All-American Canal in Imperial and Coachella Valleys, Calif

But in order to "impede or interrupt" navigation, navigation must actually exist, else there is nothing to impede or interrupt, and the fact is that there is not, and has not been for many years, any navigation of any sort whatsoever on the Colorado River. (See statement herein on navigability of the Colorado River.)

Finally, these treaties have been given an actual construction by our Government on the very point here involved, which decision is a precedent for any future controversy. Under date of November 27, 1901, the Mexican ambassador wrote a protest to our Secretary of State, complaining of the operations of this company (California Deevlopment Co., which made the original appropriation and diversion for Imperial Valley) as being in contravention of the treaty between the United States and Mexico of 1848, commonly known as the treaty of Guadalupe Hidalgo, and article 4 of the subsequent treaty of 1853, commonly known as the Gadsden treaty. This protest was referred to the Department of Justice for investigation and report, and after very full and exhaustive investigations and study a report and opinion was made to the Department of State to the effect that the diversion of the water of the Colorado River by this company, being accomplished wholly within the United States, was not in conflict with the provisions of any of the treaties. Under the protection of this ruling of our Government 400,000 acres in Imperial Valley, Calif., have been reclaimed and made the home of some 60,000 American citizens.

The Mexican Government apparently has acquiesced in this interpretation of the treaties, and no longer claims any right to object to diversions made within the United States. The report of Engineer Emeterio de la Garza, jr., on the Colorado River, made to Mexican minister fomento September 23, 1912, contains the following:

Every taking of water in the American territory diminishes the property which the nation has in the part of the river which traverses Mexican territory, and, consequently, causes an injury to the nation. The Republic, however, can not prevent the waters from being taken in American territory, but has a perfect right to prevent the waters taken in American territory from being carried across the Mexican territory; thence if waters have been taken, decreasing the volume of the river to the prejudice of the nation, the nation has the right to close the door to the entrance of these waters into Mexican territory, because it does not have to lend itself to that which may injure it or result to its prejudice."

Since the making of these treaties each of the contracting parties have done acts independent of each other and without the other's consent, the direct effect of which was to destroy hte "navigable capacity" of the river, if any it ever had.

The United States in 1904 commenced and in 1909 completed the Laguna Dam, a solid bar across the Colorado, a few miles above Yuma, Ariz., which contains absolutely no provision for passing vessels through or around it.

Under the reclamation act of 1902, our Government has commenced and is rapidly developing numerous projects along the Colorado River whose success depends entirely upon the diversion of waters from that river, and it is the proud boast of our Government that these contemplated projects are so extensive that when they are fully developed they will require and use water in excess of the natural flow of the river during low-water season.

All the official reports of our Government on the subject have always declared that the Colorado River was not a worthy subject for the expenditure of money to make it navigable.

Mexico, for its part, has given the Colorado the "same" treatment. In 1904, Mexico, by a contract or concession, issued by an act of their Congress with the approval of their President, authorized the Sociedad de Irrigation y Terranos, a Mexican corporation, to cooperate with the California Development Co., an American corporation,to divert from the Colorado River, in the United States, 284 cubic meters per second (10,000 second-feet) and also authorized the same corporation to divert from the Colorado River, in Mexico, an additional 284 cubic meters per second. The fact that Mexico was fully cognizant of what such a diversion would mean is shown by a further quotation from the report of Engineer Emeterio de la Garza, jr., to Secretary Fomento:

"The most reliable data which we have to date for estimating the division of the water is that the river carries 442 cubic meters per second, and with this data I compared the quantity of water which the concession gives that in Article I authorized the company to pass through the Mexican territory 284 cubie

meters per second of the water which it takes in the American territory, and in Article IV authorized the same company to take another 284 cubic meters per second from the Mexican territory—that is, to take in the aggregate below Yuma in both territories 568 cubic meters per second-and as we have seen be fore, all the Colorado River only carried 442 cubic meters per second; so that all the water of that river is not sufficient to satisfy the concession, therefore I said at the beginning that my attention was called to the quantity of water which was being taken from the Colorado River and conceded to the company. "The conditional part which appears in Article IV that the 284 cubic meters taken from the Mexican territory shall be without prejudice to navigation, can be converted into an affirmative, in my judgment, for with the 284 cubic meters in the Mexican territory, the Colorado River would remain completely without water and absolutely destroyed forever for navigation from the California boundary line to the Gulf of Cortez.” ·

One of two conclusions must be drawn from these acts, first, that the contracting parties have by their ubsequent acts given the treaties the construction contended for herein, to wit, that the treaties were not intended to guarantee the navigable capacity of the Colorado; or, secondly, if the treaties contained any such provision originally, they were subsequently abrogated by the 'acts of both contracting parties inconsistent therewith.

INTERNATIONAL LAW LAYS NO OBLIGATION UPON THE UNITED STATES TO FURNISH

MEXICO WITH WATER.

The right of American citizens within the jurisdiction of the United States to appropriate and use American waters in accordance with the laws of the Unted States for the reclamation and improvement of American lands, seems to follow as a necessary corollary from the sovereignty of our Nation over its own territory.

Chief Ju tice Marshall, in Schooner v. McFadden (7 Cranch, 136), said: "The jurisdiction of the Nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving its validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power, which could impose such restriction.

All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the con: ent of the nation itself. They can flow from no other legitimate source."

Attorney General Judson Harmon, in an exhaustive and conclusive opinion (21 Official Opinions, 274), holds, there is no obligation imposed upon the United States, by international law, to restrain its citizens from making a beneficial use of American waters so long as said waters are within the United States. He held:

"The rules, principles, and precedents of international law impose no duty or obligation upon the United States of denying to its inhabitants the use of the water of that part of the Rio Grande lying entirely within the United States, although such use results in reducing the volume of water in the river below the point where it ceases to be entirely within the United States.

"The fact that there is not enough water in the Rio Grande for the use of inhabitants of both countries for irrigation purposes does not give Mexico the right to subject the United States to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied, entirely within its own territory. The recognition of such a right is entirely inconsistent with the sovereignty of the United States over its national domain."

This view of international law has never been doubted or criticized by any American authority, and even the Mexicans recognize the force of it and invoke this same doctrine of exclusive territorial sovereignty in their own behalf. As we have seen, Engineer Garza quotes with approval the opinion of Emilio Valazco:

"The Republic (of Mexico), however, can not prevent the waters from being taken in American territory, but has a perfect right to prevent the waters taken in American territory from being carried across the Mexican teritory, etc."

Indeed, it would be a curious application of the principle of international law or the comity of nations or the doctrine of natural rights, to deprive our

own citizens of the means of life that it might be bestowed upon the citizens of another country. No authority has been found that holds that the proprietary country may not make use of the stream within its own territory that was necessary to maintain the comfort or life of its inhabitants. If this be not true, then the lower country would have control of the lives and property of the upper country. The fundamental principle of international law is absolute sovereignty of every nation against all others. If, then, our treaties with Mexico put us under no obligation to furnish it with water which is gathered wholly on our own soil, for its use either for navigation or agriculture, certainly no law of nations or law of right calls upon us for such a sacrifice. Humanity, common sense, national self-preservation, all cry out against it.

NO STATUTE RELATING TO NAVIGABLE WATERS PROHIBITS IMPERIAL IRRIGATION DISTRICT TAKING WATER FROM THE COLORADO RIVER BECAUSE IT IS NOT A NAVIGABLE STREAM.

The Supreme Court has, in the case of the United States v. Rio Grande Dam & Irrigation Co. (174 U. S., 690), defined when a stream is navigable:

"It was said in the Montello (20 Wall, 430, 439), that those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or susceptible of being used in their ordinary condition as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade or travel on water." Let us apply this law as enunciated by the highest court in the land to the fucts as found to exist by United States Government officials.

In 1903, J. B. Lippincott, then supervising engineer of the United States Reclamation Service for California, rendered a report on the Colorado River in which he said:

"Prior to the construction of the railroads to the lower Colorado, the river afforded the only feasible means of entrance into the desert regions of southeast California and western Arizona, and therefore great efforts were made to navigate it. Subsequently, however, navigation on the river practically ceased. The shifting shallow character of the bed of the stream prevents the maintenance of a permanent channel particularly during periods of high water and when the river is falling. The improvement of the river for navigation has been considered on several occasions by Army engineers and has always been condemned." (Water Supply Papers, No. 93, pp. 168-169; H. Doc. No. 692, 58th Cong., 2d sess.)

In a report made in 1904, the Acting Attorney General referred to an investigation of the Colorado River made by the Department of Justice, and said:

"It was determined by the experts who conducted this investigation that while the river may be technically characterized as navigable, it is not so for ordinary practical and business purposes, such as would come within the broader meaning of the word 'navigable,' and that to make the river navigable in this latter sense would require a gigantic and perhaps futile financial outlay." (33 Land Decisions, 391, 395.)

In 1907 C. E. Grunsky, then consulting engineer for the United States Reclamation Service, made a report on the Colorado River in which he said:

Owing to unusual difficulties, such as lack of depth on the bars, swift shoal waters, and a tidal bore in the river's mouth, where the range of tide is reported to be upward of 30 feet, there has been practically no commerce on the river below Yuma since 1876, the time of the completion of the Southern Pacific Railroad, which crosses the river at this point." (S. doc. No. 103, 65th Cong., 1st sess., p. 16.)

In 1914 Army engineers, under a resolution of Congress, investigated the navigability of the Colorado River. In their report the following statements are found:

"There is no commerce on the river at present.

"Below Yuma the river flows through a delta country, which is being constantly built up by the large quantity of silt carried by the river. The channel is unstable and can not be made stable at reasonable cost.

"The improvement by the United States of Colorado River with a view of developing and improving navigation is not deemed advisable at the present time." (H. Doc. No. 1141, 63d Cong., 2d sess.)

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In 1916 was published E. C. LaRue's exhaustive report on the Colorado River and its utilization (Water Supply Paper No. 395). In his report, at page 198, Mr. LaRue says:

"It has been conclusively shown by engineers that it is not commercially feasible to maintain a channel on the lower Colorado suitable for navigation." Other authorities could be quoted to the same effect, but I think the foregoing sufficient to show that the Colorado is not navigable in fact, and so not navigable in law, and that therefore there is no inhibition against the appropriation and diversion of its waters for irrigation on the ground that that would constitute an impairment of the navigable capacity of the stream which is prohibited by Federal statute.

Respectfully submitted.

PHIL D. SWING,

Attorney for the Imperial Irrigation District.

COMMUNICATION FROM MARK ROSE IN RE OPINION OF SECRETARY OF STATE RELATING TO TREATIES BETWEEN UNITED STATES AND MEXICO.

Hon. MOSES P. KINKAID,

WASHINGTON, D. C., August 22, 1919.

Chairman Committee on Irrigation of Arid Lands,

House of Representatives, Washington, D. C. DEAR SIR: In behalf of the 60,000 American citizens residing in Imperial Valley, Calif., represented before your committee by myself and other members of the Washington committee of the Imperial irrigation district, and also residents of Coachella Valley and adjacent communities represented by myself, I desire to file this communication anent the letter of the Secretary of State addressed to you on the 20th instant in reply to the letter of your committee addressed to him the 4th instant asking for certain information as to the bearing of treaty provisions in force between the United States and Mexico upon the provisions of H. R. 6044, Sixty-sixth Congress, first session, a bill to assist in increasing the productive agricultural area of the Imperial and Coachella Valleys, Calif., and for other purposes.

I note that while the Secretary of State is, according to his reply to your committee, of the opinion that the provisions of the treaties of 1848 and 1853 are not applicable and that he supports his opinion by quoting from the opinion of the Attorney General dated December 12, 1895, he, for some reason, has failed to quote the particular portion of the opinion of the Attorney General referred to which deals directly and clearly with the main question involved, namely, the right of the United States to divert water wholly within its own territory. Upon that question the Attorney General in his said opinion held:

"The fact that there is not enough water in the Rio Grande for the use of the inhabitants of both countries for irrigation purposes does not give Mexico the right to subject the United States to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied entirely within its own territory. The recognition of such a right is entirely inconsistent with the sovereignty of the United States over its national domain."

This language, which refers to the Rio Grande, is applicable to the Rio Colorado.

Apparently not content with replying to the letter and question or questions of the committee and giving his opinion as above stated, the Secretary of State appears to have gone out of his way to offer unsolicited suggestions with relation to the bill referred to, which action seems to me to ill become a high official of this Government charged with the duty of protecting United States, not Mexican, interests, or interests of a few millionaire Americans in Mexico. The Secretary states:

"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 equitable distribution of the waters of the Colorado River.

The adoption of the amendment suggested by the Secretary would result in 'giving to Mexico a right which the Attorney General held, as above shown, can not be given to that country, and in subjecting "the United States to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied entirely within its own territory." Truly, the recognition of such a right is entirely inconsistent with the sovereignty of the United States over its national domain," as stated by the Attorney General, and yet the Secretary of State recommends such action. He suggests an "equitable distribution of the waters of the Colorado River." In whose interest would this " equitable distribution" be? Manifestly, not in the interest of those 60,000 American citizens in Imperial Valley whose servant he is and who help to pay his salary, but in the interest of a few millionaires who are now, in effect, making every effort to annex themselves to the waters of the Colorado River. The action of the Secretary may not seem strange to some, but it appears to me almost impossible of belief. To find the Secretary of State of the United States, charged with the sole duty of protecting the interests of the American people, advocating action by the Congress which would and could only inure to the benefit of private interests below the international boundary line and be destructive of the interests of the United States citizens, is, indeed, alarming. It would seem that the regard for the duties and obligations of his high office and a proper appreciation of his relations to the people of the United States, which he is supposed to entertain, should have guided him and controlled his action.

Instead, he makes a recommendation which would, if adopted, assist private foreign interests and injure the very people he is required to protect. In whose interests was his suggestion or recommendation made? Manifestly, not in the interest of any citizens of the United States whose interests lie within the. United States, for his recommendation suggests the arresting of development in the United States and the denial to its inhabitants of the use of a provision which nature has supplied entirely within United States territory. The effect of his amendment, if adopted, would be to place an embargo upon the further use of the waters of the Colorado River on lands lying in the several Western States constituting the watershed of this great river, and at the same time placing any settlement of the use or division of the waters thereof in the hands of the Mexican Government, such as it is, and those of a half dozen multimillionaires, mostly Americans who own some million and a half acres of land in Lower California and Sonora, Mexico, irrigable from this source. And if the waters of the Colorado River are to be divided in imaginary equity and comity, and other than upon our treaty rights and the rights of American citizens to use that which belongs to them by inheritance, it would naturally follow that these large private interests south of the line, who have as yet never diverted and put to beneficial use on Mexican soil any of the waters of the Colorado River, would purposely delay action until they could, through United States sources, put the entire flow of the Colorado River to a beneficial use on lands entirely within a foreign country held in private ownership; and the Mexican Government would naturally prefer to hold back any settlement of this question until she could put as much of the water to a beneficial use as possible in Mexico, thereby greatly enhancing her national wealth and improving her domain.

This would naturally be the policy of any government toward its own national domain and its own citizens if foreign influence were not brought to bear. In January, 1916. it was very aptly stated before the Interior Department that the private interests below the line were then constantly making efforts to take from the Colorado River as quickly as possible as much water as possible for the irrigation of their lands in Mexico, upon which action and use to later found a plea for an equitable adjustment and distribution of the said waters. The suggestion of the Secretary of State made a few days ago discloses that the statement made to the Interior Department in January, 1916, was prophetic, for the plea apparently is now being made, although from a source not then contemplated.

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All-American Canal in Imperial and Coachella Valleys, Calif: Hearings Before ...