Hon. WAYNE N. ASPINALL, HEADQUARTERS, DEPARTMENT OF THE ARMY, Chairman, Committee on Interior and Insular Affairs, DEAR MR. CHAIRMAN: Reference is made to your request for the views of the Department of the Army with respect to House Joint Resolution 703, 86th Congress, a joint resolution "Directing the Secretary of the Interior and the Secretary of the Army to investigate and report on alternatives of the Kinzua Reservoir project, New York, and for other purposes." The essential purpose of the above-mentioned joint resolution is to prohibit the Secretary of the Army from proceeding with prosecution of the Kinzua Reservoir project, also known as the Allegheny Reservoir project. The measure would require the Secretary of the Interior and the Secretary of the Army, jointly, to make a survey to seek an alternate means of protecting the area involved without utilizing lands of the Seneca Indians. Pending the survey and report the Secretary of the Army would be precluded from acquiring any further lands for the project or requiring people to move from lands already acquired; those who have been previously required to move would be allowed to return "upon reasonable terms and conditions"; and, in addition to precluding construction awards, reasonable efforts would be required to delay contracts previously awarded. The Department of the Army is opposed to the adoption of House Joint Resolution 703. The Allegheny Reservoir project was authorized as part of the comprehensive plan for flood control and other purposes in the Ohio River Basin by the act of June 28, 1938, as amended (52 Stat. 1215, 1217; 55 Stat. 646), in accordance with House Document 300, 76th Congress. The project, as contemplated by the Chief of Engineers and approved by this act, provided for a damsite on the Allegheny River in the vicinity of Kinzua, Warren County, Pa., approximately 200 miles above the mouth of the river at Pittsburgh, Pa., with the reservoir to be located in Warren and McKean Counties, Pa., and Cattaraugus County, N.Y. The reservoir would inundate approximately 9,000 acres of land of the Seneca Nation of Indians in New York. However, when it became necessary to obtain a right of entry to make surveys of the Indian lands, the Senecas objected and refused to grant permission, requesting at the same time that the project be reengineered so as to avoid the use of Indian lands. Proposals for diversion of flood waters from the Allegheny River into the Conewango Valley have been the subject of studies over a period of years. As early as 1928 the Corps of Engineers considered a general plan involving diversion of water from Allegheny River into the Conewango Basin and thence into Lake Erie, but found the plan to be of marginal justification. Interest in a diversion scheme was revived in 1957 when an engineering consultant employed by the Seneca Nation testified before the Appropriations Committees of Congress in support of a diversion plan. Since that time, a number of alternative plans involving diversion of water from Allegheny River have been studied by a private engineering firm employed by the Corps of Engineers, and were considered in detail by the Corps of Engineers. The engineering firm studied five plans which they considered would cover the principal possibilities for storage in the Conewango Basin and for diversion into Lake Erie. The results of those studies were furnished to the Appropriations Committees of Congress. In brief, the alternative plans were estimated to cost from 25 to 38 percent more than the project as authorized, would require the taking of from 51 to 108 percent more land, and require the dislocation of from 150 to 180 percent more people. Based on his consideration of the results of these studies as well as a further variation proposed by the consultant hired by the Seneca Nation, the Chief of Engineers concluded that the authorized Allegheny Reservoir provided the most economic solution to the water resource development problems of the Allegheny River Basin and should be constructed as authorized by Congress. The conclusions of the Chief of Engineers were included in a statement which was furnished to the Appropriations Committees of Congress and are published in the Senate and House Committee Hearings on the public works appropriation bill, 1960. It is concluded that the advisability of alternative plans has been adequately studied, and that the data furnished to the Appropriations Committees of Con gress during the hearings on the public works appropriation bills in the past few years provided an adequate basis for their determination that construction of the authorized Allegheny Reservoir should proceed. This decision was confirmed by action by the Congress in passage of the Public Works Appropriations Acts for ficsal years 1958, 1959, and 1960. An additional $4,530,000 is included in the fiscal year 1961 Appropriations Act (H.R. 12326, 86th Congress). During consideration of this bill by the Committee on Appropriations, House of Representatives, the use of Indian lands and possible alternatives were again thoroughly discussed. The House of Representatives on May 25, 1960, in adopting the above-mentioned public works appropriations bill for fiscal year 1961, rejected a motion to (1) recommit the bill to the Committee on Appropriations for the purpose of eliminating funds for the Allegheny project and (2) provide that none of the funds appropriated should be used for construction of the Allegheny Reservoir (see Congressional Record, May 25, 1960, at p. 10263). There is attached a chronological summary of consideration of the alternative plans by all concerned, including the Committees on Appropriations, and a chronology of the decisions in the legal proceedings involving the right of the United States to utilize lands of the Seneca Indians for the project. In those proceedings the courts granted the Government the right to enter on the Indian lands and thereafter upheld the right of the United States to acquire Indian lands for the project. The Supreme Court of the United States refused a writ of certiorari after the lower courts had refused to enjoin the United States from proceeding with the project. As indicated above, and detailed in the attached summary, the facts were fully disclosed to the respective Committees on Appropriations, which requested that the expenditure of fiscal year 1959 funds be deferred until the litigation brought by the Senecas was finally decided. Following the Supreme Court decision in June 1959, the Department of the Army reinstituted action for construction of the project by entering into a contract with the Commonwealth of Pennsylvania for the relocation of 3 miles of State Highway No. 59 and acquiring fee title to 97.26 acres of land for the relocated highway. Eight former owners were required to vacate the premises by December 31, 1959, in connection with the road relocation which is under construction. The Corps of Engineers has in the past year also acquired from 21 owners, 154.80 acres of the approximately 640 acres of land required for the damsite; 10 of the former owners have vacated the premises. The 252.06 acres of land obtained to date were acquired at an aggregate cost of $186,148. In addition, the corps is nearing completion of an agreement with the Pennsylvania Railroad to provide for the termination of service on, and elimination of, its Salamanca branch to permit construction of the dam to proceed. In the circumstances, having studied reasonable alternative solutions and having determined that the project should proceed, it does not appear that the action contemplated by House Joint Resolution 703 would be warranted at this time. This is particularly true as to those features of the joint resolution which would require, in addition to a study and the suspension of future action, putting back into possession people who have already moved. In this connection the Committee is advised that it is doubtful as to how many of the 18 former owners who, as indicated above, have vacated their properties, could move back as contemplated by House Joint Resolution 703, even if they wanted to do so. It is suggested that instead of moving back, we should now seek the best possible means of moving forward with the project while at the same time lessening, to the extent possible, the impact of the Seneca Nation. The fifth amendment to the Constitution of the United States provides that property will not be taken for public use without just compensation. The Department of the Army is aware that compensation that compensation, arrived at in accordance with court interpretations of this constitutional guarantee, does not always fully compensate those affected by a project. Moroever, the Secretary of the Army and the Chief of Engineers are not unmindful of the fact that the impact of acquisition of lands on Indians may be greater in some instances than that of others from whom property is taken for water resource development projects of the Corps of Engineers. In recognition of this fact Congress has from time to time, in connection with other projects, enacted legislation designed to provide for the Indians involved benefits in addition to payments they would receive in accordance with a conventional determination of just compensation. KINZUA DAM Should the committee consider it to be in the national interest to enact legislation in this instance in order to assist the Seneca Nation and the individual Indians affected by the Allegheny project, the Department of the Army would interpose no objection thereto. The Chief of Engineers in pursuance of a similar possible solution of this problem requested the Secretary of the Interior in 1957 to assist in the formulation of plans to alleviate the hardships that might be suffered by the Indians affected by the Allegheny project. Because construction was held up pending court determinations and studies of alternative project plans, and inasmuch as the acquisition of necessary interests in Indian lands was not scheduled until 1962 at the earliest, no further consultation with the Secretary of the Interior has been had. Accordingly, in view of the fact that there is no reasonable alternative to using the Seneca lands involved for the Allegheny project, this Department would interpose no objection to legislation directing a study to be pursued by the Secretary of the Interior for the purpose of determining the impact the project will have on the Seneca Indians and to thereafter advise Congress as to the legislation, if any, that should be enacted in connection therewith. The fiscal effect of House Joint Resolution 703 cannot be readily ascertained. While the Bureau of the Budget advised that it had no objection to the submission of this report, it further advised, as indicated in its attached letter to the Department of the Army, that it would no object to authorization for a further study of the Allegheny project. Sincerely yours, WILBER M. BRUCKER, SUMMARY OF ACTIONS ON THE ALLEGHENY RESERVOIR RE HOUSE JOINT RESOLUTION 703 1. CHRONOLOGY OF CONSIDERATION OF ALTERNATIVE PLANS INVOLVING DIVERSION OF FLOOD FLOWS INTO LAKE ERIE (a) 1928 report of Corps of Engineers.-Unfavorable to diversion at that time. (b) Fiscal year 1958 appropriations hearings.-The committees heard testimony by Dr. Arthur E. Morgan and Mr. Barton Jones, representing the Seneca Indians, in support of a plan for diversion of flood flows from Allegheny River into Lake Erie. After consideration of their testimony as well as the testimony of the Corps of Engineers, the committees included $1 million in the bill for completion of planning and initiation of construction of the Allegheny Reservoir as previously authorized. (c) 1958 report of engineering firm of Tippetts-Abbett-McCarthy-Stratton.— Because of the intense interest shown in alternate plans by various groups and individuals sympathetic to the Indian cause, the Corps of Engineers engaged the firm of Tippetts-Abbett-McCarthy-Stratton to make an independent engineering study of alternative plans including the proposal of Dr. Morgan. The firm made the engineering study and a review of the authorized project and five alternate plans which covered the principal possibilities for storage in the Conewango Valley and for diversion into Lake Erie. The engineering firm found the alternate plans to be feasible, but that they would cost from 25 to 38 percent more than the authorized project, would require 51 to 108 percent more land, and Accordingly, the Corps of would dislocate 150 to 180 percent more people. Engineers concluded that construction of the authorized project should proceed. (d) Fiscal year 1959 appropriations hearings.-After hearing voluminous testimony by both proponents and opponents, the Appropriations Committees included an additional $1 million in the bill for this project. The committee reports, however, provided that none of the funds available for this project be expended pending determination by the courts of the legal issues involved in connection with the proposed use of land of the Senaca Indians. (e) Dr. Morgan's plan 6.-Some 6 months after completion of the engineering firm's report, Dr. Morgan suggested a further variation for additional study which he claimed would be similar to one of the plans studied by the engineering firm except that the plan would be modified to provide outlet into Lake Erie via Cattaraugus Creek in lieu of Silver Creek as previously studied. The Chief of Engineers personally studied the report of Dr. Morgan but concluded that Dr. Morgan's proposal does not provide a solution to the water resource development problems of the Allegheny River Basin that compares favorably with the authorized plan. A statement by the Chief of Engineers on this matter was presented to the Appropriations Committees during the hearings on the fiscal year 1960 appropriation bill. (f) Fiscal year 1960 appropriations hearings.-The committee heard extensive testimony from Dr. Morgan and the Corps of Engineers with regard to alternate plans and concluded that construction of the authorized project should proceed. The bill as passed by Congress and enacted into law included an additional $1,365,000 for construction of Allegheny Reservoir. (g) Fiscal year 1961 appropriations hearings.-The House of Representatives Appropriations Committee again heard extensive testimony from both proponents and opponents of the Allegheny project. A motion to recommit the public works appropriation bill for 1961 to the House committee with instructions to delete the funds contained therein for the continuation of construction of the Allegheny project was defeated. 2. CHRONOLOGY OF COURT DECISIONS (a) January 11, 1957.-U.S. District Court for Western District of New York upheld the Government's right to condemn land of the Seneca Nation of Indians for project purposes. (b) January 21, 1957.-U.S. court of appeals denied petition of Seneca Nation for a stay of the order of possession granted to the Government. (c) April 14, 1958.-U.S. District Court for the District of Columbia denied Seneca Nation's request for an injunction to prevent construction of Allegheny Reservoir. (d) November 25, 1958.-U.S. Court of Appeals for the District of Columbia affirmed action of the district court in the injunction suit. (e) June 15, 1959.-Supreme Court denied motion of Seneca Nation for a writ of certiorari in the injunction suit (360 U.S. 909). EXECUTIVE OFFICE OF THE PRESIDENT, The Honorable SECRETARY OF THE ARMY. (Attention: Col. James K. Gaynor). BUREAU OF THE BUDGET, Washington, D.C., June 22, 1960. MY DEAR MR. SECRETARY: This will acknowledge Assistant Secretary Short's letter of June 17, 1960, transmitting a proposed report on House Joint Resolution 703, "Directing the Secretary of the Interior and the Secretary of the Army to investigate and report on alternatives of the Kinzua Reservoir project, New York, and for other purposes." It is recognized that extensive studies of Kinzua Dam and alternatives to it have been made. As you know the President's 1960 budget did not recommend funds to continue construction of Kinzua Dam. However, the Congress, after hearing testimony both for and against the project, appropriated $1.4 million for the fiscal year 1960. In view of this decision by the Congress, and since we were not aware of the existence of any important new information not considered by the Congress in arriving at its decision, the President recommended an additional $4,530,000 in his 1961 budget for the uroject. The Bureau of the Budget would, of course, not object to further study of Kinzua Dam if the Congress reverses its decision of last year and authorizes such a study. However, it is believed that the terms of the authorization should make it clear that the study should seek a superior rather than merely a practicable or reasonable alternative. The Bureau of the Budget would, therefore, recommend that the word "practicable" be changed to "superior" on page 2, line 4, of House Joint Resolution 703. However, there would be no objection to the submission of your proposed report to the committee. It is requested that a copy of this letter accompany your report. Sincerely yours, PHILLIP S. HUGHES, Assistant Director for Legislative Reference. Mr. HALEY. Regardless of the fact that we were not successful with this resolution, our interest has continued in spite of the commencement of construction of the dam and reservoir, which I still believe was in direct contradiction to the Treaty of 1794. Had this project been handled by the Committee on Interior and Insular Affairs, which is the committee that should have had jurisdiction, the outcome might have been the same or different, but members of the Seneca Nation would have been given full opportunity to discuss the merits of the project and the location of the damsite. However, we must now face reality, the dam is under construction, or, I might say, well underway, and before many months the gates will be closed and the lands of the Cornplanter and Allegany Reservation will be flooded. Sympathy continues and for this reason H.R. 1794 and H.R. 3443 were introduced by myself and Representative Saylor of Pennsylvania. And here I might say that Representative Saylor, with your own good Congressman, has continued to show interest in this project. He, of course, is over in the other State just adjoining your congressional district. Of course these bills will not right a wrong, but will ease the pain and strain to members of the Seneca Nation by authorizing the acquisition of and payment for a flowage easement and right-of-way over land within the Allegany Reservation that is required for the Kinzua project, and also will assist the Seneca Nation in its relocation, rehabilitation, social and economic development. At this time I will place in the record H.R. 1794, and will also place in the files for reference copies of the minutes of the subcommittee hearings on House Joint Resolution 703 of the 86th Congress dated June 20 and 21, 1960. These will be placed in the files as a matter of reference. (The bill. H.R. 1794, follows:) [H.R. 1794, 88th Cong., 1st sess.] A BILL To authorize the acquisition of and the payment for a flowage easement and rights-of-way over lands within the Allegany Indian Reservation in New York, required by the United States for the Allegheny River (Kinzua Dam) project, to provide for the relocation, rehabilitation, social and economic development of the members of the Seneca Nation, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in furtherance of the Allegheny River Dam and Reservoir project authorized by the Flood Control Acts of August 18, 1941 (55 Stat. 638) and December 22, 1944 (58 Stat. 889), the United States hereby takes (a) the right, power, privilege and easement to overflow, flood and submerge lands within the Allegany Indian Reservation up to 1,365 feet above sea level, consisting of approximately 10,010 acres, as delineated on the map referred to in section 14 hereof, for as long as required in the construction, operation and maintenance of the Allegheny River project authorized under the aforesaid Flood Control Acts; and (b) rights-of-way for the relocation of highways, railroads, telephone lines and other public utilities across approximately acres of land within the Allegany Indian Reservation, including lands below elevation 1,365 feet, as also delineated on the map referred to in section 14 hereof, for as long as said rights-of-way are used for the purposes originally intended. SEC. 2. In consideration for the flowage easement and rights-of-way acquired under section 1 of this Act, the United States will pay, out of funds available for the Allegheny River project, and in accordance with the provisions of section 3 hereof as compensation for (a) to the Seneca Nation, the amount of $ the direct damages (including severance damages and the taking of subsurface rights as hereinafter provided in section 6) to lands within the Allegany Indian Reservation caused by the aforesaid flowage easement and rights-of-way; (b) to individual Seneca Indians, a sum aggregating $ to be disbursed in accordance with the provisions of a schedule prepared pursuant |