San Francisco and the Hetch Hetchy reservoir. Hearing held before the committee on the Public Lands of the House of Representatives, December 16, 1908, on House Joint Resolution 184 - Part VI.
IN CONGRESS FROM THE STATE OF CALIFORNIA.
Mr. Needham. Might I be heard on this for a moment, Mr. Chairman?
The Chairman. Mr. Needham, we would be very glad to hear from you.
Mr. Needham. I do not come here to oppose the purpose of this legislation, but I want to be sure that the resolution itself accomplishes no more than the purpose stated. My interest in this matter is that I have lived for twenty years on this stream, in the Modesto irrigation district, and not only as a resident of that district, but representing that portion of the State in the House of Representatives, I think it is my duty to be sure that the grant which was made last spring, and which is satisfactory, on the whole, to those interested, is not enlarged. This being an act of Congress subsequent to the time the grant was made, it would enlarge the grant if it should be so construed. It seems to me there is no provision in the resolution that places the parties in the same position that they are before this resolution is passed, and therefore it seems to me there should be added a proviso to that effect, making clear that if the reservoir is not constructed the lands should revert to the respective parties, because I fear that the courts might construe, notwithstanding the powers of the Secretary of the Interior to make the grant, that this, being a subsequent act of Congress, would supersede and modify, because, Congress being superior in these matters, the action might be held by the courts to have that effect, and in view of the fact that the parties here have stated before the committee that that is their purpose, it seems to me there could be no objection to putting such a proviso in the bill.
Mr. Volstead. Let me ask, if you will excuse me for interrupting you, is the contract that is spoken of existing between the city and the National Government; is there such a thing?
Mr. Needham. That is the grant or revocable permit which has been referred to here several times this morning.
Mr. Volstead. To what extent does that permit go?
Mr. Needham. That is a permit under the act of February 15, 1901, or rather a grant by the Secretary of the Interior, giving these rights of way in the national park upon certain conditions. The city having entered into these stipulations, that grant is now in existence. The only purpose I have is to be sure that this bill does not enlarge the terms of the grant, and I am inclined to think that it does.
The Chairman. The committee would, of course, very carefully consider the language of the legislation before passing upon it. Mr. Needham.
Mr. Needham. That could be easily remedied by simply inserting a proviso placing the parties in the same position they are now.
The Chairman. My own idea at this time is that it might be differently and more briefly expressed, and provide that no exchange should be made until the Secretary was satisfied that the city was prepared to go on. However, you will notice that this proviso is to the effect that the patent shall not be a fee in all respects; that it still gives the Secretary the control over the whole land until the reservoirs are built. The committee, however, might conclude that it would be better to provide that the transfers might be made when the city of San Francisco satisfied the Secretary that they were ready to go on with the work.
Secretary Garfield. I might suggest, in connection with that, that there be a provision there to the effect that this measure does not in any way increase or enlarge the grant or the power; it is merely for the purpose of carrying into effect the provisions. That might meet the suggestion made, because, as I understand it, it is not the intention of the city, and certainly not the intention of the department, that there should be additional power granted.
Mr. Volstead. It seems to me that if this resolution passes it practically supersedes the arrangement made. That is absolutely a fee without any condition or qualification.
The Chairman. To a limited amount of land. However, if they had this fee provided in the resolution as it now stands, you will note it would not be possible for them to build storage reservoirs to impound water without the consent of the Secretary of the Interior, because that can not be done on lands now, even if the party owns them himself.
Mr. Needham. There is no revocable clause at all in this resolution. The simple provision is that the public shall have the use and enjoyment of the Yosemite National Park as far as the rights of the said city and county under said permit are concerned-
That is practically the only provision. There is a grant in fee simple of the land, and then the further proviso that if the reservoir is not built they shall have the free use and enjoyment of this land. There should be a revocable clause, in my judgment, in this bill to completely accomplish what it is intended this legislation should accomplish.
The Chairman. As I understand, Mr. Needham, you would have no objection to legislation whereby the city should acquire fee title to the lands which it submerges in that valley?
Mr. Needham. Provided it is used for that purpose.
The Chairman. Which it submerges?
Mr. Needham. I think it should go further than that. They must carry out the terms of the grant. They might submerge the land and then do nothing further, and then there would be a vast reservoir that would not have any public use. Of course, it would be of advantage to us to have that reservoir built and then abandoned, but of course they would not do anything so foolish as that.
The Chairman. What you think is, if the city of San Francisco builds a reservoir costing many millions of dollars, they would make use of it?
Mr. Needham. That is it. I have a telegram here from the attorney of the Modesto irrigation district, which reads as follows:
Would like preamble resolution first paragraph recite grant to have been upon conditions. In case reservoir not constructed, patent to city should not be absolute, if possible. No serious objection, however.
Mr. Needham. I think that is a bad form of legislation.
Mr. Craig. Have plans for these works-
Secretary Garfield. They have been submitted, but not approved. All those matters will be subject to further consideration. The plans that have been presented are of the engineering character, showing the probable method of construction, but they have not as yet been approved.
The Chairman. Mr. Hayes, would you like to be heard by the committee?
Mr. Hayes. I just want to make one suggestion, which perhaps is not necessary, but it seems to me that the suggestion of Mr. Englebright is quite unreasonable, that the city should be expected to spend a lot of money in a waterworks system without having a fee title of some kind. Every attorney knows the difference between an easement and fee-
Mr. Smith. Every railroad in the United States has been built on an easement, and they never have any difficulty in selling their bonds.
Mr. Hayes. The railroads that go by me own their land in fee simple, and every railroad company that I have ever had anything to do with always buys its land in fee simple.
The Chairman. Allow me to suggest, however, gentlemen, that that is a distinction without a difference. I suggest that the Government shall give back to these people all the lands they have, and then we should grant them the same kind of an easement that is granted under the right of way, which would be satisfactory. They would as absolutely control then as they would control under a fee, and it would require a considerable amount of legislative detail and administrative detail to accomplish what we accomplish by this very simple process by giving them the same kind of a title that they now have to a minor portion of the reservoir and the balance of it. Is that not a simpler way, and really it amounts to the same thing?
Mr. Hayes. My limited experience as an attorney leads me to conclude that an easement is a very different proposition from a fee-
Mr. Smith. There are other water projects offered to the city of San Francisco.
Mr. Hayes. Yes; but not adequate. I know of some propositions, and they are neither adequate nor is it clear that they would be able to bring the water to the city.
Mr. Kahn. In the matter of easement, I would like to remind the committee that the city of Salt Lake procured an easement for the construction of water pipes through the military reservation at Fort Douglas, bonds were issued by the city for the purpose of constructing its water supply, and it was impossible to sell its bonds because of this easement, and in the first session of this Congress the Congress gave the city of Salt Lake a fee to the land occupied by the pipe line.
The Chairman. That is entirely correct, Mr. Kahn, except that the permit that the city had to cross Fort Douglass reserve was not an easement but a permit. It was very similar in character to the permit under which these people are now operating and equally unsatisfactory.
Mr. Kahn. They could not sell their bonds under that permit.
Mr. Craig. Do you mean to say that you can not condemn an easement sufficiently to build whatever you want to build and pay for that easement, and that easement belong to the reservoir concern, or whoever proposes to do this pipe work? Of course it could do that. You need not condemn the whole fee to do it, but you can absolutely own the easement.
The Chairman. The chairman wants to submit, to go into the record, a letter from the American Civic Association, of four pages, signed by its president, J. Horace McFarland, in which he energetically protests against the committee doing anything that will deprive the public of the use of the upper reaches of the Tuolumne and that general region, and I put it in the record. I simply want to make the suggestion that that is a matter which this legislation does not directly affect, but it is a matter that has already been determined by the Secretary of the Interior, in the granting of the permit, that a permit having been granted to the city to build this reservoir, the question as to whether or no the city may use the valley for reservoir purposes is already determined, and therefore the matters referred to in the letter do not directly relate to the proposed legislation.
(The chairman submitted the following letter:)
Frank W. Mondell,
Dear Sir: On behalf of the American Civic Association I wish to urge the most careful and intimate consideration of the problem before you in connection with a hearing on Wednesday of this week, to be given to officials of the city of San Francisco, in advocacy of the bill to confirm a grant made by the Secretary of the Interior to that city for the use of Lake Eleanor and the Hetch Hetchy Valley of the Yosemite National Park
While much evidence in favor of this grant has been brought before the Secretary of the Interior, I do not know that there has ever been any call for evidence as to the effect of the grant on the general interests of the American public as the owners of the Yosemite National Park.
I respectfully urge upon your committee the consideration of the fact that the United States has now all too few reservations of a public nature, supposedly to be held as public parks; that of these the Yosemite National Park is esteemed to be among the greatest; and that once passed from its possession it is practically impossible to regain these areas for public use. I would urge that our increased population makes more necessary advance provision, in the wisdom of the Federal Government, of broad areas for recreation and the regaining of health through access to the wonders of nature. I would also urge that the Yosemite National Park is unique and that no portion of it can be spared to any use unless that use benefits the whole public.
The statement has been made that the creation of a lake in the Hetch Hetchy Valley to promote the interests of the city of San Francisco by impounding therein a great volume of water would add to the scenic beauty of the valley; but it is also known that the flooding of this valley would make such beauty, if so created, inaccessible. Moreover, I would respectfully insist that any claims made by any parties whatever to the effect that a public reservoir, to impound waters for domestic uses, should be allowed to be open to indiscrimate travel, is based on complete ignorance of modern methods of proper safeguarding of the water supply. If this valley is given up to San Francisco it must be utterly given up, and any suggestions as to its accessibility to tourists should be taken into consideration with the fact that such accessibility would introduce the danger of contamination, and make a remedy for San Francisco's supposed loss in the matter of a water supply worse than the difficulty which has caused those ills.
Moreover, if this valley is given up for this purpose, whether or not it is so stated, inevitably in the future all the tributary watershed supplying the water impounded must be given up to the purpose of the water supply of the city of San Francisco, and therefore must be removed completely from public use. Any other treatment would be suicidal and wrong, and I beg of you not to be deceived by any statements which may be made by those either unfamiliar with the circumstances or who do not realize the necessities of a modern city water supply, to the purport that the creation of the proposed reservoir will do other than withdraw this great portion of the public domain from the public use to which it was once dedicated by Congress.
If it should be found that San Francisco can not have a water supply anywhere else than in the Hetch Hetchy Valley which will properly serve her purposes, and if, in the belief of your committee and Congress, it is more important for San Francisco to have the Hetch Hetchy Valley than for the whole country to have the Hetch Hetchy Valley, then the grant should be confirmed, but under no specious suggestion of a possible increase in picturesqueness or of any possible dual use of the location for both reservoir and the purpose to which it was once set aside by Congress.
For the above reasons I now again urge the fullest and most careful consideration of the matter, with an invitation to others than the citizens of San Francisco to participate in the hearing, so that the truth may be fully brought out. I would suggest that various associations concerned with the protection of American scenery be invited to attend a hearing arranged for the purpose, and among these I would name the Appalachian Mountain Club, of Boston; the American Civic Association, of Philadelphia; the Sierra Club, of San Francisco. I would suggest further that citizens who have knowledge of the conditions be likewise invited, and among these I would name Richard Underwood Johnson, the associate editor of the Century Magazine; John Muir, the eminent naturalist; and others whose great achievements and high reputation place their motives above criticism.
With the hope that the Committee on Public Lands will not deem it wise to favorably report the approval of the grant until after full public opportunity has been offered to present all the facts, apparently not now completely made known, I am,
Very respectfully yours,
Secretary Garfield. It should be perfectly clear that this does not increase the purpose of the grant, that it should be definitely provided for.
The Chairman. The Chairman wants to make this suggestion, in view of the importance of this matter and the fact that a number of suggestions have been made relative to the form of the legislation, that it might be well for the committee, if in their wisdom they deem it wise and proper, to have a subcommittee appointed to prepare and report to the committee legislation on the subject, either the resolution as it stands, or with amendment, or some different form.