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DEPARTMENT OF THE INTERIOR, Washington, October 8, 1919. Hon. M. P. KINKAID, Chairman Committee on Irrigation of Arid Lands, House of Representatives.
MY DEAR JUDGE KINKAID: I am in receipt of your letter of September 26, inclosing copy of H. R. '9421, introduced by Mr. Hayden, to authorize the construction of the Lower Colorado River reclamation project, and for other purposes, and requesting report on same.
Under date of July 3, 1919, I reported on the bill H. R. 6044, which has the same general purpose as the bill introduced by Mr. Hayden but is expressed differently and has a different title and some different provisions.
In the report of July 3, above referred to, I pointed out a number of amendments to the former bill and With these amendments it seemed to fulfill its function fairly well.
H. R. 9421 contains several provisions not found in the former bill which are, in my judgment, improvements. The principal one of these is the provision that the public lands may be held for actual settlers and in the discretion of the Secretary of the Interior he is authorized to use those lands in cooperation with the State land settlement board and other public authorities of the State of California, and similar board in the State of Arizona. Also, that the Secretary may, in his discretion, use such lands in connection with any soldier settlement legislation that may be enacted by Congress. I regard the treatment of the public lands in H. R. 9421 as a decided improvement on the provisions of the previous bill.
The theory of the former bill that the public lands be sold immediately and that the proceeds constitute a guaranty fund, might, under the provisions of H. R. 9421, be carried out to better advantage by holding the lands until water is ready for delivery, as their value will at that time be much higher than in the raw state. Such treatment will also prevent speculation, as it will enable the actual settler to take and cultivate the lands when water is ready, whereas he would not be able to do so if purchased years in advance of water delivery, and the purchaser would be in the attitude of a speculator purchasing the lands to sell later to the actual user at an advance.
In section 17 occurs an attempt to prevent the purchase of lands in larger tracts than 160 acres. This attempt will not be effective unless prohibition is made upon early alienation and it would be more effective if some such limitation were imposed.
In section 19, line 6, it is recommended that, after the word “proper,” the words “in his judgment” be inserted.
With these minor changes I think the bill is an improvement upon H. R. 6044, and might with advantage be substituted for the same.
DEPARTMENT of STATE, Washington, August 20, 1919. I Ion. M. P. KINKAID, House of Representatives.
SIR. In further reply to your letter of August 4, 1919, in which you requested me to furnish your Committee on Irrigation of Arid Lands with my views as to the bearing of treaty provisions in force between the United States and Mexico upon the provisions of H. R. 6044, being a bill to assist in increasing the productive agricultural area of the Imperial and Coachella Valleys, Calif., and for other purposes, I beg to advise you that the matter has been given careful consideration and a conclusion reached as below stated.
It appears that section 6 of the bill in question provides for the construction of a canal entirely within the United States to convey water from the Colorado River at the Laguna Dam on the border between the States of Arizona and California to the districts within the United States which it is proposed to irrigate with such water.
Article IV of the Treaty of Boundary, Cession, or Territory, etc., concluded between the United States and Mexico, December 30, 1853, provides as follows: “The provisions of the sixth and seventh articles of the treaty of Guadalupe Hidalgo having been rendered nugatory for the most part by the cession of territory granted in the first article of this treaty, the said articles are hereby abrogated and annulled, and the provisions as herein expressed substituted therefor. The vessels and citizens of the United States shall, in all time, have free and uninterrupted passage through the Gulf of California to and from their possessions situated north of the boundary line of the two Countries, it being understood that this passage is to be by navigating the Gulf of California and the River Colorado, and not by land without the express consent of the Mexican Government; and precisely the same provisions, stipulations, and restrictions in all respects are hereby agreed upon and adopted, and shall be scrupulously observed and enforced, by the two contracting Governments in reference to the Rio Colorado so far and for such distance as the middle of that river is made their common boundary line by the first article of this treaty. “The several provisions, stipulations, and restrictions contained in the seventh article of the treaty of Guadalupe Hidalgo shall remain in force only so far as regards the Rio Bravo del Norte below the initial of the said boundary provided in the first article of this treaty, that is to say, below the intersection of the 31° 47' 30’’ parallel of latitude, with the boundary line established by the late treaty dividing said river from its mouth upward, according to the fifth article of the treaty of Guadalupe.” The sixth and seventh articles of the treaty of Guadalupe Hidalgo referred to in the before-quoted provisions of the treaty of 1853 are as follows: “ART. WI. The vessels and citizens of the United States shall, in all time, have a free and uninterrupted passage by the Gulf of California and by the River Colorado below its confluence with the Gila to and from their possessions situated north of the boundary line defined in the preceding article, it being understood that this passage is to be by navigating the Gulf of California and the River Colorado and not by land without the express consent of the Mexican Government. “If, by the examinations which may be made, it should be ascertained to be Uracticable and advantageous to construct a road, canal, or railway which should in whole or in part run upon the River Gila, or upon its right or its left bank, within the space of 1 marine league from either margin of the river, the Governments of both Republics will form an agreement regarding its construction, in order that it may serve equally for the use and advantage of both countries. “ART. VII. The River Gila and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico being, agreeably to the fifth article, divided in the middle between the two Republics, the navigation of the Gila and of the Bravo below said boundary shall be free and common to the vessels and citizens of both countries, and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right, not even for the purpose of favoring new methods of navigation. Nor shall any tax or contribution, under any denomination or title, be levied upon vessels or persons navigating the same, or upon merchandise or effects transported thereon, except in the case of landing upon one of their shores. If, for the purpose of making the said rivers navigable, or for maintaining them in such state, it should be necessary or advantageous to establish any tax or contribution, this shall not be done without the censent of both Governments. “The stipulations contained in the present, article shall not impair the territorial rights of either republic within its established limits.” I am of the opinion that the said provisions of the treaty of 1853, taken in connection with the quoted provisions of the treaty of Guadalupe Hidalgo of 1848, contain a prohibition of action by either Government along the contmon boundary line which might impede navigation in the Colorado River. However, with respect to a work, such as is provided for in the bill under consideration, being wholly within United States territory and not along the common boundary line, I am of the opinion that the treaty provisions mentioned would not be applicable, and in this connection I refer to an opinion of the Attorney General, dated December 12, 1895, holding that the taking of water for irrigation purposes from the Rio Grande in the United States, above the point where it forms the boundary line between the United States
and Mexico, is not prohibited by treaty provisions between the two countries. I quote froin that opinion as follows:
"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 botn 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 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 to such works alone as either party might construct on its own side if not restrained. Though equally divided, in theory, between the two nations where it is their boundary, the river is in fact a unit for purposes of navigation, and therefore the treaty required the consent of both for the construction of any work that may impede or interrupt’ navigation, even though it should be for the purpose of favoring new methods of navigation.' (Art. VII.) Up to the head of navigation no such work could have been constructed save by one of the two Governments or by its authority. The prohibition was, therefore, appropriately made applicable to them alone, anıl not to the citizens of either-'neither shall, without consent of the other, construct,' etc. Above the head of navigation, where the river would be wholly within the United States, different rules would apply and private rights exist which the Government could not control or take away save by the exercise of the power of eminent domain, so that clear and explicit language would be required to impose upon the United States such obligations as would result from the construction of the treaty now suggested.” (Vol. 21, Op. Atty. Gen., pp. 276–278.)
In this connection I also refer to the following language, contained in an opinion and report, dated September 28, 1903, of M. C. Birch, special assistant to the Attorney General, following an investigation requested by the Departinent of State, in large part at least, on account of a protest addressed to it by the Mexican Embassy at this capital on November 27, 1901, against a proposed diversion of waters of the Colorado River within the United States by a concern styled "Imperial Canal System":
“ The first thought from a reading of this last quotation would naturally be that the provisions of Article VII of the first treaty, relative to the construction of any work that might impede or interrupt navigation on the Colorado, were retained. But when carefully considered, the italicized language gives evidence of a restriction of such provision to that portion of the stream where the same is a boundary line. And the diversion of the water by the canal of this company being wholly within the United States and within the purview of the restriction, relieves the company from any claim of conflict with these treaties." (Report to the Attorney General of the United States concerning the condition of Colorado River in California, etc., p. 58.)
The foregoing appears to answer your inquiry, but there are certain other considerations connected with the matter which I desire to bring to the attention of your committee.
Although the provisions of the bill in question are not clear upon the point as to whether the works, for the construction of which the bill provides, would result in the use of practically the entire flow of the Colorado River at a point a little north of the boundary line between the United States and Mexico, information coming to me from other sources appears to indicate that such would be the case during certain seasons of the year. If this information be correct, I may say that it would seem to me that considerations of equity and comity would require that the bill should be so amended as to provide that the works contemplated thereby should not be constructed until the conclusion of an agreement between the Governments of the United States and Mexico for the equit. able distribution of the waters of the Colorado River.
In this connection, I may point out that following the delivery of the beforementioned opinion of the Attorney General, the Government of the United States decided upon the adoption of a liberal policy and one not involving in. sistence on its legal rights; namely, the negotiation of a convention for the equitable distribution of the waters of the Rio Grande. Thereafter and while the question of the regulation of the use of these waters was thus under consideration by the two Governments, the Rio Grande Dam & Irrigation Co. was proceeding with a project for the construction of a dam at Elephant Butte, N. Mex., which project, if it had been carried through, would have placed in private hands the waters of the Rio Grande at that point and thus have nullified the efforts of the two Governments for an arrangement for the equitable distribution of the waters. For the purpose of forestalling this project, the Attorney General of the United States instituted injunction proceedings against the company in question based on the following provision of the act of Congress of September 19, 1890 (26 Stat., 454):
“That the creation of any obstruction * * * to the navigable capacity of any waters, in respect of which the United States has jurisdiction, is hereby prohibited.”
The proceedings thus instituted terminated in the decision of the Supreme Court of the United States upholding the Government's contention. (United States v. Rio Grande Dam & Irrigation Co., 174 U. S., 690.)
Following the rendition of that decision Congress authorized the construction by the Government of a dam called the Engel Dam, and on May 21, 1906, a convention was concluded between the United States and Mexico providing for the equitable distribution of the waters stored by means of this dam,
With relation to the proceedings had, as above outlined, in the case of the waters of the Rio Grande, I may call to the attention of your committee the apparent inconsistency which would result should the Government of the United States, having acted to prevent the monopolization by private parties within the United States of the waters of the Rio Grande, provide in an analogous case for monopolizaion by the authorities of the United States of the waters of the Colorado River.
I may add that the Government of the United States proposed in 1912 to the Government of Mexico that a convention be concluded providing for the appointment of a commission “to study, agree upon, and report” the basis of distribution and appropriation of the waters of the Colorado River, the findings of the commission, if and when approved by the two Governments, to be embodied in a treaty. After an exchange of several draft conventions, a form of convention seems to have been practically agreed upon in May, 1913, but apparently because of the strained relations then existing between the Government of the United States and the so-called Huerta administration in Mexico, the convention was never signed, and the matter has since been in abeyance. I have the honor to be, sir, Your obedient servant,
Washington, September 30, 1919. MY DEAR CONGRESSMAN: I have received your letter of September 26, 1919, inclosing a copy of H. R. 9421, introduced (by request) by Mr. Hayden, to authorize the construction of the Lower Colorado River reclamation project, and regret to say that with a few minor exceptions the objections which I urged in my letter of June 30 as to H. R. 6044 apply equally to H. R. 9421. The changes which have been made, as, for example, the change in terminology so as to authorize the issue of bonds and notes as well as certificates of indebtedness, the enlarged authority given to the Secretary of the Treasury to fix the terms of the issues, and the modified provisions as to the disposition of the surplus proceeds of the sale of bonds, notes, or certificates, do not save the bill from the objection which, from the Treasury point of view, is fundamental, namely, that it imposes upon the Treasury of the United States the burden of financing the project, but attempts to avoid making a direct appropriation, which would be the orderly and businesslike thing to do if the project is found to be meritorious, by directing the Secretary of the Treasury to sell obligations of the United States to provide the funds required for the purposes
of the bill. I feel very strongly that if it should be determined that the project is meritorious and one which the United States should finance, the Only Satisfactory way to handle the matter would be to make a direct appropriation of a specific amount for the purpose, leaving the Secretary of the Treasury, acting under the general authority conferred upon him by Congress, to finance the requirements of the project as from time to time might be found to be expedient. To attempt to provide for financing the project by authorizing special issues of obligations of the United States without making a direct appropriation tends to confusion of thought in the consideration of the bill, and, in my opinion, is certain to prove embarrassing in the long run to the credit and financial operations of the United States. Very truly, yours, CARTER GLAss. Hon. M. P. KINKAID, o House of Representatives, Washington, D. C.
[University of California, College of Agriculture, Agricultural Experiment Station, Berkeley, August, 1919.]
A PLAN FOR RECLAIMING AND PEOPLING THE MESA LANDS BORDERING THE IMPERIAL IRRIGATION DISTRICT.
By ELwood MEAD.
In Imperial Valley, on the Southern border of California, there are over 200,000 acres of public lands which can be irrigated from the Colorado River by a canal which would start at the Laguna Dam and carry water, both to the mesa land and to the Imperial irrigation district. This dam was built by the United States Reclamation Service and belongs to the Government. A survey to locate the canal from this dam to the Imperial Valley, and an estimate of its cost, have been made at the joint expense of the United States . Reclamation Service and the Imperial irrigation district. The writer of the letter which follows was the chairman of the board which had charge of the Survey and which made the estimate of its cost. This land is the upper part of the gently sloping sides of the Salton Basin. The lower part of this great bowl, or basin, is the Imperial irrigation district, watered by a canal from the Colorado River, but starting farther down and making a long loop into Mexico before reaching the land to be irrigated. It is planned to build a high line canal, large enough to supply both the unirrigated mesa land and the Imperial district, and to have the entire canal on American territory. The Imperial district and the higher unirrigated land are both to share in its cost, hence less than half the expense of the main canal referred to in the letter which follows would be a charge on the mesa land. A bill has been introduced in Congress, authorizing the sale of the irrigable public land in tracts of 160 acres and the use of money thus obtained to help finance construction; the greater part of the money to come, however, from an issue of certificates of indebtedness by the United States Treasury. These unirrigated mesa lands are now an arid desert where a horned toad can hardly live, but they have great prospective value. They are separated from the irrigated land of the Imperial district by only the width of a canal. Below the canal land sells for $150 to $300 an acre. If irrigated, the higher lands would be worth as much, and on 20 to 40 acres a family could make a comfortable living. If these lands are sold in their present arid condition they will be bought at arid-land prices, but not by landless homeseekers. These will come after canals are built and water is available and they will have to pay irrigated-land prices. Such a sale will make the mesa a fat field for speculation. The letter which follows was written in response to requests from the two gentlemen to whom it was addressed and who are residents of the valley, asking for a statement of the methods and policies which the writer believes should control the reclamation and peopling of this area. The policy advocated is approved by the State land settlement board and those members of the faculty of the State university who have studied the conditions and problems of the proposed development.