common to the navigation of both countries and to which the various prohibitions apply. It is plain that neither party could have had, in framing these restrictions, any such intention as that now suggested. The fact, if such it were, that the parties did not think of the possibility of such acts as those now complained of would not operate to restrain language sufficiently broad to include them; but the terms used in the treaty are not fairly capable of such a construction. They naturally apply only to the part of the river with which the parties were dealing and