[Memoranda attached.] M. Romero might be written to in this sense: A draft of convention as proposed would be exceedingly valuable and would probably greatly facilitate subsequent negotiations. But it must be added that in preparing to enter into negotiations the department has found the subject embarrassed by greatly perplexing complications arising out of reservoirs, dams, etc., either already built or authorized through the concurrent action of the Federal and State authorities. Just what legal validity is to be imputed to such grants of authority or in what way existing structures completed or begun are to be dealt with are questions under careful investigation and which must be disposed of before the United States will be in a condition to negotiate. R. O.1 SECOND ASSISTANT SECRETARY, DEAR CRIDLER: This is pen work, and the fullness of the Secretary's note makes a type draft superfluous. SECOND ASSISTANT SECRETARY, A. A. A.2 December 30, 1896. Mr. BLANDFORD: Please take the Secretary's direction. A. A. A.2 The Secretary of State to Col. Anson Mills, Commissioner. DEPARTMENT OF STATE, Washington, January 4, 1897. Col. ANSON MILLS, U. S. A., International (Water) Boundary Commission, Washington, D. C. SIR: Referring to previous correspondence on the subject, I have to inform you that on the 5th of December last the Secretary of the Interior, acting on the suggestion of this department, issued the following order to the Commissioner of the General Land Office: "Your office is hereby directed to suspend action on any and all applications for right of way through public lands for the purpose of irrigation by using the waters of the Rio Grande River or any of its tributaries in the State of Colorado or in the Territory of New Mexico until further instructed by this department." 2 [The initials are those of Secretary of State Richard Olney.-Agent's note.] [The initials are those of Second Assistant Secretary of State Alvey A. Adee.Agent's note.] This order was based upon a request made in your letter to this department October 29, 1896, wherein you recommended that the Secretary of the Interior should "withhold action on all these applications for dams and reservoirs on the Rio Grande and its tributaries in New Mexico "; and it follows your language. The representatives of individuals or companies who have applied for rights of way to build dams and reservoirs for irrigation purposes across the river Pecos have informed this department that the order of suspension has been applied to their applications as well as to those for dams on the upper Rio Grande, and they request the department to withdraw its objection to action by the General Land Office on applications for rights of way in the public lands along the Pecos River. That river flows into the Rio Grande far below the location of the proposed international dam, but before acting on this request I would like to know from you (1) whether you intended that the order of suspension should apply to the Pecos, and (2) whether the building of additional dams on the Pecos will affect the question at issue between the United States and Mexico, or the remedy proposed of storing the surplus water in an international reservoir. To what extent the cutting off of the waters of the upper Pecos in New Mexico would injuriously affect the navigation of the Rio Grande and the rights of the citizens of Mexico under international law and treaty is a question upon which it is hoped your report may also throw light, but I realize that information on that phase of the question may not be so completely at your command as in respect of the relation of the Pecos dams to the proposed international reservoir. As an entirely distinct matter, I desire to know whether the Rio Grande River is a navigable water of the United States within the sense of the constitutional provision giving Congress the power to regulate commerce among the several States (Const., Article I, section 8, clause 3). I will briefly define a navigable river in this sense to aid you in making your report. It is a river which affords a channel for useful commerce. The commercial traffic need not necessarily be carried on in boats or vessels. Waters which are capable only of floating rafts or logs are public highways for that kind of commerce. The navigable condition need not be perennial, but it must recur regularly at stated seasons. A stream which can be used for commercial purposes on extraordinary occasions only is not navigable in this sense. It is not essential that waters in order to be navigable shall afford a continuous passage throughout the entire extent of the stream, but for the purpose in view there must be capacity to float commercial products from one State to another or between a State and a foreign country. The river must be an interstate or an international highway for commerce. The department is aware that the river is not navigable for large craft in the part under consideration; but if the stream in its natural condition be capable of use at certain periods of the year in transporting commercial products by boat or raft, it is a navigable water of the United States and subject to the laws which Congress has enacted or may enact for the regulation and protection of interstate and foreign commerce. It should be remembered, however, that mere capacity to float a log or a boat will not alone make a river navigable. The question is whether the river can be used profitably for the transportation of merchandise. I have been informed that wood is sometimes brought down the river to Ciudad Juarez in flatboats and that logs are rafted or floated down from the timbered lands on the upper river for commercial purposes. The department has no intention of putting upon you the task of deciding the legal question whether this river is navigable, but the above brief expression of the legal requisites for a navigable river is given in order to guide you in your investigation and in the exposition of the facts which are desired. A description of the river in the particular under consideration, with special reference to its actual navigability, is what is wanted. I am, sir, Your obedient servant, RICHARD OLNEY. No. 199. The Secretary of State to the Mexican Minister. DEPARTMENT OF STATE, Washington, January 4, 1897. SIR: I have the honor to acknowledge the receipt of your note of the 29th ultimo in which you state that you are ready to prepare a project of a convention providing for an international dam on the Rio Grande for the equitable distribution of its waters, upon receiving notice from this department. In reply, I have the honor to say that a draft convention as proposed would be exceedingly valuable and would probably greatly facilitate subsequent negotiations. I must add, however, that in preparing to enter into negotiations, the department has found the subject embarrassed by greatly perplexing complications arising out of reservoir dams, etc., either already built or authorized through the concurrent action of the Federal and State authorities. Just what legal validity is to be imputed to such grants of authority, or in what way structures completed or begun are to be dealt with, are questions under careful investigation and which must be disposed of before the United States will be in a condition to negotiate. Accept, etc. RICHARD OLNEY. The Mexican Minister to the Secretary of State. [Translation.] MEXICAN LEGATION, Washington, January 5, 1897. MR. SECRETARY: I have the honor to acknowledge the receipt of your note of yesterday, No. 199, in which you are pleased to state to me in reply to my note of December 29, 1896, that in order that the United States be in a situation to negotiate in regard to the construction of a dam for an equitable distribution of the waters of the River Bravo del Norte, they need first to examine the validity of the concessions made by the Federal Government and the governments of the States for the construction of dams in the said river, and you indicate at the same time that a draft of a convention for that purpose would be useful and would probably greatly facilitate subsequent negotiations. In virtue of that indication, I have the honor to enclose to you copy of a draft of convention that I have made in accordance with the instructions of my Government, in which I have endeavored to recast the recommendations contained in the report of the International Water Boundary Commission of November 25, 1896. I have already submitted this draft to the Government of Mexico, but for the purpose that it may serve as the basis of the negotiation and probably to advance it, I have the honor to enclose to you a copy of the same. At first view the concessions made by the United States in conformity with the report of the mixed commission would seem to be great, but when this matter is examined under all its aspects the importance of those concessions is much lessened, taking into account the following considerations: First, since the lack of water in the River Bravo del Norte at certain months of the year, the inhabitants of the Mexican shore in the part comprehending the district of Paso del Norte have decreased almost 60 per cent, as a population of 18,630 has been reduced to 8,814. Second, that the loss of public wealth in the last 10 years has been $22,840,000 and that of private individuals $12,845,000, the two sums amounting to a total of $35,685,000. Third, that the Government of the United States, and especially the State of Colorado, have obtained great advantages through the use of the waters in Colorado, since the Federal Government has been able to sell millions of acres of lands which are irrigated by the waters of the River Bravo del Norte and its tributaries, and the 1 [Enclosure omitted.-Agent's note.] population of the State of Colorado has increased fivefold in a period of 15 years. Fourth, that the work indicated will profit in equal degree the citizens of Mexico and of the United States. The weight of these considerations is much enhanced if it is taken into account that if the reasons which I have pointed out did not exist and the work were to be constructed by both Governments, the cost of only one-half would be payable by Mexico, so that Mexico receives for the damages suffered by her citizens not the total value of the work but that of one-half. Accept, Mr. Secretary, the assurances of my most distinguished consideration. M. ROMERO. Col. Anson Mills, Commissioner, to the Secretary of State. DEPARTMENT OF STATE. INTERNATIONAL (WATER) BOUNDARY COMMISSION. WASHINGTON, D. C., January 7, 1897. To the honorable the SECRETARY OF STATE, Washington, D. C. SIR: I have the honor to acknowledge the receipt of your communication of the 4th instant, relating to questions of the waters of the Rio Grande and its tributaries, and requesting information as to my intentions in my communication of October 29, 1896, recommending the "withholding action on all these applications for dams and reservoirs on the Rio Grande and its tributaries in New Mexico." 1. "Whether you (I) intended that the order of suspension should apply to the Pecos," and 2. "Whether the building of additional dams on the Pecos will affect the question at issue between the United States and Mexico or the remedy proposed of storing the surplus water in an international reservoir." Regarding the first question, I beg leave to state that I had no intention that the order of suspension should apply to the Pecos. By oversight I omitted to qualify my recommendation by confining it to confluents entering the river above El Paso. To the second, I reply that the building of additional dams on the Pecos will not affect the question at issue between the United States and Mexico, or the remedy proposed, of storing the surplus waters in an international reservoir. |