Written by Sig Silber
The U.S. Supreme Court Case of Texas v. New Mexico and Colorado involves a number of issues but there would be no dispute if the Rio Grande Compact and the Rio Grande Project did not exist. A document which was instrumental in the creation of the Rio Grande Compact written by Ottamar Hamele, special attorney for the Reclamation Service, was found last year and this article attempts to present the information in this document in a way that readers can understand its importance.
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A. An attempt to present the contents of the Hamele Report.
I have tried to be as accurate as possible. Later in this article, I provide a link to the copy that resides in the files of the Eighth Circuit Court and I have also provided a link to a copy of the report that is on-line at the University of New Mexico. So anyone who does not like my approach to summarizing a long document can access one or the other of the copies and just read it. I found it difficult reading even though the author is a good writer. But it covers a period of time when a lot happened and the Exhibits are mainly letters which can be condensed into who wrote to whom and what the message was which often was instructions on what action to take. The letters were referred to in the text of the report and I have provided those linkages in the table where I summarize the discussion part of the Hamele Report. It is an important report and I have attempted to make it a ten or fifteen minute read rather than a two-hour read. I probably read the document ten times taking copious notes to create the tables in this article. In some cases, the author omitted the names of people who sent or received letters showing only their position in our Government, and in such cases, I researched who the person would have been and added that information in the tables I created.
Not mentioned in the rest of this article is that Ottamar Hamele, who was an attorney working for the Department of Reclamation, later rose to become their Chief Counsel and is the author of many other articles and books in particular related to the Colorado River. So anyone interested in the water history of the West should become familiar with the writings of Ottamar Hamele. This is not History 101 but History 801. Ottamar Hamele did the heavy lifting. I have just created a study guide to what Ottamar Hamele wrote.
This map shows the area that is impacted. It is a modern-day map.
It does not show too much but it does show the borders between New Mexico, Texas and Mexico. Part of the dispute back then was where to build a dam, a dam that everyone agreed was necessary. Some wanted the dam built on a part of the river south of New Mexico. There were questions as to the ability to build a dam there as the river was not very wide. Others wanted to build the dam in New Mexico. That approach prevailed but not before there was an attempt by a private company to build such a dam. In this article, I will present some evidence that the private company may have partially succeeded in which case the U.S. would have needed to employ eminent domain to seize that dam and compensate the investors. For reasons that are unknown, the Federal Government was dead set on not compensating the investors (probably an amount in the range of $500,000) and that dispute continues until this day. $500,000 at that time is equivalent to a much larger sum today.
By building the dam in New Mexico, a different problem was created namely the equitable distribution of the waters below the dam to users in New Mexico and Texas. It is very unusual for an arrangement between states, often called a compact, to have the dividing line be not on the border but within one of the states. At a minimum that creates accounting complications. In this case, the problems go way beyond account complications since at the time when this agreement was created, there was little if any use of groundwater, and the connection between groundwater and surface water was either not fully understood or not considered important. It definitely is important relative to the dispute between Texas and New Mexico.
The dispute has been going on for a long time. You can read about it here. There is a related dispute in the New Mexico State Court District 3 and information on that can be found here.
It may sound outrageous to say this but many principles of Western Water Law were determined in the earlier cases related to the U.S. versus the Rio Grande Dam & Irrigation Company and some of those decisions could be impacted by what happens in this case. There are other cases before the Supreme Court and winding their way to the Supreme Court which could decide some of the issues that are in play here including:
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This article relates to a historical document that was at one point accepted by the U.S. Supreme Court and then ignored and removed from the file that applies to this case. I am not aware of the specific reason this historical document was removed but in disputes among states, the Supreme Court is very reluctant to have entities other than States participate so I suspect that this report which was not entered by any of the parties to the dispute was removed for that reason. We all know that reading is laborious. But it might have been useful to read this report. Perhaps if I had published this article sooner it would have made it easier for the appointed Special Master to read the report. But then again he may have read it and not liked it.
The report consists of a discussion and a lot of exhibits which are mostly letters that support the discussion. I will highlight important parts of the discussion later but I am starting by summarizing the Exhibits in the Hamele Report. If nothing else, you will get a history lesson about that period of time. It could come in handy for crossword puzzles. Here is the table I created from the Exhibits. There is a row in the table for each Exhibit.
Key Legislation, Reports, and Court Decisions referred to in the Report.
The above summarizes the discussion in the text but there were certain sections that were interesting but too long to summarize so I present them now. I apologize if some are skewed or otherwise a bit difficult to read but remember this was a typed version, it looks like the first page or two was a carbon copy (poor collating) and someone took images of this document and may not have held the camera straight if it was a camera that was used to make the images or did not put the document flat on a scanner if that was how it was done. I could have made them look better but with my software tools, you lose resolution when you work with a document so it is actually easier to read these as I have them.
An important question is whether there was a completion of any part of the Rio Grande Dam & Irrigation Company Project before the five-year period specified had expired.
I submit four newspaper articles and leave it to the reader to draw their own conclusion. It kind of looks like a section of the project was completed and perhaps damaged by a flood that year and rehabbed. It is not that easy to find things in these old newspapers. The condition of the scanning of the newspapers into archives varies often page by page. Fort Selden is another name for Leasburg. Curiously, my life partner and I looked at property in that area when we looked for property in New Mexico but did not find the property which was for sale appropriate but ended up here near Santa Fe. We did have a bite to eat at a local hangout place. I am not sure if that bar and grill remains open. The property we were interested in was just to the north along the west side of the Rio Grande. It was clear to us that when Elephant Butte released water, we would not have access (by vehicle) to that property so that ended that. I knew nothing about the dispute that this article is about at that time.
Excerpt from a Frank Burke Letter to President McKinley
Source: The April 29, 1897 El Paso Times Article
But I also found this:
I found this in the April 27, 1897 El Paso Herald.
And then
B. Key Decisions by the United States reported in the Hamele Report as interpreted by the author of this article (Sig Silber not Ottamar Hamele) in the process of eliminating the Rio Grande Dam & Irrigation Company.
September 12, 1889 Mexico expressed its upset with their water situation and U.S. decides that Storage is needed to capture flows. |
U.S. is informed that the Treaty of Guadalupe Hildago does not prevent unlimited upstream uses of water for irrigation. Nevertheless, The State Department apparently took the position that the United States was under a moral obligation to make good the depleted water supply of the Mexican Lands |
U.S. Secretary of State decides that there is a need to investigate the rights of the Rio Grande Irrigation and Land Company and to declare an Embargo on the Rio Grande to prevent the construction of new storage dams until a solution to the problem is figured out. State Department requests the Embargo and the Secretary of the Interior orders the General Land Office to declare it. |
There is an attempt to use the Navigation Argument to remove the Rio Grande Dam and Irrigation Company but the U.S. is informed that prior grants of rights of way by the Department of the Interior can not be revoked. |
Election of 1896 Change in Administration April 24, 1897 changes many of the key players |
U.S. decides that the War Department can override the Secretary of the Interior because a Treaty with a foreign Nation is involved. |
Legal actions are taken against the Rio Grande Dam and Irrigation Company. This approach succeeds on the third try. The first two tries were remanded by the U.S. Supreme Court back to the Territory of New Mexico for further consideration. |
Events changed the situation. There was a judgment by the 3rd District Court affirmed by the NM Territorial Supreme Court and the U.S. Supreme Court that the Rio Grande Dam & Irrigation Company had not completed any part of the project within the five years allowed. Once there was a default judgment against the Rio Grande Dam & Company the Navigation Claim was abandoned by the U.S government and the Embargo lifted to allow for the construction of the proposed dam at the same or similar location by the Department of Reclamation. |
C. More on the document
There are two or three and possibly four copies of this document that appear to be the same document but some are closest to the original and the others appear to be retyping of the original. It may not be the first prepared version but this version which was submitted by Lana Marcussen, Esquire had been accepted at least temporarily into the Texas v. New Mexico and Colorado case but it seems that it has now been removed but it exists in the files of the Eighth Circuit Court where it had been submitted (most likely because the Special Master was on leave from the Eighth Circuit and presumably had his office there) at least at the time of publishing this article.
Another version that may be closer to the original (or indeed is the original) but which contains the same information can be found here. That version contains a table of contents. I show it below.
It would have been convenient if the Court had accepted this version since it has a table of contents and the pages have numbers and it appears to be in the required format used at that time but since the Court did not accept it, I made the decision to work totally from the version the Court accepted and which still exists within the Federal Court System.
So I created my own Table of Contents from the Section Headings in the version submitted by Lana Marcussen and accepted by the Court. But it does not provide page numbers. I could have added page numbers to the document (based on how it printed on my printer) but declined to do so. So here is my derived Table of Contents. It is identical to the table of contents in the copy that has a table of contents.
After the first copy of the document was found by Lana Marcussen, there was of course curiosity as to why this document was not well known or ever mentioned in any of the prior cases that related to the Rio Grande Compact or the Rio Grande Dam & Irrigation Company. William Turner, who among many other things holds a Ph.D. in Geology and is certified in nine states is also a historian and an expert in Water Law and on the history of water use and the water-related institutions of the Lower Rio Grande, became interested in this. Bill is also a broker of water rights and regularly investigates the history of water rights. Bill soon found another copy in the archives of the University of New Mexico. It was contained in a cardboard box full of U.S. Reclamation Service Documents. The box was labeled “Soil Conservation Service”. The SCS was created by Congress in 1930. It had been misfiled. I found that copy also on-line by a simple Google Search the key being knowing the exact name of the document. Bill then found another copy also at UNM at their Center for Southwest Research and Special Collections. This one was not on-line but here is a photo of it.
It is pretty nice looking. One wonders why the different versions? Apparently, Bill Turner has found a fourth copy.
An interesting question was which were the originals and which were copies. Bill, having worked for the U.S. Geological Survey, an agency within the U.S. Department of the Interior, which included the Reclamation Service when it was created in 1902, knew of their style manuals and used the style manuals for Interior Department documents at that period and, considering such things as similar mistakes and different mistakes in the four copies, the sentences per page, same letter counts of the same sentences, same line breaks, and clarity of the copies was able to fingerprint the document versions. Dr. Turner has concluded that two of the copies were the original typed copies and two were copies retyped from the earlier copies including the document submitted by Lana Marcussen to the court. Anyone who has an interest in this can contact Bill Turner at [email protected].
It is not real important as the content is the same in all four copies. But it is curious. My first hypothesis was that the original plan was not to distribute this report to everyone who attended the 1928 Rio Grande Convention meeting but as copies circulated, the level of interest in that document increased and they needed a copy for all who attended. But since then my own research into Ottamar Hamele shows that he became an extremely important person. He became the Chief Counsel for Reclamation and has written a number of books. So now I am thinking that the two additional copies prepared on a typewriter might have been prepared at a later time for a different purpose than the Rio Grande Convention.