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In the Matter of the Measurement and Apportionment of Thewaters of Thest

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In the Matter of the Measurement and Apportionment of Thewaters of Thest INTERNATIONALJOINT COMMISSION REARGUMENT IN THE MATTER OF THE MEASUREMENT AND APPORTIONMENT OF THEWATERS OF THEST. MARY AND MILK RIVERS ANDTHEIR TRIBUTARIES IN THE UNITED STATES AND CANADA UNDER ARTICLE VI OF THE TREATY OF JANUARY 1 I, 1909, BETWEEN THE UNITED STATES AND GREAT BRITAIN 4 OTTAWA, CANADA MAY 3, 4, AND 5, 1920 WASHINGTON GOVERNMENT PRINTING OFFICE 1921 I. ,I,' #__? .. MAASUKIEMEW,. AM) APPOIITIO~~MEMOF THE WATERS OF THE ST. MARY ANT) MILK RIVERS. INTERNATIONALJOINTCOMMISSION, Ottawa, Canada,, May 9, 1920. The Commission met at 10 o'clock a. m. Present: C. A. Magrath (chairman for Ctinada) €1. A. Powell, K. c., Sir William Hearst. 0. Gardncr (chairman for tLe United States), Clarence D. Clark. Lawrcnce J. Burpee, secretary of the Commission for Canada. Ap earances : CoP . C. S. MacInnes, K. C., counsel for the Dominion of Canada, for the Provinces of Albertaand Saskatchewan, the WesternCanada Irrigation Association, andthe Cypress Hills Water-Users Association. Won. George Turner, counsel for the United States Government. Mr. Will R. Kin chief counsel for the United States Reclamation Service, with Mr. k. J. Egleston, of Helena, Mont., district counsel for the United StatesReclamation Service. with Mr. G. A. Walker of Calgary, for the States Senator from Montana. Mr. A. P. Davis,director of theUnited States Reclamation Service, Washin ton, D.. C. Mr. E. E'. Draf e, director, Reclamation Service of Canada, Ottawa. Mr. C. S. Heidel, hydrographer, engineer's office, State of Montana. Mr. R. J. Burley, irrigation engineer, Department of the Interior, Ottawa. Mr. C. H. Atwood, Water Power Branch, Department of the Inte- rior, Ottawa. Mr. Benjamin 'E. Jones,hydraulic engineer, Land Classification Board, United StatesGeological Survey. Mr. Magrath presided. Mr. MAGRATH.Gentlemen, it is my intention to make a very short statement to you as to the object of this meeting, but before doing so, I ma say that a request ha? come from Senator Walsh, who is 'coming Fy train and will not arrlve here untd noon. Senator Walsh would like that the argument be not gone on with until he arrives. We will, however, open the meetin this morning, and we will decide then as to the action we wiIltake, w ich doubtless will be, unless there &re very strong reasons to the contrary,a that we shall adlourn until this afternoon. It may not beamiss for me to briefly recite what has takenplace-in connection with'the division of the waters of the St. Mary and Mllk Rivers as required by Article VI of the treaty of 1909. In accordance with the customof thecommission that was followed for some time,namely, that tw? of Its members.-one fromeach couptry-be assigned to keep In intimate touch wlth each questlon 3 4 ST.AND MARY MILK RIVERS. that came before it, Messrs. Powell and Gardner were named a com- mitteefor that purpose in connection withthis question. They visited the location in the season of 1914 and finding that there was a differance of opinion on the pat of inferested parties &s to the waters that were to be &ken inho account, they rewpmended that Attorney General wrote that he had reached the conclusion that no further discussion on his part was necessar . On November 7, 1917, the Secretary of Qtate of the United States wrote the Commission tothe effect that whatever conclusion was reached by the Commission in the St. Mary and Milk Rivers matter would not be regarded by his Government as binding upon it, in so far as it undertook to interpret Article VI. This letter was referred to a committee consistin of Mr. Tawneand Mr. Mignault, who on February 4, 1918, sugb mitted the drafy t of an answer to the letter of theSecretary of State. Thisreply was adoptedand sent under date of February 13, 1918. Under date of April 18, 1918, the Sec- retary of State wrote the Commission that he was unable to discern in the discussion presented in the commission’s letter of February 13, 1918, sufficient cause for altering his views. The letter of theSecretary of State of November 7, 1917, was transmittedto the CanadianGovernment through theBritish Embass , and the views of that Government in regard to the right of the cyommission to interpret ‘ArticleVI were embodied in an order in council dated March 11, 1918. On November 11;1919, the United States Secretary of State wrote the Commission explaining that the. intention of his letter of November 7, 1917, was to reserve so far as the United States Government was concerned, any uestion of inter- national right that might be involved, but that his ‘0.overnment had no intention to preclude the Cornmission from exercising its func- tions as a urely administrative body in determining what waters it should un(P er Article VI measure and apportion. Meanwhile, the Commission lost two of its members, first by the resignation of Mr. Mignault, who was.appointed to the SupremeCourt of Canada in .Octo#er, 1918, and b thedeath of Mr. Tawney in June, 1919. In March, 1920, the c1 airman for the United States wired me stating that Senator Clark-who succeeded the late Mr. Tawney-considered that a reargument was desirable. At the meet- in of the Commission in Washington on A ril 7 last, it was decided to5 ave the questionof the interpretation oIp Article VI reargued, and and the place and date fixed was in this office in Ottawa to-day. Now, gentlemen, in view of the request of Senator Walsh, I think we should adjourn until this afternoon. Mr. Lawrence J. Burpee, secretary, read a list of the parties in interest on t,he Canadian side, to whom notices of the meeting had been sent. Mr. Burpee statedthat similar notices had been sentby Mr. Kluttz, secretary for the United States, to the parties in interest on the United States side. Mr. CLARK.I have received the followin telegramfrom Senator Walsh, which might be placed on the recorcB : De!ayetl ship. Arriving Ottawa noon Monday. Kindly ask necessary delay. T.J. %rAI,SH. Mr. MAGRATH.My colleague, Mr. Powell, has just drawn my atten- tion to the absence of one of the members of the Commission; you have a'lefter, Mr. Burpee, bearing on that. Mr. Burpee read a communicatmn from Gov. Glenn, which stated: In many resnects I have im roved in health but ham now a case of lumbago, and as I heard the argument in St. Xfary and Wlk Itivery twire, I will not, come to Otta.wa but will join you at Padt. Re. Marie. Mr. TURNER.On behalf of t,he IJnited States, we would be lad to have the Commission accede to thc request of Senator Wals . He represents t'he interests of the people of Montana, and we woulda be glad indeed to have him here, so that he may hear all the argument. Mr. POWICLI,.What about the absence of Gov. Glenn '1 Mr. TUXXER.I think, sir, we might proceed with this argument at this present, time as ordered. Gov. Glenn, at a later period, after reading the argument, can mako up a quorum for the determination of the uest,ion. Mr. %ILL R. KING.As representin the legal end of the Recla- matlion Service of the United States, fwould prefer to have Senator Wdsh present, and so I will be glad to lmve the case adjourned until this afternoon. As to Gov. Glenn! we waive his absence. Althou h we regret that he is not with us, we are willing to proceed as if Be were present. Mr. MAGRATH.All the testimony that has been presented in this case, and every word that had been uttered by way of argument, has been printed. The reason of this meeting is becsuse two members of the Commission were not present at the hearings that were pre- viously held. We now find that there is one member of the am- mission who is not present here to-day and it seems to me bhat it is a question that the Commission should take into consideration in executive sessiorl as to the desirttlrility of roceeding with this case now, in view uf the reason that was advance t; for holding this meeting. ST. MAR? lEmD M3L.X "EBB. Mr.:TURNER. I believe it has.been the practice of the Commission to Icondder a majority of the comaission as constihuting a quorum for all urposes except the actual making of a decision. Mr. ~ EAL'PNNES.'~AS to the request for adjournment on behalf .of' Senator Walsh, I may say that we would be very glad to accede to +h&tpostponement if it meets with the favor of theCommission. As to the absence of Gov. Glenn, one of tho members of the Commission, I would submit that that is rather a matter for the Commission itself to docide, inasmuch as this reargument was requested, as we under- stand, by the Commission for 'the pur ose of.reaching a decision. As to that, it seems to me we would Ee bound by any conclusion that the Commission may reach. Mr. BURPEE. There isa question as to the filing of the diplomatic correspondence that was put in at the St. Paulhearing. I took that matter up with the Washington offrce and I also made a request of the Director of the Reclamation Service here. Mr. Drake has ut in certified copies of all documents that were filed by Col. MacP nnes. I have had a message from Mr. Kluttz that he had taken u the matter with Mr. Wyvell's offjcc, which is in daily touch wit{ the department, and it was understood that certified copies were to be put in on the United States side.
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