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with the express covenant that the rights of the recipients or holders tbern£ waters of the river or its tributaries, for the use of which the same are we? sary, convenient, or incidental, and the use of the same shall likewise be s*jr to and controlled by said Colorado River compact
"(d) The conditions and covenants referred to herein shall be deemed to n with the land and the right, interest, or privilege therein and water right J shall attach as a matter of law, whether set out or referred to In the instrt&i evidencing any such patent, grant, contract, concession, lease, permit liasft right-of-way, or other privilege from the United States or under its. anmorh. or not, and shall be deemed to be for the benefit of and be available to the Sa> of Arizona, California, Colorado, Nevada. New Mexico, Utah, and Wyoming.us the users of water therein or thereunder, by way of suit defense, or otherwi* in any litigation respecting the waters of the Colorado River or its tributaries
"EXTRACTS FROM THE LAPRADE-CARSON OPINION
"Would the State of Arizona have authority to build a dam across iheL-stream of the Colorado River above Boulder Dam, and divert waters therefor irrigation and power through ditches, tunnels, and other works across i public domain, without the consent of the Federal GovernmentV
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"Congress in the Boulder Canyon Project Act, (c) and (d) of sect**-!! makes the use of any right-of-way. license or privilege necessary or cuuws* for the use of the waters of the Colorado River or its tributaries uj«« * express condition and with the express covenant that the rights of the rent* cuts or holders thereof to waters of the river or Its tributaries for whkt'-• same are necessary, convenient, or incidental and the use of the same, stall» subject to and controlled by said Colorado River compact. In view of thef-:*going cases and decisions it is clear that Arizona could not construct a 4i above Boulder Dam without agreeing to the conditions attached. It is provides in article 8 of the Colorado River compact:
""Present perfected rights to the beneficial use of waters of the Colons River system are unimpaired by this contract. Whenever storage capacity 4 5,000,000 acre-feet shall have been provided on the main Colorado River wife or for the benefit of the lower basin, then claims of such rights, if any. -i appropriators or users of water in the lower basin against appropriators r. users of water in the upper basin shall attach to and be satisfied from *«>' that may be stored not in conflict with article III.
"'All other rights to beneficial use of waters of the Colorado River sjftw shall be satisfied solely from the water apportioned to that basin in whicli tbr are situate.'
"It is thus apparent that the use of water in the lower-basin States is. ace* ing to the terms of the Colorado River compact, limited to that apportioned 'article III (a) to 7,500,000 acre-feet per annum and article III (b), 1.00ft* acre-feet per annum included for the Gila River. Arizona, of course, is ** bound by the terms of the Colorado River compact, not having ratified t> same; but according to the condition attached to the rights-of-way. the ns? ■«' such waters would be subject to the Colorado River compact although w< ratified by the State of Arizona, and the total use of water in the lower-has: States, as defined by the Colorado River compact, would be limited as above » forth."
For the foregoing reasons, it is my opinion that your question must (r answered in the negative, and that the State of Arizona does not have the leo right to build a dam across the main stream of the Colorado River, al*'1 Boulder Dam, and divert waters therefrom for irrigation and power, throni ditches, tunnels, and other works across the public domain, without the coifet'of the Federal Government. Yours very truly,
Arthur T. Lapbade,
Attorney QcnertlChas. A. Carson. Jr..
Mr. Farmer. I should like also to offer an opinion of Mr. Moore
Mr. Scrugham. Yes, sir.
Head Gate Dam, Across Colorado River In Arizona
1. The project and its purposes: Head Gate Dam, the canal and incidental >rks, are designed to divert and use 500,000 acre-feet of Colorado River iter per year for irrigation of 100,000 acres of Colorado River Indian Resertion in Arizona, about 150 miles south of Boulder Dam. Six thousand acres
this laud are now under irrigation. None of its is in private ownership r subject to entry or purchase.
The Indian Service plans to make the reclaimed reservation available for ttlement by such members of the Navajo and other tribes as may elect to move from their present locations, large areas of which have become barren id unproductive on account of erosion due to overgrazing.
2. The United States relation to the Colorado River compact: Article VII 1 the compact reads:
"Nothing in this compact shall be construed as affecting the obligations ! the United States of America to Indian tribes."
By subsection (b) of section 13 of the Boulder Canyon Project Act, which itiflod the compact, it is provided:
"(b) The rights of the United States in or to waters of the Colorado River nd its tributaries howsoever claimed or acquired, as well as the rights of lose claiming under the United States, shall bo subject to and controlled by lid Colorado River compact."'
By paragraph (a) article III of Colorado River compact, the "exclusive onefioial consumptive use of 7.-50O.O0O acre-feet of water" of the Colorado liver per annum, in perpetuity, are apportioned to the upper-basin States, conisting of Colorado, New Mexico, Utah, and Wyoming, and the lower-basin .tates. consisting of California and Nevada, res]>eetively.
As the United States, by the provisions or subsection (b) of section 13, Joulder Canyon Project Act, above quoted, agreed to be bound by the division if the waters of the Colorado as apiwrtloned between the upper- and lower>asin States by the Colorado River compact it, in effect, became and is a party o that interstate treaty.
Therefore, it cannot draw upon water apportioned to upper-basin States for irrigation of public or Indian lands in Arizona, California, or Nevada, nor icqiiire any priority of right against the upper-basin Stntes by a priority of ise in the lower-basin States or in Arizona.
3. Arizona and the compact: While Arizona is named in the compact as a party and is designated as one of the lower-basin States, its legislature declined to ratify the treaty and accordingly it is not a party to it and its name, wherever it apiiears therein, should be disregarded.
4. Nevada and the compact: Due to toix>graphlc conditions, Nevada cannot economically put to use more than 300.000 acre-feet per year of Colorado River water.
."). California and the compact: Pursuant to the requirements of subsection la I of section 4 of the Boulder Canyon Project Act, California, by act of its legislature, agreed "irrevocably and unconditionally with the United States and for the benefit of the States of Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming, that the (its) aggregate annual consumptive use (diversions less returns to the river) of waters of and from the Colorado River shall not exceed 4.400,000 acre feet of the waters apportioned to the lowerbasin States by paragraph (a) of article III of the Colorado River compact (7,500,000 acre-feet per year) plus not more than one-half of any excess or surplus waters unnpportioned by said compact." The unapportioncd water is estimated to be 1.500,000 acre-feet annually.
Hence, with California legally and Nevada topographically restricted to aggregate annual uses of 4.700,000 of the 7.500.000 acre foot per year apportioned to the lower basin by paragraph (a) of article III of the compact. plus one-half of unapportioned waters, the remainder of the water so a^i tioned, amounting to 2,800,000 acre-feet per year plus one-half of the «■>» or surplus unappropriated water, estimated at 750,000 acre-feet per year, az be used in the United States only for irrigation of public and Indian lawk A Arizona. There are no lands in private ownership in that State to whid twater can be economically applied.
Therefore, unless so used, the water apportioned to the lower basin »ih California may not and Nevada cannot use, aggregating 3.55O.000 acre-tow ps year, necessarily will flow down the river, after generating power at Bedfe Dam, and be available for use on about 1,000,000 acres of irrigable iud is Mexico, just below the border.
A conservative, capital value of this water, with the regmlated fli>w rvided by Boulder Dam, for irrigation in Mexico is $25 per acre-foot or * x«&. value of $88,750,000. Its value for use in the United States is twice as Er
The upper-basin States apparently would prefer to present this water :• Mexico, free of charge, rather than to have it used in the United Stare*. i*K a gratuity was not intended by the Colorado River compact or by Co*p?ft
James R. Moore. Special Assistant Attorney General for Arum
Washington, D. C, July 1, 1935.
Mr. Farmer. Gentlemen, I would like to offer further intotfe record, under date of June 18, 1936, a letter of John C Page, Acta? Commissioner of the Reclamation, a letter to the Honorable Car! Hayden, United States Senator from Arizona. I would like to hn? this incorporated in the record.
(The letter referred to is as follows:)
Status Of Work Under Emergency Relief Allocations
Gila project, Arizona: This project involves the construction of canals, par? ing plants, and other irrigation facilities. Contract for construction of a so tion of the main canal has been awarded and work is in progress. OhlisatAe have been incurred—$1,057,599.79. The unobligated balance of the JlijtW*1' allocation is necessary to purchase materials and supplies for this contra* and for supervision by Government forces. The project was contemplated fcr section 15 of the Boulder Canyon Project Act of December 21, 1928. United States Department Of The Interior.
Bureau Of Reclamatio*, Washington, June 16, 1SH Hon. Carl Hayden,
United States Senate,
My Dear Senator Hayden: I have received your telephone inquiry as totM terms upon which water will be sold to the water users of the Gila projwthe water supply for which will be derived from the water stored in the BouMe Canyon Dam.
On account of the unsettled condition of the land that will be watered t; the Gila project, no contract has yet been executed with the water users of u> project. However, the water supply will be derived from the Boulder Osn.M project, authorized under the act of December 21, 1928 (45 Stat. 1057), aal | under the Colorado River compact of November 24, 1922.
In selling water for the Gila project the Secretary must follow the require I ments of the Boulder Canyon Project Act, which provides in section 8 (a) 2follows:
"The United States, its permittees, licensees, and contrnctees. and all n*" and appropriators of water stored, diverted, carried, and/or distributed by ft* reservoir, canals, and other works herein authorized, shall observe and '• subject to and controlled by said Colorado River compact in the construct!* management, and operation of said reservoir, canals, and other works and ft' storage, diversion, delivery, and use of water for the generation of T0^ ( irrigation, and other purposes, anything in this act to the contrary notinu standing, and all permits, licenses, and contracts shall so provide."
Also the first three sentences of section 5 of the Boulder Canyon Project-1'*' provide as follows:
That the Secretary of the Interior is hereby authorized, under such general ulations as he may prescribe to contract for the storage of water in said r^rvoir and for the delivery thereof at such points on the river and on said al as may be agreed upon, for irrigation and domestic uses, and generation electrical energy and delivery at the switchboard to States, municipal corJitions, political subdivisions, and private corporations of electrical energy ierated at said dam, upon charges that will provide revenue which, in addin to other revenue accruing under the reclamation law and under this act, 1 In his judgment cover all expenses of operation and maintenance incurred
the United States on account of works constructed under this act and the rments to the United States under subdivision (b) of section 4. Contracts H>ecting water for irrigation and domestic uses shall be for permanent service [1 shall conform to paragraph (;i) of section 4 of this act. No person shall ve or be entitled to have the use for any purpose of the water stored as jresaid except by contract made as herein stated." Under the directions of this statute, the water users of the Gila project will
required expressly to contract, in order to obtain water for the irrigation
their land, that their rights are subject to the provisions of the Colorado ver compact, one main purpose of which is to protect, to the extent stated in e compact the irrigation potentialities of the upper basin from impairment
reason of the earlier use of water downstream. Very truly yours,
John C. Page, Acting Commissioner.
Mr. Farmer. I want to offer some testimony of Mr. R. F. Walter, lief engineer of the Bureau of Reclamation. It appears in this ook. It is hearings before the subcommittee of the Committee on appropriations of the United States Senate, on H. R. 10G30, under ate of February 14, 1936.
I would like to offer the testimony of Mr. Walter at this point in :ie record.
Mr. Johnson. You mean all of those pages?
Mr. Farmer. There are several pages, just his testimony.
Mr. Johnson. If there is any special point to it, I have no objecion, but I do object to putting in page after page of testimony into his record. We have already exceeded more than 4,000 pages, and hat is more than we had last year.
Mr. Scrtjgham. Give the reference to it.
Mr. Farmer. It is less than two pages, and it states the position of :he Bureau of Reclamation, and contains answers given as to the Gila project, as to its effect upon the upper States.
Mr. Scrugham. All of that testimony is germane to it?
Mr. Farmer. Yes, sir. It occurs at pages 61 to 63 of the hearings on the Interior Department appropriation bill for 1937, before the Senate Committee on Appropriations.
I want to say this, that I hope that any of these records that I offer, if they are not printed in the record, will at least be referred to, that they were included in the record.
Then, here is the statement of Mr. John C. Page, Acting Commissioner of Reclamation, made at the supplemental hearings before the subcommittee of the House Committee on Appropriations, in charge of the Interior Department bill for 1937, Seventy-fourth Congress, second session, commencing at page 129 thereof, the testimony of Mr. John C. Page, Acting Commissioner of Reclamation, on the Gila River project of Arizona.
Now, gentlemen, I want that to be considered in the record, but it does not necessarily have to l)e published but I want due reference made to it, and to be considered by this committee.
(The testimony of Mr. John C. Page, Acting Commissioner'* Reclamation, occurs on pp. 129 to 141. both inclusive, of the s»plemental hearings on the Interior Department appropriation hil 1937 (H. R. 10630, Senate amendments, 24, 53-54), which records hearings is filed as a part of this record).
Mr. Farmer. We have developed there that this unit that we ir; asking appropriation for is a unit of 139,000 acres of mesa U&' and 11,000 acres of valley land, which is mostly all unentered pub!; lands of the United States, for which there is a contemplated ei pense of $20,500,000, at a cost of $134 per acre for the mes» list and $74 per acre for the valley lands.
I want to say, gentlemen of the committee, that I cannot undt: stand why the gentlemen of the upper States are here contender against the Gila Valley project, and I cannot understand why ther? should be any fear in their minds that the irrigation of this 150;** acres of mostly Government land would in any way affect the rift of the upper basin States.
We want the development of the river. We say that the raiy way that this can be developed is by appropriations from the Fei eral Government, which are wholly within the control of the American Congress.
We say we have a small State. It is the baby State of the Uniffl: It has a population of about 406,000 people.
It has an area, set forth here from the United States Land Office, of 72,838,400 acres, of which there are 49,936,155 acres of federal!; owned lands, or more than two-thirds of the area of the State e public domain of the United States, which have been taken from entn in the form of Indian reservations or parks and put under the cottrol of the Federal Government.
Mr. Rich. Would you be willing to take the lands that the Feden! Government has and then do your own development if the Federal Government would give you those lands?
Mr. Farmer. I do not suppose they would give them to us.
Mr. Rich. I am asking you the question: Would the peopie ir. Arizona be willing to take those lands and do their own development if we would give you the lands?
Mr. Farmer. Perhaps, Congressman Rich, you were not here awhi'rf ago; but I cannot bind the State, as I said. I am onlv representing the Gila district, and I cannot speak for the State; but I can call your attention to the facts as they exist.
Mr. Rich. I am an advocate of giving all of these States even* hit of land that the Government owns, as far as I am concerned.
Mr. Farmer. I wanted to develop this thought, if yon would 1* me, just a little further, Mr. Congressman, that we are not financially in any condition to do any harm to the upper States, and also thai the State of Arizona, no matter what it might want to do. is not physically, financially, or in any other way able to raid the river.
I would like to read to you from section 5, article IX, of the Arizona State Constitution, which reads as follows:
The State may contract debts to supply actual deficits aud failure in rerenu* or to meet expenses not otherwise provided for: but the aggregate amount o! such debts, direct or contingent, whether by virtue of one or more laws, or it different periods of time, shall never exceed the sum of $350,000. and the iiu'«J arising from the creation of such debts shall be applied to the purpose forwbiA it was obtained, or to repay the debt so contracted, and to no other pun>"«