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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 BELATING
TO TREATIES BETWEEN UNITED STATES AND MEXICO.
WASHINGTON, D. C., August 22, 1919. Hon. MOSES P. KINKAID, 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 1953 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 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 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 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.
If, as the Secretary of State holds, there is no treaty prohibiting the United States from taking the waters of the Colorado River, and if Mexico has no 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, and if such a right would be inconsistent with the sovereignty of the United States over its national domain, why should he now advocate upon “ considerations of equity and comity "a division of the waters of said river between the United States and Mexico ? Mexico has not requested such a division. In fact and indeed Mexico has acquiesced in our interpretation of the treaties and no longer claims any right to object to diversions made within the United States. In the report of the proceedings before your committee on this bill will be found a reference to a report of Engineer De la Garza made to the Mexican minister fomento January 23, 1912, in which it is stated :
“ The Republic (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 territory," etc.
This situation, namely, the carrying of water through Mexican territory, is the very thing the citizens of Imperial Valley are trying to get away from, and the bill now before your committee above referred to will, if enacted into law, accomplish this result.
Does it not appear to the committee strange that Mexico has never asked for a treaty dividing the waters of the Colorado River, or for an agreement dividing those waters upon “ considerations of equity and comity” or otherwise?
Does it not also seem strange that, in view of our treaty rights and the opinions of the legal department of the United States Government upholding them, any citizen or official of the United States should suggest a treaty or agreement by which to give away the waters of the Colorado River to the detriment of the citizens of the United States and in violation of their property rights?
For whom should the Secretary of State be asking equity ? For the citizens of the United States within the United States, or for a number of renegade millionaire Americans in a foreign country?
The Secretary of State appears willing to waive the legal right of the United States to the waters of the Colorado River. Thereby the millionaire Americans referred to would enjoy the use thereof under a foreign flag.
I note the Secretary's reference to the Rio Grande case and in that connection desire to say:
Why did the Secretary of State cite a case which was ended adversely to the interests of the United States, unless it was an attempt to strengthen his suggestion that the water be divided between the United States and Mexico? The iniquity of the Rio Grande case was pointed out by Senator Thomas of Colorado in 1914, and I will later in this communication quote from his speech. Suffice it to say at this time that the able Senator looked with prophetic eye upon the Colorado River question, for he said, in reference to the Rio Grande case:
“If the Government can take the waters of our State for a project like this, then it can enter into similar relations with Mexico concerning the peninsula of Lower California with reference to the waters of the Colorado River, and lay a like inhibition upon the States where the sources of that great river are found.”
The Secretary of State says that the United States, following the delivery of the opinion of the Attorney General above referred to (vol. 21, Opinions Attorneys General, pp. 274–283), decided upon the adoption of a liberal policy and one not involving insistence on its legal rights. This is news to me. I deny that any such policy was adopted by the United States, and in support of this denial, refer the committee to the convention referred to by the Secretary of State (Treaty of May 21, 1906), wherein it is set forth : "Nor does the United States in any way concede the establishment of any general principle or precedent by the concluding of this treaty” (see Art. V). Did not Mexico, by ratifying this treaty, and particularly the portion thereof above quoted, preclude herself from again objecting to the United States putting to beneficial use waters which rise wholly within her border? But not that alone would control, for it is well settled that, as stated by Attorney General Harmon in his opinion above referred to, “ The fundamental principle of international law is the absolute sovereignty of every nation as against all others
within its own territory.” From this principle the United States has never deviated, and that it intended to make this clear in the treaty of 1906 is evident from the use of the language above quoted which expressly states that she does not concede the establishment of any general principle or precedent which might be inferred from her signing of the said treaty. That Mexico was precluded from setting up any precedent was evidently the opinion of Congress, for it passsed an act providing for the construction of the Laguna Dam in the Colorado River, which dam has been constructed and in conjunction with which the United States has expended nine millions of dollars in the Yuma reclamation project immediately north of the boundary line between the United States and Mexico. In addition, the Department of the Interior entered into a contract with the Imperial irrigation district October 23, 1918, under which the district was to construct the canal the financing of which is provided for in the bill now before your committee and providing for the making of the first payment December 31, 1919. If the amendment suggested by the Secretary of State be adopted, the Government would be guilty of interfering with its own contract and stopping the carrying out of provisions which it itself inserted therein under the provisions of an act of Congress. In addition, the Government, under the reclamation act, has expended approximately one hundred millions of dollars on reclamation projects which obtain their water from the Colorado River and its tributaries. Therefore, we find two branches or departments of the Government—Congress and the Department of the Interior—upon the advice of another branch—namely, the Department of Justice—providing, at an expense to the people of the United States of many millions of dollars, the utilization of the entire Colorado River for the purpose of developing the agricultural resources of our own country, and another branch— the Department of State—while apparently agreeing with the opinion of the Attorney General as to our legal right, suggesting a division of the waters of the said river, which supply many unfinished projects, and deliberately giving it in effect to a few millionaires in a foreign country. This could not be done without great injury to United States governmental and private irrigation enterprises. If the amendment and policy suggested by the Secretary of State be adopted, such action would not only stop all development on the Colorado River and deprive the citizens of the State from which that great river receives its water supply of their right but it would enable Mexico to hold up any settlement or solution of the Imperial Valley problem until the private interests referred to could divert and put to beneficial use the entire flow of water from the Imperial Valley main canal, which traverses Mexican territory for 60 miles, and thereby turn one of the richest agricultural districts in the United States into a desert, deprive 60,000 American citizens of their homes and their property and the Nation of an annual output of food valued at this time at approximately fifty millions of dollars. The Rio Grande case can not properly be used as a precedent for action of a similar nature in the Colorado River case. The former is distinguished from the latter particularly because when all of the territory acquired by the United States under the treaty of 1848 was Mexican territory, and indeed as long ago as 200 years previously, the waters of the Rio Grande were diverted and used for irrigation by Mexicans living below the present boundary line at that point, and these Mexicans had a perfect legal right up to the date of the treaty of 1848 to divert and use the said waters, the sources of which were then in Mexican territory, which right had existed for several hundred years. In the Colorado River case, conditions as to the actual use of water in Mexico are absolutely different. Previous to 1904 no one had used the waters of the Colorado River for irrigation purposes in Mexico, and since that date there has been no irrigation in Lower California (Mexico), excepting by the use of water diverted in the United States and at the sole cost of the American farmer. In addition, all the canals which deliver water to Mexican lands were eonstructed with moneys provided by American farmers, and said canals were built for the purpose of carrying American water through Mexico and back into the United States, not for the purpose of delivering water to Mexico or Mexican lands. The water taken by the interests below the line was in the form of toll exacted by those interests for the right on the part of United States farmers to carry their water through Mexico on to their own lands in the United States. Many years previous to 1904, the United States had twice. served notice upon Mexico, once in the Rio Grande case through opinion of Attorney General Harmon, and once through opinion of Special Assistant Attorney General Burch in the Colorado case, both being in response to protests
If, as the Secretary of State holds, there is no tr-e=a. ty prohibiti States from taking the waters of the Colorado Riv-e It", and o |og the United right to subject the United States to the burden of sarron , Mexico has o and denying to its inhabitants the use of a provisio ra wo its evelopm, plied entirely within its own territory, and if such a right oature i. o sistent with the sovereignty of the United States over- its on jo...?" be .." should he now advocate upon “considerations of equity- and o domain * , of the waters of said river between the United States and §§ a dio has not requested such a division. In fact and in Glee, a Mexic exico? in our interpretation of the treaties and no longer C-13 lims any “o acqui, to diversions made within the United States. In the repo o to o | ings before your committee on this bill will be four aci a reference he pro |
of Engineer De la Garza made to the Mexican minister forment o a re. ,
I note the Secretary's reference to the Rio Grande case and o nection desire to say:
Why did the Secretary of State cite a case which was enden the interests of the United States, unless it was an attempt to sosuggestion that the water be divided between the United States The iniquity of the Rio Grande case was pointed out. by Senato Colorado in 1914, and I will later in this communication olspeech. Suffice it to say at this time that the able Senato prophetic eye upon the Colorado River question, for he said, - the Rio Grande case:
“If the Government can take the waters of our State to this, then it can enter into similar relations with Mexico conce sula of Lower California with reference to the waters of the and lay a like inhibition upon the States where the sources or are found.”
The Secretary of State says that the United States, folio of the opinion of the Attorney General above referred to Attorneys General, pp. 274–283), decided upon the adolio and one not involving insistence on its legal rights. This deny that any such policy was adopted by the United St. of this denial, refer the committee to the convention refortary of State (Treaty of May 21, 1906), wherein it is so the United States in any way concede the establishmen ciple or precedent by the concluding of this treaty " (so Mexico, by ratifying this treaty, and particularly the in quoted, preclude herself from again objecting, to the to to beneficial use waters which rise wholly within her ho alone would control, for it is well settled that, as stated Harmon in his opinion above referred to, “The fundameo national law is the absolute sovereignty of every nation