With reference, however, to certain telegrams which have been sent to Members of the House and Senate purporting to come from chambers of commerce of various San Joaquin Valley towns who are in nowise interested in or affected by this project, asking that the city be required to furnish them with hydroelectric power at cost as a condition of the grant, it is submitted that these requests are both unfair and impossible of fulfillment. In the first place, none of these towns have invested or ever will invest one dollar in this project; they are not asked for any concessions; their request is for a sheer gratuity which some of the more ingenious members of their councils doubtless thought that San Francisco could be compelled to give. In the second place it is extremely problematical whether after having developed the maximum power that can be derived under this project the city will ever be able to supply more than the needs of the bay cities and the Modesto-Turlock district. Under such circumstances it is contended that these demands are unwarranted and should not be granted. POSSIBLE ALTERNATIVE SOURCES. While the city's engineers and the Army board made independent investigations of all alternative sources of supply which gave any promise of availability, the only ones which by any course of development could be made adequate are the four enumerated on page 50 of the Army board's report and by Col. Biddle in his testimony before the House committee. (Transcript, p. 56.) These are: (1) The Eleanor-CherryStanislaus-Mokelumne source, (2) the American-Cosumnes-Stanislaus-Mokelumne supply, (3) the McCloud River, (4) the Sacramento River. Very briefly we submit the fundamental and we believe insurmountable objections to each of these sources as compared with the Tuolumne. (1-2) Each of the first two alternative projects is subject to the same objections as the Hetch Hetchy project in that they take water which some of the irrigationists have claimed will be ultimately needed for development of the San Joaquin Valley. As Hetch Hetchy is eliminated as a reservoir site, it is probable that the objections of the nature lovers would be removed, although Lake Eleanor is in the Yosemite Park. From the city's standpoint the great objection is the almost prohibitive increase in cost, coupled with a much smaller power yield. Whereas the total power development of the Hetch Hetchy project is 115,000 horsepower, the maximum yield from the first alternative source is but 95,000 horsepower and from the second alternative source but 62,000 horsepower. Owing to the necessity of purchasing outstanding water rights and building numerous dams either of these projects would cost at least $20,000,000 more than the Hetch Hetchy, an increase which makes them practically impossible of acquisition without serious injury to San Francisco's credit. (Testimony Col. Biddle, transcript, pp. 56-59.) This river (3) The McCloud River has been examined as an alternative_source. rises at the foot of Mount Shasta and joins the Sacramento near its headwaters. While the river carries at present an ample supply of water of good quality, the following objections are deemed sufficient to preclude its adoption by San Francisco: First, its great distance from the city, over 250 miles; second, its waters will eventually be required for the irrigation of the Sacramento Valley (testimony Col. Biddle, transcript, pp. 60, 61); third, the prohibitive cost (testimony O'Shaughnessy, transcript, p. 150); fourth, the impracticabil.ty of developing any hydroelectric power from this source. The great length of aqueduct would involve nearly twice the initial outlay that is proposed for the conduct of water from the Hetch Hetchy source. It is a financial impossibility for San Francisco to undertake this project for many years to come, and she needs the water now. (4) As a fourth alternative it has been proposed that the city pump water from the Sacramento River and filter it. This project contemplates the establishment of a pumping plant near Antioch, filtration reservoirs, and a conduit through which the water could be pumped to storage reservoirs. Even if it be conceded that the sentimental objection to the use for domestic purposes of water taken from a river into which the sewage of every valley town finds its way is without foundation and that filtration would make the water fit for use, a question which is by no means und sputed (see statement Mr. Newell, transcript, p. 49), there remain very serious objections to this source: First, the heavy operating cost of such a system; second, the impossibility of generating any power through its use; third, the probab lity that irrigation needs within the next century will withdraw so much water from the upper Sacramento that the high tides of the bay will mingle with the stream below Sacramento and render it unfit for use. (Testimony O'Shaughnessy, transcript, pp. 150, 151.) There are also engineering difficulties to be met with in both the McCloud and Sacramento projects, in that the water would have to be brought under the Carquinez Straits in the case of the McCloud source, and under San Francisco Bay from either source, to reach the city, unless an exceedingly long and expensive detour were made to the east. We have the further serious question raised by Col. Biddle in his testimony before the House committee (transcript, p. 55) as to whether the withdrawal of large quantities of water from the Sacramento or its tributaries would not eventually impair the navigability of the river, a question which does not arise in the case of the San Joaquin, as it is not navigable above the city of Stockton anyway. The foregoing are the principal objections raised to the only alternative sources which either the civil or Army engineers found would furnish an adequate supply of water under any degree of development. None of them is as satisfactory as the Hetch Hetchy source; they all entail a tremendously increased investment, and at least one of them—the Sacramento project-promises to become an ultimate failure if adopted. CONGRESS HAS THE POWER TO IMPOSE THE CONDITIONS CONTAINED IN THIS GRANT. The question has been raised at the hearing on this bill that Congress is exceeding its powers in imposing the conditions set forth in this grant. This idea doubtless arises from a mistaken apprehension that Congress is being asked to legislate upon matters which are distinctly within the jurisdiction of the State, under guise of inserting it as a condition in a grant. Such, however, is not the case. The United States in making this grant to the city of San Francisco is not acting in its governmental capacity or exercising governmental powers. It is acting purely as a landowner disposing of its domain upon such conditions as it sees fit to a grantee who accepts those conditions and is bound by them as a matter of contract, not as a matter of statutory regulation. The authority of Congress over the public lands is granted by section 3, Article IV, of the Constitution, which provides that 'the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. In other words, Congress is the body to which is given the power to determine the conditions upon which the public lands shall be disposed of. The Nation is the owner and has made Congress the principal agent to dispose of its property." (Butte City Water Co. v. Baker, 196 U. S., 119, 126.) Judge Lindley, in his work on Mines, section 80, speaks of the Federal Government as the "absolute owner" of the public lands, with the power to "sell or otherwise dispose of them absolutely or conditionally, and prescribe the terms and conditions under which private individuals might acquire permanent ownership or the right to temporary enjoyment.' In support of this contention are cited: Gibson v. Chouteau (13 Wall., 92, 99), where the Supreme Court said: "With respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the persons to whom the transfer shall be made. No State legislation can interfere with this right or embarrass its exercise.' United States v. Gratiot (14 Pet., 526, 527): This case arose over the lease of a lead mine to the defendants. The lease contained a great many clauses fixing the terms of the lease and the royalties to be paid to the Government. In a suit brought by the United States on defendant's bond, a demurrer was interposed whether Congress had acted within its powers in authorizing the President to make such a contract. In upholding the validity of the contract and bond the Supreme Court said: "The Constitution of the United States (Art. IV, sec. 3) provides, 'That Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' The term 'territory' as here used is merely descriptive of one kind of property and is equivalent to the word 'lands.' And Congress has the same power over it as over any other property belonging to the United States; and this power is vested in Congress without limitation, and has been considered the foundation upon which the territorial gov ernments rest. Note the words "without limitations." The conditions may thus be imposed for the benefit of the whole country or any part thereof. Black v. Elkhorn Mining Co. (163 U. S., 445, 448): "Being the owner of the lands, the Government could of course impose its own terms upon which to grant any right, whether of possession or of purchase." Light v. United States (220 U. S., 523): This was a suit by the United States to enjoin the grazing of stock on public lands in breach of the regulations of the Department of Agriculture. The validity of the regulations as being an infringement on State rights was attacked by the defendant. The Supreme Court held, after citing with approval Butte City Water Co. v. Baker, supra: * * * "The United States can prohibit absolutely or fix the terms on which its property may be used. All the public lands of the Nation are held in trust for the people of the whole country. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine. * * * "These are rights incident to proprietorship, to say nothing of the power of the United States as a sovereign over the property belonging to it." There can be no question but that the foregoing cases established the right of Congress to impose such conditions as it sees fit upon a public grant. In the bill now before Congress it is asked to grant to the city of San Francisco valuable reservoir sites. As a condition to such grant it has been thought best to provide for the future protection at San Francisco's expense of the natural scenery of the Yosemite Park in the vicinity of Hetch Hetchy Valley, and for the present and future irrigation needs of the San Joaquin Valley. If, in the mind of Congress, these conditions are wise, and it sees fit to enact this grant with such conditions attached, then in accepting the grant the city of San Francisco accepts the conditions and is bound by them as a matter of contract. If the city should ever attempt to repudiate the conditions its case would not be as strong even as that of a street railway company which accepted a franchise and later attempted to repudiate the conditions thereof on the ground that they were not within the powers of the municipality which granted it. The court held: "Even though it might be held that the condition upon which the permit or license was granted to the defendant railway company was ultra vires, the city not having the power to impose it, nevertheless the ordinance having been accepted by the company with the condition attached, agreeing thereby to perform it, it became a valid contract between it and the city, the validity of which the defendant is now estopped to deny." (Chicago General Ry. Co. v. Chicago, 176 Ill., 253.) PRECEDENTS. A grant of this sort, with various conditions requiring affirmative performance by the grantee is far from being without precedent in congressional annals. Congress has required a grantee of a permit to build a dam for water-power purposes to build fishways for protection of fish in the stream. (Act of June 21, 1906, 34 Stat., 386; act of Apr. 23, 1906, 34 Stat., 130.) It has required the grantee in a similar permit to furnish to the Government light and power and electric current free of cost. (Act of Mar. 4, 1907, 34 Stat., 1288; act of Apr. 26, 1904, 33 Stat., 309; act of June 29, 1906, 34 Stat., 628.) All power permits granted by the Forestry Department under authority of the act of 1901 are subject to payment of royalties to the Government by the permittee, and to various other terms and conditions. On the authority of the foregoing cases and precedents, it is submitted that there can be no question as to the power of Congress to impose the conditions set forth in the Hetch Hetchy bill. HETCH HETCHY AND THE CONSERVATION POLICY. In the foregoing paragraphs we have attempted to review in a concise manner the different features of the bill now before Congress and to show briefly why each of the several conditions was inserted, and what it is expected to accomplish. In conclusion we desire to survey the measure as a whole and demonstrate that it is wholly in accord with the great policy of "conserving the natural resources," to which this administration is committed. "Conserving the natural resources." What does this phrase mean? Does it mean to lock up our forests and power sites and mineral deposits until some future time, for the use of posterity, without regard for the needs of the present generation? Or does it mean to so regulate the development of these resources that they may be put to the greatest beneficial use, may yield the maximum economic return for all the people of all generations? We incline to the latter view as being that of the Nation's leaders to-day. Applying the "conservation" policy as above interpreted to the Hetch Hetchy project, we have to consider three classes of people to be affected: (1) The population of the San Francisco Bay communities, present and future, who sorely need water for domestic purposes; (2) the population of the San Joaquin Valley, present and future, who have irrigation interests and prospects to be protected; (3) the constantly growing number of people from all over the country who seek rest and recreation in the great Yosemite Park. How can the Hetch Hetchy Valley be developed so as to yield the maximum benefit, not to any one class of people, but to all classes? This has been the thought constantly in the minds of the legislators who have thus far considered it. The Secretary of the Interior, Secretary of Agriculture, Director of the Reclamation Service, Director of the Geological Survey, Hon. Gifford Pinchot, and Col. Biddle, president of the Board of Engineers, all examined the bill from this standpoint and testified before the House committee as to their approval of it in its present form. We quote briefly from their testimony given at the hearing before the Public Lands Committee of the House of Representatives. Secretary of the Interior Franklin K. Lane gives as his opinion (transcript, p. 21): "In my judgment, the permission desired by the city and county of San Francisco to secure water from the Yosemite National Park for municipal purposes, etc., should be accorded. The communities on San Francisco Bay constitute the largest center of population on the Pacific coast and are urgently in need of an adequate supply of pure, wholesome water for domestic consumption and for fire protection. Secretary of Agriculture Houston concurs (transcript, p. 22): "I examined the first draft of the bill that I saw and have examined this proposed bill, and I am in hearty accord with what the Secretary of the Interior says as to the general features. So far as the Department of Agriculture is concerned, I think that all of the interests of the Government are safeguarded in the bill.” Director George Otis Smith, of the Geological Survey, stated to the House committee (transcript, p. 35): "Hetch Hetchy Valley must eventually be made into a reservoir. Now, I believe it can be stated that the sooner that dam site is actually used-the sooner that reservoir is used the better, under the plan as set forth in the provisions of this bill." Mr. Henry S. Graves, Chief Forester, Department of Agriculture, expressed himself as thoroughly satisfied with the bill. (Transcript, p. 42.) Mr. Frederick H. Newell, Director of the Reclamation Service, stated (transcript, p. 45): "We are now fully aware that the ultimate development of the city of San Francisco will require the use of this reservoir site." Col. Biddle, president of the Army Board of Engineers, gives as his conclusions (transcript, p. 64): "There is no question in my mind that the Hetch Hetchy is the best water supply for San Francisco, and that it is the most economical that can be obtained; it can be obtained more promptly, and is better in every way." Gifford Pinchot, whose familiarity with the conservation policy of the Government is well known, stated his views as follows (transcript, p. 25): "The fundamental principle of the whole conservation policy is that of use, to take every part of the land and its resources and put it to that use in which it will best serve the most people, and I think there can be no question at all but in this case we have an instance in which all weighty considerations demand the passage of the bill." The development of the Hetch Hetchy project in the manner now proposed represents the highest beneficial use to which this magnificent dam site could be put. The domestic needs of more than 700,000 people, a population which Prof. Marx, of Stanford University, estimates will be 3,000,000 by the end of the century, will be served with pure cold water. The irrigation needs of all that part of San Joaquin Valley which is reasonably tributary to the Tuolumne will be adequately protected for all time. A comparatively inaccessible portion of the beautiful Yosemite Park will be made easy of access to the nature-loving public. The largest possible amount of hydroelectric power is to be developed and distributed to the parties directly interested, making possible a higher development of agricultural and municipal resources. The Government will receive a handsome revenue from the annual rentals, which is to be devoted to further improvement of the Yosemite Park. This is indeed true conservation. The sole uncertainty which has been presented is whether, if every drop of water in the Tuolumne River is conserved, there will not some day be a shortage in water for the needs of portions of the San Joaquin Valley not protected by this bill, and which might by the construction of expensive irrigation works ultimately use it. What the rainfall in California will be during the next hundred years we can not accurately predict. If it is going to prove insufficient for the needs of all the people of the State, then it will have to be pro rated. But, as Mr. O'Shaughnessy pointed out to the House committee in his testimony (transcript, pp. 151, 152), the irrigationists have not demonstrated that there is likelihood of shortage, as they have not yet begun to use the natural sites available for storage dams on adjoining rivers, such as the Merced, and much water is annually going to waste. The objections which have been put forward so earnestly by the opponents to the measure from irrigation sections are objections which go to every single source of supply which has been proposed for San Francisco. They have not been forced upon the committee by citizens and chambers of commerce from sections of the State adjacent to other sources, because San Francisco is not now seeking to use those sources. Let her seriously undertake to use the Mokelumne or the McCloud or any other source except possibly the lower Sacramento, and the cry will come just as loud from the citizens and chambers of commerce of those districts. And with respect to the lower Sacramento it has been already shown that the advance of the tidal stream resultant upon the withdrawal of water for irrigation is going to render that source unfit for drinking purposes within the century, and that the withdrawal of quantities of water for municipal purposes in addition to that needed for irrigation may interfere with navigation. The question still remains, Is the ever-growing urban population of the bay cities to be deprived of pure water-a real, present, necessity of life-in order that a few acres of arid land får distant from any river may some day receive intensive cultivation? We can not think that true conservation dictates such a policy. Perhaps the only true answer was the suggestion made last fall to Secretary Fisher by an ardent nature lover, that San Francisco might use the waters of the Pacific Ocean, but we trust that Congress is not going to limit the city to that supply. NEED FOR PRESENT ACTION. Many attempts have been made by opponents of this measure to delay action until the December session. We submit that nothing can be gained by delay. Every possible objection that can be raised to the acquisition by San Francisco of the Tuosupply has been raised during the past 10 years. They are to be found set forth in full in the transcript of the proceedings before Secretaries Ballinger and Fisher and before the House committee at this session. The answer to them is in the report of the board of Army engineers-San Francisco is willing to submit its case on that alone. But San Francisco urges immediate action. Her people need water, and the need grows every year. Her growth is restricted because outlying districts can not be supplied. The Spring Valley Water Co. is not only refusing to make extensions and take on new consumers, but is advertising to its present customers that a water famine is imminent, and that they must use water economically. If action is had now on this bill a whole year will be saved; the city can go to work at once on this project. If action is delayed until December the winter's snows will make it impossible to do any work until next summer. A year's delay may have serious consequences. Nearly 1 per cent of the people of the United States are petitioning this Congress for relief. They trust that their petition will not go unheard. Respectfully submitted. (Population, 425,000.) PERCY V. LONG, City Attorney, City and County of San Francisco. In behalf of our respective municipalities who expect to share with San Francisco in the benefits of the Hetch Hetchy project, we join with the city attorney of San Francisco in the above brief and petition: Ben C. Woolner, city attorney of Oakland.. Total population of bay cities.. 206, 000 45, 000 2, 900 27,000 5,000 3,500 3,000 10, 000 3,500 3, 471 734, 371 о |