General of the United States contained in a letter to the Secretary of State of the United States, dated January 24, 1900, and the letter of the Secretary of State, dated January 30, 1900, transmitting the same to the United States commissioner requesting the International Boundary Commission to make the investigations desired by the Attorney General. The main question at issue for the investigation of the engineers appears from the Attorney General's letter to be a determination of the amount of flow in the river lost between Elephant Butte, N. Mex., the site of the proposed dam and reservoir, and the headwaters of navigation of the river below, at Roma, Tex., and it will be seen in the investigation of the engineers by measurements of the flow at various points during the greater part of two years by numerous measurements at the different points on the river from San Marcial, N. Mex., to the mouth, that the loss of flow between San Marcial, the nearest station to Elephant Butte, 40 miles below, to Roma, the head of navigation, is 84 per cent of the total flow at San Marcial; that is to say, that 16 per cent of the total flow at San Marcial arrives at Roma, a sufficient quantity of water, according to the deductions of the engineers, to raise the level of the river at that point an average of one-half foot during the entire flow. The report of the engineers is so full and exhaustive that the joint commissioners feel it unnecessary to add anything thereto, but simply submit the fact of the preservation of 16 per cent of the flow of water which passes San Marcial to the headwaters of navigation. The report of the reconnoissance while adding little to the establishment of the fact is interesting in establishing the general regimen of the river and environments. It is the opinion of the commissioners that the engineers' report and the work done already is entirely sufficient for the object and desires of the Department of Justice of the United States, as requested in the Attorney General's letter of January 24, 1900, but it is thought by the commissioners that the observations that are being made at present should be continued as they do not entail a very great expense and will undoubtedly be of great value hereafter to the two Governments. ANSON MILLS. W. W. KEBLINGER. A. LONGORIA. 37973-23-28 The Third Assistant Secretary of State to Gen. Anson Mills, Commissioner. DEPARTMENT OF STATE, Brig. Gen. ANSON MILLS, U. S. A., Washington, April 11, 1902. Commissioner, United States and Mexican Water Washington, D. C. SIR: On the 4th instant, Mr. Burleson, of Texas, introduced a bill which has been referred to the Committee on Foreign Affairs, providing for the equitable distribution of the waters of the Rio Grande River between the United States and Mexico. The bill authorizes the construction of an international dam and reservoir, restrains the building or use of other dams which would destroy the usefulness of the proposed international dam, and recommends the consummation of a treaty between the United States and Mexico whereby Mexico shall accept the construction of the proposed dam with the condition that the waters impounded shall be equitably distributed between the two countries, as liquidation of past and future claims for water appropriated by citizens of the United States. I have to request your early consideration of the above bill and expression of your views thereon. For your convenience copy of the bill is enclosed herewith. Your obedient servant, HERBERT H. D. PEIRCE, Gen. Anson Mills, Commissioner, to the Secretary of State. DEPARTMENT OF STATE, INTERNATIONAL (WATER) BOUNDARY COMMISSION, UNITED STATES AND MEXICO, Washington, D. C., April 12, 1902. The honorable the SECRETATY OF STATE, Washington, D. C. SIR: I have the honor to acknowledge receipt of your communication of the 11th instant, enclosing copy of H. R. bill 13361, to provide for the equitable distribution of the waters of the Rio Grande between the United States of America and the United States of Mexico, and authorizing the "construction of an international dam and reservoir, restrains the building or use of other dams which would destroy the usefulness of the proposed international dam, and recom mends the consummation of a treaty between the United States and Mexico whereby Mexico shall accept the construction of the proposed dam with the condition that the waters impounded shall be equitably distributed between the two countries as liquidation of past and future claims for water appropriated by citizens of the United States "-and requesting an early consideration and expression of my views thereon. In reply I beg to state that I believe the project as outlined in the bill is feasible and necessary on the part of the United States to do equity to Mexico, especially to her citizens on the Mexican bank of the Rio Grande below El Paso, Tex., provided the provisions of the bill afford a practical and efficient method of restraining the use of the waters above to which the proposed beneficiaries below have right by prior appropriation, of which legal question I am not as well qualified to judge as others in your department. H. R. bill 9710 of the last Congress, the Fifty-sixth, practically the same as the one now before me, was referred to me by the honorable chairman of the House Committee on Foreign Affairs on June 2, 1900, and to avoid needless repetition and undue length to this letter I beg to refer you to my reply on page 358 of the "Incomplete Proceedings of the International (Water) Boundary Commission, having in charge the subject of the equitable distribution of the waters of the Rio Grande," a copy of which has been recently furnished your department. I have stated that I believed this project feasible, as the preliminary investigations have shown, with the bare possibility that the investigation for bedrock has not completely established a certain and secure foundation, and while it is possible there may be a fault, we have determined the existence of bedrock as thoroughly as could be done in a preliminary investigation of that character. Otherwise the project is absolutely feasible. See page 283, the Joint Engineers Report, and page 281, report of the Joint Commissioners, in report of "Incomplete proceedings," etc., above referred to, which report gives a thorough and complete history of the investigations for the past twelve years, with copies of proposed treaties relating thereto, see page 334-4-5, and which taken with what I have stated above will give the department all the information possible for me to furnish on the subject. I have the honor to be, sir, Very respectfully, your obedient servant, ANSON MILLS, Brigadier General, U. S. Army (retired), Commissioner. The Acting Secretary of State to the Attorney General. The Hon. PHILANDER C. KNOX, DEPARTMENT OF STATE, Washington, April 14, 1902. Attorney General of the United States. 2 SIR: I have the honor to enclose1 herewith a copy of H. R. bill No. 13361, relating to "the equitable distribution of the waters of the Rio Grande between the United States of America and the United States of Mexico," authorizing the construction of an international dam and reservoir, etc. I also enclose a copy of the letter of Brig. Gen. Anson Mills, United States Army, retired, in connection with this bill, and to request your opinion as to the provisions of the proposed measure, whether it fully protects the interests and the treaty rights of the United States. SIR: Your letter of April 14 encloses a copy of bill H. R. 13361, to provide for the equitable distribution of the waters of the Rio Grande between the United States of America and the United States of Mexico, and requests my opinion "as to the provisions of the proposed measure, whether it fully protects the interests and the treaty rights of the United States." The bill in its preamble states or suggests the existence of certain facts in respect to the waters and the head waters of the Rio Grande and their use for irrigation and other purposes, and in its first section defines, punishes, and prevents the unlawful appropriation or storage of the waters of the Rio Grande or its tributaries in the Territory of New Mexico. Your inquiry does not, however, relate to the facts set forth in the preamble, as to which I am not fully advised, nor to the offences created and remedies provided by the first section, concerning which, indeed, I could not properly express an opinion, for such matters lie solely within the competence of Congress. The second section of the measure indicates the scope of your question. It provides that "the Secretary of State is hereby re 1 [Enclosure omitted.-Agent's note.] 2 [See ante, p. 432.-Agent's note.] quested to proceed with the consummation of a treaty between the United States of America and the United States of Mexico, whereby the United States of Mexico shall accept the construction of the proposed dam and reservoir [an international dam and reservoir to impound the annual flood waters] with the conditions that the water impounded by it shall be equally distributed between the two countries, as liquidation of all past and future claims for water appropriated in the past or to be appropriated in the future by the citizens of the United States." The bill thus presents a request to you to negotiate and consummate a treaty in the premises. In case the bill should become law, it would rest with your discretion to determine whether you would thus exert your authority and function in foreign affairs, and you would then presumably determine, in pursuing your discretionary powers, what I do not understand to be yet determined, viz, whether or not the United States is legally and justly subject to any such claims on behalf of the Republic of Mexico or citizens thereof on account of waters of the Rio Grande appropriated or to be appropriated by citizens of the United States. I think, therefore, the question invokes your peculiar authority and discretion to pass upon our treaty rights and international interests or obligations, and that at least in the present stage, which merely presents in a proposed bill a possible request to you to take action, the subject is not ripe for my opinion upon the strict question of law. It is true that the opinion of Attorney General Harmon (21 Op. 274) may be viewed as a precedent for an answer to the question you present; but in that opinion a concurrent resolution of Congress had actually been passed, providing for negotiations with the Government of Mexico. Furthermore, a reference to that opinion reveals the fact that the underlying question was the same, and that after careful consideration it was held that the recognition of any claims in behalf of citizens of Mexico for the use of the waters of the Rio Grande for irrigation purposes, so as to deny to inhabitants of the United States such use entirely within its own territory, is inconsistent with the sovereignty of the United States over its national domain. For the reasons indicated, I do not now undertake to examine this subject de novo and on the merits. I know, however, of no essential particular in which the situation is changed from the case as presented to Mr. Harmon, and I should at least be deliberate in expressing any views which would amount to divergence or dissent from the views which he expresses. In order to show both the limits of jurisdiction on this matter as between Congress and the Executive and between the State Department and this Department, |