three reasons, feel that there might be some ground for litigation as to their priority right, and they put this section in. Now, couldn't we put in a clause specifically saying that so far as the United States is concerned, all three of those reasons combined should not be taken in any manner to jeopardize or affect the priority rights of the Imperial Valley to whatever amount of water it has heretofore been entitled to by appropriation-something of that kind so that we would make a disclaimer by the Government of United States of any right to interfere with their prior right, owing to these three contingencies that might otherwise affect them? In that way we would validate and legalize, so far as the Government can, their right without legislating upon the subject of water rights direct that are under the jurisdiction of the States?

Mr. BIEN. I think that would accomplish what is intended.

Mr. TAYLOR. And it would not be setting a precedent of Congress saying what one party shall have the priority right to water, and that this other person shall have a priority right, and it shall be divided so and so. In other words, I don't like the precedent of Congress dividing the water of any stream.

Mr. YAGER. I would like to ask Mr. Bien, if, in his opinion, Congress has the right to legislate a water right has the power to legislate a water right? If they have a water right, certainly we can not interfere with it, but by giving the Imperial irrigation district and legislating them a water right, they are discriminating against the outside lands. Now, if they have a water right, we can not touch it nor do we care to.

Mr. TAYLOR. But what harm would there be in Congress by virtue of the fact that this appropriation was made from a navigable stream without authority of Congress, and by virtue of the fact that it runs through a foreign country, and by virtue of the fact that under the provisions of this bill they seek to change the point of diversion and the place of use of a part of it, we might say—or at least the manner of use and distribution, the carrying of the aqueduct that those facts shall not be construed, so far as the United States is concerned, as interfering with their right.

Mr. YAGER. My contention, Mr. Taylor, if I may make myself clear, is that that is a question for the judicial branch of this Government to determine whether they have a water right or whether they have not a water right; and that the legislative branch has not the power to legislate any specific water right.

Mr. TAYLOR. I fully agree with you on that, but at the same time the State court of California has no right to come in and say that by reason of this company never having obtained permission of Congress to connect with this river, that therefore "we don't give them a water right." That is a matter for Uncle Sam to do, and the fact that it runs around through Mexico-this is probably a case that could not occur any place else in the United States; it is a unique proposition, but I was thinking of merely a disclaimer by the Government of estopping people's rights by reason of these things over which the United States has control.

Mr. Rose. There is just one question on that

Mr. BIEN (interposing). I would like to answer Mr. Yager's questions, but I want also to disclaim any idea of entering into a con

troversy with Mr. Taylor. I do believe that Congress can legislate a water right, and that it has done so. It is, of course, a very big question that some day will have to be decided by the Supreme Court

of the United States.

Mr. HAYDEN. As a matter of fact, did not Congress legislate a water right to the Yuma project?

Mr. BIEN. I would not say that it legislated that right but it gave authority to divert the water from a navigable stream. It has done that in two other cases in connection with the work of the Reclamation Service on the Lower Yellowstone in Montana and on the Rio Grande in New Mexico.

The CHAIRMAN. And no such right would have existed without the act of Congress.

Mr. BIEN. Not to divert from a navigable stream.

The CHAIRMAN. That is why I say it is proper here to recognize this right.

Mr. TAYLOR. It has a perfect right to permit them to divert water the same as to build a bridge across a navigable stream, but whether or not they can give a right that will deprive vested rights under the State laws, that is a question.

The CHAIRMAN. I don't think it aims to do that.

Mr. TAYLOR. No; I don't think it aims to do it.

The CHAIRMAN. But it will reconstrue-if they have no right to do it, it will be construed that way, that you didn't undertake to do what you could not do.

Mr. WELLING. Did not the Imperial irrigation district come to Congress for the right to divert water from the Colorado River?

Mr. BIEN. My own understanding of the history of the matter was that they originally made their contract with the Government of Mexico.

Mr. HAYDEN. The statement that was made at the former hearing by Judge Swing is that the original promoters of the Imperial Valley irrigation enterprise first came to Congress and asked authority to divert water from the Colorado River within the United States. Hearings were held, but no action was taken by Congress. Then Judge Swing told us that these same parties went to the City of Mexico and obtained a concession from the Government of Mexico to divert water from the Colorado River in Mexico and carry it into the United States. The original intention was that the diversion works should be in Mexico, but a better point of diversion was found in the United States and they simply went there and placed their head gates north of the Mexican boundary line and have diverted water from the Colorado River, a navigable stream, without any authority from Congress.

Mr. WELLING. Then they have got no water right.

Mr. HAYDEN. Legally they have no water right that has been recognized by the Government of the United States; that is, no right to divert water from a navigable stream. Their sole claim to a water right is the actual application of water to the lands within the United States for the past 18 years.

Mr. WELLING. The Army engineers are now forbidding the putting in of a weir to divert water at that point. Isn't that true?

Mr. HAYDEN. The Imperial irrigation district has been granted permission from year to year, and I presume that they will come

again and ask for the same permission when the river goes down. this spring. The Army engineers have a perfect right to refuse to issue a new permit if they,so desire, because Congress never assented to the diversion of any water from the Colorado River by the Imperial irrigation district.

Mr. WELLING. And you people are suing them in the courts?

Mr. HAYDEN. The people under the Yuma project insist that the maintenance of the weir in the stream, which is of rock, is a menace to their farms, because in the event that a sudden flood should come down before the weir is removed the river will very likely wash around the Arizona end of the weir and destroy a vast acreage of land in the Yuma Valley.

The CHAIRMAN. Now, Mr. Bien, was there anything further?

Mr. HAYDEN. I wanted to make one other point clear by a question to Judge Bien.

Section 15 says that as to the natural flow of the Colorado River, diverted under the provisions of this act, all lands in the State of California, outside of the present boundaries of the Imperial irrigation district, shall have a secondary water right. Now, do we understand by the term "diverted under the provisions of this act " that it refers to any water which may hereafter be diverted by works constructed under authority of this act?

Mr. BIEN. That is the understanding of the Reclamation Service. Mr. HAYDEN. In the State of California, on the Yuma Indian Reservation, there is a tract of land that is now irrigated from the Laguna Dam, but that land will continue to be irrigated, not under the provisions of this act but under the provisions of the reclamation act authorizing the construction of the Yuma reclamation project.

Mr. BIEN. Yes, sir; and in section 19 there is a further provision that nothing in the act shall be construed as amending the contract of October 23, 1918, between the United States and the Imperial irrigation district, which makes a rule for distributing the water at Laguna Dam between the Yuma and the Imperial project.

Mr. HAYDEN. We recognize in section 19 the contract of October 23, 1918. Supposing that contract should lapse, what would then be the status?

Mr. BIEN. I should say it would be held that this provision of the contract would be perpetuated by this legislation. Mr. HAYDEN. You are satisfied of that?

The CHAIRMAN. What contract do you mean?

Mr. BIEN. The contract between the Imperial Valley and the Secretary, which contains a provision_regarding the amount of water that shall be turned down for the Imperial district, and protecting the interests of the Yuma water right. I should say that where Congress has recognized a rule of that kind it is lifted out of the contract and is really embodied in the law.

Mr. TAYLOR. That was one reason why I was anxious to have whatever the law was carefully guided. I don't think there is any question but what Congress has got a right to permit somebody to divert water from a navigable stream, but that don't give them the water if there is none there for them. If it is all appropriated otherwise, if somebody else has got a prior appropriation to that water, the fact that Congress lets them take some off does not necessarily guarantee

that they are going to get aid. That is the point I wanted to bring

out.

Mr. HAYDEN. I think we are all agreed on what should be done, and that is the recognition of the fact that water has been beneficially applied to lands in the Imperial Valley, and that to that extent their appropriation should be prior to any land subsequently irrigated. Just how to state that proposition so as not to do more than we intend to do, or less than we intend to do, is a very difficult matter. I would suggest, Mr. Taylor, that if possible you might prepare what you think would accomplish the desired result, and then confer with the attorney for the Reclamation Service and see if you can not agree upon an amendment which will do just what is intended.

Mr. WELLING. Suppose we didn't say a word about it?

Mr. HAYDEN. Then it would be necessary to have these contentions decided by the courts: First, that the Imperial irrigation district had no water right; why? Because Congress had never given them the right to divert water out of the Colorado River, a navigable stream.

Second, because they have previously obtained water through a concession granted by the Republic of Mexico and now propose to secure it by another method.

For the third reason that they had changed their point of diversion. All of which means a lawsuit, and what the courts would decide nobody knows.

Mr. WELLING. They are going to have a lawsuit anyway. This won't prevent a lawsuit. No State court would recognize that as proper appropriation or disposition of water within the State.

Mr. HAYDEN. The State courts would recognize this provision in section 15 to be at least an assertion by Congress that the people of the Imperial Valley had lost nothing by changing their point of diversion, and that Congress had given them authority to divert water from the Colorado River. Now, I am satisfied their appropriation would be adequately protected, and if we can state it in Mr. Taylor's way I would be glad to do so.

Mr. SUMMERS. In regard to this request, Mr. Rose, that the occupation and address of the stockholders of the Laguna irrigation district be furnished-there has been a request made, and I understand you are going to comply with it.

The CHAIRMAN. Yes. We will adjourn now until Friday morning. (Whereupon at 4.30 o'clock p. m. the committee adjourned until 10 o'clock a. m. Friday.)

COMMITTEE ON IRRIGATION OF ARID LANDS,
HOUSE OF REPRESENTATIVES,
Wednesday, March 3, 1920.

The committee met at 10.30 o'clock a. m., Hon. M. P. Kinkaid (chairman) presiding.

The CHAIRMAN. The committee will come to order. I want to announce first to the members of the committee that I spoke this morning to Mr. Fordney, chairman of the Committee on Ways and Means, and I have been continuing the effort to get a hearing there of our Committee on Irrigation in behalf of the bill for an appropriation for the reclamation fund, pursuant to the request made by the governors, pursuant to the understanding had with the association of

governors who were here. The Committee on Ways and Means are going to hear the soldier representatives first and complete that, except that they will now hear the constituents of Mr. Smith of Idaho, because they are a long ways from home, and they will defer hearing the members of our committee in behalf of this appropriation or some means of replenishing the reclamation fund; they will defer that until after they get through with the soldier representatives and have heard these gentlemen from Idaho. They will hear them this week. Mr. SMITH of Idaho. They expect to hear them to-morrow.

The CHAIRMAN. Yes; but the members of this committee can not get a hearing before that committee before next week, probably, but they will hear us. I wanted to say that it is important that all the members of the committee be present before the Committee on Ways and Means, and that you hold yourselves in readiness for next week, and Monday if possible.

Mr. LITTLE. What is it we want?

The CHAIRMAN. We want the reclamation fund replenished, and we are to have a hearing in accordance with the understanding had by the governors when they were here representing the Association of Western States, organized for the purpose of storing water.

Mr. LITTLE. Does that $250,000,000 take care of Imperial Valley? Will it do that?

The CHAIRMAN. Well, perhaps it will.

Mr. LITTLE. I don't believe I would support it if it did not.

The CHAIRMAN. They may not need it, and they might need some of it.

Mr. BARBOUR. It was suggested at the meeting of governors that the Imperial Valley project should be kept separate.

Mr. LITTLE. That would not be satisfactory to me.

The CHAIRMAN. The committee has met this morning, gentlemen, to consider H. R. 12537, and the Secretary of the Interior has reported as follows upon it:

Hon. M. P. KINKAID,

Committee on Irrigation of Arid Lands,

DEPARTMENT OF THE INTERIOR,
Washington, February 25, 1920.

House of Representatives.

MY DEAR MR. KINKAID: I have your letter of February 18 transmitting copy of a bill, H. R. 12537, with request for report thereon. The bill is entitled as follows:

"A bill to provide for an examination and report on the condition and possible irrigation development of the Imperial Valley in California."

You state that the bill was introduced after a conclusion had been reached that neither the Kettner bill (H. R. 11553) nor anything like it could be passed at this session. The bill proposes to authorize an appropriation not to exceed $20,000, under which no expenditure shall be made or obligation incurred until provision has been made for the payment of one-half the cost of the examintaion provided by the bill by associations and agencies interested in the irrigation of lands in the Imperial Valley.

On February 16, 1918, I made a contract with the Imperial irrigation district providing for investigations, surveys, and cost estimates of an all-American canal from Laguna Dam, Arizona-California, into Imperial Valley, which contemplated an expenditure of $45,000, of which the Imperial district furnished $30,000. This report has just been printed, and I inclose herewith a copy for the committee.

This report was devoted largely to the engineering features of the proposition. The bill in question will authorize a more general study of the character of the lands and their availability for irrigation, together with a number