PETITION OF MARSDEN MANSON, CITY ENGINEER OF SAN FRANCISCO, ON BEHALF OF THE CITY AND COUNTY OF SAN FRANCISCO, TO THE SECRETARY OF THE INTERIOR DEPARTMENT, WASHINGTON, D. C., TO REOPEN THE MATTER OF THE APPLICATION OF JAMES D. PHELAN FOR RESERVOIR RIGHTS OF WAY IN THE HETCH HETCHY VALLEY AND LAKE ELEANOR SITES IN THE YOSEMITE NATIONAL PARK.

Washington, D. C., May 7, 1908.

The honorable Secretary of the Interior.

Sir: On behalf of the city and county of San Francisco, I respectfully petition you to exercise your supervisory authority and reopen the matter of the application of James D. Phelan for reservoir rights of way in the Hetch Hetchy Valley and Lake Eleanor sites in the Yosemite National Park. This application was made October 15, 1901, by James D. Phelan, then mayor, in conjunction with an effort that was being made to secure an adequate and pure supply of water for the city and county of San Francisco, and was assigned to said city and county February 20, 1903, in order to carry out the original intent in making the application and that the city might be of record as the successor to any rights that may have been gained by the application. Subsequently, on December 22, 1903, the application was rejected on the ground that the Secretary of the Interior did not have power to allow such right of way within the Yosemite National Park. Thereafter I, as the representative of the said city and county, came to Washington and asked for a reconsideration of the matter. This reconsideration was granted in the form of a request for an opinion from the Attorney-General concerning the Secretary's contention that he did not have the power. The Attorney-General held that the Secretary of the Interior had full power, and that it was merely a matter of administrative judgment as to whether the application for rights of way should or should not be granted.

I was of the opinion that the steps taken by the city and county of San Francisco, through me, to have this matter reconsidered was a formal action which kept the application alive, but it seems that,k according to the technical and strict interpretation of the rules of practice of the Department of the Interior, my supposition was incorrect and that the maps of location were formally rejected and returned to the city and county, where they remained and were destroyed by fire following the earthquake in April, 1906. I learned recently that the case was technically closed, but I find that the practice of your department will permit, through the exercise of supervisory authority, the curing of a technical action made final through mistake of an applicant, especially when great public interests and equities are involved.

I caused exact retracements of certified copies of the original maps of location to be made and Mr. Phelan filed them in your department in 1907. As the city engineer, directly in charge of these matters, I have certified that they are exact reproductions made under my personal direction of the original maps of location. I therefore ask that you treat them as though they were originals, and in view of all the circumstances mentioned above, the great needs of the city of San Francisco for an adequate and pure water supply, and the fact that I have been authorized to act for the city in this matter by a resolution of the board of supervisors (a certified copy of which resolution I will obtain from San Francisco at the earliest practicable moment and file with this petition), urge that you treat the application of James D. Phelan, afterwards assigned to the city of San Francisco, as though it had never technically lapsed.

As the engineer of the city, I have gathered from years of careful and scientific study of the sites themselves information concerning the capacity of the sites applied for and the tributary drainage areas, and I am confident that the city could not afford to develop the Lake Eleanor site alone without every assurance possible to be given by the Government that the Hetch Hetchy site will be available as soon as the needs of the city exceed the Lake Eleanor storage capacity. For that reason I urge that the right to use both sites be now granted in order that the city may proceed in its work with a degree of security.

If the application for both reservoir sites is granted, I offer and agree on behalf of the city that its application for the two reservoir sites may be approved upon the basis of the following conditions which will be furnished if you desire, in the form of a stipulation, approved by resolution of the board of supervisors, and duly executed under the seal of the city of San Francisco.

The city and county of San Francisco will agree to the following stipulations:

1. The city of San Francisco practically owns all the patented land in the floor of the Hetch Hetchy reservoir site and sufficient adjacent areas in the Yosemite National Park and the Sierra National Forest to equal the remainder of that reservoir area. The city will surrender to the United States equivalent areas outside of the reservoir sites and within the national park and adjacent reserves in exchange for the remaining land in the reservoir sites, for which authority from Congress will be obtained if necessary.

2. The city and county of San Francisco distinctly understands and agrees that all the rules and regulations for the government of the park, now or hereafter in force, shall be applicable to its holdings within the park and that, except to the extent that the necessary use of its holdings for the exclusive purpose of storing and protecting water for the uses herein specified will be interfered with, the public may have the full enjoyment thereof, under regulations fixed by the Secretary of the Interior.

3. The city and county of San Francisco will develop the Lake Eleanor site to its full capacity before beginning the development of the Hetch Hetchy site, and the development of the latter will be begun only when the needs of the city and county of San Francisco and adjacent cities, which may join with it in obtaining a common water supply, may require such further development. As the drainage area tributary to Lake Eleanor will not yield, under the conditions herein imposed, sufficient run-off in dry years to replenish the reservoir, a diverting dam and canal from Cherry Creek to Lake Eleanor reservoir for the conduct of waste, flood, or extra-seasonal waters to said reservoir is essential for the development of the site to its full capacity, and will be constructed if permission is given by the Secretary of the Interior.

4. The city and county of San Francisco, and any other city or cities which may, with the approval of the municipal authorities, join with said city and county of San Francisco in obtaining a common water supply, will not interfere in the slightest particular with the right of the Modesto irrigation district and the Turlock irrigation district to use the natural flow of the Tuolumne River and its branches to the full extent of their claims, as follows: Turlock irrigation district, 1,500 second-feet; Modesto irrigation district, 850 second-feet; these districts having, respectively, appropriated the foregoing amounts of water under the laws of the State of California.

To the end that these rights may be fully protected, San Francisco will stipulate not to store nor cause to be stored, divert nor cause to be diverted from the Tuolumne River or any of its branches any of the natural flow of said river when desired for use by said districts, for any beneficial purpose, unless this natural flow of the river and tributaries above La Grange dam be in excess of the actual capacities of the canals of said districts, even when they shall have been brought up to the full volumes named-1,500 second-feet for the Turlock irrigation district and 850 second-feet for the Modesto irrigation district.

5. The city and county of San Francisco will in no way interfere with the storage of flood waters in sites other than Hetch Hetchy and Lake Eleanor by the Modesto and Turlock irrigation districts or either of said districts for use in said districts, and will return to the Tuolumne River above the La Grange dam, for the use of said irrigation districts, all surplus or waste flow of the river which may be used for power.

6. The city of San Francisco will, upon request, sell to said Modesto and Turlock irrigation districts for the use of any land owner or owners therein for pumping subsurface water for drainage or irrigation any excess of electric power which may be generated such as may not be used for the water supply herein provided and for the actual municipal purposes of the city and county of San Francisco (which purposes shall not include sale to private persons nor to corporations), at such price as will actually reimburse the said city and county for developing and transmitting the surplus electrical energy thus sold, the price in case of dispute to be fixed by the Secretary of the Interior; and no power plant shall be interposed on the line of flow except by the said city and county except for the purposes and under the limitations above set forth.

7. The city and county of San Francisco will agree that the Secretary of the Interior shall, at his discretion, or when called upon by either the city or the districts to do so, direct the apportionment and measurement of the water in accordance with the terms of the preceding clauses of this stipulation.

8. The city and county of San Francisco, when it begins the development of the Hetch Hetchy site, will undertake and vigorously prosecute to completion a dam at least 150 feet high, with a foundation capable of supporting the dam when built to its greatest economic and safe height, and whenever, in the opinion of the engineer in charge of the reservoirs on behalf of said city and county and of the municipalities sharing in this supply, the volume of water on storage in the reservoirs herein applied for is in excess of the seasonal requirements of said municipalities, and that it is safe to do so, that such excess will be liberated at such times and in such amounts as said districts may designate, at a price to said districts not to exceed the proportionate cost of storage and sinking fund chargeable to the volumes thus liberated, the price in case of dispute to be fixed by the Secretary of the Interior; provided, that no prescriptive or other right shall ever inure or attach to said districts by user or otherwise to the water thus liberated.

9. The city and county of San Francisco will, within two years after the grant by the Secretary of the Interior of the rights hereby applied for, submit the question of said water supply to the vote of its citizens as required by its charter, and within three years thereafter, if such vote be affirmative, will commence the actual construction of the Lake Eleanor dam and will carry the same to completion with all diligence, so that said reservoir may be completed within five years after the commencement thereof, unless such times herein before specified shall be extended by the Secretary of the Interior for cause shown by the city, or the construction delayed by litigation; and unless the construction of said reservoir is authorized by a vote of the said city and county and said work is commenced, carried on, and completed within the times herein specified, all rights granted hereunder shall revert to the Government.

Marsden Manson

DECISION OF THE SECRETARY OF THE INTERIOR DEPARTMENT, WASHINGTON, D. C., GRANTING THE CITY AND COUNTY OF SAN FRANCISCO, SUBJECT TO CERTAIN CONDITIONS, RESERVOIR SITES AND RIGHTS OF WAY AT THE LAKE ELEANOR AND HETCH HETCHY VALLEY IN THE YOSEMITE NATIONAL PARK.

Department of the Interior,
Washington, May 11, 1908.

Water supply, city of San Francisco-Application for Lake Eleanor and Hetch Hetchy Valley reservoir sites, act of February 15, 1901.

The Commissioner of the General Land Office.

Sir: October 15, 1901, James D. Phelan, then mayor of the city of San Francisco, filed application for reservoir rights of way within the Yosemite National Park upon what are known as the Lake Eleanor and Hetch Hetchy Valley reservoir sites. This application was made under the act of February 15, 1901, and was in fact the application of the city made in the name of James D. Phelan to avoid the difficulties which beset a city if it must announce its business intentions to the public before securing options and rights necessary for its project. This is not disputed, and the fact is corroborated by his assigning to the city and county of San Francisco, on February 20, 1903, all his rights under the above application.

This application was considered by the Secretary of the Interior and, on December 22, 1903, rejected on the ground that he did not have the legal power to allow such a right of way within the Yosemite National Park. From that time to this the city has, with practical continuity, pressed its requested for a permit to use these reservoir sites. The city failed, however, to take steps to reopen this case in the form prescribed by the rules of practice of this department, and for that reason technically had no application on file after December 22, 1903. On the other hand, the city's evident good faith and the strong evidence that it supposed its application was alive in the department is shown by the fact that at its request and solicitation the question of the power of the Secretary of the Interior to grant the rights of way applied for was referred to the Attorney-General, who, on October 28, 1905, held definitely that the Secretary of the Interior had full discretionary power to grant rights of way for reservoir, irrigation, or hydro-electric purposes within the park.

When the Secretary's decision of December 22, 1903, was made final, the maps of location for the two reservoir sites were returned to the city, and unfortunately were destroyed by the fire which followed the earthquake of 1906. Fortunately, however, exact tracings of these maps had been made by the city engineer for use in court proceedings, and for that reason it has been possible to file exact reproductions of the original maps, certified by the city engineer. When the attention of the city's representative was called to the fact that technically the city had no application before the department, he, on May 7, 1908, formally filed a petition requesting the Secretary of the Interior to exercise his supervisory authority and reopen the matter of the application of James D. Phelan for the reservoir rights in question, thus treating it as though it had never lapsed. I have given the most careful consideration to this petition, and have decided that the facts mentioned above are ample grounds for exercising my supervisory power, and therefore reinstate the application of James D. Phelan, assigned to the city, as though the case had been technically kept alive since December 22, 1903, by specific compliance with the rules of practice of the department. To this end the tracings of the original maps of location as recertified by Marsden Manson, city engineer, on April 22, 1908, will be accepted in lieu of the original and treated accordingly.

Congress, on February 15, 1901, provided specifically:

"The Secretary of the Interior * * * is authorized * * * to permit the use of rights of way through * * * the Yosemite, Sequoia, and General Grant national parks, California, for * * * water conduits and for water plants, dams, and reservoirs used to promote * * * the supply of water for domestic, public, or other beneficial uses * * * provided that such permits shall be allowed within or through any of said parks * * * only upon the approval of the chief officer of the department, under whose supervision such park or reservation falls, and upon a finding by him that the same is not incompatible with the public interest."

By these words Congress has given power to the Secretary of the Interior to grant the rights applied for by the city of San Francisco, if he finds that the permit is "not incompatible with the public interest." Therefore I need only consider the effect of granting the application upon "the public interest."

In construing the words of a statute the evident and ordinary meaning should be taken, when such meaning is reasonable and not repugnant to the evident purpose of the law itself. On this broad principle the words "the public interest" should not be confined merely to the public interest in the Yosemite National Park for use as a park only, but rather the broader public interest which requires these reservoir sites to be utilized for the highest good to the greatest number of people. If Congress had intended to restrict the meaning to the mere interest on the public in the park as such, it surely would have used specific words to show that intent. At the time the act was passed there was no authority of law for the granting of privileges of this character in the Yosemite National Park. Congress recognized the interest of the public in the utilization of the great water resources of the park and specifically gave power to the Secretary of the Interior to permit such use. The proviso was evidently added merely as a reminder that he should weigh well the public interest both in and out of the park before making his decision.

The present water supply of the city of San Francisco is both inadequate and unsatisfactory. This fact has been known for a number of years and has led to a very extensive consideration of the various possible sources of supply. The search for water for the city has been prosecuted from two diametrically opposite points of view. On the one side, the water companies, interested in supplying the city with water for their own profit, have taken advantage of the long delay since it was first proposed to bring water from the Yosemite to San Francisco to look up and get control, so far as they could, of the available sources in order to sell them to the city. On the other hand, both the National Government and the city of San Francisco have made careful study of the possible sources of supply for the city. Four of five years ago the hydrographic branch of the Geological Survey, after a careful examination by engineers of character and ability, reached the conclusion that the Tuolumne River offered a desirable and available supply for the city. The same conclusion was reached by the engineers of the city of San Francisco after years of exhaustive investigation.

I appreciate keenly the interest of the public in preserving the natural wonders of the park and am unwilling that the Hetch Hetchy Valley site should be developed until the needs of the city are greater than can be supplied form the Lake Eleanor site when developed to its full capacity. Domestic use, however, especially for a municipal supply, is the highest use to which water and available storage basins therefor can be put. Recognizing this the city has expressed a willingness to regard the public interest in the Hetch Hetchy Valley and defer its use as long as possible.

The next great use of water and water resources is irrigation. There are in the San Joaquin Valley two large irrigation districts, the Turlock and Modesto, which have already appropriated under state law 2,350 second-feet of the normal flow of water through Lake Eleanor and Hetch Hetchy. The representatives of these districts protested strongly against the granting of the permit to San Francisco, being fearful that the future complete development of these irrigation communities would be materially hampered by the city's use of water. After repeated conferences, however, with the representatives of these irrigation districts I believe their rights can be fully safeguarded, provided certain definite stipulations to protect the irrigators are entered into by the city. Fortunately, the city can agree to this, and the interest of the two users will not conflict. On the contrary, the city in developing its water supply will to a considerable extent help the irrigation districts in their further development.

The only other source of objection, except that from persons and corporations who have no rights to protect but merely the hope of financial gain if the application of the city is denied, comes from those who have a special interest in our national parks from the standpoint of scenic effects, natural wonders, and health and pleasure resorts. I appreciate fully the feeling of these protestants and have considered their protests and arguments with great interest and sympathy. The use of these sites for reservoir purposes would interfere with the present condition of the park, and that consideration should be weighed carefully against the great use which the city can make of the permit. I am convinced, however, that "the public interest" will be much better conserved by granting the permit. Hetch Hetchy Valley is great and beautiful in its natural and scenic effects. If it were also unique, sentiment for its preservation in an absolutely natural state would be far greater. In the mere vicinity, however, much more accessible to the public and more wonderful and beautiful, is the Yosemite Valley itself. Furthermore, the reservoir will not destroy Hetch Hetchy. It will scarcely affect the canyon walls. It will not reach the foot of the various falls which descend from the sides of the canyon. The prime change will be that, instead of a beautiful but somewhat unusable "meadow" floor, the valley will be a lake of rare beauty.

As against this partial loss to the scenic effect of the park, the advantages to the public from the change are many and great. The city of San Francisco and probably the other cities on San Francisco Bay would have one of the finest and purest water supplies in the world. The irrigable land in the Tuolumne and San Joaquin valleys would be helped out by the use of the excess stored water, and by using the electrical power not needed by the city for municipal purposes to pump subterranean water for the irrigation of additional areas the city would have a cheap and bountiful supply of electric energy for pumping its water supply and lighting the city and its municipal buildings. The public would have a highway at its disposal to reach this beautiful region of the park herefore practically inaccessible. This road would be built and maintained by the city without expense to the Government or the general public. The city has options on land held in private ownership within the Yosemite National Park, and would purchase this land and make it available to the public for camping purposes. The settlers and entrymen who acquired this land naturally chose the finest localities and at present have power to exclude the public from the best camping places, and, further, the city in protecting its water supply would furnish to the public a patrol to save this part of the park from destructive and disfiguring forest fires.

The floor of the Hetch Hetchy Valley, part of which is owned privately and used as a cattle ranch, would become a lake bordered by vertical granite walls or steep banks of broken granite. Therefore, when the water is drawn very low it will leave few muddy edges exposed. This lake, however, would be practically full during the greater part of the tourist season in each year, and there would be practically no difficulty in making trails and roads for the use of the tourists around the edges of the valley above high-water mark. The city of San Francisco, through its regularly authorized representative, has, in order to protect the interests most directly involved, agreed to file with the Secretary of the Interior a stipulation approved by specific resolution of the board of supervisors and duly executed under the seal of the city of San Francisco as follows:

"1. The city of San Francisco practically owns all the patented land in the floor of the Hetch Hetchy Reservoir site and sufficient adjacent areas in the Yosemite National Park and the Sierra National Forest to equal the remainder of that reservoir area. The city will surrender to the United States equivalent areas outside of the reservoir sites and within the national park and adjacent reserves in exchange for the remaining land in the reservoir sites, for which authority from Congress will be obtained if necessary.

"2. The city and county of San Francisco distinctly understands and agrees that all the rules and regulations for the government of the park, now or hereafter in force, shall be applicable to its holdings within the park, and that, except to the extent that the necessary use of its holdings for the exclusive purpose of storing and protecting water for the uses herein specified will be interfered with, the public may have the full enjoyment thereof, under regulations fixed by the Secretary of the Interior.

"3. The city and county of San Francisco will develop the Lake Eleanor site to its full capacity before beginning the development of the Hetch Hetchy site, and the development of the latter will be begun only when the needs of the city and county of San Francisco and adjacent cities, which may join with it in obtaining a common water supply, may require such further development. As the drainage area tributary to Lake Eleanor will not yield, under the conditions herein imposed, sufficient run-off in dry years to replenish the reservoir, a diverting dam and canal from Cherry Creek to Lake Eleanor Reservoir for the conduct of waste flood or extra-seasonal waters to said reservoir is essential for the development of the site to its full capacity, and will be constructed if permission is given by the Secretary of the Interior.

"4. The city and county of San Francisco, and any other city or cities which may, with the approval of the municipal authorities, join with said city and county of San Francisco Francisco in obtaining a common water supply, will not interfere in the slightest particular with the right of the Modesto irrigation district and the Turlock irrigation district to use the natural flow of the Tuolumne River and its branches to the full extent of their claims, as follows: Turlock irrigation district, 1,500 second-feet; Modesto irrigation district, 850 second-feet, these districts having, respectively, appropriated the foregoing amounts of water under the laws of the State of California.

"To the end that these rights may be fully protected, San Francisco will stipulate not to store nor cause to be divert from the Tuolumne River or any of its branches, any of the natural flow of said river when desired for use by said districts for any beneficial purpose, unless this natural flow of the river and tributaries above La Grange dam be in excess of the actual capacities of the canals of said districts, even when they shall have been brought up to the full volumes named, 1,500 second-feet for the Turlock irrigation district and 850 second-feet for the Modesto irrigation district.

"5. The city and county of San Francisco will in no way interfere with the storage of flood waters, in sites other than Hetch Hetchy and Lake Eleanor by the Modesto and Turlock irrigation districts or either of said districts for use in said districts, and will return to the Tuolumne River above the La Grange dam, for the use of said irrigation districts, all surplus or waste flow of the river which may be used for power.

"6. The city of San Francisco will upon request sell to said Modesto and Turlock irrigation districts for the use of any land owner or owners therein for pumping subsurface water for drainage or irrigation and any excess of electric power which may be generated such as may not be used for the water supply herein provided and for the actual municipal purposes of the city and county of San Francisco (which purposes shall not include sale to private persons nor to corporations), at such price as will actually reimburse the said city and county for developing and transmitting the surplus electric energy thus sold the price in case of dispute to be fixed by the Secretary of the Interior; and no power plant shall be interposed on the line of flow except by the said city and county except for the purposes and under the limitations above set forth.

"7. The city and county of San Francisco will agree that the Secretary of the Interior shall, at his discretion, or when called upon by either the city or the districts to do so, direct the apportionment and measurement of the water in accordance with the terms of the preceding clauses of this stipulation.

"8. The city and county of San Francisco, when it begins the development of the Hetch Hetchy site, will undertake and vigorously prosecute to completion a dam at least 150 feet high, with a foundation capable of supporting the dam when built to its greatest economic and safe height, and whenever, in the opinion of the engineer in charge of the reservoirs on behalf of said city and county and of the municipalities sharing in this supply, the volume of water on storage in the reservoirs herein applied for is in excess of the seasonal requirements of said municipalities, and that it is safe to do so, that such excess will be liberated at such times and in such amounts as said districts may designate, at a price to said districts not to exceed the proportionate cost of storage and sinking fund chargeable to the volumes thus liberated, the price in case of dispute to be fixed by the Secretary of the Interior; provided, that no prescriptive or other right shall ever inure or attach to said districts by user or otherwise to the water thus liberated.

"9. The city and county of San Francisco will, within two years after the grant by the Secretary of the Interior of the right hereby applied for, submit the question of said water supply to the vote of its citizens as required by its charter, and within three years thereafter, if such vote be affirmative, will commence the actual construction of the Lake Eleanor dam and will carry the same to completion with all reasonable diligence, so that said reservior may be completed within five years after the commencement thereof, unless such times hereinbefore specified shall be extended by the Secretary of the Interior for cause shown by the city, or the construction delayed by litigation; and unless the construction of said reservoir is authorized by a vote of the said city and county and said work is commenced, carried on, and completed within the times herein specified, all rights granted hereunder shall revert to the Government."

In considering the reinstated application of the city of San Francisco, I do not need to pass upon the claim that this is the only practicable and reasonable source of water supply for the city. It is sufficient that after careful and competent study the officials of the city insist that such is the case. By granting the application opportunity will be given for the city, by obtaining the necessary two-thirds majority vote, to demonstrate the practical question as to whether or not this is the water supply desired and needed by the residents of San Francisco.

I therefore approve the maps of location for the Lake Eleanor and Hetch Hetchy reservoir sites as filed by James D. Phelan and assigned to the city of San Francisco, subject to the filing by the city of the former stipulation set forth above, and the fulfillment of the conditions therein contained.

Very respectfully,

James R. Garfield,
Secretary.

Mr. Manson. To the remainder of the lands-that is it, exactly-which she has not now. She has two types of lands in the floor of the valley that will be submerged. To the greater portion of the floor of the valley she now has fee-simple title, and as to the remainder she wishes to exchange lands acquired for that purpose from the Government.

Mr. Smith. Do I understand that you desire a fee-simple title, in addition, to the lands that will be submerged?

Mr. Manson. Yes, sir.

Mr. Smith. I thought you said a moment ago that it depended on whether you would use that.