2. Values Measured in Acre-Feet

IN THE STORY of Powell’s fight against the dragons of error, backwardness, and unchecked exploitation it is fairly inevitable that Senator Stewart should get cast as one of the chief dragons. But he was a dragon of a classical frontier American breed.1 Everything that he ever was he owed to his dear mother; everything that he ever did he could justify. In the course of twenty-nine years in the United States Senate he did a good deal, some of it sound. He helped write the Fifteenth Amendment to the Constitution and he supported the Morrill Act that created the land-grant colleges, he promoted western irrigation and fought for the remonetization of silver. Some of his quarrels, such as that with Charles Sumner over reconstruction bills, made him look momentarily honorable. His capacity to claim credit for anything useful that Congress did during his term of office was large.

Robust, aggressive, contentious, narrow, self-made, impatient of “theorists,” irritated by abstract principles, a Nevada lawyer, miner, Indian-killer; a fixer, a getter-done, an indefatigable manipulator around the whiskey and cigars, a dragon whose cave was the smoke-filled room, Big Bill Stewart was one to delight a caricaturist and depress a patriot. But he was also, in his way, a man of faith: he believed in Western “development,” and he believed in the right of men — himself among them — to get rich by this “development.” He was a man of a hard, driving strength, a formidable partisan. The water that was life to his state, both for agriculture and for mining, had to come from the mountains, and to bring it from the mountains meant dams and ditches. Before he ever took up the law or entered politics, Stewart had built ditches and brought water to mining camps, and he thought he knew how it should be done. Now that sites for reservoirs were being picked off and water appropriated at the heads of the streams, some of Stewart’s constituents down below were beginning to suffer, and the possibilities of settlement in the valleys, the hope of new voters and new votes and new powers, were threatened. It was primarily to promote water development in Nevada that Stewart had been returned to Washington. He was not one to hesitate before difficulties or to look past acts toward consequences. Ask for a half million the first year, he kept telling Powell. Get after it. Get it done.

Major Powell was quite as willing to hurry as Stewart was, but he had a better eye for the difficulties and he looked farther ahead. He said there were not enough trained men available, and he was right — not to do the thing he had in mind. He felt that he was now directed, or empowered (there was a subtle difference) to do something far more comprehensive than the hasty reservation of obvious sites that Stewart contemplated. That simple job he could have begun at once, working from maps in his office. But here before him was the opportunity of his life, the massive and complex problem of planning for the West whose parts meshed in an intricate system. And here was he with twenty years of experience and knowledge, every bit of which could be applied to the problem as an engine’s power is applied to the axles. The action of Congress, stimulated by Stewart and Teller, had shifted him into gear, and he was not now going to be content with making a humming noise or moving pistons meaninglessly up and down. He was going to turn wheels.

The advent of the irrigation agitation was an advertisement of the value of his topographical maps; but the Geological Survey had completed only fragments of the atlas and no adequate sheets existed for millions of acres of the land included under the Irrigation Survey. The job was threefold, as Powell saw it. He had to complete the topographical mapping, make a survey of reservoir sites, catchment basins, stream flow, canal lines, and the lands to which water could most economically and efficiently be brought, and conduct an exploratory engineering survey to determine the practicability of headworks and canals. To some degree the three activities could go on simultaneously.

Six or seven years, six or seven million dollars, he had estimated. Much of the expense could be written off against the topographical work already under way: what the Irrigation Survey mapped the Geological Survey would not have to map later. The classification of the public lands, too, was a thing he had been concerned with since the mid-seventies, and he had had the old Powell Survey working on hydrography just as early. It was now as if the old Powell Survey had been re-formed within the framework of the Geological Survey, for in the beginning Dutton and Thompson were almost the only trained men he could lay hands on. He pulled Dutton off his studies of volcanoes and earthquakes and set him to training a corps of water engineers at Embudo, on the Rio Grande in New Mexico. And Thompson, within a few weeks of the passage of the Sundry Civil Bill which provided funds, had parties triangulating in Montana, Nevada, New Mexico, and Colorado. In the office, all the available maps came out, and draftsmen began inking among their contours the reservoir sites that could be located without further survey.

The field season of 1888 was largely preliminary, organizational. At the beginning of 1889, outlining his plan of the year’s operations to the Secretary of the Interior, Powell asked for $350,000 for the Irrigation Survey.2 As yet he had attempted no segregation of lands as irrigable and had designated no reservoir sites. Both operations waited upon the topographic and hydrographic work, and the segregation of lands was further delayed by the job of checking titles through the General Land Office records. But though he could not report great progress in the practical work, it is clear that he had been pondering the implications of the survey which had been put into his hands, and he was led to speculate on the questions of land policy involved.

How, he asked, should the irrigable lands be disposed of, once they were mapped and designated? The present multiple system of laws, far from helping settlers, might lead them into error and failure. Left to themselves, settlers naturally selected lands high up, where the streams were small and could be diverted by minimum labor; they would use on one square mile of marginal land the water that would irrigate four times as much better land farther down. They would select their land for personal gain or convenience rather than for the common interest. “Under these circumstances it would seem wise either to provide that the waters of the streams and reservoirs shall belong to the segregated lands, or to repeal the clause which provides that they can be settled only under the homestead laws. The effect of the last provision would be to make the ultimate choice of lands optional with the settler in each case, and the value of the official selection would be in giving to the settler the necessary information upon which his judgment could be formed.” The survey, in other words, could be thought of as simply an informational matter, without in any way inhibiting the freedom of choice of the settler.

On the other hand, it might be something vastly different. “Again, it might be wise to temporarily suspend or possibly repeal the ... pre-emption laws, desert land laws, and the timber-culture laws, in their application to the arid lands, and to let the homestead laws remain, to be improved from time to time as circumstances demand. With a degree of misgiving the Director begs permission to suggest as his own opinion that the best solution of the problem under the present circumstances is to withdraw all the lands of the arid region from ‘sale, entry, settlement, or occupation’ except those selected as irrigable lands, and to allow titles to irrigable lands to be acquired only through the operation of the homestead laws and the desert-land laws.”

Now he was talking about something far more than a survey. He was talking about a policy, and a sweeping one. He was proposing to close, apparently forever, a great part of the remaining public domain, and to bring to a close, except within the irrigable lands, the agricultural expansion which had been part of the national expectation for almost a century. And even within those irrigable lands which would still be open he was implying a degree of strict federal control. Left to themselves, he said, settlers would choose their lands “for personal gain rather than for common interest.” The thought that the government had any business imposing respect for the common interest upon the individual would have set the Western dragons to breathing fire. Up to now, the General Land Office could content itself with tidying up the confusion that laissez faire squatting created, or pushing its grid of surveys outward in advance of foreseeable settlement. Major Powell now proposed (though not yet publicly) the end of laissez faire, the beginning of government supervision to prevent not only land and water monopolies but the danger of individual failure among settlers. In 1878 he had advocated co-operative control of irrigation by the settlers within a natural district. Now he appeared to assume that only federal intervention could be effective. Government should now say to pioneers what lands they could settle, and enforce its directives by control of the water. Settlers should now be limited in their anarchic personal rights and brought up sharp against a thing that until now few had bothered to consider: the common interest. The justification was the abiding aridity of the West. Indian and Spaniard and Mormon had all been ultimately forced to community morality. Mutuality was a condition of survival. But community morality, especially if it was to be enforced by federal law, was a new and alarming notion in 1889, and especially in the West, and most especially among those Westerners devoted to the kind of “development” that Senator Stewart defended.

It would be a mistake to assume that Powell’s notions could have found no popular support. They might have found a good deal in 1889, for “radicals” and “cranks,” the Farmers’ Alliance or the Populists, were beginning to mutter in terms close to Powell’s in their political and economic significance. Those cranks and radicals who had a large part in bringing the initiative, referendum, recall, woman suffrage, and the Australian ballot into our political system were already turning for help to the only power which was apparently able to resist or control the railroads and the trusts. Precisely at this time, as Frederick Jackson Turner points out, “the defense of the pioneer democrat began to shift from free land to legislation, from the ideal of individualism to the ideal of social control through regulation by law.” 3 But this influence, after a brief triumph in the elections of 1892,4would be considerably delayed in its effects, and for a long time the man who thought in these terms would remain a crank and a crackpot. Alexander Agassiz was not the only rugged individualist left in America, and science not the only activity with its shibboleths of personal initiative. The myths surrounding free land were among the most durable the nation ever developed. And the slow bending of institutions to fit the conditions of the arid West — a bending which included inevitably a growing amount of federal “welfare” legislation — has been so truly glacial in its slowness that it was still a symbolic campaign issue in 1952, and may be for many elections to come. Antithetical political philosophies can clash as appropriately on the battlefield of the Hungry Horse dam as on any other.

Fortunately for Major Powell, no one heard him proposing revolution except Secretary of the Interior Vilas, who was largely in sympathy with his views. And though Congress did not give Powell the $350,000 he asked for, it did give him a quarter of a million in March, 1889, and that appropriation allowed him to expand and to push the work that had been begun the fall before. There was a kind of red-letter day when he designated his first reservoir site on April 6; 5 and a kind of appropriateness in the fact that the first one designated was a symbol of the old and passing West. It was Bear Lake, the old trapper rendezvous in the Utah-Wyoming-Idaho comer. Quite as symbolically apt, in its way, as the choice itself, was the fact that the surveyors had hardly lugged their plane tables into the lake basin before speculators were posting notices and filing claims. The common interest was not yet a thoroughly understood doctrine, except among those actively trying to protect it.

Ignore works already installed or planned by private enterprise, Powell wrote Dutton.6 Conceive unified plans for whole irrigation districts, without regard to the limited and perhaps interfering works already there. Plan maximum irrigation at minimum expense for the maximum number of people. “It is to be borne in mind,” Powell wrote, “that this survey is not primarily designed for the benefit of private parties who may contemplate the construction of works, though if they should incidentally derive benefit therefrom it would be a matter of congratulation.” One of the principal purposes to which Powell called his assistant’s attention was “to guide the development of agriculture in the greatest practical area” and to prevent the hardship resulting from ill-considered settlement and the failure of homesteaders on family-sized farms.

To serve the common interest as he thought it should, the survey had to be accurate, and that meant it moved more slowly than the impatient wanted it to. And though the designation of reservoir sites did move along at some speed after the first selection of Bear Lake, it seemed that half the sites designated brought trouble. He had hardly named Clear Lake, California, before local residents began writing their Senator, that same George Hearst who had demoralized the scorpion in Tucson. They feared for their vested rights, they worried that inchoate titles could not now be perfected. Protests of these kinds would become commoner as the survey proceeded. Powell soothed them with assurances 7 that reservation would not interfere with either perfected or inchoate titles, but would merely prevent further filings. The reservation was only temporary anyway, and its only purpose was “to secure the site of the Lake as it now exists as a natural reservoir and to prevent it being destroyed for the purpose; and further to prevent the flooded lands around the lake and its arms and tributaries from being filed upon in order to sell relinquishments and rights to the public hereafter when the Lake is needed as a natural reservoir.” His assurances may not have satisfied Hearst’s constituents, some of whom may have had in mind just such profitable relinquishments. Still, the trouble over Clear Lake was trifling by comparison with what erupted on the Rio Grande.

Properly speaking, it was not Powell who first proposed to dam the Rio Grande, but Major Anson Mills; when Mills came to the War Department with his proposals, the War Department referred him to Powell, who empowered him to study the problems and possibilities of a site just above El Paso.8 That was even before the passage of the Sundry Civil Bill that in October, 1888, gave funds to the Irrigation Survey; as soon as the funds were available, Powell made Mills a supervising engineer under E. S. Nettleton. It was apparently the intention of all concerned to push for government construction of the dam. But in the midst of the preliminary studies, Mills was detached to investigate a water row at Fort Selden, in New Mexico. There the War Department had granted a canal company a charter to build a ditch across the reservation, but the Mexican farmers, seeing that the new ditch would cut across their own and put them under the control of the new company, threatened to rise in arms. Mills, Senator Reagan of Texas, and other investigators satisfied themselves that the whole scheme was an unprincipled grab, and they so testified at a hearing in Washington on February, 1889. The War Department revoked the canal company’s charter, and thereby earned for all the federal irrigation forces the ferocious enmity of men who had been hurt in the pocketbook. W. H. H. Llewellyn, the representative of the canal company, went back west after leaving a note like a challenge to a duel at Mills’ hotel:

“Dear Major:

I have wired Messrs. Davis and Morehead to have their people keep out, that if there is no new ditch at Las Cruces there will be no new dam at El Paso.”

That posed the fight in its most naked terms: local interests against the public interest, and it not only marked the beginning of a dreary and celebrated dispute, but set a pattern for others just as dreary and just as celebrated. The irrigation forces went ahead with their plans. Mexico laid claim by prior right to the waters of the river. Negotiations finally resulted in an acceptable compromise which was written into a bill introduced into both houses of Congress, appropriating funds for the construction of the El Paso dam and granting Mexico half the water in exchange for the relinquishment of its claims.

It could easily have been the first and most important step of the United States government into large-scale reclamation and multi purpose control of the great western rivers. But Llewellyn’s threat had not been an idle one. Before the bill could pass Congress, entrepreneurs led by Dr. Nathan Boyd obtained a charter from the willing legislature of the Territory of New Mexico, giving them the right to build a dam at Elephant Butte, one hundred twenty-five miles upstream. So now the dispute was brought past the stage of conflicting claims, and was brought to the stage of conflicting authorizations by law. There, all complete, was the whole tangled mess of rights and claims and jurisdictions. Instead of quarreling with the government of Mexico about the Rio Grande waters, the United States government had sensibly compromised. But it had no such chance with its own rebellious territory, for New Mexico said it owned the river within its boundaries and would dam it where it pleased. There was no court decision which ruled otherwise. Before the local entrepreneurs could be prevented from hogging the waters of the river and invalidating the federal government’s pledged agreement with Mexico, the case would go three times to the Supreme Court. And when the Reclamation Bureau finally did dam the Rio Grande, many years later, it would choose the Elephant Butte site. There never has been a dam at El Paso.

This controversy that arose in the very first months of the Irrigation Survey would take years in the settling, and even then would not provide a clear precedent upon which future disputes could be decided. Like the federal land laws, the water laws would be a patchwork of improvisations, compromises, state law and federal law, interstate agreements and agreements between states and the federal government, riparian rights, appropriation rights, preferential uses, the Wyoming doctrine of tying water rights to land titles, the notion of canal companies not as owners but as common carriers like railroads — a tedium and a headache and a complicated and special branch of the law throughout the West. The “California doctrine,” which holds that in surrendering certain political rights on the admission of a state the United States Government does not surrender ownership of the flowing streams, has yet to be weighed in the Supreme Court against the “Colorado doctrine” that the state on admission acquires all rights within its territory not specifically withheld by the constitution.9

No answers, only increasingly pressing questions. Before ever the Rio Grande trouble had burst, Powell had been asked by Congress to comment on how the upstream and downstream rights on the Platte and Arkansas should be adjusted between the citizens of Colorado, Kansas, and Arkansas. Having no law to base an opinion on, he had contented himself with pointing out how the available waters could be most economically distributed and used. The legal question he had to refer to the courts.

It was easy enough for his engineers to work out the best general plan for any district or watershed, but it would be very much harder to apply the plan, with existing water rights on almost every stream, many of them wasteful, and with the state-ownership doctrines of many states permitting water companies to defy federal direction or control. As reservoir sites were reserved, the federal control of the situation would grow. And yet too great haste could lead to carelessness, error, the necessity of later duplication of the surveys. Powell was constantly forced to compromise between his view of the inclusiveness of the job and his sense of how urgent it was that something be done fast.

He had been in the irrigation business nine months, had selected about one hundred fifty reservoir sites and approximately thirty million acres of irrigable land, and had the General Land Office full of his clerks checking records of title so that the selected lands could be withdrawn from settlement, when on July 5 he was invited by Senator Stewart to make a western tour with the Irrigation Committee of the Senate.10 Presumably he went not only to refresh his information but to do what he could as a missionary, to explain to Westerners the broad needs of their region and the ways in which the survey hoped to serve them. Political considerations were not missing, for in that summer of 1889 five of the western territories most affected by irrigation needs were holding constitutional conventions and their admission as states was assured within a year or two.

On the last of July, when Stewart and Reagan both preached irrigation and free silver to the South Dakota convention, Powell had not yet joined the group in person, though his ideas were multitud inously present in Senator Stewart’s speech, and without sufficient quotation marks.11 By August 5 Powell had joined the committee. They addressed the North Dakota convention in Bismarck on that day, and Powell gave the delegates some home thoughts on water. Eastern Dakota, he said, nearly always had enough rain, central Dakota sometimes did, and western Dakota practically never did. Both the eastern belt, with adequate rainfall, and the western, which had to depend completely on irrigation, were safe. The danger lay in the middle, where if farmers did nothing to utilize the streams and artesian wells and storm-water reservoirs they could make up their minds to cyclic disasters of the kind they were experiencing now. He meant that central Dakota was what the British in India called a “famine belt,” though he had the political sense not to use that phrase at that place and time. When rain failed in a region that had made no preparations against drouth, failure was complete.

It therefore behooved the delegates to write the new state’s constitution with a view to conserving water and preventing the monopolization of the life that ran in the streams. On the critical question of state and federal rights he said nothing definite: he only advised the delegates to learn something from California or Colorado, either one, so that North Dakota’s own water laws would be clear. And he told them again, as he had been telling the hopeful for fifteen years, that the climate was not changing. Nothing that man could do would change the climate materially. They would have cyclic drouths, and they had better prepare for them.12

It was not a spread-eagle speech, but it probably represented in its earnestness and the honesty of its convictions the highest pitch of eloquence Powell was capable of. His heart was still in the irrigation struggle, and the battle could still be won.

While he was telling North Dakota what was good for it and urging it to make maximum use of its streams, the North American Review published a Powell article 13 (the source of Senator Stewart’s learning) pointing up the lessons of the Johnstown flood. It said what only an ethnologist might have been expected to know: that agriculture developed first in arid lands, that irrigation agriculture was historically the first agriculture worthy of the name, that on the Indus and the Tigris-Euphrates and the Nile, as well as in the American Southwest, stable civilizations had built themselves on the necessity of controlling streams for irrigation. The only truly agricultural American Indians were desert Indians living in areas where agriculture might have been thought impossible. There was the full hope and expectation, therefore, that the American West would become one of the great agricultural regions of the world, but the hope was predicated on wise use of water and control of the rivers. The Johnstown flood, which had told many Americans that it was fatally dangerous to dam rivers, told Powell something quite different: that it was essential to know in advance all the conditions and specifications of the engineering job. The lesson was one in intelligent surveying and planning. The Johnstown flood was actually the most eloquent justification of the long-range and careful preliminary work that his survey was then engaged in.

The Major did not let his whole plan out of the bag in a single speech or a single article, but distributed it. At Helena, where he spoke to the Montana convention four days after the Bismarck speech, he showed another and more political side of it.14 He spoke, he said, as an old-time Westerner, not as a politician. But as an old-timer in the West he knew how badly the institutions of the humid regions matched Western conditions. Montana had 35,000,- 000 irrigable acres, 35,000,000 acres of mountains useful chiefly for their minerals and timber, and 20,000,000 acres of range. Those figures alone had profound institutional — and hence political — implications. Farmers on the irrigable acres needed to control the adjacent mountains, not merely for their timber but for their water-storage facilities, and for their potential exposure to erosion and floods and destruction of the watershed. The relations between mountains and plains was so close that the two should not be politically separated. And on the strength of that relationship and of the abiding importance of water (“all the great values of this territory have ultimately to be measured to you in acre feet”) he made a set of proposals.

What he suggested was so radical that it could not possibly have any effect on the delegates, so rational that it could not possibly come to pass short of heaven, so intelligently reasoned from fact that it must have sounded to Montana’s tradition-and-myth-bound constitution-makers like the program of a crank.

He proposed simply to organize the new state of Montana into counties whose boundaries would be established by the divisions between hydrographic basins rather than by arbitrary political lines drawn on the map. Such basins, already being plotted out in Montana as in other parts of the West by his survey crews, were natural geographical and topographical unities; they might be given political and economic unity as well. Within any drainage basin, timber, grazing, and agriculture were all tied together by the controlling element of water. Suppose local self-government were established within each basin; suppose the federal government ceded to each basin-county all the public lands within its limits, suppose water rights within those limits should be established by locally elected water-masters and enforced by local courts. That way, they could lessen and perhaps eliminate litigation, friction, water-wars, multiplying costs. If it chose, Montana could organize itself and set a pattern for all the still-forming states of the West.

He told them how they might do it, though he could even then have had only the smallest and most wistful hope that they or any other western territory would match their political and economic organizations to the facts as revealed by his survey and to the most economical general plan of reclamation. Somewhere in Major Powell’s small, maimed, whiskery person there burned some of the utopian zeal of Brook Farm and New Harmony. His vision of contented farmers controlling their own timber, grass, and water clear to the drainage divides, and settling their problems by an extension of the town meeting, is touched with a prophetic, perhaps a pathetic, piety. Science and Reason have always been on the side of Utopia; only the cussedness of the human race has not. In Montana the race was as cussed as elsewhere. It went ahead and organized the new state according to the tried and true patterns of more than a hundred years, with county lines marking none but the political drainage basins, and county seats competitively chosen in the atmosphere of deal, coup, and horse-trade. The water that was the state’s lifeblood was not neglected, but its control was left open to franchise and purchase and grab, and its management confused by four dozen illogical political dividing lines.

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