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 VIII.


Brief of Robert Underwood Johnson

Before the Committee on the Public Lands
House of Representatives

Gentlemen:

As a citizen of the United States I wish to record my opposition to the pending bill confirming the grant of the Hetch Hetchy Valley and other portions of the Yosemite National Park to the city of San Francisco, executed May 11, 1908.

Exception to this grant is to be taken upon two grounds:

  1. That in making the grant the Secretary of the Interior, even if it be considered that he has acted within the authority conferred upon him in the matter of water rights in the Yosemite National Park by the act of February 15, 1901, has failed to give the weight to the public interest for which the national park was created; and,
  2. That the grant, considered on its own merits, ought not to be confirmed, because

Let me say at the outset that, as I have elsewhere testified, I regard the service of the President in the matter of the conservation of the national forests and other resources as the most distinguished achievement of his incumbency and as of colossal importance and value to our country. It is only in this grant of national territory for the uses of a city that I find anything to criticise in the record of the administration in this field.

Exception 1

First, on the question of jurisdiction: On Saturday, December 12, 1908, Chief Justice James T. Mitchell, of the State of Pennsylvania, addressing the Pennsylvania Society in New York said:

"* * * the only safety for all is obedience to law as it is written, not to a strained and distorted construction for temporary view to make it mean what it does not and was never intended to mean, but honestly and fearlessly to carry out the real meaning of its makers."

I respectfully submit that the action of the administration in making this grant is based in a strained and technical construction of the authority of the Secretary of the Interior conferred by the act of Congress of February 15, 1901, authorizing the Secretary to exercise jurisdiction in the matter of water privileges within certain territory including the Yosemite National Park. I believe that the Congress regarded the water privileges mentioned in that act to bear a minor, casual, and incidental relation to the park, and that it is a violent construction of the language of the act to assume that it would authorize the virtual diversion of one-half of this great reservation from public use and recreation, greatly to the detriment of the public enjoyment of the magnificent scenery. The Hetch Hetchy Valley, of which I have the pleasure to submit herewith a series of 20 photographs, is only a less wonderful Yosemite, and if the Secretary is empowered by the act to divert and withdraw from public use the former (with, of course, the watersheds above it) he has also the power to do the same with the Yosemite itself, and, on a similar demand, with any portion of any public property named in the act. That the Congress did not intend to give the Secretary unlimited power is clearly indicated by the insertion of the phrase "if not incompatible with the public interest," meaning of course the public interest already provided for in the creation of the park, namely, the preservation of the great scenery and the use of the territory for the recreation of the people.

Suppose that the act of 1901 had explicitly conferred upon the Secretary entire control of the question of fences, would he be considered as acting within his authority if he had permitted fences to be built which would exclude the public from approach to this beautiful valley? And yet, virtually, that is what will be accomplished when we follow the rights thus conveyed by the Secretary to their logical results. For you can not grant a river or a valley for a reservoir without excluding the public from use of the watersheds which feed it. Confirm the grant and you have diverted from public use one-half the great Yosemite National Park, which is now as large as the State of Rhode Island! Let there be no illusion; the grant will withdraw this proportion of the park from the use and recreation of the public.

Many instances must occur to inexperienced legislators of attempts to control large public properties by laying a foundation for a technical construction of passages of subordinate and minor intent -- in fact, a great part of the duty of the legislator of to-day is to scrutinize provisions wherein "more is meant than meets the ear." I do not know whether the act of 1901 was advocated with the expectation that it might be appealed to as a means of securing the Hetch Hetchy as a water supply for San Francisco or whether that appeal is an afterthought following upon the disaster of 1906, which aroused the sympathies of the civilized world. Whatever may be the fact in this regard, I believe that the Congress of 1901 had no idea that the bestowal of authority to deal with water privileges for which it was legislating would ever endanger the integrity of the great National Park, against the creation of which by act of October 1, 1890, I believe not a vote was recorded. The purpose of that legislation, which was originated, forwarded, and personally proposed to the Public Lands Committee by myself in close consultation with John Muir, the act itself being drawn later by Charles D. Poston, was to save the forests from destruction, to give access to the wonderful cataract of the Tuolumne River, to protect the scenery of the great Yosemite water-falls, and to keep the region for the use an recreation of the people, and the Committee recommended it for those reasons. It remains for you, gentlemen, to determine whether this honorable and patriotic purpose shall be thwarted by means of a technical construction of law, and for a purpose which may be better attained without this sacrifice. Can it for a moment be assumed that any authority which the Congress might see fit to delegate to a Niagara Falls commission in the matter of the distribution of power could be construed to authorize the diversion of the Niagara River so as virtually to destroy the scenic beauty of the cataract? The mind revolts at such a calamity, yet no less violence would be done to the sense of proportion or to the ordinary methods of interpretation in the case of the Hetch Hetchy.

In general, is there not a great danger to our institutions in giving sanction by confirmatory acts to such interpretations, made under no stress of emergency, as when an official is called upon to act suddenly for some overwhelming public good? This grant was made while the Congress was still in session, and in the face of strong opposition. Were it not better that executive officials should be held to a stricter observance of the spirit as well as of the letter of the law? To act within the technical letter of the law is a safeguard, but to consider the letter as authorizing action not in the spirit of the law is leaving too much to private interpretation.

Exception 2 (a)

Leaving the question of the authority of an executive officer, which need only be stated to excite the interest of every member of the legislative branch of the Government, and considering the grant on its merits, let me record my belief -- which is also that of many distinguished and prominent citizens of San Francisco -- that the lands and waters granted to the city are not necessary to provide an abundant supply of pure water. Nor, as stated above, does the Secretary so claim, though the ceding of public property for such a purpose could only be justified on that ground. It is not necessity but convenience that is invoked. It is not only not demonstrated, it is not even claimed, by the Secretary that the Hetch Hetchy region is the only available source, or even the best, but simply that it is "a desirable and available" source. But the opponents claim -- and they have the authority of engineers -- that there are several other available sources of equal capacity and quality. Moreover, it is claimed by the Spring Valley Water Company, which is now the chief purveyor of water to the city, that it has power to furnish to the city all the supply needed within the next fifty years, and that it can develop enough to more than meet later demands. The claim that San Francisco must needs have the help of the Government to relieve it of the incubus of a monopoly falls to the ground when it is remembered that the water rates are not fixed by the company, but by the courts. The question seems to be whether the company will sell its rights to the city at a price satisfactory to the promotors of the Hetch Hetchy scheme, and there can be no doubt that the preliminary success of this scheme is being used as an argument by some newspapers to induce the company to come to terms and that many of the opponents of the scheme think it was instituted for that purpose. The public, outside of California, has no special interest in the negotiations except as the integrity of the national park is involved.

The charge is made by responsible persons that an additional motive for desiring the grant is the hope that ultimately the surplus water may be available for electrical power for the city. The terms of the grant now explicitly deny this advantage, but it is more than an open secret -- it is a subject of public discussion in San Francisco -- that once the Congress is committed to the scheme by the confirmation of the grant, it will be petitioned to remove the safeguards which the Secretary has thrown about everything but the forests. It will be asked to grant the use of surplus water for electrical power to the city; it will be asked to remove the order of precedence in use, so that Hetch Hetchy may be taken before Lake Eleanor, etc.

2 (b)

I believe that the grant is "incompatible with the public interest" as related to the national park. I have already cited the ominous fact that the whole northern half of the park must be given over to the jurisdiction of the city -- an imperium in inperio -- and that the city may exclude tourists, campers, and visitors with animals, in short, the public generally, from the magnificent scenery. The beautiful Tuolumne meadows running up to the base of the glacier summits of the Sierra -- a most attractive camping ground and center of excurisons -- must be for the republic as though they did not exist. The water-wheel cascades of the Tuolumne above the valley -- one of the half-dozen great waterfalls of the world -- may no longer be freely visited. The charming Tuolumne Fall at the head of the Hetch Hetchy will simply be extinguished by the creation of a valley reservoir. Last of all, the valley itself is to be wiped out of existence, and a tame expanse of water, the work of man, substituted for the exquisite and wonderful handiwork of God. The coolness with which these gentlemen endeavor to forestall the feeling of revolt against this desecration by saying that they propose to improve upon this exquisite creation of delight and repose is little short of blasphemy. They do not care -- even if they reflect upon it -- that the sublimity of such great scenery is made evident and is accelerated by the contrast between rugged peaks and cliffs on one hand and the gentle levels of mingled meadow, grove, and stream, of the sort that Wordsworth found --

Appareled in celestial light
The glory and the freshness of a dream.

This is in keeping with the vandalism of certain commissioners in the old days of the mismanagement of the Yosemite Valley who wished to cut out all the underbrush so that the guests at the Coleman House might know when the stage was coming, not knowing, benighted souls! that the underbrush was the unit of measurement even of Sentinel Rock, nearly 3,000 feet high, leading the mind by successive steps, from tree to taller and still taller trees, to a realization of the vast heights of that sublime mass. Let there be no illusion about the fate of Hetch Hetchy; it can not be submerged and retained; it can not be submerged and restored. The forests not only of the valley but of the neighboring region will be destroyed in the course of the construction of the proposed dam. Even the lake can not be seen from the precipitous walls of the canyon, and if could it would be a thing of unsightly border and artificial aspect. Satan himself would never have dared play such tricks with the Garden of Eden.

I protest in the name of all lovers of beauty -- and in the case of rare, of phenomenal beauty -- against the materialistic idea that there must be something wrong about a man who finds one of the highest uses of nature in the fact that it is made to be looked at. Such so-called practical men would have their days full correcting the mistakes of the Almighty in this respect. I call your attention to the fact that the great public -- those who visit the park, and those who may visit it -- have now nobody to look to but the Congress in defense of their rights in a wonderful reservation set apart for the use of all the people -- indeed, of the whole world. The current trend of public opinion is unmistakably and overwhelmingly in favor of conserving what we have of natural beauty. The municipal government can destroy in six months the wondrous attraction which it has taken nature unnumbered centuries to produce. Were its destruction necessary to save the there would be a reason for it, but audacity itself would not go so far as to make such a claim. Let San Francisco go elsewhere for water -- to regions where it can be had in abundance and of pure quality without the destruction of one of God's masterpieces.

2 (c)

I beg this honorable committee also to pause and reflect how far-reaching and perilous is the precedent set by this action of Secretary Garfield. It places the great treasures of scenery, the care of which should be a trust for the civilized world, at the mercy of any similar demand. The whole country is aroused to our wastefulness and neglect of such treasures, and the whole country, when it comes to understand the meaning of this bill, will be shocked at the proposition to throw to the wolves so fair an offspring of Creation as the Hetch Hetchy. As one who has spent twenty years of unremitting work on the conservation side of the forest problem, I beg this committee not to throw its influence on the destructive side. In his message of the current month the President has set up the right standard both for his own action and that of the country in saying of the Yellowstone Park: "This, like the Yosemite, is a great wonderland, and should be kept as a national playground. In both all wild things should be protected and the scenery kept wholly unmarred."

All of which is respectfully submitted,
Robert Underwood Johnston.


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