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FLOOD CONTROL WORK IN RED RIVER, ATCHAFALAYA,

AND BA YOU BOEUF LEVEE DISTRICT

MONDAY, FEBRUARY 5, 1934

UNITED STATES SENATE,
SUBCOMMITTEE OF THE COMMITTEE ON COMMERCE,

Washington, D.C. The subcommittee met pursuant to call, in the Capitol Building, Washington, D.C., at 10:30 a.m., Senator John H. Overton, chairman of the subcommittee, presiding.

Present: Senators Overton (chairman of the subcommittee), Bailey, and Patterson.

The subcommittee had under consideration the bill (S. 2067) authorizing payment to the Red River, Atchafalaya, and Bayou Boeuf Levee District for acquiring certain levee rights-of-way for floodcontrol work.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of War is authorized to pay, out of any money available for carrying out the provisions of the Act entitled “An Act for the control of floods on the Mississippi River and its tributaries, and for other purposes ", approved May 15, 1928, to the Red River, Atchafalaya, and Bayou Boeuf Levee District, Louisiana, the sum of $652,736.79, in full satisfaction of its claim against the United States on account of indebtedness incurred by such district in acquiring certain levee rights-of-way for the prosecution of flood-control work under such Act.

Senator OVERTON. Perhaps, as chairman of the subcommittee having under consideration this bill (S. 2067) authorizing payment to the Red River, Atchafalaya, and Bayou Bouef Levee District of acquiring certain levee rights-of-way for flood-control work, I had better make a brief explanation of the reason why the bill has been introduced.

Under the Flood Control Act passed by Congress and approved May 15, 1928, there is no question but that Congress directed that the State and its local agencies should pay for all rights-of-way and furnish all rights-of-way for levee construction under the floodcontrol plan without cost to the Federal Government. The position taken by the local levee boards in the State of Louisiana and those levee boards having jurisdiction over the tributaries represented by the Arkansas River, the Red River, and the Atchafalaya River was that under the Flood Control Act the obligation was imposed upon the Federal Government to pay for levee rights-ofway on the south bank of the Arkansas, the south bank of the Red River, and in the Atchafalaya Basin. The position, as I understand it, at that time taken by the Army engineers was that the local agencies should pay for these rights-of-way.

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At any rate, representation was made to the Red River, Atchafalaya, and Bayou Boeuf Levee Board that if it desired prompt construction of levees along the Red River and, according to my recollection, along certain portions of the Atchafalaya within the jurisdiction of that levee board, it would be necessary for the levee board to furnish the rights-of-way to the Federal Government.

It was represented to the board, as I understand, by the local district engineer that unless the board would adopt à resolution to this effect it was not at all improbable that the money allocated for the construction of levees along the Red River might be used somewhere else.

The engineers representing the Federal Government were having considerable trouble in getting these rights-of-way. They thought that the local levee board could acquire the rights-of-way with more facility and at less cost than the Federal Government could do so. They were also of the opinion, as I understand the position that they took, that the local levee boards should pay for the rights-of-way.

It was very necessary that these levees be promptly constructed on the south bank of the Red River, and in order to secure that construction, and under representations made to the local levee board that it was necessary if they wished these levees to be promptly built, to pass resolutions agreeing to furnish the rights-of-way without cost to the Federal Government, the local levee board adopted resolutions of this character in reference to various projects along the south bank of the Red River.

The levees were constructed and the local levee board put in a claim for reimbursement. I saw the Chief of Army Engineers and I saw the Secretary of War, and the result of these interviews was that the Secretary of War referred the whole subject-matter to the Attorney General of the United States for an opinion as to whether or not the Federal Government was liable for these rights-of-way under the flood control act, or whether the State agencies were responsible.

The Attorney General rendered an opinion that the Federal Government was responsible and the obligation rested upon the Federal Government under the flood control act to pay for these rights-ofway on the south bank of the Arkansas, the south bank of the Red River, and in the Atcha falaya Basin. Thereupon the direction was made that these claims be audited and, if found correct, be paid.

When it came to the consideration of those rights-of-way covered by these resolutions of the Red River, Atchafalaya, and Bayou Boeuf Levee Board agreeing to furnish the rights-of-way without cost to the Federal Government, the matter being submitted to the Attorney General, he ruled that in the face of the resolutions he could not, as a matter of law, approve the claim and held that, by reason of these resolutions, the Federal Government was not under obligation to pay for the rights-of-way.

However, as I understand it, under this ruling of the Attorney General covering these three tributaries, the Federal Government proceeded or is proceeding to pay for the rights-of-way upon the south bank of the Arkansas and in the Atchafalaya Basin and along the Red River where the project was not covered by a special resolution of the local board. The result has been a very unjust dis

crimination against this local levee board, which manifested a splendid spirit of cooperation with the Federal Government.

While from a strict legal viewpoint the opinion of the Attorney General is correct, in view of the resolutions of donation, the Federal Government would not be required to pay for the rights-of-way; yet, as a matter of equity, we find that the local levee board, which had cooperated with the Government, is to be penalized for that cooperation, and the other levee boards under the same ruling are to receive compensation.

Now, just one further thought, and that is this: The local levee board—that is, the Red River, Atchafalaya, and Bayou Boeuf Levee Board-is financially unable to meet this obligation. I had acquired these rights-of-way by issuing certificates of indebtedness to the owners, and these certificates of indebtedness have not been paid. None have been paid as to the principal, although some interest has been paid on some of them.

Now, with that statement of the purpose of the bill, I will ask Colonel Graves to make a statement in reference to it.

STATEMENT OF COL. ERNEST GRAVES, CORPS OF ENGINEERS,

U.S. ARMY

Senator OVERTON. Colonel, give your initials, please.
Colonel GRAVES. Ernest Graves.

Senator OVERTON. And your official connection with the Government?

Colonel GRAVES. I am stationed in the office of the Chief of Engineers, and I am also a member of the Mississippi River Commission.

Senator OVERTON. About how long have you held that official position?

Colonel GRAVES. Since 1928-about 6 years.

Senator OVERTON, Colonel, we have under consideration this bill (S. 2067). You are familiar with this, are you not?

Colonel GRAVES. Yes, sir.

Senator OVERTON. I would like for you to make a statement of pertinent facts leading up to the introduction of this bill.

Colonel GRAVES. Yes, sir; I will describe the situation as I understand it, briefly.

When the levees were initiated by the Government on the rightsof-way referred to in this bill the administrative officers of the Government believed that it was proper and incumbent upon local interests to provide rights-of-way and, on that basis, the War Department asked the local interests to provide these rights-of-way and did not initiate work until they were provided.

Since that time the opinion of the Attorney General has been asked as to whether or not the United States was obligated to buy these rights-of-way and other rights-of-way of this character, and my understanding—it is that of layman-of this legal decision is that the Attorney General says that the United States was or is obligated to provide rights-of-way of this character. After that opinion was rendered the Chief of Engineers was, of course, inclined to desire to do what the Attorney General said he was obligated to do. In this particular instance a claim was submitted for reimbursement

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for funds either spent or obligated for by local interests. Before paying that claim, the office of the Chief of Engineers asked the opinion of the Attorney General, the Judge Advocate General, and finally the Comptroller General, and was informed that he was not authorized to pay it. The reasons were rather complicated legal reasons which I am not prepared to explain, but briefly they were based on the phraseology of the resolutions or documents by local interests at the time the rights-of-way were furnished, and also on legal reasons having to do with the Government building levees where the local interests provided the rights-of-way. However, these decisions prevented the Chief of Engineers from making the reimbursement or paying the sum referred to in this bill.

Senator OVERTON. Now, Colonel, the War Department is proceeding to reimburse other levee boards similarly situated for rights-ofway that were acquired on the south bank of the Arkansas and in the Atchafalaya Basin, are they not?

Colonel GRAVES. The War Department, or the office of the Chief of Engineers, had started to proceed to do what you say, but in view of these decisions nobody knows exactly what he can do now and whether those reimbursements can be consummated or not; I am not certain. It is true that one that I know of was ordered to be reimbursed, but since that was done this decision has come out and, although the case is different, I should not be surprised if that case finally got in the hands of the legal authorities—perhaps the Comptroller General. I am not sure of that, but that is the way I understand it. It is clearer than this case.

Senator OVERTON. Are you referring to the case of the south bank of the Arkansas?

Colonel GRAVES. No; I am referring to one down in the Atchafalaya Basin for about $23,000.

Senator OVERTON. Let us take up the reimbursement on the south bank of the Arkansas.

Colonel GRAVES. On the south bank of the Arkansas there is one claim that I know of, and that was a claim that, prior to furnishing the right-of-way, the Office of the Chief of Engineers agreed to reimburse a fixed sum, and legally I think that one will be perfectly clear. The others have not been submitted yet. They may be in process of being submitted, but I am quite sure not a single one has arrived in the Office of the Chief of Engineers. That one is not in the general class before, prior to that right-of-way being furnished, there was an express agreement that a fixed sum was agreed to be reimbursed, and I think that was $30,000.

Senator PATTERSON. That claim has not been paid yet?

Colonel GRAVES. I am quite certain not, because none are ever paid until the title is cleared and that is always a question of years.

Senator OVERTOX. Now, you are referring to claims that have been actually reimbursed or in the course of being reimbursed. What I want to ascertain from you is this: Whether or not, under the opinion of the Attorney General that the provisions of the Flood Control Act of 1928 make it obligatory upon the Federal Government to pay for the rights-of-way on the Arkansas, as well as on the Red and the Atchafalaya—whether or not the Chief of Army Engineers is recognizing that principle as far as the south bank of the Arkansas River is concerned.

Colonel GRAVES. As I understand; yes, sir. He feels the same way as to the south bank of the Arkansas as he does about this; but whether or not there will be legal difficulties about actual payment or not I do not know.

Senator OVERTON. That will be another matter. Then, the only difference between the claim of the Red River, Atchafalaya, and Bayou Boeuf Levee Board of reimbursement for rights-of-way on the south bank of the Red River and that on the south bank of the Arkansas is the resolution adopted by the Red River, Atchafalaya, and Bayou Boeuf Levee Board?

Colonel Graves. That is my understanding; but what is bothering us is that all those other resolutions have not yet been scrutinized and we do not know whether any of them are the same. I think that they are different from the resolutions from this levee district, but we do not know, because we have not as yet gone into those.

Senator OVERTON. The flood-control act, as interpreted by the Attorney General, imposes the burden upon the Federal Government to pay for the rights on the south bank of the Arkansas as well as on the south bank of the Red River and in the Atchafalaya Basin ?

Colonel GRAVES. Yes, sir; the question was even broader than that. It said approximately this: The south bank of the Arkansas, the south bank of the Red River, in the Boeuf Basin, and in the Atchafalaya Basin-all those levees were included in the question, and the answer of the Attorney General to that question was “ Yes.”

Senator OVERTON. And unequivocally “Yes”!

Colonel Graves. Well, that is the way I thought it was. There was so much other stuff that I do not like to render a legal opinion, but that was my layman's viewpoint of it.

Senator OVERTON. I will file the opinion of the Attorney General.

Senator PATTERSON. How many opinions of the Attorney General on this subject have we? Have we just one?

Senator OVERTON. No; we have three. The first opinion was on the broad question whether or not, under the flood-control act, the Federal Government should pay for these rights-of-way on the Arkansas, the Red River, and the Atchafalaya, which were tributaries of the Mississippi River.

Senator PATTERSON. And did he hold that the Government was not liable?

Senator OVERTON. He held that the Government was liable. The second opinion that he rendered was in respect to certain resolutions adopted by these local levee boards agreeing to furnish the rights-ofway without cost to the Federal Government, and he held, in view of those resolutions, it was not obligatory upon the Federal Government to pay for the particular rights-of-way which the local board had agreed to furnish without cost, and the third opinion was when I requested him to review the whole subject matter, which he did, and reaffirmed his original opinion.

Senator PATTERSON. Did this district here agree to furnish them free of cost to the Government?

Senator OVERTON. It did; and I want to show under what circumstances it did agree. You were not in here in the beginning.

Senator PATTERSOx. No; and I would like to hear an explanation of that.

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