CLAIM No. 83. Date of Filing.......... PECUNIARY CLAIMS ARBITRATION. THE RIO GRANDE CLAIM. REPLY OF HIS BRITANNIC MAJESTY'S GOVERNMENT. RIO GRANDE CLAIM. REPLY OF HIS BRITANNIC MAJESTY'S GOVERNMENT. NO allegation is made by His Britannic Majesty's Government on behalf of the claimant Company that the decisions of the Supreme Court of the United States constituted a denial of justice in the sense in which that term is used in international law. The claim is included under Class I. of the claims scheduled to the Claims Convention of 1910 as one of the claims based on an alleged denial in whole or in part of real property rights. The basis of the claim against the United States Government is that the Rio Grande Irrigation & Land Company were deprived of the rights to which they were entitled and that this deprivation of rights was effected by the initiation and maintenance by the United States Government of litigation. This litigation was instituted upon the ground that the dam and irrigation project of the Company would endanger the navigability of the Rio Grande River. A second ground of suit was alleged, viz: that the obstruction to the flow of the Rio Grande would infringe the treaty between the United States and Mexico, but at the time when the suit was instituted the United States Government had been advised by its Attorney General that Mexico had no valid claim in law or by treaty to the waters of the Rio Grande, and this view was subsequently affirmed by the Supreme Court. His Majesty's Government maintain that this suit was not initiated with any real and honest intention of protecting the navigability of the Rio Grande. That this is so is shown by the fact that directly a forfeiture of the Company's rights had been obtained upon the ground that the Company had not completed the works within a period of five years, the United States Government proceeded itself to construct a much larger dam on a site in the immediate vicinity of the intended site of the Company's dam. The amount of flood water to be impounded by the Government dam was ten times as large as the amount of water to be impounded by the Company's dam, and consequently the interference with the navigability of the Rio Grande caused by the Government dam must be ten times as large as that caused by the Company's dam. 1793 [10767] B 2 The real purpose of the litigation appears to have been to defeat the Company's scheme, and it is the initiation and relentless prosecution of the suit of which His Majesty's Government complain. His Majesty's Government do not dispute the fact that article 20 of the Act of Congress of 1891 (U.S. Answer Appendix p. 129) requires the completion of the works authorised within five years, but an affidavit (Annex 1) by some lawyers who have been concerned on behalf of the Company in the case is submitted with this Reply and shows that it is not the general practice of the United States Administration to insist on a strict compliance with this provision. When it is remembered that from April 24, 1897 onwards until after the expiration of the five years the litigation against the Company was in progress, the affidavit shows that the filing of the supplemental Bill for the forfeiture of the Company's rights constituted a startling departure from the normal practice of the United States Administration in these matters. The whole process by which the Company was deprived of its right to construct a dam at Elephant Butte and to organise an irrigation system in the Rio Grande Valley is tersely summed up in the phrase used by the Director of the Geological Survey to the Secretary of the Interior in his letter to the Department of the Interior of December 1, 1906,* that the project had been "defeated." His statement a few lines earlier that it is unfortunate that the opposition (to the Company's project) was based upon the navigability of the Rio Grande, and that the river is not navigable at El Paso nor anywhere near that point and that the Department of Justice seems to have been misinformed regarding the probable effect of the waters of the upper river upon the navigability of the lower river is a candid admission that the contentions advanced by His Britannic Majesty's Government in the earlier portion of this Reply are well-founded. It is not contested in the United States Answer that by the approval of the Secretary of the Interior, dated February 1, 1895, to the Rio Grande Dam Company's application and by the operation of the Federal and State laws certain rights were conferred. As the transferee of the American Company, the English Company was [10767] U.S. Answer Appendix p. 523, line 13. e X 44 entitled to the enjoyment of these rights. His Majesty's Government do not dispute that the Government of a country is entitled by appropriate methods and on just terms to eliminate any private rights of which the expropriation may be necessary in the public interest. The methods resorted to in this case were neither just nor legitimate, and His Majesty's Government submit that they give rise to a valid claim for compensation on behalf of the English Company. The Answer of the United States Government imposes upon Mr. Olney, the Secretary of State of the United States in the year 1896, the responsibility for initiating the campaign against the Rio Grande Company upon the ground that its dam and irrigation scheme would interfere with the navigability of the Rio Grande river (see pp. 20 and 21). The contentions of His Majesty's Government are based upon action taken by and in the name of the United States Government, and the personality of the official or individual who induced the United States Government to act is not really material to the matters in issue. It is true that the British Memorial was prepared upon the assumption that it was General Anson Mills who had conceived the ingenious idea that the dam scheme of the Rio Grande Company could be defeated upon the ground that its erection would impair the navigability of the Gulf section of the Rio Grande river, and the passage from General Anson Mills' letter which is quoted at bottom of page 25 and the top of page 26 of the American Answer would seem to bear out this view. His Majesty's Government are, however, quite content to accept the statement of the United States Government that it was the Secretary of State, Mr. Olney, himself who first suggested the idea, As regards the general propositions advanced in the American Answer in the paragraph on p. 28 entitled "The motive for the suit versus the ground for the suit, His Majesty's Government can only join issue thereon. They maintain that no rule or principle of international law justifies the Government of a country in which a foreign person is endeavouring to exercise lawfully |